March 30, 2020

District of Columbia v. Wesby

FOURTH AMENDMENT

Are Officers Liable for an Arrest in Violation of the Fourth Amendment When They Lacked Direct Evidence that the Suspects Intended to Violate the Law? 

CASE AT A GLANCE

Police officers responded to a complaint of illegal activities taking place at a house party in the District of Columbia. Partygoers told the officers that they had the owner’s permission to enter the house. But the owner of the house and the soon-to-be tenant of the house (who were not present at the house) both told the officers that they did not. The officers arrested the partygoers for unlawful entry. Many of the partygoers sued the officers and the District of Columbia for unlawful arrest in violation of the Fourth Amendment.

Docket No. 15-1485
Argument Date: October 4, 2017
From: The D.C. Circuit
by Steven D. Schwinn
The John Marshall Law School, Chicago, IL

INTRODUCTION

In order to make a lawful, warrantless arrest, an officer must have probable cause to believe that the suspect has committed or is committing a crime. In this case, the officers had to have probable cause to believe that the partygoers committed an unlawful entry. And because a conviction for unlawful entry includes an intent requirement—that the suspects intended to enter unlawfully—the officers’ probable-cause determination must also take into account the suspects’ intent. The parties dispute whether the officers could establish probable cause without direct evidence of the suspects’ intent, and, even if they could not, whether they enjoy qualified immunity from civil liability for the violation.

ISSUES

  1. Did officers have probable cause to arrest partygoers for unlawful entry, where the partygoers believed that they had permission to be in the house, but the owner denied this? 
  2. Are the officers entitled to qualified immunity, even if they lacked probable cause to believe that the partygoers intended to trespass?

FACTS

In the early morning hours of March 16, 2008, D.C. police officers, including officers Anthony Campanale and Andre Parker, responded to a complaint of illegal activities taking place at a house party in Washington, D.C. As the officers approached the house, they heard loud music and, through a first-floor window, saw one occupant run upstairs. After the officers knocked and entered through the front door, some of the other occupants scattered into other rooms. The party goers dispute how fully the house was furnished, but officers saw at least some folding chairs and a mattress, and the electricity and plumbing were working.

Upon entry, officers saw some of the occupants behaving in a way that they viewed as consistent “with activity being conducted in strip clubs for profit.” In particular, officers saw several scantily clad women with money tucked into their garter belts, and “spectators… drinking alcoholic beverages and holding currency in their hands.” They also smelled marijuana, although they observed no drug-related activity.

Officers interviewed the partygoers to find out what they were doing at the house. The partygoers gave conflicting responses, some saying that they were there for a birthday party and others saying that they were there for a bachelor party. But nobody could identify the guest of honor. One occupant told Campanale that a woman named “Peaches” gave them permission to be in the house (although Peaches was not at the house herself, because she feared that she would be arrested). Others told officers that they had been invited by another guest.

Parker learned from one partygoer that Peaches “was renting the house from the grandson of the owner who had recently passed away and that [the grandson] had given permission for all individuals to be in the house.” Parker then talked with Peaches on one of the partygoers’ cell phones. Peaches told Parker that he could “confirm it with the grandson.” Parker used the same cell phone to call the apparent owner, identified only as Mr. Hughes. Mr. Hughes told Parker that he was trying to work out a lease agreement with Peaches, but that the people in the house did not have his permission to be there.

Sergeant Andre Suber, a supervisor who was acting as the watch commander that night, arrived on the scene after the officers had begun their investigation. Suber also spoke with Peaches by phone. Peaches told Suber that “she was possibly renting the house from the owner who was fixing the house up for her” and that she “gave [permission to] the people who were inside the place, told them they could have the bachelor party.” Peaches acknowledged, however, that she did not have permission to use the house. Upon hearing this, Sergeant Suber ordered the officers to arrest all 21 occupants of the house for unlawful entry.

Officers arrested and transported the partygoers to the police station. After speaking with a representative from the D.C. Attorney General’s office, a lieutenant (who had taken over as watch commander) decided to change the charge from unlawful entry to disorderly conduct. (Suber disagreed with this decision, but the lieutenant overruled him.) The officers at the house testified that they had neither seen nor heard anything to justify a disorderly conduct charge.

Sixteen of the partygoers sued five officers for false arrest in violation of the Fourth Amendment, the officers and the District for false arrest under common law, and the District for negligent supervision. The district court granted summary judgment to the plaintiffs on their claims of false arrest against Campanale and Parker, and on the common law false arrest and negligent supervision claims against the District. The court entered a $680,000 judgment against Parker and Campanale, and jointly against the District for the common-law torts. The court separately ordered Parker and Campanale (but not the District) to pay attorneys’ fees.

The United States Court of Appeals for the D.C. Circuit affirmed (with one judge dissenting), ruling that the officers violated the Fourth Amendment and that they were not entitled to qualified immunity. The D.C. Circuit later denied rehearing en banc (with four judges dissenting). This appeal followed.

CASE ANALYSIS

In order to make a lawful, warrantless arrest, an officer has to have probable cause to believe that the suspect has committed or is committing a crime. Probable cause is based on an objective standard; it looks to the beliefs of “a prudent [person]” based upon “the facts and circumstances within [the arresting officer’s] knowledge” “at the moment the arrest was made.” Beck v. Ohio, 379 U.S. 89 (1964). Probable cause “does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 470 U.S. 143 (1972). Instead, it only requires some evidence supporting each element.

In this case, the officers charged the plaintiffs with unlawful entry under District law. Unlawful entry requires the government to prove that the accused entered or attempted to enter public or private property without lawful authority and against the will of the lawful occupant or owner. Moreover, the government has to prove that the accused intended to so act—that is, that the accused knew or should have known that they entered the property against the will of the lawful owner. In other words, the government has to prove that the accused acted with the requisite mental state, or mens rea.

The parties dispute whether the Fourth Amendment required the officers to establish separate probable cause for the mental-state element of unlawful entry. The officers contend that the Fourth Amendment required only that they had probable cause based on the totality of the circumstances and for the crime as a whole. The plaintiffs, in contrast, assert that the Fourth Amendment required that the officers establish more particular probable cause for each separate element of the offense, including the mental-state element. 

Irrespective of any actual violation of the Fourth Amendment, the parties further dispute whether the officers were entitled to qualified immunity for the arrests. An officer is entitled to qualified immunity, despite having violated the Constitution, if the officer did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). The officers assert that any requirement to establish probable cause for the mental-state element was not clearly established at the time of the arrests, while the plaintiffs say that it was.

As to the Fourth Amendment claim, the officers argue that, viewed from the perspective of a reasonable officer at the scene, the facts established probable cause to arrest the plaintiffs for trespassing into a private home. They claim that they encountered an unauthorized, late-night party at an unfurnished home that was supposed to be vacant and looked unattended. They say that the party involved illegal activities that are associated with trespassing; that the partygoers fled and hid as they approached; and that the partygoers were evasive and inconsistent when they tried to explain their presence. Moreover, the officers assert that Peaches was also inconsistent in her story; that she refused to come to the scene; and that she lied that she had the owner’s authority to invite the partygoers to the house before she admitted that she did not have authority. Based on all this evidence, the officers contend that “[a]n experienced officer using common sense could reasonably think [the partygoers] knew or should have known that they were trespassing,” and that “there was a fair inference that [the partygoers and Peaches] had shared pertinent knowledge to further their common interest.”

Against these facts, the officers argue that the D.C. Circuit wrongly required the officers to credit the plaintiffs’ dubious claim that they believed that they had permission to be at the house. The officers say that the Fourth Amendment cannot require officers to believe suspects’ claims about their mental state in the face of contradictory facts, or else suspects could easily avoid seizure by simply lying about their mental state. The officers also contend that the D.C. Circuit wrongly required them to assess probable cause separately for each element of the crime and to predict the way a court would rule. In fact, they say that the Fourth Amendment “requires just a fair probability of guilt on the offense as a whole.”

As to qualified immunity, the officers argue that the arrests were not clearly unconstitutional. They claim that relevant court decisions under similar facts supported arrests and even convictions. And they point to the four dissenting judges from the motion for an en banc rehearing as evidence that “there was at least arguable probable cause.”

(The government weighed in as amicus curiae in favor of the officers and made substantially similar arguments.)

The plaintiffs counter that the officers lacked probable cause to arrest them, because the officers could not reasonably have concluded that the plaintiffs had a culpable mental state, that is, that they knew that they were trespassing. The plaintiffs contend that under the probable-cause requirement, an officer has to have “at least some evidence supporting each element of a crime.” They say that District law requires a mens rea element for the crime of unlawful entry and that the mental-state element is no different from any other element for the purpose of establishing probable cause. As a result, they say that the officers had to have “at least some evidence that [the plaintiffs] knew or should have known that they entered the house against the will of the lawful occupant or owner.” 

The plaintiffs claim that the officers cannot show this. They assert that, at most, the officers only knew that “they were invited guests at a standard, though debauched, house party in a cheaply furnished house in a poor neighborhood.” The plaintiffs claim that this simply is not enough to establish probable cause that they committed a crime.

Because the officers “could not reasonably have concluded they had probable cause to arrest for unlawful entry,” and because they in fact lacked probable cause, the plaintiffs argue that the officers were not entitled to qualified immunity, and that the lower courts properly granted and upheld their motion for summary judgment on the officers’ liability. But “[a]t a minimum,” they say, the Court should remand for a trial, because the officers’ “cross-motion for summary judgment relies on a host of disputed facts that, when resolved in [the plaintiffs’] favor, preclude a finding of probable cause.” 

SIGNIFICANCE

This case tests the standard for probable cause as applied to the mental-state element of a suspected crime. In particular, it asks whether arresting officers must have separate and independent probable cause of a suspect’s mental state based on direct evidence, or whether they can establish probable cause based only on circumstantial evidence, and, if the latter, whether they had probable cause in this case. 

On the one hand, the officers and the government tell us that officers frequently establish probable cause of a mental state based only on circumstantial evidence and by viewing the evidence in its totality. That’s because suspects rarely confess, upon arrest, to having a guilty mind, and because they can easily lie about it. As a result, if officers had to rely only on direct evidence of a mental state to establish probable cause, officers could have a much harder time doing their job.

On the other hand, the mental-state requirement for any crime is an essential element, just like any other element of the crime. And just as officers must have some evidence of each element in order to establish probable cause, they should have some evidence of the mental-state element, too. Relaxing this requirement by permitting officers to use only circumstantial evidence could allow officers a freer hand in arresting suspects who legitimately do not intend to commit a crime and who, therefore, cannot be convicted. The plaintiffs in this case are a perfect example, if, indeed, they legitimately thought they had permission to be at the house. 

Given that the lower courts resolved this fact-intensive case on summary judgment, without the benefit of a trial, it seems likely that the Court will issue instructions on how officers can assess probable cause for the mental-state element of a crime and remand the case for further proceedings.

Steven D. Schwinn is a professor of law at the John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at sschwinn@jmls.edu or 312.386.2865. PREVIEW of United States Supreme Court Cases, pages 18–20. © 2017 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner District of Columbia (Todd Sunhwae Kim, 202.724.6609)
  • For Respondent Theodore Wesby (Nathaniel Peardon Garrett, 415.626.3939)

AMICUS BRIEFS

In Support of Petitioner District of Columbia

  • Utah and Twenty-Five Other States (Tyler R. Green, 801.538.9600)
  • National Association of Counties; the National League of Cities; the U.S. Conference of Mayors; the International City/County Management Association; the International Municipal Lawyers Association; and National Sheriffs’ Association (John J. Korzen, 336.758.5832)
  • United States (Jeffrey B. Wall, 202.514.2217)

In Support of Respondent Theodore Wesby

  • American Civil Liberties Union and American Civil Liberties Union of the District of Columbia (Andrew J. Pincus, 202.263.3000)