Last month, the Supreme Court heard argument in DC v. Wesby, the justices’ latest case on Fourth Amendment civil suits for damages. This time, the facts involve the arrest of twenty-one people who were attending what even their attorneys call a “licentious” house party. Wesby draws into sharp relief the role of perspective in Fourth Amendment litigation. As Justice Kagan noted during oral argument, the appropriate legal rule seems to change depending on whether we adopt the perspective of the arresting officers or the party-going arrestees.
In a forthcoming paper entitled “Fourth Amendment Fairness” (draft available here), I argue for a perspectival shift in Fourth Amendment doctrine that is consistent with the line of reasoning that Kagan and other justices explored in the Wesby argument. The paper provides a “contractualist” account of Fourth Amendment fairness in general; but in this post, I’ll focus on the perspectival issues raised in Wesby, without all the philosophical trappings.
Here’s a simplified version of the facts in Wesby. After being alerted to a party in a recently vacant house, police learned that the house’s owner had not given permission for the party. Believing that the partygoers were breaking the law, the officers arrested them. But partygoers had told the police that they had been invited by someone who purported to reside in the house. Those statements tee up the key legal issue: did the police have probable cause to believe that the partygoers knew or should have known that they lacked lawful permission to enter—in which case, the police would have probable cause to arrest for trespass?
On the merits, the partygoers-turned-plaintiffs argued that the police lacked probable cause to arrest and so violated the Fourth Amendment. And to overcome qualified immunity, the plaintiffs further argued that no reasonable officer could have thought probable cause was present. The plaintiffs prevailed in the trial court, winning damages and fees of around $1 million. The DC Circuit affirmed, reasoning that the police lacked probable cause as to the mens rea required for trespass. In other words, the police lacked probable cause that the partygoers knew, or should reasonably have known, that they were unlawfully present.
The key question in Wesby is how to flesh out the concept of probable cause in the context of an unauthorized house party. But the Supreme Court’s case law affords little useful guidance about how to figure out when probable cause is present. For instance, the United States as amicus curiae collects authority that probable cause “is a ‘practical,’ ‘fluid,’ ‘flexible,’ ‘common-sense’ standard that ‘requires only the kind of fair probability on which reasonable and prudent people, not legal technicians act.’” But that definition of probable cause only multiplies the relevant questions: just what is the “common-sense standard” that is “fair” from the standpoint of “reasonable and prudent people”? In other words, how much “probable cause” is probable enough?
At least one thing is clear under the case law: the probable cause inquiry must proceed from the perspective of a “reasonable officer.” From one standpoint, that approach is sensible: doctrinal rules often work best when formulated from the perspective of the police who must apply them in the first instance. But that officer-oriented approach leaves out important considerations of fairness. The Fourth Amendment is concerned with “unreasonable searches and seizures,” not unreasonable police. And whether a search or seizure is “unreasonable” should ultimately be judged from the perspective of “the people” whose rights the Fourth Amendment protects. The Fourth Amendment, after all, secures rights for the benefit of the rights-holders.
In Wesby, Justice Kagan asked a long question that got at this basic point. Here is the key passage:
JUSTICE KAGAN: — you know, you’re exactly right, that, of course, we have to view this through the eyes of the officer. And there is much that an officer could look at here and say, I think I have probable cause. And, certainly, when the qualified immunity standard is laid on top of that, makes it even easier for the officer.
I guess one of the things that – that strikes me as why there’s resistance here, is that when looked at from the point of view of the reasonable partygoer, it looks a little bit different. And I — I take the point that that’s not the standard, but we are setting rules and those rules are going to affect how police officers act in the future as well.
And when looked at from the reasonable partygoer’s view, there are these parties that, once long ago, I used to be invited to -
JUSTICE KAGAN: — where you didn’t - don’t know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties?
And, you know, so — and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And — and it seems a little bit hard that they’re subject to arrest. So — so how do I think about that question?
Kagan’s remarks draw attention to the blurring of the qualified immunity and Fourth Amendment standards here. As Kagan suggests, an officer-oriented approach would be content to dwell on what inferences are defensible from the standpoint of a competent investigator. But, again, the ultimate Fourth Amendment inquiry shouldn’t be whether the search or seizure is within the outer bounds of what a minimally competent officers might think or do. Rather, the ultimate question is—or should be—whether the search or seizure is “unreasonable” from the perspective of Fourth Amendments rights-holders. That rights-based inquiry should then drive what Fourth Amendment doctrine expects of police.
Wesby supplies an example of how a perspectival change could prompt courts to think differently about probable cause. Because lots of people go to lawful parties without checking whether the host has legal title to the property, many rights-holders have an interest in objecting to a rule that probable cause is present whenever there are some arguable signs of trespass. Moreover, no rights-holder has a strong interest in demanding a low probable cause standard when police investigate these potential trespasses. Parties are not emergencies, after all. And the interests of property owners can be protected in other ways, such as by asking misinformed partygoers to leave. So, from the perspective of rights-holders, the probable cause standard should be sufficiently stringent to ensure that reasonable partygoers are not subject to arrest unless they have notice that the party is unauthorized. As Kagan indicates, the question isn’t what a minimally competent officer might suspect, but rather what any reasonable partygoer would realize.
One might worry that this perspectival change would complicate the work of police by requiring them to imagine and then balance the competing interests of an indefinite number of rights-holders. But the appropriate analysis for a court is not necessarily the same as what police would or should do in the field. Courts often craft operational rules for officials based on deeper normative inquiries that no official would ever perform. By analogy, those who would set probable cause based on a cost-benefit analysis don’t expect police to conduct such an analysis before making an arrest. Yet changing the perspective of Fourth Amendment analysis would still have a doctrinal effect. As Kagan noted, the justices “are setting rules and those rules are going to affect how police officers act in the future.” If the relevant perspective changed, Fourth Amendment rulings would gradually send police a different and often more stringent signal about what it means to find probable cause.
A related worry is that a perspectival shift would place unrealistic imaginative demands on judges. Yet judges frequently endeavor to place themselves in the shoes of people affected by Fourth Amendment rules. In Wesby itself, Kagan was able to reach into her own personal experiences (“[T]here are these parties that, once long ago, I used to be invited to.…”) to better imagine “the reasonable partygoer’s view.” True, undue reliance on personal experiences can lead a judge astray: some rights-holders might have interests that judges are not immediately able to appreciate, and judges could overvalue interests that resonate with their own experiences. But heuristics can help judges better focus their imaginative powers, including the simple expedient of imagining the legal issue from the perspective of arrestees and other suspects. Courts undertake similar efforts in many areas of law.
Without wading into Wesby’s factual details, it’s impossible to take a position on how the case should come out. But no matter how the Court rules, I hope it uses the case to make a broader point: if the officer-oriented approach to probable cause is defensible, it is so not because it embodies the Fourth Amendment’s ultimate concerns, but rather because it is a means of achieving reasonableness from the perspective of individuals with Fourth Amendment rights.
First posted on Prawfs.