US Supreme Court examines scope of governmental immunity
Law enforcement officers who testify at grand jury are now protected by absolute immunity, a protection already afforded to prosecutors and judges
In the span of three months — from February to April — the U.S. Supreme Court issued three decisions focusing on immunity under the Civil Rights Statute, 42 USC §1983. In two of the decisions, authored by Chief Justice Roberts, the scope of governmental immunity was expanded and in a third decision, authored by Justice Alito, the protection from civil suit afforded to trial witnesses was extended to those who testify before a grand jury. Each of these cases in their own way will have a positive impact for the law enforcement community in the long term.
Prior to discussing the facts and outcome of each case it would be worthwhile to review 42 USC §1983 and its significance for law enforcement. Originally enacted in 1871 during the post-Civil War era known as Reconstruction, the statute reads as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”
The Law, Applied
Typically the statute has been used by plaintiffs who have alleged some claimed civil rights violation based on law enforcement conduct, usually by asserting a violation of certain rights protected by either the First, Fourth, Fifth, Sixth, Eighth or Fourteenth Amendments. The cause of action claimed may be of these rights individually or in combination.
While the statute itself provides no cause of action on its own, it serves as a vehicle for remedying governmental conduct by state actors, which include any municipal employee of a political subdivision. Although the statute does not reach the conduct of federal public employees, the U.S. Supreme Court in 1971 created a right to secure monetary damages against federal agents in Bivens v. Six Unnamed Agents of the Bureau of Narcotics and Dangerous Drugs. 1
As a defendant in either a §1983 claim or a Bivens action an officer or agent has the defense of qualified immunity available if their conduct was not in violation of a clearly established constitutional right. They are protected from proceeding to trial in a lawsuit. In Pearson v. Callahan the Supreme Court stated:
“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 2
The 2009 Pearson case modified the qualified immunity analysis from a prior decision in Saucier v. Katz wherein the Court created a two-step analysis:
1.) whether the facts state a constitutional law violation
2.) if so, whether the right was clearly established at the time. 3
The Court in Pearson said this analysis should not be inflexible and lower courts should have the discretion to decide whether such rigid analysis is appropriate in certain cases. This relaxation of the Saucier standard provided trial courts the ability to dispose more readily of those cases where there was no clearly established constitutional right.
The Millenders Incident
The Court’s first 2012 issued decision on qualified immunity came in Messerschmidt v. Millender 4,a case focusing on whether law enforcement officers were entitled to qualified immunity from damages based on an allegedly defective warrant. The facts of the case are unremarkable. A woman decides to break off her romantic relationship with her gang-banger boyfriend. She is scared of the boyfriend and calls police to assist her as she removes her belongings from the apartment she shares with the boyfriend. The police arrive to assist but are called away on an emergency. The boyfriend appears after the police depart and he is angry at her for involving the police. The boyfriend proceeds to viciously assault her which includes his firing a black sawed-off pistol grip shotgun at her five times as she makes her escape in her car.
The girlfriend locates police officers, reports the assault, and provides police with photos of the boyfriend. A detective from the Los Angeles Sheriff’s Department is assigned to investigate.
During the interview with the girlfriend, the detective is told that the boyfriend is a member of a local street gang, that he was angry with her for calling the police, that he previously assaulted her, and that she believed he was staying at his foster mother’s home.
The detective conducts a thorough investigation which includes a background check of the boyfriend who is found to have an extensive record of prior arrests which included nine firearms related offenses. Two warrants are obtained — one to arrest the suspect, the other to search the residence wherein he is believed to be residing. The search warrant includes in it a request to seize all handguns or other types of firearms found in the residence along with any evidence of gang affiliation.
The warrants and accompanying affidavits were submitted to the detective’s immediate supervisors — a sergeant and lieutenant — for review as well as the deputy district attorney who signed off in approval of the affidavits and warrants. When the search warrant was executed at the residence of Augusta Millender, the suspect’s elderly foster mother, she was present with her daughter and grandson. The police found a shotgun belonging to Augusta Millender, along with .45-caliber ammunition and a social services letter addressed to the suspect.
Two weeks later the suspect was arrested in a motel room. Subsequent to the search, the Millenders filed a civil rights lawsuit against the detective, his sergeant who accompanied him on the warrant execution, several individual officers, Los Angeles County and the Los Angeles Sheriff’s Department. The lawsuit alleged a Fourth Amendment violation in connection with the search based on the warrant being “unconstitutionally overbroad” in the search for firearms rather than the specific firearm used in the crime as well as in the search for gang material since there was no indication the crime was gang-related.
The District Court found for the Millenders and denied the officers’ claim of qualified immunity. The Ninth Circuit Court of Appeals took the appeal. At first the Court of Appeals found the officers were entitled to qualified immunity based on the approval of the deputy district attorney and issuing judge. However, a re-hearing before the full court was scheduled and the court affirmed the District Court’s denial, once again finding the warrant to be overly broad and that it did not establish the necessary probable cause to link what was sought with the crime. Appeal by the officers to the U.S. Supreme Court followed.
The issue before the Supreme Court was not whether or not probable cause existed but simply whether the officers were entitled to qualified immunity based on the facts regardless of the validity of the warrant.
In the 1984 case of U.S. v. Leon 5 the Court created a “good faith” exception to the Fourth Amendment warrant requirement if officers act in an objectively reasonable manner. In the Leon case, officers executed a search warrant that was later found to be defective due to a lack of probable cause. The officers believed they had probable cause and presented the affidavit to a judge who issued the warrant.
The “good faith” exception allowed the evidence to be admitted at trial since the error was on the part of the judge and not on the officers. The deterrent effect of the exclusionary rule, the Court held, would serve no purpose by disallowing such evidence at trial when the police complied with the law. But “good faith” will not be found where there is reliance on a knowing or reckless falsity of the affidavit on which the probable cause is based, or where the judge is a mere rubber-stamp for police behavior, or there is a failure to present the judge with a substantial basis for determining the existence of probable cause. 6
The Millenders’ argument was that a reasonable officer should have known the warrant was overly broad and lacking in probable cause. The Court found that based on the detective’s investigation and the information provided to him it was not unreasonable to believe the suspect may possess firearms other than the one used in the crime. Nor was the suspect’s gang affiliation insignificant, since it could be viewed as motivation for the attack.
Chief Justice Roberts, writing for the majority, found that it was reasonable for the detective “to believe that the facts set out in the affidavit established a fair probability that such evidence would aid the prosecution.” There was no overt showing of incompetence and the fact that the detective obtained approval from two supervisors, a deputy district attorney and lastly an issuing judge was relevant in assessing the reasonableness of his and the other officers’ belief that probable cause existed.
In Rehberg v. Paulk 7 a forensic accountant uncovered discrepancies in hospital billing practices and sent anonymous facsimiles critical of the hospital’s management to several people including administrative staff at the hospital. An investigation was launched by the local district attorney’s office into the conduct of the accountant. The chief investigator for the district attorney, James Paulk, testified before a grand jury that indicted the accountant Charles Rehberg for an assault on a hospital physician.
The indictment was later dismissed when Rehberg challenged its sufficiency. In fact, after two more trips by Paulk to the grand jury to testify against Rehberg two more indictments were issued against Rehberg and each was eventually dismissed. Rehberg then brought a lawsuit under 42 USC §1983 against Paulk, alleging that he “conspired to present and did present false testimony to the grand jury” 9
The issue in this case was whether a government official acting as a complaining witness in a grand jury proceeding is entitled to the same immunity in a §1983 lawsuit as a witness who testifies at trial. Two prior U.S. Supreme Court decisions provided conflicting outcomes in this area and a resulting conflict in the federal circuit courts on this point. In Briscoe v. LaHue 9 law enforcement officers were granted absolute immunity from civil liability for perjured testimony provided at trial. This immunity from liability applied to non-law enforcement witnesses as well since the common law provided absolute immunity for “all persons who were integral parts of the judicial process.” 10
Three years later in Malley v. Briggs 11 the Court held that law enforcement officers were not entitled to absolute immunity when they acted as complaining witnesses in submitting arrest warrants that were later dismissed when the grand jury failed to indict. The Court in Malley said the officers may still be entitled to qualified immunity.
Once again, the standard of objective reasonableness the Court articulated in Harlow v. Fitzgerald 12 would apply. It is a standard which seeks to protect certain government employees from discretionary functions. In Harlow the Court said that absolute immunity requires a showing of public policy which requires an exemption of such scope. This brings us back to the unanimous decision in Rehberg authored by Justice Alito which found the reasons for providing witness immunity at trial were equally applicable to the grand jury. The Court, in reaching its decision, declined to differentiate between lay witnesses and law enforcement witnesses, as argued for by the petitioner Rehberg. Additionally the Court sought to protect the traditional secrecy of grand jury proceedings from the resulting discovery demands of a plaintiff in a §1983 case.
Two weeks after the Rehberg decision, the Court issued another opinion in the case of Filarsky v. Delia.13 The question before the Court this time was whether an individual hired by the government to perform a government function was entitled to qualified immunity. Steve Filarsky, an experienced labor attorney, was hired by the City of Rialto, California to conduct an interview of a city firefighter, Nicholas Delia, who was suspected of abusing sick leave.
The employer’s accusation against the Delia involved surveillance of him purchasing building supplies while out on extended sick leave and the employer’s belief that he was absent from work in order to complete work on his home. During the interview with Filarsky, a request was made for Delia to produce the building materials in order to prove his claim that he had not done any work on his home. This request was objected to by Delia’s attorney who claimed it violated Delia’s Fourth Amendment rights.
Threats were made by the attorney to sue the City of Rialto and those involved in the investigation against Delia. An order directing Delia to produce the building materials was prepared by Filarsky and signed by the Chief of the department. The order was complied with by Delia who produced the building supplies by bringing them out to his front lawn and showing them to two fire department officials. Delia’s subsequent action under 42 USC §1983 alleged a violation of his Fourth and Fourteenth Amendment rights based on the order to produce the building supplies. Summary judgment was granted to all the defendants based on qualified immunity.
The District Court found that Delia had not shown violation of a clearly established constitutional right. The judgment was affirmed by the Ninth Circuit Court of Appeals for all the defendants except Filarsky based on the fact he was a private attorney hired by the city and therefore not entitled to qualified immunity.
In a unanimous opinion authored by Chief Justice Roberts, the Supreme Court reversed the Ninth Circuit’s denial of qualified immunity for Filarsky. Chief Justice Roberts undertook a historical review of the common law as it existed at the time when Congress passed the Civil Rights Act in 1871. This review pointed to the many instances when government was dependent upon the services of private citizens, many who maintained private businesses while serving in government posts.
The Court found “that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.” 14 In fact the Court found that government needs may often gravitate to utilizing the services of private individuals, such as Filarsky who had “29 years of specialized experience as an attorney in labor, employment, and personnel matters” 15, and these privately-retained individuals should work under the same protections as government employees.
Ramifications for Officers
Each of the foregoing cases adds a new element to immunity protections for law enforcement. The Millender case is an LE-friendly opinion which presents a broad reading of probable cause in the context of what is objectively reasonable in applying for a warrant. Rehberg presents a definitive answer to a question decided differently among the various federal circuits regarding absolute immunity and grand jury witnesses. Law enforcement officers who testify at grand jury are now protected by absolute immunity, a protection already afforded to prosecutors and judges involved in the criminal justice process.
Finally, Filarsky will benefit former law enforcement professionals with special expertise who are temporarily hired by a government entity. They will have the same protection of qualified immunity as a full-time or part-time government employee.
2 402 U.S 388 (1971)
2 553 U.S. 223 (2009)
3 533 U.S. 194 (2001)
4 U.S. Supreme Court Case No. 10-704, 565 U.S. ___ (2012)
5 468 U.S. 897 (1984)
7 U.S. Supreme Court Case No. 10-788, 566 U.S. ___ (2012)
9 460 U.S. 325 (1983)
11 475 U.S. 335 (1986)
12 457 U.S. 800 (1982)
13 U.S. Supreme Court Case No. 10-1018, 566 U.S. ___ (2012)