{"id":9726,"date":"2013-11-05T08:13:56","date_gmt":"2013-11-05T08:00:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-11-05T08:00:56","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9726","title":{"rendered":"SCOTUS: QI goes to officer making entry that was not clearly unconstitutional"},"content":{"rendered":"

The Ninth Circuit below in finding no qualified immunity for an entry in misdemeanor pursuit necessarily included that the officers were \u201cplainly incompetent.\u201d In light of the split in the case law, that court was wrong. Maybe the entry was constitutional, maybe it wasn\u2019t, but they weren\u2019t \u201cplainly incompetent\u201d in making the entry. \u201cStanton may have been mistaken in believing his actions were justified, but he was not \u2018plainly incompetent.\u2019\u201d Stanton v. Sims<\/a>, 2013 U.S. LEXIS 7773 (November 4, 2013) (per curiam):<\/p>\n

<\/p>\n

There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was \u201cplainly incompetent\u201d in entering Sims\u2019 yard to pursue the fleeing Patrick. Id., at ___, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (slip op., at 12). The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g., Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 2002 Ohio 1625, 765 N. E. 2d 330, 332 (2002) (\u201cWe … hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor\u201d), and State v. Ricci, 144 N.H. 241, 244, 739 A.2d 404, 407 (1999) (\u201cthe facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer\u201d where the defendant had fled into his home with police officers in hot pursuit), with Mascorro v. Billings, 656 F.3d 1198, 1207 (CA10 2011) (\u201cThe warrantless entry based on hot pursuit was not justified\u201d where \u201c[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit\u201d (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S.W. 2d 412, 415 (1992) (\u201ceven though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, … since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth\u2019s warrantless entry into Butler\u2019s home for what is concededly, at most, a petty disturbance\u201d).<\/p>\n

Other courts have concluded that police officers are at least entitled to qualified immunity in these circumstances because the constitutional violation is not clearly established. E.g., Grenier v. City of Champlin, 27 F. 3d 1346, 1354 (CA8 1994) (\u201cPutting firmly to one side the merits of whether the home arrests were constitutional, we cannot say that only a plainly incompetent policeman could have thought them permissible at the time,\u201d where officers entered a home without a warrant in hot pursuit of misdemeanor suspects who had defied the officers\u2019 order to remain outside (internal quotation marks and citation omitted)).<\/p>\n

Notwithstanding this basic disagreement, the Ninth Circuit below denied Stanton qualified immunity. In its one-paragraph analysis on the hot pursuit point, the panel relied on two cases, one from this Court, Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), and one from its own, United States v. Johnson, 256 F. 3d 895, 908 (2001) (en banc) (per curiam). Neither case clearly establishes that Stanton violated Sims\u2019 Fourth Amendment rights.<\/p>\n

. . .<\/p>\n

In concluding \u2014 as it must have \u2014 that Stanton was \u201cplainly incompetent,\u201d al-Kidd, 563 U.S., at ___, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (slip op., at 12), the Ninth Circuit below read Welsh and the footnote in Johnson far too broadly. First, both of those cases cited Santana with approval, a case that approved an officer\u2019s warrantless entry while in hot pursuit. And though Santana involved a felony suspect, we did not expressly limit our holding based on that fact. See 427 U.S., at 42, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (\u201cThe only remaining question is whether [the suspect\u2019s] act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not\u201d). Second, to repeat, neither Welsh nor Johnson involved hot pursuit. Welsh, supra, at 753, 104 S. Ct. 2091, 80 L. Ed. 2d 732; Johnson, supra, at 908. Thus, despite our emphasis in Welsh on the fact that the crime at issue was minor \u2014 indeed, a mere nonjailable civil offense \u2014 nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit. Third, even in the portion of Welsh cited by the Ninth Circuit below, our opinion is equivocal: We held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare. 466 U.S., at 753, 104 S. Ct. 2091, 80 L. Ed. 2d 732.<\/p>\n

To summarize the law at the time Stanton made his split-second decision to enter Sims\u2019 yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.<\/p>\n

We do not express any view on whether Officer Stanton\u2019s entry into Sims\u2019 yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not \u201cbeyond debate.\u201d al-Kidd, supra, at ___, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (slip op., at 9). Stanton may have been mistaken in believing his actions were justified, but he was not \u201cplainly incompetent.\u201d Malley, 475 U.S., at 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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