Note: this is a cross post from my legal blog, 10 Guilty Men.
The Sixth Circuit has issued a fascinating decision. In Schulz v. Gendregske, the Sixth Circuit held that “no clearly established law compels the conclusion that officers who neither arrested the plaintiff nor swore false statements in a warrant affidavit can be liable for false arrest.” In other words, the Sixth Circuit has held that it is not clearly established that police can’t suborn perjury without falling afoul of the Fourth Amendment. As a result, the errant officers were entitled to Qualified Immunity:
Here, no clearly established law compels the conclusion that officers who neither arrested the plaintiff nor swore false statements in a warrant affidavit can be liable for false arrest… . Thus, Gendregske is entitled to qualified immunity on Schulz’s false-arrest claim.
Gendregske and his partner McDowell were the two agents who investigated Schulz’s property. Gendregske was intimately involved in the initial investigation that led to the affidavit for a search warrant and subsequent arrest. In other words, either Gendregske or McDowell could have written the affidavit or applied for the arrest warrant.
Furthermore, Gendregske could have basically spoonfed relevant infomation to McDowell, while McDowell essentially served as a scrivener. In such a case, the practical wall of separation between both officers in terms of who is “making the false arrest” is tenuous, to say the least.
To the casual observer, this decision makes sense. How can you sue someone for false arrest that didn’t actually arrest you? Gendregske, the officer in question, isn’t the one who arrested Schulz. So why is she suing Gendregske for false arrest? It makes no sense! The glove doesn’t fit! Case closed!
But upon closer inspection, this decision borders on self parody. This case demonstrates, in plain English, the problem with Fourth Amendment case law as established by the precedents of the last 50 years. The following quote from the court’s decision drives home the point:
We have never held that an officer who is neither the arresting officer nor the proponent of the warrant can be liable for false arrest. See, e.g., Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d
669, 677 (6th Cir. 2005) (“A false arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff.”).
You see? So long as the officer who lied to get the arrest warrant is not the officer who actually arrests the defendant, the police are in the clear. Officer A can lie to get the arrest warrant, hand it off to officer B to make the arrest, and officer B has no liability for the arrest, because officer B’s reliance on the arrest warrant will be “objectively reasonable” so long as the warrant isn’t obviously defective on its face. And even bold-faced lies aren’t always obvious.
It is hornbook law that a person who aids or encourages another person to commit a crime has accomplice liability—meaning that he or she can be charged with the same crime, despite the fact that he or she did not actually commit the crime themselves. It is also hornbook law that if two or more people act to cause me injury, both of them will be liable to me for damages in Tort.
But according to the Sixth Circuit, neither of these analogous situations apply to the officers who “massaged” the facts of their supporting affidavit to the magistrate judge. So the conspirator may thus escape liability for the principal’s Constitutional violation—a result that could only happen in a case involving government officials. Qualified Immunity never seems to disappoint.
This is the direction that Fourth Amendment case law has been going in for some time. The turning point was United States v. Leon, 468 U.S. 897 (1984). In this case, the Court reasoned that the Exclusionary Rule did not apply in cases where officers reasonably rely in good faith on a search warrant that they later discover is defective. What constitutes reasonable reliance? Basically, as long as a warrant isn’t scribbled in crayon, you’re good:
“[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness,” Illinois v. Gates, 462 U.S. at 267 (WHITE, J., concurring in judgment), for “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” United States v. Ross,456 U.S. 798, 823, n. 32 (1982).
But even despite all this, the Court adds:
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154 (1978).
This is why the Sixth Circuit’s decision makes no sense. It is absolutely clearly established that the police can’t mislead a magistrate when submitting an affidavit for a warrant. Both of the officers in this case were involved in the investigation that led to the creation of an affidavit that laid the basis for Schulz’s arrest warrant. But since the law does not recognize the intimate relationship between the two officers involved in Schulz’s case, there is no “clearly established” claim for false arrest. The fact that this encourages police to engage in gamesmanship to dodge accountability for dishonest police work doesn’t matter.
But wait! Says the Sixth Circuit—you could have brought this as a malicious prosecution claim instead!
Schulz’s alleged facts might be a better fit with a malicious prosecution claim, as “existing cases do indicate that an officer may be responsible for commencing a criminal proceedings against a plaintiff, where the officer made, influenced, or participated in the decision to prosecute.” Sykes, 625 F.3d at 311 (internal quotation marks and alteration omitted). But Schulz did not sue Gendregske for malicious prosecution.
You see? Schulz simply brought the wrong cause of action. If only she had pled her legal theories correctly, everything would be hunky dorey.
This is good advice, but it’s also a cop-out. It’s good advice because it teaches the Plaintiff—or more specifically, her lawyers—to be more diligent about pleading every potential cause of action. But it’s a cop-out because the Fourth Amendment clearly does not condone police “massaging” the facts in an affidavit in order to get a magistrate to sign off on a probable cause determination. What the Sixth Circuit claims is not “clearly established” is actually a bedrock Constitutional principle. To claim otherwise is to say that police are allowed to play fast and loose with the facts when submitting warrant applications to the magistrate. No judge worth their salt would ever say that is ok. So why does the Sixth Circuit say it was ok here?
Because the logic of cases like United States v. Leon says they can. It’s not about keeping the police honest. It’s about making sure the criminal doesn’t go free because the constable has blundered. Under today’s Fourth Amendment, keeping police accountable is far less important than making sure that no bad deed goes unpunished. If the police startregularly violating our civil rights in the process, tough.