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Thursday, November 02, 2017

DC v. Wesby and Fourth Amendment Perspective

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.

Posted by Richard M. Re on November 2, 2017 at 12:19 PM | Permalink


Interesting, Richard. If you'll allow me an initial reaction from the post, without reading the draft, I wonder if you (and Justice Kagan) are really objecting to a particular substantive criminal law rather than to the Fourth Amendment probable cause standard. Here's my thinking. Under the existing and traditional officer-perspective Fourth Amendment, "the people" do have the ultimate say on reasonableness. Through the legislature, "the people" decide what is a crime. And by deciding what is a crime, they determine when the police can make arrests for that crime.

In the case of Wesby, for example, if "the people" want partygoers to not be subject to arrest unless they have clear notice that the party is unauthorized, then that's easy: Just draft the criminal law so that a person is not criminally trespassing unless they receive clear notice that their presence is unauthorized. The problem in Wesby (if it is a problem) is that the DC criminal trespass law prohibits negligent trespass: That is, a person violates the law if they reasonably should know they're not supposed to be there. So the officer can make an arrest if he has probable cause to believe a person reasonably should know they're not supposed to be there, even if they don't actually know that. Maybe that doesn't match your (or Justice Kagan's) intuition about what is fair. But I wonder if that signals a problem with Fourth Amendment law or if it's just a problem DC's trespass statute.

Posted by: Orin Kerr | Nov 2, 2017 12:34:06 PM

Oops, sorry, last phrase should be "just a problem with DC's trespass statute."

Posted by: Orin Kerr | Nov 2, 2017 12:36:13 PM

Thanks for that interesting post , but the respectable author of the post , seems to confuse or to misunderstand that meaning of : " reasonableness " . This is because , it does imply , set of rules which are objective , and not subjective, in no way almost indeed . Sometimes , such rules , grant excessive rights and unexpected as such , to offenders , sometimes excessive discretion or power , to the police officer or other agent of law . But , one can't demand clear anticipation or prediction . Lets illustrate it :

An offender is holding a stash of drugs . Yet , police officers , without warrant , and reasonable or probable cause , would intrude his premises and burst in , and catch the drugs . The offender , has an excessive right , beyond his expectation !! Why ? drugs have been revealed and seized , how shall he get away with it one layman may wonder ?? Well , he has great chance !! Why ?? unlawful search that would suppress evidence in court . So , subjective perception , has almost nothing to do here .
Finally , what a police officer needs , is not to balance or imagine , but :

To restrain himself , to delay any instinctive reaction . To exercise proportionality always . In such case , there is a party . Why not to question and verify facts before arresting ?? Simply improvised inquiry may have been sufficient , in order to trace , the sole bad guy responsible for such mess . Finally , no murder , no rape , no urgent need for immediate arrests it seems .

First you talk , then you shoot !! Very simple !! first you question , then you may arrest or detain . Several minutes Vs . hell in custody . It is not so high , just to sigh !!


Posted by: El roam | Nov 2, 2017 12:54:38 PM


Thanks for the interesting take. There is a lot more to say about the relationship between substantive and procedural fairness than I can include here, and I will have to continue reflecting on that topic.

For now, though, let me just note that the courts' Fourth Amendment responsibilities shouldn't be outsourced to the legislature. The democratic process can yield outcomes that are unfair to individuals. So even if the legislature should change the law, that wouldn't relieve SCOTUS of the obligation to figure out what a fair probable cause standard would be.

It might even be futile to shift these fairness questions to legislators. No matter what the substantive law is, there will be a separate question about how much probable cause is probable enough.


Posted by: Richard | Nov 2, 2017 2:12:49 PM

I think there’s a potentially useful parallel to torts here. The reasonable person standard in torts refers to the tortfeasor and is generally measured from the tortfeasor’s perspective, not that of the victim whom tort law protects. Presumably the reason is that tort law is meant to regulate the conduct of the potential tortfeasor, so it’s her perspective we’re concerned with.

Two points: 1) To the extent the 4th Amendment speaks to the issue of perspective, I think the most natural reading would be that a law grounded on trespass actions and using the term “[]reasonable” uses the perspective of the constable rather than that of the people. 2) You might find some useful support in the literature on non-utilitarian theories of torts and/or in the anti-law-and-economics tort literature. Anyway, interesting project!

Posted by: Matthew Tokson | Nov 2, 2017 2:35:13 PM

I don't see how that's responsive to Professor Kerr's point. You seem to be suggesting that in order to have probable cause to arrest for the crime of negligent trespass, the police must have evidence of a quite different mens rea, knowing trespass, apparently because of the risk of false-positive determinations that there's probable cause to believe someone negligently trespassed. And I shouldn't even say false-positive determinations, but rather, perfectly reasonable determinations that there's probable cause to think someone negligently trespassed, who, it turns out, didn't really negligently trespass. Of course, such false-positive determinations are in the nature of any plausible test for probable cause.

To state Kerr's point more aggressively, making "the probable cause standard . . . sufficiently stringent to ensure that reasonable partygoers are not subject to arrest unless they have notice that the party is unauthorized" has nothing to do with "how much probable cause is probable enough," but rather forces police to find evidence of a different, harder-to-prove crime altogether. I don't hear you to really be saying anything about how *much* evidence the police need of notice, which would go to probable cause (for a different crime); you've just redefined the crime for which police must find probable cause to arrest.

Other than that, it may well be that a contractualist rights-holder perspective will ultimately lead courts to assess these questions from the perspective of a reasonable officer at the level of implementation; it's not obvious to me, anyway, that it wouldn't (or that it would, but it might). It's also possible that any other approach would deter far too many arrests and searches.

Posted by: Asher Steinberg | Nov 2, 2017 2:49:47 PM

I concur wholeheartedly both with Richard's intial remarks and to his response to Orin.

"The Fourth Amendment is concerned with “unreasonable searches and seizures,” not unreasonable police."

Bingo. That's is why the reasonable officer standard is not a means to implement a right, it is a means to /abandon/ that right.

"For now, though, let me just note that the courts' Fourth Amendment responsibilities shouldn't be outsourced to the legislature."

This doesn't go far enough. It is that, if the judicial review is to have any substantive meaning, it /can't/ be outsourced to the legislature. The objection can be phrased this way: why stop with the 4A? If the 4A can be outsourced to the legislature then why not the rest of the Constitution as well? To be sure, this was exactly the position of Thomas Jefferson but then Jefferson thought Marbury was the devil's work.

Orin writes, "Under the existing and traditional officer-perspective Fourth Amendment, "the people" do have the ultimate say on reasonableness. Through the legislature, "the people" decide what is a crime."

This proves too much. For we could say the same thing about other parts of the Constitution: the people through the legislature determine what is cruel and unusual punishment, that the people through the legislature determine what is free speech, etc. If SCOTUS is an independent branch of government then it must decide constitutional questions as if the legislature didn't exist.

In my view the "reasonable officer" standard doesn't arise out of any theory of constitutional interpretation: it arises out of the pragmatic sense that judges--as generalists--are ill-equipped to second-guess officer conduct with the benefit of hindsight. A "reasonable people" standard doesn't alleviate this concern, it exacerbates it. This is actually a reasonable point. The problem with it is the problem that Richard and I agree on: that kicking the problem into the lap of the executive or the legislature is not, at least in theory, what judging is supposed to be about. 4A question are frequently difficult but a judge slamming his head into his hand and saying "i'll let someone else deal with the problem" makes a mockery for the idea of the judiciary as guardians of the Constitution. If judges are not second-guessing the police and the legislature then what the hell are they there for?

Posted by: Daniel | Nov 2, 2017 2:57:34 PM

Richard, thanks for the reply. I have heard it suggested (the sources currently escape me) that maybe there should be Fourth Amendment substantive review of criminal laws. In particular, perhaps the legislature's choices of what should be a crime should be reviewed for reasonableness, such that judges get to proclaim which of the "the people's" crimes are reasonable such that probable cause of those crimes would be fair to make arrests. The idea would be sort of a vagueness doctrine on steroids, with increased scrutiny of each criminal law to see if it satisfies the courts in how it is applied. It's an interesting idea, but I confess it seems to me to take the Fourth Amendment in some directions that traditional legal tools (history, text, precedent, etc.) don't seem to me to offer much help. But I guess we may part ways on whether a generic inquiry into a judge's view of what is "fair" is part of what the Fourth Amendment requires.

Posted by: Orin Kerr | Nov 2, 2017 3:18:47 PM

Orin: Again, there is too much to say here.

But I don’t think fairness review for PC is as exceptional as you seem to suggest. The Court routinely engages in some kind of cost-benefit analysis, as you’ve observed in your own work. What I am saying is that a more individualistic approach to fairness is called for. Put another way, “a generic inquiry into a judge's view of what is fair” is inevitable if the Fourth Amendment is to have any teeth. My claim is about how to go about conducting that fairness inquiry.

You also mention substantive review for reasonableness. I agree that the demands of fairness —- like any meaningful approach to PC -- will sometimes make it hard for police to enforce certain laws. But the law in Wesby doesn’t really raise that issue. It is easy to imagine an unlawful trespass where any reasonable party-goer would be on notice. For example, objective evidence of forced entry would matter, as the justices pointed out. So we can agree with Justice Kagan without rejecting negligent trespass or (as Asher suggested) introducing a subjective knowledge element.

All that said, you are making a sound point: I am indeed open to the possibility that the substantive unfairness of the criminal law could render its enforcement categorically unreasonable under the Fourth Amendment. I just don’t think that stronger claim is necessary to make either Kagan’s points or mine. Perhaps that is ultimately where we disagree.

Posted by: Richard | Nov 2, 2017 4:43:43 PM

It seems to me that legislation can only be seen to solve the reasonableness problem if we think that any search or seizure in an attempt (or, perhaps, good faith attempt) to enforce a crime is per se reasonable. If not, the legislature creates crime X, and the court still must decide on an individual basis if an officer had probable cause given the specific facts of the case.

In my inexpert view, the Court's deferential Fourth Amendment standards have led to a situation in which law enforcement practice steers the jurisprudence when it should be the other way around. If we've framed the rules as means of deterrence, shouldn't the Court proactively use cases like Wesby as vehicles to shape police behavior? Else the Fourth is more about fairness to the police than fairness to the citizens. Thinking out loud now, I guess this is what you're saying and I agree with you.

Interesting post--look forward to reading your draft over the weekend.

Posted by: Patrick | Nov 2, 2017 5:47:32 PM

I agree that it isn't exactly necessary to adjudge a negligent-trespass law's enforcement "categorically unreasonable" in order to make your point, or Kagan's, because there will be, as you say, many cases where any reasonable party-goer would clearly know he wasn't invited. But the examples you've offered - forced entry, or evidence that "they *have notice* that the party is unauthorized" (emphasis added) - are indicia of knowing trespass; do people really commit forced entry into others' property on the unreasonable belief that they've been invited to come over? And how can someone have notice that a party is unauthorized without his trespass being knowing? So it really sounds to me like you're saying that the law is only enforceable as to the subset of negligent trespasses that appear to be knowing trespasses, which really is to say that the law isn't enforceable insofar as it permits prosecution for merely negligent trespass. I'm not sure what motivates that conclusion.

Posted by: Asher Steinberg | Nov 2, 2017 6:06:34 PM

I must admit I did not anticipate Orin's reply. Unlike Richard I don't think that there is any 4A basis for a substantive review of criminal laws. The 4A is entirely a procedural protection. This idea "perhaps the legislature's choices of what should be a crime should be reviewed for reasonableness," is a truly bad idea. That being said I don't see how that issue has anything to do with what Richard is saying in regards to Kagan's remarks.

Richard writes, " I just don’t think that stronger claim is necessary to make either Kagan’s points or mine." Yes, I agree with that. Whether the DC trespassing statute is unreasonable in some generic sense has nothing to do with whether or not the officer's effort to enforce it was reasonable. Phrased philosophically, for the sake of this conversation, I will accept that a police officer can act reasonably for 4A purposes even when enforcing an unreasonable law.

Posted by: Daniel | Nov 2, 2017 6:09:58 PM


Interesting exchange, as always. I know I should read the article first, but at least based on your response, I suppose the question is why the Fourth Amendment must incorporate your version of "teeth." The Fourth Amendment does some things and doesn't do other things. It's not obvious why it should have to do enough to establish any one person's view of justice, fairness, goodness, "teeth," etc. Plus, if we adopt a view of the Fourth Amendment where a particular judge's view of fairness prevails, that then will get used by judges who may think fairness is pretty different from what you may think -- such that a fair world is one in which guilty people are arrested and punished.

As for the idea of substantive review of criminal statutes, I'm not saying that it is required by your approach. Rather, once you introduce the view that the Fourth Amendment requires some kind of fairness review -- or that any law does, making me look forward to the Third Amendment revival to finally give it teeth! :) -- there are an essentially infinite number of ways to get there doctrinally. The idea of substantive fairness review was just one possibility.

Posted by: Orin Kerr | Nov 2, 2017 6:55:09 PM

Also, building on Asher's point, I still think the concerns that Richard is flagging are more classic questions of 1L substantive criminal law than Fourth Amendment law. Issues of notice to the citizen and laws that give the police excessive enforcement power are key parts of 1L crim debates on the requirement of scienter, the rule of lenity, and the void for vagueness doctrine from cases like City of Chicago v. Morales. My recollection is that Bill Stuntz argued in his later work (perhaps his last book?) that the Warren Court should have spent more time creating new limits on substantive criminal laws than on expanding purely procedural guarantees like the 4th/5th/6th; in his view, as I recall, that was the Warren Court's biggest failure in the 1960s criminal justice revolution. Richard's ideas here seem at least somewhat on the same wavelength as Stuntz's suggestions, although I don't think Stuntz was thinking that such limits should come from the 4th Amendment.

Posted by: Orin Kerr | Nov 2, 2017 7:06:59 PM

That's an interesting connection!

Thanks to all for the comments.

Posted by: Richard | Nov 2, 2017 8:32:04 PM

Interesting discussion all around. One thread is like to pick up on: It's easy to imagine laws whose very enforcement, no matter how reasonable from a procedural standpoint, is substantively unreasonable. Take, for example, a law making it a crime to have even a single speck of dirt in one's house. Since every homeowner will (presumably) be violating this law at all times, police would have automatic probable cause to search any house at any time. Yet that can't be the right result.

Perhaps such a search would be a substantive due process violation (a la Robinson v. California, though that was an Eighth Amendment case), rather than a Fourth Amendment violation. But wouldn't it be more natural to invoke the clause of the Constitution that explicitly speaks to unreasonable searches.

A related question springs to mind: Settinng aside qualified immunity, was the search to enforce Texas's anti-sodomy statute in Lawrence a Fourth Amendment violation?

Posted by: Doug | Nov 3, 2017 8:58:56 PM

Doug, wouldn't the law you describe violate the common law mens rea requirement?

Posted by: Orin Kerr | Nov 4, 2017 6:29:14 PM

Actually, scratch that: The more obvious difficulty would be the lack of actus reus. You need a voluntary act to constitute a crime -- some action that a person decides to take, or decides not to take -- so that the criminal law only punishes conduct for which a person is morally responsible. A crime of "having a speck of dirt in one's house" does not specify an act: It does not punish the act of doing something or consciously refraining from doing something. Given that, it couldn't satisfy the act requirement.

Posted by: Orin Kerr | Nov 4, 2017 7:19:28 PM

Doug: Regarding Lawrence v. Texas, if you are asking about under conventional Fourth Amendment jurisprudence, the search was not unreasonable because the police were responding to a (what turned out to be false) 911 call reporting that there was someone going crazy with a gun in the apartment.

Posted by: biff | Nov 5, 2017 11:12:23 AM


"That is, a person violates the law if they reasonably should know they're not supposed to be there. So the officer can make an arrest if he has probable cause...."

Why is it that a person is referred to with the singular "they" while a police officer deserves the proper "he"? Let's hope this perversion of the English language doesn't get adopted by SCOTUS.

Posted by: Jimbino | Nov 6, 2017 2:14:10 PM

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