Here we go with our first Supreme Court case on the ethics blog. This one is extraordinary. It’s got a makeshift strip club in a living room, a bachelor party without a bachelor present, intoxicated strangers running from the cops in the middle of the night, twenty-one arrests for unlawful entry and disorderly conduct, a protagonist named Peaches or Tasty (it’s unclear), and some understandably angry neighbors. If you like wild parties and their aftermath – or you’re just in college wishing you were there – this case has it all.
My hope is that you begin to see how these cases have real impact on the lives of ordinary Americans. They tell the police when they can arrest people and how to do it right. They tell citizens when their Constitutional rights have been violated. They balance over-aggressive policing with the need to let the police work without the constant threat of being sued. And they show that, with a little thinking, you can understand what the Supreme Court does and why. I will strive to make the complicated simple. This is the story of The District of Columbia. v. Wesby. Let’s jump in.
The (Hilarious) Facts / You Can’t Make This Up
We’ve all heard stories of wild parties thrown in vacant houses. This one may take the cake. Early in the morning, Washington D.C. police officers were called to check on just such a gathering. After approaching a house filled with extremely loud music, officers knocked on the door. Just then, a full-grown man looked out the window, saw the police, and bolted upstairs. Nice! That’s the kind of move that screams “I’m innocent and there’s nothing to see here.” Someone else opened the door and the officers entered.
The house looked vacant and was trashed. The police immediately saw drugs and alcohol bottles strewn about. One of the partiers refused to sit on the floor while being questioned by the police because it was so dirty. There was also a “makeshift strip club,” as Justice Thomas called it, in the living room with half naked women giving lap dances with cash in their garter belts. Upstairs, the officers found a naked woman in a room with some men. The vacant room had nothing but a mattress on the floor surrounded by burning candles, a used condom by the window, and condom wrappers strewn about. Picture it all in your head right now for a few seconds. Then . . . stop it immediately in the interests of a good night’s sleep.
The officers thought that the house was vacant and being used without permission. The only signs of it being inhabited were the working electricity and plumbing, blinds on the windows, toiletries in a bathroom, and some food in the fridge. Most people ran / hid when the police arrived. They found a guy hiding in a closet and another barricaded himself in a bathroom (where at least he had the toiletries mentioned earlier). Most of the twenty-one people caught in the house gave conflicting stories. They were there for a bachelor party, many said. The problem is that no one could find or ID the bachelor.
Everyone said they were invited to the house. A few people named the host as “Peaches” or “Tasty.” Sometimes, in legal cases, you just can’t make this stuff up. It should come as no surprise that Peaches was not at the house for the event / strip club / bachelor party. It was suggested that Peaches was renting the house from the grandson of the owner who had just passed away. Though Peaches was not there, she did exist! The cops asked a friend at the house to call her . . . and she answered! This is how I picture this call:
Peaches: “Hello, Lexie? I’m on my way back to the house. Is it lit?”
Police: “It’s not Lexie. It’s the D.C. Police. You have some explaining to do.”
Peaches: “Oh [expletive deleted]. I can’t hear you that well I’ve got a bad connection. I’ll call you back.” Click.
Side note: I wonder if Peaches takes calls from that friend anymore.
On the call with the police, Peaches claimed that she had temporarily left the party to go get groceries. But, she said she wouldn’t come back now for fear of arrest. She then told the officers that she indeed had permission to use the house. The cops reacted skeptically, so she yelled at them and hung up. After a few more calls, she admitted that she did not have permission to use the house. Uh oh. This meant that no one there had permission to use the house. But, the question remained as to whether the guests knew that she lacked permission use the house. That is the more legally-significant inquiry. It’s not a crime in D.C. to enter a place when you believe you have permission to be there. Therefore, the cops cannot arrest you for Unlawful Entry.
The police then called the homeowner. Again, here’s how I picture that call:
Police: “Hello, Steve? It’s the D.C. Police. We’ve got some good news and some bad news.”
Imaginary Owner Named Steve: “Uhhh, it’s 1:00 am.”
Police: “Yeah, so the bad news is that some people broke into your rental home and threw a party. There was a makeshift strip club downstairs and some illicit sex upstairs. And, by the way, your floor is filthy. And, there are some condoms – both used and unused – upstairs by the mattress and the candles. At least your toiletries were unharmed.”
Steve: “What the [expletive deleted]!”
Police: “The good news is that we arrested everyone we could find – except the bachelor because we can’t find him. We even got the guy who barricaded himself in your upstairs bathroom. So, did Peaches have permission to use the house for a bachelor party?”
Steve: “Uhhh. [expletive deleted] no!”
Police: “Was she allowed to use the house for any purpose?”
Steve: “No. We were negotiating a lease but that’s it. I guess I should have checked her references a bit better.”
Police: “Ok. Have a nice night. Let’s meet at the station in the morning.”
Side note: does anyone think that Steve was able to sleep that night? He was probably up until the wee hours Googling real estate agents to unload this palace of debauchery.
After the call with the owner, things got real – from a constitutional standpoint. As mentioned before, the police heard multiple people claim they were invited to the party. This would indicate to a diligent cop that they had legal permission to be there. But, all of the other facts that night belied that information. Besides, the partygoers could have been lying. So, a police Sargent made the call to arrest twenty-one people and charge them with Unlawful Entry. They were taken to the police station where the charges were changed to Disorderly Conduct. It seems as if word spread around the station that the partygoers thought they had permission to be at the house – vacant or not. Disorderly Conduct now became a better fit for that evening’s activities. You can still be illegally disorderly in a place where you’re invited. There is no doubt that this piece of policework was a bit sloppy and hurt the government’s case. Eventually, each partygoer was released, and all charges were dropped.
The (Less Hilarious) Aftermath
This chain of events made sixteen of the partygoers mad enough to consult lawyers and sue. They were upset that the police arrested them without having probable cause for Unlawful Entry. They claimed they were invited to the house (vacant or not) and that fact made their entry lawful. They made this clear to the officers and that fact, they believe, negated any probable cause. So, they sued the District of Columbia and five of the arresting police officers. Their suit against the officers was for False Arrest under the Fourth Amendment and False Arrest under D.C. Law. Their suit against the District claimed False Arrest and that the government failed to adequately supervise these officers.
The defendants responded that they had probable cause to arrest each of these people and, even if a court found otherwise, the officers are entitled to immunity from this suit under federal law.
In the Courtroom
This defense utterly failed. The False Arrest part of the case didn’t even make it to a jury. The judge ruled that a jury trial wasn’t necessary because the law so clearly favored the partygoers. Therefore, there was indeed a False Arrest and, since reasonable officers should have known better . . . no immunity. To the judge, the police investigation and evidence at the house couldn’t outweigh the belief that each partygoer thought he or she was invited. The law in D.C. surrounding Unlawful Entry requires probable cause that partygoers knew or should have known when they entered the house that the owner didn’t want them there. Here, the judge ruled that the police did not have that type of evidence and, therefore, arrested these people without probable cause. That made this a clear Fourth Amendment violation to the trial judge.
With liability imposed against the government, the case went to a jury to determine damages. How much would the officers and the District have to pay to the winning partygoers? The jury came back with a verdict of $600,000! Then, the judge tacked on attorney fees of $400,000 for a grand total of $1 million! I repeat, $1 million! At this point, it seems like the partygoers made a great choice by heading to Peaches’ place. They had a fun night – clearly. And, yeah, they got arrested. But, the charges were dropped and they each stood to make nearly $40,000 each for what appeared to be a night in jail. There is a more serious argument that asks whether $40,000 is worth a violation of anyone’s Fourth Amendment rights? Which side of that argument do you take?
The District and officers appealed. A federal appeals court in D.C. affirmed, meaning that the $1 million judgment stayed intact. To two of the three judges hearing this appeal, Peaches’ alleged invitation was enough. There just wasn’t strong enough evidence to show that the partygoers knew they weren’t supposed to be there or that the house was vacant. The denial of immunity stood too as it was “clearly established” under the law that a reasonable officer – obeying the Fourth Amendment – would not have made the arrests. One judge dissented. But, the majority rules in an appeals case and it was 2-1 against the government. The defendants now placed their last arrow in the quiver, an appeal to the United States Supreme Court.
Amazingly, the Supreme Court took the case. One of 70 or so they hear a year from over 7,000 appeals. It was an odd choice to many because of its fact-bound nature. There is a good chance that these facts won’t reappear in any new Fourth Amendment case. That means that the precedent here is not likely to be of great value to future litigants. But, whatever and thank goodness! Otherwise, this post would never have been written and you never would have been exposed to Peaches and her crew. The justices were asked to decide whether the officers had probable cause and, if not, whether they were entitled to immunity. Here’s what happened:
@ The Supreme Court
The Fourth Amendment protects you against unreasonable searches and seizures. An arrest counts as a seizure of your body. So, the Fourth Amendment requires all arrests to be reasonable. A warrantless arrest, like what happened here, requires the officer to believe the suspect committed a crime in his presence – so-called probable cause. Otherwise, it is considered unreasonable and the government is subject to a False Arrest lawsuit. The partygoers’ claims boil down to:
- Peaches invited us to the house for a bachelor party;
- So . . . we came over and partied (. . . let’s leave it at that);
- The cops arrived and arrested us for Unlawful Entry . . . without a warrant, mind you;
- Since this was a warrantless arrest, they needed evidence that we knew we weren’t supposed to be there. This is the law in D.C.;
- They lacked that evidence (we told them we were invited) and arrested us anyway;
- So, this was a False Arrest and a violation of our Fourth Amendment rights. And, we want $$ from them and their bosses for failing to teach the proper way to handle these situations.
Courts decide who’s right in these probable cause cases by looking to what a reasonable officer would have done that evening. They look at all the circumstances objectively (from the perspective of a reasonable police officer), not subjectively (what the officer on the scene was actually thinking). The question boils down to whether a reasonably diligent officer, looking at the whole situation, would recognize criminal activity on the premises. This is a low bar for the police to meet. The Supreme Court gives a lot of leeway to the police here. The idea is that judges will be able to identify cases lacking probable cause and let defendants off the hook later down the line. Better to stop likely-guilty people from walking away from a crime scene.
The vast majority of the Supreme Court agreed with the government. Justice Clarence Thomas wrote the nearly unanimous opinion (8-1 and more on that later) and argued that the police had probable cause when viewing all of the facts or the “totality of the circumstances.” He claimed that the lower courts isolated each fact instead of looking at the totality of the circumstances. That made the case look much more favorable to the partygoers than was proper. When you look at the big picture, he argued:
- It was clear that no one lived there. The living room was vacant except for a few folding chairs on a filthy floor. There were no boxes indicating that someone was moving. There were no clothes in the closet. The lower courts wrongly focused on the food in the fridge and toiletries (partygoers could have brought this stuff) as well as the blinds and a few of the utilities being connected (the homeowner could have kept these in anticipation of renting the place soon). In the end, a reasonable officer could have concluded that these partygoers knew the house was vacant and that they weren’t supposed to be there.
- People ran in all directions when the cops arrived. This is another indication that a reasonable officer would believe that these people knew they shouldn’t be there.
- The partygoers told random stories when questioned. Few knew Peaches’ name – which is odd if she invited them. Some claimed they were there for a bachelor party, but no one could identify the bachelor. This would lead a reasonable officer to believe that they were lying and, therefore, knew they shouldn’t be there.
- Finally, most people don’t trash their house in this manner. As the Supreme Court said:
Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy.
All this indicates that a reasonable police officer could have found probable cause to believe that these people knew that this party was not authorized. Remember, this is a low bar to hurdle and the officers were justified here. This means there was no Fourth Amendment violation. The officers win in the sense that the judgments against them will be vacated. They still had to go through ten years of legal battles, however. The party happened in March 2008 and the case was decided in January 2018.
Immunity
The immunity issue became moot as soon as the Supreme Court found that the cops did not violate the Fourth Amendment. You don’t need immunity if you acted legally. Normally, that would be the end of the opinion. Here, however, the justices took on the immunity issue anyway. They were worried that other lower courts would mess it up the next time based on what the D.C. courts did here. In their words: “We exercise . . . discretion here because the D.C. Circuit’s analysis, if followed elsewhere, would undermine the values qualified immunity seeks to promote.”
The idea is that police officers should be given major leeway in the immunity analysis. The whole point of immunity is to encourage police to do their job without always fearing a lawsuit from a vindicated defendant. The only time an officer really loses immunity is if she acts really, really badly. In other words, she must violate a person’s rights in such a way that no reasonable officer could disagree that what she did was wrong. The issue must be beyond debate. The only cops who lose under this standard are these who are grossly incompetent or those who purposely violate the law. Those instances are rare – thank goodness.
And, neither of those things happened here. The Court held that this situation is a good example of when immunity should be granted. The facts of the case do not place the probable cause issue beyond doubt. The lower courts put too much weight on the fact that these people thought they were invited to the party. In fact, it is entirely possible, Justice Thomas argued, that a reasonable police officer might have found cause to arrest considering all the circumstances – not just the alleged invitation. So, even if the police lacked probable cause to arrest the partygoers, they must be covered by immunity. As mentioned above, this part doesn’t matter as much because the officers did not lack probable cause to arrest. The Supreme Court is just making a point to the next set of courts to hear a Fourth Amendment case where the police ask for immunity.
The Rest of the Story
We cannot end without discussing an interesting side note. The vote in this case was not unanimous. If you are being precise, it was 8-1 (with a few concurrences from the liberal-leaning justices including the failure to obtain Justice Ginsburg’s full agreement on the outcome). Let’s quickly break that down:
Justice Sotomayor –
Justice Sotomayor concurred in part. This means that she agreed that the officers should win on the immunity issue. But, she argued that the Court should not have gotten into the Fourth Amendment issue. She felt that granting the officers immunity was enough to eliminate the state and federal cases against them without getting into a constitutional analysis. Her argument is a good one and something the Supreme Court does all the time. The justices like to avoid the constitutional issues in cases because interpreting the Constitution is strong medicine. It can result in drastic changes in public policy and people’s lives. It changes precedent in a big way and it’s done by unelected judges. They would rather narrowly resolve these cases and leave the Constitutional interpretation for another day. This is called Constitutional Avoidance.
Each of the current Supreme Court justices adheres to Constitutional Avoidance for the most part. However, the majority in this case did not agree that the grant of immunity itself would be enough to remove the liability facing these officers. They argued that they had to get into the Fourth Amendment weeds to make sure the officers walked away with zero liability. Though Justice Sotomayor disagreed, that wasn’t enough to keep her from voting with the majority in full. Her separate opinion on the immunity matter is merely a concurrence.
Justice Ginsburg –
Not so with Justice Ginsburg who, on the other hand, reluctantly voted only for the immunity part of the majority opinion. This is called a “Concurrence in the Judgment in Part” for you law nerds out there. Justice Ginsburg agreed with granting immunity for the police only because she felt that the Court’s precedent required it. This then bound her to vote this way. She did suggest, however, that the Court should take up a different case that would allow the justices to analyze why police officers act during an arrest. She is interested in what an officer actually considered when finding probable cause. As mentioned earlier, the current standard looks objectively to what a reasonable officer would do under similar facts. The subjective intent of the arresting officer does not factor in to the decision. Justice Ginsburg thinks it should.
She also quibbled with the majority’s rendition of the facts and suggested that Justice Thomas was exaggerating. Without the exaggeration and looking subjectively to what the officers must have been thinking, she argued that it wasn’t clear that there was even probable cause to arrest for Disorderly Conduct.
So . . . What Do You Think?
So, what do you think? Here are some key questions to ponder about the law and ethics of this case and in general:
- Do you agree that the police had probable cause to arrest these people?
- What would you have done as a police officer responding to that house?
- Do you think the cops acted incompetently or in blatant violation of the law?
- How much leeway should the cops give to loud parties late at night?
- How do you balance the homeowner’s rights to celebrate with the neighbor’s rights to late night peace and quiet?
- Do you think police officers should have broad leeway to make arrests without the constant fear of lawsuits?
- Do you like the concept of police immunity in most situations?
- If not, how many people do you think would sign up to be officers under the constant threat of lawsuits?
- If so, do you worry that police will get away with unethical and unlawful behavior under the impression that immunity will provide a shield?
- Do you agree with Justice Ginsburg that the subjective motivations of police officers must matter in the probable cause analysis?
My Opinion
I think this case came out both legally and ethically correct. It’s great when those two, often distinct, areas coincide. I wish they would more often.
The Legal Arena – I am a proponent of expansive Fourth Amendment protection. I think the government – possessing far greater resources and power – must act reasonably, almost always get a warrant before snooping around, and be scrupulously fair towards suspects and defendants. However, that is exactly what the police did here. There is no evidence that they discounted secondary evidence at the scene showing that these people were invited to the house. There was none. They listened to the partygoer’s pleas that Peaches invited them and then balanced those statements against the rest of the circumstances. They made the call that the partygoers were lying and I think many reasonable police officers would have done the same.
It’s too bad the cops didn’t charge everyone with Disorderly Conduct from the very beginning. That would have made the legal case that much stronger. Then, it wouldn’t have mattered whether they were invited. Maybe Justice Ginsburg is right that the party was tamer than Justice Thomas claimed. This wouldn’t have allowed a Disorderly Conduct charge to hold up. My sense is that a Disorderly Conduct charge carries a lesser punishment than Unlawful Entry. That might explain the initial charge of Unlawful Entry. If so, that “throw the max charge out there to see if it sticks or to see if we can induce a plea bargain” approach to arrest situations certainly backfired in this ten-year legal battle. To me, that is a legally suspect approach to law enforcement under the Fourth Amendment. It is a tactic used far too often, unfortunately. I find it unreasonable to say the least and perhaps the subject of another post.
On the ethics side, I also think this case came out correctly.
Virtue Perspective – from a virtue perspective, the police acted fairly and professionally at the scene. There is no evidence of mishandling of suspects or evidence. The situation did not escalate, even when many suspects ran or locked themselves in the bathroom. It does seem fair for people to be punished for throwing that kind of party, uninvited, in another person’s vacant home and then running from the police. It would seem unfair if everyone in a similar situation could claim that they were invited to such a party – by someone who they barely remember and cannot properly identify – and, thereby legally force the police to leave. The police acted respectfully to the partygoers and exercised self-discipline in responding to the situation.
Greater Good Perspective – from a Utilitarian perspective, I am also okay with the threat of arrest, or an actual arrest, for Disorderly Conduct under these circumstances. That result seems to be in the interest of the greatest number of citizens who prefer peace and quiet in residential neighborhoods at 1:00 am and the safety and security of their personal property. Busting people for partying in what is obviously a vacant house produces more pleasure for society than pain. I also think that giving a wide immunity net to police officers is in society’s best interest. Police need the freedom to ferret out crime without fear of continual lawsuits. The minority cases where incompetent police work or blatant legal violations occur are still be punished under current law. That just didn’t apply to the officers in this case.
Duty Perspective – it also appears that the police officers here acted out of a sense of duty, with pure motives, and with an appropriate level of care for the dignity of the suspects as human beings. There is no evidence of retaliation or bias at the scene of the arrest. Perhaps the government’s motives were not as pure at the police station where the charges were abruptly changed. But, that should not affect the analysis of the officers on the scene . . . the ones being sued. Duty-based ethics looks to whether those officers took an exception for themselves that they wouldn’t be willing to have others take towards them. Putting myself in the shoes of the officers at the scene, I would be hard-pressed to get upset if someone arrested me for attending this type of drug-infused party and then running away from the police trying to question me. At a minimum, I do want to live in a world where people get busted for running from the cops. So, I should pay the price for running from the cops.
Therefore, ethically, I think the Supreme Court made the correct call. This is true even though ethics is not something they need to consider in their opinions.
Ok – so I told you this case was extraordinary. You made it this far. Congrats! Do you feel a bit smarter? The Supreme Court has many more cases to decide this term. We will cover the most interesting ones. I will go out on a limb and speculate that this will be the last one with makeshift strip clubs in the living room. Bummer, I know. But there are important First Amendment, business, and voting rights cases to come. So, stay tuned. And, until next time . . . best of success from ethics blog!
