Malley v. Briggs

PETITIONER:Edward Malley and Rhode Island
RESPONDENT:James R. Briggs and Louisa Briggs
LOCATION:Rhode Island District Court

DOCKET NO.: 84-1586
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 475 US 335 (1986)
ARGUED: Nov 13, 1985
DECIDED: Mar 05, 1986
GRANTED: May 28, 1985

ADVOCATES:
Ann M. Sheadel – on behalf of Petitioners
Leonard Decof – on behalf of Respondents

Facts of the case

In December 1980, the Rhode Island State Police force was conducting an authorized wiretap on the telephone of Paul Driscoll. On December 20, the police intercepted two phone calls from an unknown source that made reference to marijuana use that had occurred at a party the previous night at the Briggs’ residence. Edward Malley was the police officer in charge of the Driscoll investigation, and on the basis of these two calls, he drew up felony charges for the Briggs. The charges were presented to a state district court judge in February 1981, and the judge signed warrants for the Briggs’ arrest. The Briggs were arrested in their home on March 19, 1981, and taken to a police station where they were booked and held for several hours before being released. When presented to a grand jury, the charges were dropped.

The Briggs sued Malley in district court and alleged that his application for the warrants for their arrest violated their Fourth and Fourteenth Amendment rights. After the evidence was presented to the jury, Malley moved for a direct verdict, which the district court granted. The district court held that it was judge’s signing of the arrest warrants that was improper and that an officer who believes that he is acting on correct information is entitled to immunity from prosecution. The U.S. Court of Appeals for the First Circuit reversed and held that an officer is not entitled to immunity unless the officer had an “objectively reasonable” basis to believe that the alleged facts are sufficient to establish probable cause for an arrest warrant.

Question

Is a police officer entitled to immunity when he causes an unlawful arrest by presenting a judge with an application for a warrant that does not present a probable cause?

Warren E. Burger:

We will hear arguments first this morning in Edward Malley against Briggs.

Ms. Sheadel, you may proceed whenever you’re ready.

Ann M. Sheadel:

Thank you, Mr. Chief Justice, and may it please the Court:

Today this Court is faced with the question of the extent of a police officer’s civil liability for damages resulting from an arrest made pursuant to a warrant which the police officer sought and obtained from a natural and detached magistrate.

Specifically, can a police officer who applied for and obtained an arrest warrant face civil liability for damages on the theory that he should have known that the facts recited in the affidavit submitted to the magistrate were insufficient to establish probable cause?

Warren E. Burger:

Ms. Sheadel, may I interrupt you just for a moment to announce that Justice Prennan will be delayed in arriving, but will participate in all the cases.

Ann M. Sheadel:

We ask this Court to find that a police officer cannot be amenable to suit in such a situation, but rather that he is in fact immune, from liability.

In this context, the police officer’s actions should be protected from suit for the same reasons, the same policy concerns, that have teen enunciated by this Court in its decisions regarding immunity and where to draw the line between immune actions and non-immune actions.

In deciding where to draw such a line, the Court has recognized that the answer must be found in a balance between the evils inevitable in either alternative, recognizing that in any balance drawn not all interests can be protected.

In such a balance, the Court has recognized that on the one hand it is trying to vindicate constitutional rights, while on the other hand it is trying to protect officials who are required to exercise discretion in fulfilling their duties.

In determining the extent of any such immunity, the Court has considered two factors.

The first factor considered by the Court has been the function performed by the official in question and the historical extent of the immunity that’s been granted to that function.

The second consideration has been the policies that exist in applying that immunity to the action at question.

In applying this standard to this case, the function that we’re examining is the function of police officer in applying to a magistrate for an arrest warrant, and the question then becomes should this function receive a full exemption from liability.

We believe that this function should receive a full exemption from liability.

Our primary argument about the functional analysis of the police officer applying to a magistrate for an arrest warrant is that the function that the police officer is performing is very similar to the function of a prosecuting attorney in placing information before a grand jury and asking the grand jury to find that probable cause exists and to indict.

Sandra Day O’Connor:

Ms. Sheadel, do you concede that the facts that were available here were not sufficient to justify the issuance of a warrant?

Ann M. Sheadel:

We would not concede that there was absence of probable cause in this case, Your Honor.

But we do not believe that whether or not this Court believes that probable cause existed would be determinative in the case.

Sandra Day O’Connor:

Well, if you would assume for a, moment that the facts were insufficient to amount to probable cause and if the warrant had issued and evidence obtained as a result of it, would the evidence be excludable in your view under the Leon case at trial?

Ann M. Sheadel:

Using the Leon case, it’s possible the evidence could be excluded.

Again, the Leon factors are such that it would require a very specific analysis of the situation in this case.

Sandra Day O’Connor:

Why should a different rule apply than in insulating the officer from any damage liability than the rule that would be applied for exclusion of evidence under Leon?

Why shouldn’t these two track each other?

Ann M. Sheadel:

We don’t believe that this Court has ever said that the two rules are synonymous.

In fact, in its analysis it appears that the Court has considered some different factors.

If in fact the rules were going to be synonymous, it would appear to us that it would question a magistrate’s immunity from civil liability because the magistrate is involved in the decision to issue the search warrant or the arrest warrant.

And if we were tracking the exclusionary rule, it would seem that, since the magistrate made a decision that shouldn’t have been made, then it would require some kind of analysis of the magisterial exemption from liability.

We believe that–

Sandra Day O’Connor:

But in Leon was there not some indication that perhaps deterrence is a valid objective if the police officer’s reliance on the warrant is objectively unreasonable?

Ann M. Sheadel:

–Yes, I believe that was indicated in Leon.

In the civil liability aspect, the Court has looked at the question of deterrence of one of the factors considered in whether or not immunity should be applied.

Instead of using the word

“deterrence, I think more often the Court will look at if there are adequate safeguards other than civil liability or if there are things the Court might call alternative remedies. “

“That has been a policy consideration of the Court in its civil liability analysis. “

What the Court has looked at whenever it has granted immunity to an official within the judicial process in deciding whether or not there are these alternatives available, the Court has considered such things as being within the judicial process and the checks and balances that are inherent in that process.

Byron R. White:

Well, if you were right on that immunity it wouldn’t make any difference what the objectives were, would it?

I mean, Leon would be irrelevant.

Ann M. Sheadel:

That’s right.

Byron R. White:

As far as your absolute immunity argument is concerned.

Ann M. Sheadel:

As far as the absolute immunity is concerned.

Byron R. White:

But your qualified immunity argument would certainly implicate that.

Ann M. Sheadel:

Yes.

Lewis F. Powell, Jr.:

May I just ask this question.

Didn’t the trial judge, the state trial judge, find there was probable cause?

Ann M. Sheadel:

There was no finding made on probable cause, Your Honor, at all at the trial level.

Lewis F. Powell, Jr.:

What did the appellate court in the State of Rhode Island find?

Ann M. Sheadel:

The case went before the First Circuit Court of Appeals and the First–

Lewis F. Powell, Jr.:

Directly from the state trial?

Ann M. Sheadel:

–It was not a state trial.

It was a trial in the federal district court.

Lewis F. Powell, Jr.:

Federal district court all the way.

Ann M. Sheadel:

Yes.

And then it went to the First Circuit Court of Appeals.

The First Circuit made one statement in its opinion that probable cause was lacking, but it did not elucidate on that or go into any detail on why it made that decision.

Lewis F. Powell, Jr.:

But the state trial judge actually approved the issuance of the complaint, didn’t he?

Ann M. Sheadel:

Oh, yes the arrest warrant was approved by the state judge, yes, Your Honor.

Lewis F. Powell, Jr.:

And didn’t the face of the warrant disclose the substance of the wiretap evidence?

Ann M. Sheadel:

Yes, it did.

It disclosed everything that had been recorded on the wiretap log.

Lewis F. Powell, Jr.:

And the state judge then commanded the arrest of the defendants, didn’t he?

Ann M. Sheadel:

Yes, he did, Your Honor.

William H. Rehnquist:

The First Circuit said that your client should have qualified immunity, is that right?

Ann M. Sheadel:

Yes, Your Honor.

It is our position that, using the Court’s analysis that the Court has traditionally used for absolute immunity, that in fact for the function that we’re talking about this Court should look to an absolute immunity standard.

We feel very strongly that the function performed by the police officer in this occasion was the function performed by the prosecuting attorney in asking the grand jury to indict.

That function has historically been granted absolute immunity and has been recognized by the courts.

We believe that these functions are very similar for several reasons.

First, both the prosecuting attorney and the police officer are required to use a discretionary judgment based on their evidence in their possession on where they’re going to take this case at this point.

The prosecuting attorney decides to go to the grand jury and ask the grand jury to decide if probable cause exists.

The police officer decides to go to the magistrate and ask the magistrate whether probable cause for arrest exists.

Both of these decisions put the question into the judicial proceeding, in two ways.

The first way is by putting that actual determination of probable cause into the judicial proceeding, asking a neutral and detached body in the judicial process to make that decision, the magistrate of course being the neutral and detached body that the police officer is seeking review from and the grand jury being the neutral and detached body that the prosecuting attorney is seeking review from.

The second way that it’s brought into the criminal proceedings is that if the grand jury decides to indict and if the magistrate decides to issue the warrant, criminal prosecution has begun and criminal proceedings have begun, with all of the checks and balances, all of the protections inherent in those criminal proceedings.

Therefore, we believe that this function of the police officer and the function of the prosecuting attorney are so similar that the immunity granted to a prosecuting attorney for the function that he performs should also be applied to the police officer in this situation.

We believe that the Court’s policy reasons for applying immunity also apply in this case.

In deciding whether or not to apply immunity, the Court has considered several policy factors, and we believe those policy factors can be summarized in three areas.

One area, the first area, is whether or not the action occurred within judicial proceedings.

The second is whether or not the action taken is likely to result in retaliatory lawsuits.

And the third is whether or not there are sufficient safeguards to establish the accountability of the official.

The Court’s policy concerns first center around whether or not the action occurs within the judicial proceedings.

In every case when the Court has granted any kind of absolute immunity, it has always been within the judicial process, except of course for that instance in which the President of the United States was granted immunity because of his very special and unique function in our system of government.

But in every other case, absolute immunity has been granted because of an action that has occurred within the judicial process.

The Court has stated that it is very concerned to make sure that the integrity of the judicial process is insulated from lawsuit, that the actors in the judicial process should be free to act on their own convictions without fear of damages liability.

The Court has encouraged and has stated the need for principled and fearless decisionmaking, wanting the official in question to put energy and effort into the duties of his office rather than diverting them to fight off lawsuits that may be filed.

The Court has felt that these interests are especially involved in the proper administration of justice and that there is a need to avoid the adverse effect in the functioning of the criminal justice system that less than this immunity would in fact allow.

We believe, of course, that this is inherent in the situation in this case because, as we have said, this instance, this action, is part of the judicial proceeding, the question and the issuance of the warrant being an integral part of the judicial process and any criminal proceedings that would–

John Paul Stevens:

Let me ask you a sort of a hypothetical question about the extent of your position.

You take a position that even were it might have been objectively unreasonable for the officer to apply for a warrant, that nevertheless he should be absolutely immune from civil liability, if I understand you correctly.

Ann M. Sheadel:

–That would be the full extent of the absolute immunity argument, yes, Your Honor.

John Paul Stevens:

That is your position, even assuming it’s objectively unreasonable.

We had a case on the certiorari list in which the claim was made that the officer went in to the magistrate and the magistrate in effect rubber stamped the application for a warrant.

He said: I’ve seen you many, many times before, officer whatever your name is, and I know you’re reliable; I don’t even have to read the application because I know your always going to… you’re not going to come in with an insufficient basis.

Would you say that if the record disclosed that kind of procedure that nevertheless the officer should be immune if he came in with a plainly insufficient warrant application?

And if so, why?

Ann M. Sheadel:

We believe that the Court’s analysis in civil liability would in fact give the officer in your hypothetical situation absolute immunity, for the same reasons that it has given the magistrate absolute immunity for that kind of function, or the same reason that it has given the prosecuting attorney absolute immunity.

The Court has not distinguished in those situations where a magistrate or a prosecuting attorney has done something that would be considered objectively unreasonable.

John Paul Stevens:

What if there are falsehoods in the application for a warrant?

Same immunity?

Ann M. Sheadel:

That’s a question that we have not asked the Court to directly address in this case, since it is not raised.

However, we understand that there would be concerns about this.

Again, looking at the traditional analysis, falsehoods would be absolutely immune.

We recognize that there are concerns with police officers that might not exist with prosecuting attorneys or judges about these falsehoods.

But again, looking at the traditional analysis we would say that in the traditional analysis the police officer should be immune.

If this Court did feel there were policy concerns because the police officer in fact is dealing with people in the community on a much more day to day basis than prosecutors or judges or had some other policy concern for that, we feel that that issue would not be addressed by this case and would not have to in fact be addressed by the Court to define the immunity situation in this case.

John Paul Stevens:

See, if I understand your position, you would give, you recognize that in Leon some of this evidence may be subject to the exclusionary rule, and you would give the guilty defendant greater protection by excluding the evidence than you will the innocent victim of this kind of police error, if I understand your position, by not equating the Leon test to this situation.

Ann M. Sheadel:

We would make a certain distinction between search warrants and arrest warrants.

But obviously, if a person is arrested and there were evidence that were found, the exclusionary rule might come into play.

But the liability on civil damages has always been seen as being different than the exclusionary rule.

The judge who issues the warrant, for example, may have been objectively unreasonable in the hypothetical that you just gave.

A judge who does not review the affidavit, but rubber stamps, could be seen to be objectively unreasonable.

But that has not changed this Court’s analysis in deciding that that judge should in fact have absolute immunity.

I think our system is based on the assumption that more often than not magistrates are going to be doing their job.

I think we have to base any rule that we come up with on the assumption that we have conscientious individuals, actors in the judicial process, that are in fact doing the job that they have been appointed or elected to do.

Warren E. Burger:

And from that I take it that you would say that if the magistrate fails to do his duty that failure can never be attributed to the police officer?

Ann M. Sheadel:

That is exactly our position, that it is the magistrate’s responsibility here to review the application for the arrest warrant.

Warren E. Burger:

Go ahead.

Ann M. Sheadel:

If the magistrate in fact does not do his job correctly or is objectively unreasonable, we would say that is something that is not the police officer’s fault.

The same reasons for insulating that magistrate, even though he may be objectively unreasonable, are the reasons for insulating other actors within the judicial phase of the proceedings, including we believe in this instance the police officer.

William H. Rehnquist:

What alternative… I’m sorry.

William H. Rehnquist:

Ms. Sheadel, Justice Stevens asked you if a guilty defendant would fare better than the innocent defendant under your test.

I take it any defendant, any criminal defendant suing, no matter what the fate of the evidence in his trial, would lose in a suit against the police officer under you test?

Ann M. Sheadel:

Yes, would lose for civil damages.

William H. Rehnquist:

Yes.

Ann M. Sheadel:

What this Court has recognized in its policy considerations for alternatives that are available, the Court has recognized that civil damages are not always available for a wrong that is done.

And when it has looked at alternative safeguards, it has said that it is looking not for an alternative that is functionally synonymous with civil damages, but looking to see what safeguards are inherent in the system.

One of those safeguards inherent in the system is in fact that you are part of the judicial system.

That is very important tn analyzing what kind of safeguards or remedies are available to the individuals in question.

We believe that the safeguards in this situation are the same safeguards that exist for a prosecuting attorney who may be objectively unreasonable in his presentation to the grand jury.

Thurgood Marshall:

Counsel, if we go that far is there anybody in the state side of the judicial process that is not immune, absolutely immune?

You’re starting with the judge.

You’re down to the policeman.

Is there anybody that you could get?

Ann M. Sheadel:

Well, i should clarify that we’re not asking for absolute immunity for every action that a police officer would take, but only for an action that we feel is so intimately involved in the process.

Thurgood Marshall:

Well, I thought you based your argument that he has the same immunity as the prosecutor.

Ann M. Sheadel:

Yes, Your Honor.

Thurgood Marshall:

Which is the same immunity that a judge has.

Ann M. Sheadel:

Your Honor.

Thurgood Marshall:

So that the policeman has the same immunity, as the judge has.

And my question is, is there anybody in the process that doesn’t have absolute immunity?

Ann M. Sheadel:

None that I can think of right now, because the Court has recognized absolute immunity for judges, prosecutors, grand jurors, witnesses.

And for this very limited function we’re saying that the police officer’s function is so a part of these proceedings that it should be granted the same kind of immunity.

Warren E. Burger:

Well, are you saying that the immunity of the policeman here is the derivative immunity from the judicial immunity of the magistrate?

He derives it because he’s executing an order of a judicial officer?

Ann M. Sheadel:

It could be seen as derivative, although we would prefer to call it the quasi-judicial immunity, the phrase that this Court has used whenever it has extended immunity within a judicial proceeding, saying that the immunity is considered to be quasi-judicial because it is of such a nature within the–

Warren E. Burger:

Is that any different from a derivative immunity?

He derives it from the judicial function.

Ann M. Sheadel:

–That’s correct, Your Honor.

He does in fact take it from the fact that he is part of–

Warren E. Burger:

So it isn’t an independent immunity of a policeman as such.

Warren E. Burger:

It’s an immunity of a judicial officer which is conferred upon the police officer because the police officer is doing what the judicial officer has told him to do; is that not correct?

Ann M. Sheadel:

–Yes, Your Honor, we would say that that is correct.

And beyond that, the police officer is doing what is constitutionally required and what this Court has directed it to do by going to the magistrate for the magistrate’s review.

John Paul Stevens:

Does your argument rest on the assumption that in filling out the application for a warrant that the police officer was just doing what the magistrate told him to do?

Ann M. Sheadel:

No, Your Honor.

That’s why I was continuing to say that I believe that the police officer in filling out the affidavit is doing what this Court has directed it to do.

If he has any question about probable cause or if he’s within circumstances in which he–

John Paul Stevens:

Has this Court ever directed him to do what was objectively unreasonable?

Ann M. Sheadel:

–No, Your Honor.

John Paul Stevens:

Perhaps false and deliberately misleading the magistrate, to be immune for that kind of thing?

Ann M. Sheadel:

Well, of course the Court has never directed anyone within the judicial process to be unreasonable or objectively unreasonable or false.

The Court obviously is directing people to act in what the Court defines as constitutional as required in the system.

But that directive never changes the analysis of whether or not the individual who’s within the system is immune.

The prosecutor, the judge, the witness may in fact act objectively unreasonable.

But the Court has decided that the policy considerations of being part of the judicial proceeding are so important that the officer, the actor within that proceeding, will be given absolute immunity.

Warren E. Burger:

Suppose the affidavit for the warrant recites that it’s a warrant to search the premises of 36 Jackson Street and the secretary for the magistrate, not the police officer, the secretary for the magistrate makes a typographical error and puts in 38 Jackson Street.

A different officer executes the warrant from the one who applied for it, as is often the case in a large police department.

And they go and search 38 Jackson Street, which is a perfectly innocent citizen.

Would the police officer have immunity for the magistrate’s mistake?

Ann M. Sheadel:

The police officer who executes the warrant, Your Honor?

We would take the position that the police officer was acting, even not in an absolute immunity context, but in an objectively reasonable manner.

It certainly is objectively reasonable to believe that the warrant that has been issued by the magistrate is valid.

When you have a typographical error that the police officer had no input in at all, it would seem to be a classic case where the police officer was acting in an objectively reasonable manner.

John Paul Stevens:

So that’s a case that would be protected adequately by the qualified immunity doctrine, wouldn’t it?

Ann M. Sheadel:

Yes.

I would emphasize that, that we do see some policy differences between a warrant for an arrest and a warrant for a search.

The policy considerations that the Court has identified for considering whether or not absolute immunity should apply don’t seem to apply to the same extent to an application for a search warrant.

Primarily, our feeling is that, because the search warrant does not put the issue into the judicial proceedings in the same way as an application for an arrest warrant would, the same kind of protection that the Court has looked for in its immunity analysis may not be present.

We don’t believe that issue needs to he decided by the Court in order to decide this case, but we do realize that there might be some different kind of policy concerns in an application for an arrest warrant… I mean, for a search warrant, that do not exist in an application for an arrest warrant.

The second policy consideration that the Court has identified is whether the official’s actions are likely to result in retaliatory lawsuits.

Ann M. Sheadel:

This is important to the Court, especially within the judicial process, because the Court feels that within the judicial process there are cases that arouse the most intense feelings in the litigants and these feelings are not easily capped by a judicial decree or decision.

The power of the state is being exercised in the courtroom or in the judicial process, and the Court has recognized that it is natural that there will be resentment, that there will be intense emotions involved in whatever decision is made.

And because of that, because of that intense there is the possibility of scores of lawsuit emotion, or at least lawsuits with a great deal of frequency.

The Court is concerned about this because, of course, it does not wish the judicial officer or the actor in the judicial process to spend enormous amounts of time defending suits instead of doing the official’s judicial acts.

Fear of retaliatory lawsuits we believe is just as clear in an instance of–

John Paul Stevens:

Is it not true that all of the retaliatory lawsuits in this category of litigation are by people who are innocent of any criminal wrongdoing?

By hypothesis, they’re people that there was no probable cause to arrest them or to search them?

Ann M. Sheadel:

–Whether or not there was probable cause may not have ever been decided.

If, for example, an individual is arrested and the prosecuting attorney decides in his discretion that he’s not going to pursue the case to the grand jury for different reasons… he may find trouble finding witnesses or he may decide that prosecutorial economy would require that they just don’t, have time to focus on this kind of case, or whatever the discretionary decision is… no decision has been made on the fact that probable cause did not exist.

We believe there is always the possibility that any time someone is arrested, but the procedure is not–

John Paul Stevens:

Well, let me put it this way.

At least these are people who are presumptively innocent whereas in the prisoner category they’re all people who have been convicted of crimes, in the exclusionary rule cases they’re all people who were probably going to be found guilty if the evidence is not excluded.

These plaintiffs are all people who are presumptively innocent, of any wrongdoing.

Ann M. Sheadel:

–Right, and I would say that the same would be true for a prosecutor that gets an indictment from a grand jury and then the case never proceeds any further or the person is ultimately exonerated in some way.

Certainly that concern is the same concern that you’ve expressed for the police officer, because it could be that someone says, I’ve been innocent but I’ve been wronged.

The Court has still looked at the policy considerations to decide whether or not immunity should in fact apply in this situation.

If Your Honor please, I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Mr. Decof.

Leonard Decof:

Mr. Chief Justice and may it please the Court:

Petitioner is asking this Court to do a small thing, to eviscerate the Fourth Amendment to the Constitution of the United States.

This hallowed tribunal is the last place I would assay the mildest sarcasm or the most inferential humor, but the portent of Petitioners’ proposition is so ominous that I fear I don’t have the tools to combat it adequately.

Warren E. Burger:

What would you say about the hypothetical I put to your friend on the magistrate’s making a mistake, either he or his secretary, and puts in 38 Jackson Street instead of 36, and then another officer, knowing nothing of the facts, goes and searches the wrong place?

Leonard Decof:

Under the proposition–

Warren E. Burger:

Liable?

Leonard Decof:

–Under the proposition advanced by the Petitioners, there would be immunity, there would be absolute immunity.

Warren E. Burger:

Do you agree?

Do you agree with that?

Leonard Decof:

No, Your Honor, I dispute that.

What I say is what the Petitioners–

Warren E. Burger:

But then are you not holding the policeman responsible for the magistrate’s, for the judge’s mistake?

Leonard Decof:

–If the Court please, I believe in that situation under the Harlow objective doctrine objective test, the police would not be held responsible.

That test–

Byron R. White:

Qualified immunity?

Leonard Decof:

–Yes, Your Honor.

That test leaves ample room for this kind of error.

Warren E. Burger:

He’d have to defend the action.

Qualified immunity simply requires him to defend the action.

Leonard Decof:

Again, the purpose for Harlow adopting the objective act was to promote summary judgment… the objective standard, was to promote summary judgment.

For that reason, Harlow discarded the old subjective test.

I believe the amicus brief filed by 27 of the Attorneys General, led by the Attorney General of Kinnesota, opted for another subjective test, whether or not there was falsity.

Harlow has said, and with great force, that looking into someone’s mind, finding out their subjective knowledge, will lead to an endless chain of relevant evidence, while an objective test will force the summary judgment and would be a greater protection for the police, if the Court please.

The Petitioners is between a rock and a hard place.

The Petitioner must either say the police are totally immune, which eviscerates the Fourth Amendment because everything that the police do could be categorized as part of the judicial function if you follow the argument to its logical conclusion–

Warren E. Burger:

Well, isn’t the argument limited to the case of executing a warrant issued by a judicial officer?

Leonard Decof:

–No, if the Court please, it is not, because in the instant case here this warrant was not executed by the officer who was sued.

The officer who was sued applied for the warrant.

The facts haven’t been gone into and I would like to advert to them because they’re, important.

The defendant, Officer Malley, applied for the warrant to a… not a trial judge, but a district court judge, a judge at the lowest level of the state court system, and presented an affidavit based on a court-authorized wiretap.

Warren E. Burger:

Question: Well, are you suggesting there’s a difference between lower and higher judicial officers with respect to immunity?

Leonard Decof:

No, I’m not, Your Honor.

There’s no question in this case the officer who issued the warrant was immune.

The point I am making is that the duties of the policeman are not simply to drop anything and everything on the magistrate’s desk and he is shorn or insulated of all responsibility or liability.

There are two parallel duties here, the duties of the police and the duties of the magistrate.

The magistrate acted unlawfully.

There’s no question about that.

Lewis F. Powell, Jr.:

May I just interrupt there.

You agree the magistrate had the same information that the police officer had?

Leonard Decof:

Yes, Your Honor.

And both acted unlawfully.

Lewis F. Powell, Jr.:

And you didn’t sue him because–

Leonard Decof:

He’s immune.

Lewis F. Powell, Jr.:

–of judicial immunity?

Leonard Decof:

Yes, Your Honor.

And the point I’m making is both committed unlawful acts in violation of the constitution.

The magistrate is immune.

Two wrongs don’t make a right.

It is… it makes no sense to say that the magistrate’s unlawful act should immunize the policeman in his unlawful act.

Sandra Day O’Connor:

Mr. Decof, do you think that the question of whether there was probable cause here has been fully resolved and is not an issue now?

Leonard Decof:

I think it’s not at issue in this case, Your Honor, because the First Circuit Court of Appeals indicated that from its face the warrant exhibited that there was no probable cause.

William H. Rehnquist:

Is the absence of probable cause sufficient to defeat the Harlow test for qualified immunity?

I mean, in a lot of situations, such as we were dealing with in Leon, we contemplated a situation where the actions of the law enforcement officer could be objectively reasonable and still not… still wrong legally.

Leonard Decof:

Yes, Your Honor.

William H. Rehnquist:

But here I take it either if there’s probable cause everyone is off the hook and if there isn’t probable cause, even if it may be kind of a then the police officer is liable?

Leonard Decof:

No, Your Honor.

Again we go to the reasonable police officer standard adopted by Harlow, in the Harlow opinion, and I believe that allows ample room for error, whether it’s an honest error or whatever, if the warrant or the affidavit on its face patently exhibits that, given all the best inferences, there is no probable cause, then I think there would be a liability.

William H. Rehnquist:

Did the First Circuit say only that there was no probable cause, or also that whatever the standard is no reasonable person could have thought them was probable cause?

Leonard Decof:

The First Circuit applied the Harlow test, Your Honor, and said that there was no probable cause here.

We could possibly move for a directed verdict for the plaintiff if we retried this case, but it wouldn’t happen in all cases.

We’re saying at least that the question of whether or not it was a reasonable… first of all, whether or not the action of the police was objectively reasonable will be determined on motion for summary judgment.

That doesn’t necessarily foreclose it.

If the motion for summary judgment fails, then there can be a court hearing at which a factual determination will be made.

Sandra Day O’Connor:

Mr. Decof, can I pursue this question just a little bit to see if I understand you.

For purposes of the exclusionary rule, in the Leon case the Court referred to a reliance by a police officer on a warrant if it’s in good faith and objectively reasonable.

Leonard Decof:

Yes, Your Honor.

Sandra Day O’Connor:

Now, is that necessarily always the same as a determination of whether or not probable cause existed?

Can’t you have an objectively reasonable reliance on something that does not establish in fact legal probable cause?

Leonard Decof:

I think there has to be an allegation, allegations which if taken in the light most favorable to the affiant would establish probable cause.

It’s a violation of the mandate of the Fourth Amendment to issue a warrant without probable cause.

John Paul Stevens:

Mr. Decof, the Court of Appeals was quite clearly in agreement with what Justice O’Connor said.

They said in so many words, we emphasize that liability does not attach simply because there’s a later determination of no probable cause.

Leonard Decof:

Yes, Your Honor.

John Paul Stevens:

They’re two different standards.

Leonard Decof:

Yes, Your Honor.

John Paul Stevens:

I thought you were–

Leonard Decof:

No, I don’t disagree with that.

Byron R. White:

–They said there’d be liability only if the officer really should have known.

Leonard Decof:

Yes, Your Honor, and I say that would be a question to determine.

Byron R. White:

You think the Harlow test and the Leon test are roughly the same?

Leonard Decof:

I think that Leon has followed along with the teaching of Harlow, yes, I do, Your Honor.

Lewis F. Powell, Jr.:

May I continue to interrupt you?

Leonard Decof:

Yes, sir.

Lewis F. Powell, Jr.:

You would agree that the officer at most acted only negligently, wouldn’t you?

Leonard Decof:

Yes, Your Honor.

Lewis F. Powell, Jr.:

In other words, he faithfully recorded in the affidavit the essential facts from the wiretap.

That placed the Briggs at parties at which marijuana was being consumed.

Leonard Decof:

He acted constitutionally negligently, is what our claim was, Your Honor, yes.

Lewis F. Powell, Jr.:

Well, yes, but–

Leonard Decof:

We didn’t claim there was malice or anything of that kind.

Lewis F. Powell, Jr.:

–When we get to the constitutional part, all that he… he made a mistake in judgment, basically, didn’t he?

Leonard Decof:

Yes, Your Honor.

Lewis F. Powell, Jr.:

We didn’t fabricate any facts.

Leonard Decof:

No he didn’t.

Lewis F. Powell, Jr.:

He reported all the facts he had to the magistrate?

Leonard Decof:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Right.

Thank you.

Leonard Decof:

Yes.

Byron R. White:

Well, and the jury or judge may conclude that at trial.

Leonard Decof:

Yes, they may, Your Honor, that’s so.

All we’re saying is that there is enough here that under the Harlow test we can’t apply absolute immunity and say that there is no way that this case can possibly proceed to trial.

Leonard Decof:

We want a hearing to see whether or not there was negligence and whether that negligence was culpable so as to justify a verdict.

If the Court please, if the police are immunized… and I submit that this would immunize the police… for example, in this–

Byron R. White:

The district court dismissed the case because he thought the magistrate’s action just insulated, automatically insulated, the police officer, isn’t that right?

Leonard Decof:

–Yes, Your Honor.

The district court had–

Byron R. White:

But under the Court of Appeals’ opinion they remanded it for trial.

But I take it that the district judge could still say… could still dismiss the case on the ground that, well, I have looked at the affidavit and there is no way that the office could have been found to be unreasonable.

Leonard Decof:

–The district court–

Byron R. White:

He could still dismiss it under the Harlow standard.

Leonard Decof:

–Yes, Your Honor, he could conceivably say that there was no issue of triable fact to go before a jury.

Byron R. White:

Exactly.

Leonard Decof:

Yes.

And that is the position that the First Circuit has left us in.

Byron R. White:

Yes.

Leonard Decof:

When the district court dismissed this action, he did it on the basis of old First Circuit cases.

And subsequent to his dismissing the action, the First Circuit came down with another case which followed Harlow, and we moved, we reopened and brought this to the judge’s attention, and he still adhered to his original decision based on the discussion I’ve just had with Mr. Justice White.

If… I’d like to stress the fact again, if the Court please, the police on the basis of one statement from an unknown informant which came over a wiretap, to wit,

“I couldn’t believe I saw Jimmy. “

–this was not an informant, excuse me; an unknown person… to wit,

“I couldn’t believe I saw Jimmy Briggs tokin. “

obtained a warrant, had Mr. Briggs and his wife, two prominent members of the community, arrested at quarter of 6:00 in the morning in their home.

There couldn’t be a more dramatic illustration of the problems or of the sacrosanct nature of the protections of the Fourth Amendment than this.

It stirs up memories or specters of jackboots.

Warren E. Burger:

Would it have been any different on the hypothetical I gave you with a mistake in the address?

Leonard Decof:

If the Court please, if there had been a mistake in the address, under the qualified immunity rule of Harlow, the police either at filing of affidavits to this effect on the motion for summary judgment would probably get a summary judgment, or at the very least, if the matter went to trial on the facts they would be found to be not responsible.

Warren E. Burger:

The injury to the person, to have your home raided–

Leonard Decof:

I understand, Your Honor.

Warren E. Burger:

–by the police is a very bad business for any citizen, of course.

Leonard Decof:

Yes, Your Honor.

Warren E. Burger:

But the situation with the typographical error, is that any different than the situation here?

Leonard Decof:

I think so, Your Honor because–

Warren E. Burger:

How?

Leonard Decof:

–we don’t take the obverse of the coin from the Attorney general of Rhode Island and say that there should be absolute liability.

The police are not insurers for their mistakes.

What we’re saying is that a reasonable man test should be applied, and if a reasonable… in my opinion, on Your Honor’s hypothesis, this would have been a reasonable mistake made.

It’s very different from a policeman looking at a warrant which says, go down and arrest everybody wearing a red tie.

There obviously is no probable cause.

So that’s why all of the protections that are necessary for the police are there.

They are geared into the Harlow rule, the objective standard.

If the Court please, my colleague urges that the police function is prosecutorial.

This Court has always used the functional analysis and has held judges and prosecutors and legislators in the legislative function to be immune.

In Imbler this Court held that the prosecutor was immune, but left open the question of whether this immunity attached by virtue of the nature of the office or by nature of the function.

Later on in Mitchell, I think… although the Court did refer to other cases which had not extended immunity to every phase, later on Mitchell this Court decided that the Attorney General of the United States was not immune in everything he did, that it had to be connected with the judicial function.

And the reason for this, as Mr. Justice White has so eloquently stated, is the protection of the judicial process.

That’s what we’re talking about here, the protection of the judicial process.

It’s for the purpose of protecting the judicial process that the prosecuting attorney is given immunity.

He must be free to act.

And this protects defendants as well as the public.

It protects the public because he’s not fettered in bringing actions.

It protects defendants because he doesn’t have to fear being sued civilly and thus refrain from dismissing an action once trial has started.

And it also protects the defendant in giving freedom to the reviewing judge, who might even subconsciously react knowing that if he turned the case over the prosecuting attorney could be immune from suit.

Warren E. Burger:

Do you think the police officer who gets the warrant should then go to another lawyer and say, I went to be sure before I execute this warrant?

Leonard Decof:

No, Your Honor.

Warren E. Burger:

I want to be sure that it’s a valid warrant; will you look at the application and then look at the warrant and see if I’m protected.

Leonard Decof:

No, Your Honor.

All we urge the Court is that the Harlow rule, which is a sensible rule and says that the police officer should do what any reasonably trained police officer would do, be followed.

This doesn’t include going to a lawyer.

But the converse of that, if we insulate or immunize the police, they won’t have any standards that they have to comply with at all.

We might as well just not train them.

Anybody could be a policeman and go out getting warrants and arresting people, because there is no compulsion for them to comply with the mandates of the Fourth Amendment.

Warren E. Burger:

Well, isn’t the very purpose of the magistrate the judicial officer’s intervention?

Leonard Decof:

Yes, You Honor.

Warren E. Burger:

To correct the mistakes of the police?

Leonard Decof:

Yes, Your Honor.

And this is why I say it’s a circular or syllogistic argument for the Attorney General to say first this Court in its wisdom has fostered application to a magistrate to protect the individual who will be arrested; at the same time, how can that application to the magistrate, which is… in fact in this case was required; it’s not a voluntary action… how can that serve to insulate the policeman from liability from an unlawful act?

It’s a circular argument, because when the policeman does what he’s required to do and goes to the magistrate, he is insulated.

William H. Rehnquist:

What’s unlawful about the magistrate… about the policeman submitting to the magistrate a set of facts for the magistrate’s judgment?

Leonard Decof:

If the set of facts… he must act reasonably in submitting this set of facts.

He can’t just issue complaints willy-nilly.

He can’t decide he is going to get out arrest warrants for 100 people who are going to be gathered in an auditorium because there might be some drug peddlers there.

And that would be an unlawful action.

It’s not unlawful for him to submit an affidavit and a complaint to a magistrate so long as his action is objectively reasonable.

That is, there is reasonable belief that… reason to believe that there his probable cause.

Byron R. White:

Why isn’t it objectively reasonable to think that if there isn’t probable cause the magistrate will surely tell me?

Leonard Decof:

Because, if the Court please–

Byron R. White:

And if the magistrate issues the warrant, he has told me that my conduct is very reasonable?

Leonard Decof:

–Then we relieve the police of all responsibility and make them nothing but messengers and, as I said, anybody–

Byron R. White:

Well, only… but it certainly doesn’t go any farther than when he applies for a warrant?

Leonard Decof:

–If the Court please, he then has a very simple way to escape liability and to conduct his business, and with the best of–

Byron R. White:

Well, it isn’t simple at all if magistrates do their job, which you say that, obviously say, that they usually are.

Leonard Decof:

–Yes.

If the Court please, in this case 22 warrants were presented to the magistrate at the same time, but we haven’t argued the fact that he didn’t do his job.

This Court has said we assume them to do their job, although sometimes there are abuses.

There are rubber stamp situations.

There are situations where under the press of time a great many magistrates… a great many complaints fall on the magistrate’s desk, where he knows the police officer, knows him to be responsible.

But what I’m urging is that it creates a dangerous condition, a police state condition, where the police, even for the best of motives, for expediency, for saving of time, would not pause to consider.

And this Court said–

Byron R. White:

Well, you’re just making the police pay for, the policeman pay for an incompetent magistrate.

Leonard Decof:

–No, if the Court please, the policeman is not paying for an incompetent magistrate unless you accept–

Byron R. White:

You would hold him, you would make him pay.

Leonard Decof:

–No, if the Court please.

He is only paying for his own negligence, his own Constitution negligence.

Byron R. White:

Well, I know, but if the magistrate had done his job he would be off the hook.

Leonard Decof:

But if the Court please, it isn’t the magistrate… the magistrate is a governing factor, of course, and the purpose that the magistrate is there and he should be sought to is to protect the individual.

And as Imbler said, if there’s no case against the police, there is no case.

In this situation, there are two separate actors.

The magistrate is acting and the police is acting, and I don’t know how we can obscure the fact or avoid the fact that the policeman has a set of standards to go by.

Byron R. White:

Of course there might be a plus to this from the state’s argument, because it would encourage police to go to magistrates to get a warrant, rather than making arrests without a warrant.

Leonard Decof:

Yes, but again this Court has spoken to that and also encouraged it.

But in this case, it was required.

One of the peculiar facts of this case is that the facts in this case are the same as if the police had arrested without a warrant or with a warrant from the procedure, because whether he is arrested with a warrant or without a warrant there has to be a criminal indictment followed either by a grand jury or a prosecutorial information.

So the procedure–

Lewis F. Powell, Jr.:

Mr. Decof, we’re not giving you much of a chance to make your argument coherently, but–

Leonard Decof:

–I welcome Your Honor’s questions.

Lewis F. Powell, Jr.:

–I’ll ask you one more question and then try to keep quiet.

Would you turn to page 8 of your brief, please.

This is the first full paragraph, I guess the second sentence:

“Under the Harlow standard, a police officer will be shielded by good faith immunity unless his actions are so flagrant that it can be said that no reasonable police officer would have acted in the same way. “

It’s your position in this case that the officer acted flagrantly?

Leonard Decof:

Yes, Your Honor.

Lewis F. Powell, Jr.:

It is?

Leonard Decof:

Our position is that this warrant was so patently without probable cause on its face that any reasonable police officer would have known so.

We go further, if the Court… the complete wiretap is not part of the evidence, but the only pertinent part is the one statement,

“I couldn’t believe I saw Jimmy Briggs toking. “

The police procedure, the transcript will show, is to mark something as incriminating or not incriminating.

And we believe that the negligence went all the way back to marking this, this portion of the wiretap as incriminating, this and nothing more.

Byron R. White:

Well, that standard is the standard that you think the district judge will be entitled to follow at trial.

Leonard Decof:

That’s correct, Your Honor.

Byron R. White:

If he didn’t think it was a flagrant enough error, he’s going to dismiss your case.

Leonard Decof:

Exactly, Your Honor, yes, sir.

Thurgood Marshall:

You give me great problems.

You admit that this was insufficient for a warrant, and yet the magistrate gave it.

And now you say the magistrate is not responsible.

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

The officer is.

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

The officer is responsible.

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

So that if the officer has say four points to make to show probable cause and he puts down three and a half points, he is liable to civil action per se?

Leonard Decof:

He’s liable, but he–

Thurgood Marshall:

That’s your position?

Leonard Decof:

–He’s liable to action.

He may not be found to have been constitutionally negligent.

All I’m saying is that he should not have absolute immunity.

Thurgood Marshall:

All because he left out one point?

Leonard Decof:

I’m sorry?

Thurgood Marshall:

He left out half of one point.

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

And so he can be brought up and carried through court on that?

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

And why does he have to present it to the magistrate?

Leonard Decof:

The reason–

Thurgood Marshall:

The reason is so that the magistrate can determine whether it’s sufficient, is that correct?

Leonard Decof:

–Yes, Your Honor.

It’s an added protection for the person who is going to be charged.

Thurgood Marshall:

But he has to satisfy the magistrate?

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

So he is at his peril if the magistrate goes wrong?

Leonard Decof:

The point–

Thurgood Marshall:

He and the magistrate have made an equal mistake.

Leonard Decof:

–Yes, Your Honor.

Thurgood Marshall:

Right?

Leonard Decof:

Yes, Your Honor.

Thurgood Marshall:

So he’s responsible?

Leonard Decof:

Well, what I’m saying is, again, if there are two joint tortfeasors, you don’t solve the problem if one is unavailable by letting the other one go.

If there are two persons who have acted independently, each performing his own separate duties and separate functions–

–I’m sorry, Your Honor?

Thurgood Marshall:

I’m not interested in torts.

Leonard Decof:

Well, in this situation there are two separate wrongs that have been done.

The magistrate is held immune because of the law.

There is no other alternative for the injured party but to go to the police officer.

I believe that it logically follows that, because there have been two wrongs, because the magistrate has done a wrong, that his wrong should allow the policeman to be freed of liability for his wrong.

And I would follow this, Your Honor, by stating that again all we’re saying is that there should be an opportunity to have this matter heard before a judge, and if he decides that there should not be dismissal, then that it go before a jury to determine whether or not actually the police officer is culpable.

Sandra Day O’Connor:

Mr. Decof, you also made a claim, I believe, below that the Petitioner acted maliciously and in bad faith, is that right?

Leonard Decof:

Yes, but we didn’t pursue that.

The only–

Sandra Day O’Connor:

And you don’t intend to when it goes back?

That’s out?

Leonard Decof:

–That’s correct, Your Honor, that’s correct.

Sandra Day O’Connor:

Thank you.

Leonard Decof:

The only good faith that we’d be talking about is the objective standard of good faith that has been announced in Harlow.

If the Court please, in Briscoe, I think that Briscoe gives us an answer to the Petitioners’ claim that the police functions here are judicial.

In Briscoe a policeman was given absolute immunity because he was a witness.

Now, if he had immunity by virtue of his investigative functions or the functions we’re talking about here, it wouldn’t have been necessary to recite that the reason he was given absolute immunity was because he was a witness.

And again, that is part of the purpose for which the immunity or the functions analysis has been used.

That is, protection of the fairness of the system, protection of the judicial process.

The judicial team is the judge, the prosecutor, and the witnesses.

Now, the Petitioner wants this to be expanded to a situation where the police will be held as part of the judicial team.

And I must take issue with my colleague’s statement that this is only one small part of the police duties.

I think the police duties… the issue we’re talking about is pervasive.

Leonard Decof:

And if you said that investigating the case and having that investigation culminate in application for a warrant is part of the judicial function or the judicial process, then most of what a policeman does will be immune, because the investigation begins with the arrest and the arrest begins with statements from other people, or may not.

And again, we open the door wide and we have a police state.

If the Court please, at common law, our court has stated time and time again, there was no absolute immunity for police, and I cannot accept my colleague’s statement that this is limited to one small instance.

As I said, once you say that either by application for a warrant the police are insulated or that the police in doing this are performing a prosecutorial or judicial function, then you open up the door wide to virtually everything that a policeman does.

William H. Rehnquist:

Well, if the reasoning for reversing the First Circuit here would be that the police officer simply submitted it for the magistrate’s judgment and it was reasonable for him to execute something that had been approved by the magistrate, that reasoning wouldn’t apply at all to police making arrests or making searches without warrants?

Leonard Decof:

Well, I think, Your Honor, with due respect, that that would beg the question, because you’re saying that the reasonableness of the police… again, in this case we’re not talking about the policeman who executed it; we’re talking about the policeman who applied.

But what I say is that the evil of accepting the insulation theory is that you open the door wide, and if you’re going to insulate the policeman by virtue of the magistrate’s issuing the warrant then it will insulate the applying officer, it will insulate the executing officer, and there will just be no holds barred.

William H. Rehnquist:

Well, only in the warrant process.

Leonard Decof:

Yes, Your Honor, in the warrant process.

I submit this is one of the most important and one of the most critical functions that the police perform.

Thank you.

Warren E. Burger:

Do you have anything further, Ms. Sheadel?

Ann M. Sheadel:

Yes, thank you, Mr. Chief Justice.

We believe that this Court’s policy considerations that it has enunciated in support of applying immunity apply in this case to support not only absolute immunity, but qualified immunity as well.

We believe that under the Harlow objectively reasonable standard qualified immunity should be applied in this situation to state that a police officer who applies to a magistrate for a warrant is per se reasonable if the only allegation is that the police officer should have known that the facts recited in his affidavit were insufficient to establish probable cause.

We believe that the Court’s policy considerations mandate this result and that the First Circuit standard is unworkable.

The First Circuit standard, being that the police officer should be liable for civil damages if he should have known that the facts recited in his affidavit were insufficient to establish probable cause, will in fact require the reviewing court to examine each case to decide, first of all, if probable cause did in fact exist; and second of all, if it did not exist, whether a police officer should have known that it did not exist.

We believe that the Court’s policy considerations looking at being part of the judicial proceeding, encouraging and wanting the police officer to apply to the magistrate for an arrest warrant, the policy considerations of looking at the safeguards that are part of this procedure, all go toward accepting the rule that applying to a magistrate for an arrest warrant is in fact per se reasonable.

We do not believe that this standard will eviscerate the Fourth Amendment.

We do believe that this standard will effectuate the policies of this Court in encouraging police officers to apply to magistrates for warrants.

Therefore, in conclusion, we urge this Court to rule that a police officer who applies to a magistrate for an arrest warrant cannot be held liable for civil damages if the only allegation is that he should have known that the facts recited in his affidavit were not sufficient to establish probable cause for arrest.

Warren E. Burger:

Thank you, counsel.

The case is submitted.