CA10: Arrest of an entire police tactical unit for thefts during searches was protected by qualified immunity for the half found innocent

A group of officers alleged to have been stealing during search warrant execution was all arrested, but the arrest was over inclusive, nabbing some innocents. “These consolidated cases arise from a sting operation designed to determine if police officers in the Kansas City, Kansas Police Department’s (KCKPD) SCORE Unit were stealing from residences while executing search warrants. As a result of the sting operation, three officers were indicted and pled guilty to federal crimes. The remaining officers brought claims under 42 U.S.C. § 1983, asserting violations of their Fourth Amendment rights for arrests without probable cause.” The search went down with bait items and it was remotely watched on video by the local police and FBI. The arrest of the three innocent officers was barred by qualified immunity. Callahan v. Unified Gov’t of Wyandotte Cnty., 2015 U.S. App. LEXIS 19872 (10th Cir. Nov. 16, 2015):

The proper and properly-focused inquiry is whether the law was clearly established that an officer could not arrest an entire small group when he knows some unidentifiable members, if not all members, of that group have committed a crime. This question of probable cause in multi-suspect situations is far from beyond debate. Plaintiffs and the district court relied upon Ybarra v. Illinois to remind us that probable cause must be particularized to the individual who is searched or seized. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). Indeed, Ybarra may have served as a case on point if Maryland v. Pringle—which the district court appears to have overlooked in its clearly established law analysis—had never been decided. But Pringle makes the question debatable at the very least, and therefore precludes a finding that the law was clearly established. See, e.g., Tracey Maclin, The Pringle Case’s New Notion of Probable Cause: An Assault on Di Re and the Fourth Amendment, 2004 Cato Sup. Ct. Rev. 395, 427 (2004) (positing that Pringle likely “translates into a new per se rule that permits the arrest of multiple suspects whenever police discover contraband in compact spaces”); 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.6(c) (5th ed.) (recognizing an “undercurrent” in Pringle that views probable cause “as something less than more-probable-than-not and views arrest as sometimes serving an investigative function” and admitting that it is uncertain if this will impact “how lower courts construe the case in the years ahead”); 2 Wayne R. LaFave, et al., Crim. Proc. § 3.3(b) (3d ed.) (citing precedent that probable cause requires “a basis for singling out but one person,” but admitting Pringle “can be interpreted otherwise”).

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Before we hold officers liable, we must ensure that they were fairly put on notice that their actions were unlawful. The contours of the law must be sufficiently drawn so that a reasonable officer knows when he is acting outside of those lines—the law must be clearly established. That was simply not the case here. Though Ybarra requires particularized probable cause, Pringle raises questions regarding how that requirement is satisfied in multi-suspect situations. The officer in Pringle knew a crime had been committed but could not identify the perpetrator. He was presented with three suspects, none of whom were independently suspected prior to the stop. Evidence of a “common enterprise” existed, and so the officer could reasonably infer that all present were involved in the crime. In such a scenario, the Supreme Court seemed satisfied that Ybarra’s particularized probable cause requirement was met. But see Maclin, supra, at 415 (arguing that Pringle effectively eliminated Ybarra’s particularized probable cause requirement).

But what if there were ten passengers, not three? What if the suspects were in a house, not a car? What if they were engaged in theft, not drug dealing? The Court did not establish a clear standard for applying Pringle beyond its specific facts. But neither are the facts of this case so distinct from Pringle that an officer could not reasonably assume it applied. Simply put, Pringle’s application to this case is debatable. See 2 LaFave, Search & Seizure, supra, § 3.2(e) (concluding that the Supreme Court side-stepped the question of whether probable cause requires “more probable than not as to a particular member of the group”). We cannot ask officers to make a legal determination—that law professors probably could not agree upon—without any guidance from the courts and then hold them liable for guessing incorrectly. Qualified immunity exists to prevent exactly that. Plaintiffs offer us no other case on point to establish that Defendants violated their clearly established rights by arresting the entire unit.