Qualified Immunity

How It Protects Law Enforcement Officers

By Richard G. Schott, J.D.
A police arrests a man on his squad car. ©Thinkstock.com.

Law enforcement personnel expose themselves to risks every day. Those risks include the possibility of being sued civilly for something they did while performing law enforcement duties. While acting in the scope of their employment, federal, state, and local officers can be sued for intentionally violating a person’s constitutional rights.1

Like anyone else facing a lawsuit, officers have various defenses available to assert in their defense. Of course, these include all of the traditional defenses available in a civil case.2 Additionally, law enforcement personnel are protected by the doctrine of qualified immunity. In 1982, 11 years after its Bivens decision, the Supreme Court provided the modern standard for determining whether a government employee is entitled to qualified immunity.3

Since then, the test for whether qualified immunity is appropriate in a particular case has been applied differently, but the scope of its protection has remained unchanged. Over the past 12 years, the Supreme Court has provided additional guidance regarding the protection afforded by qualified immunity, including three cases decided this past term.

This article will provide a historical discussion of the doctrine of qualified immunity, review the changes the Supreme Court has provided to determine whether qualified immunity should apply in a particular case, and summarize three very recent Supreme Court cases addressing this issue and how these decisions impact the law enforcement community.

Qualified Immunity Doctrine

Clearly Established Law

While law enforcement officers recognize the inherent risks of their occupation, they should be comforted by the description given by the Supreme Court as to the effect of the qualified immunity doctrine on one of those inherent risks—that of being sued civilly. In Harlow v. Fitzgerald, the Court explained that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”4 The plaintiff in Harlow, A. Ernest Fitzgerald, sued, among others, President Richard M. Nixon and one of his aides, Bryce Harlow, alleging that he was dismissed from his employment with the Air Force in violation of his First Amendment and other statutory rights.

Special Agent Richard Schott
Special Agent Schott is a legal instructor at the FBI Academy.

The defendants sought immunity from the lawsuit. While ruling on the issue of immunity, the Supreme Court distinguished the president from his aide. First, the Court noted that its “decisions consistently have held that government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.”5 Justice Powell, writing for the Court, continued by recognizing that:

[o]ur decisions have recognized immunity defenses of two kinds. For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.” The absolute immunity of legislators, in their legislative functions, and of judges, in their judicial functions, now is well settled. Our decisions also have extended absolute immunity to certain officials of the Executive Branch. These include prosecutors and similar officials, executive officers engaged in adjudicative functions, and the President of the United States. For executive officials in general, however, our cases make plain that qualified immunity represents the norm. [W]e [have] acknowledged that high officials require greater protection than those with less complex discretionary responsibilities.6


Based on this reasoning, Harlow—Nixon’s aide—was entitled not to absolute immunity, but, rather, to qualified immunity.

The Court then reexamined its earlier treatment of qualified immunity. Prior to this case, qualified or “good faith” immunity included both an objective and a subjective aspect. The subjective aspect involved determining whether the government actor in question took his “action with the malicious intention to cause a deprivation of constitutional rights or other injury.”7 This subjective determination typically would require discovery and testimony to establish whether malicious intention was present. Having to go through the costly process of discovery and trial, however, conflicted with the goal of qualified immunity to allow for the “dismissal of insubstantial lawsuits without trial.”8

Recognizing this dilemma, the Court altered the test to determine whether qualified immunity was appropriate. The new test, as stated earlier, is that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”9 By applying the reasonable person standard, the Supreme Court established, for the first time, a purely objective standard to determine whether granting a government official qualified immunity was appropriate.

While Harlow did not involve a law enforcement officer’s actions, the decision is significant because law enforcement officers are government officials who perform discretionary functions and may be protected by qualified immunity. This shield of immunity is an objective test designed to protect all but “the plainly incompetent or those who knowingly violate the law.”10 Stated differently (but just as comforting to law enforcement officers), officers are not liable for damages “as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated.”11 As protective as the language in these post-Harlow cases would suggest qualified immunity is, qualified immunity is not appropriate if a law enforcement officer violates a clearly established constitutional right.

For example, in Groh v. Ramirez, a special agent for the Bureau of Alcohol, Tobacco, and Firearms (ATF) applied for and received from a U.S. magistrate judge a search warrant authorizing the search of a home located on a ranch.12 The purpose of the search was to locate and seize a “stockpile of firearms.”13 While the magistrate judge had reviewed a detailed itemization of the firearms in the application for the search warrant, the search warrant itself did not include any such itemization. Rather, the ATF agent inadvertently “typed a description of respondent’s two-story blue house rather than the alleged stockpile of firearms.”14

The homeowner sued the ATF agent for a violation of his Fourth Amendment right to be free from “unreasonable searches and seizures.”15 Of course, the Fourth Amendment also mandates that search warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.”16 Despite this clear mandate, the ATF defendant to the civil lawsuit argued that he was entitled to qualified immunity because even if the improperly written search warrant constituted a Fourth Amendment violation, his failure to include a particular description did not violate a clearly established right at the time. The Court quickly dispatched the notion that the inadequate warrant was simply a “technical mistake or typographical error” that did not rise to the level of a constitutional violation.17 Finding the violation, the Court turned to whether the right was clearly established at the time the violation occurred.

The Supreme Court used decisive language to show that the homeowner’s rights had been clearly established before the violation in this particular case occurred. The Court pointed out that “the particularity requirement is set forth in the text of the Constitution.”18 The Court then referred to a previous decision by the Court in this area, stating, “as we noted nearly 20 years ago in Sheppard: ‘The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.’”19 Accordingly, the request for qualified immunity was rejected.

Constitutional Violation/Objective Reasonableness

Even if the law is clearly established, the law enforcement officer is entitled to qualified immunity if there was no constitutional violation in the first place. For example, in County of Sacramento v. Lewis, the deputies involved in a fatal high-speed pursuit were sued by the decedent’s parents for a due process violation.20 The alleged constitutional violation was due process because the decedent was not intentionally seized by the deputies, but, rather, accidentally struck by one of the deputies after the motorcycle being pursued crashed in front of the pursuing deputies. The decedent, in fact, had merely been a passenger on the motorcycle. The Supreme Court afforded the deputies qualified immunity because even when based on a favorable view of the plaintiffs’ allegations, there simply was no violation of due process. The court noted that to violate the Due Process Clause, the deputies had to intend to cause harm, and that had not been the case.21 Rather, the [deputy’s] “instinct was to do his job as a law enforcement officer, not to induce [the decedent’s] lawlessness, or to terrorize, cause harm, or kill.”22

While the two determinations into whether qualified immunity should apply have been well-settled, which of the two separate inquiries to analyze first has not been.

Application of the Qualified Immunity Test

Almost 30 years after the Supreme Court provided the objective test to determine whether qualified immunity should be afforded a defendant, it provided specific, if only short-lived, guidance on how and in what order to apply the two-part test. In Saucier v. Katz, a protestor at an event that included Vice President Albert Gore, Jr., was arrested by a military police officer.23 The arrested protestor sued the officer, alleging that during the arrest, excessive force was used, which violated his Fourth Amendment rights. The officer’s request for qualified immunity was denied by both the district court and by the U.S. Court of Appeals for the Ninth Circuit.24 In denying qualified immunity on the issue of excessive force, the Ninth Circuit first found that the “law governing the official’s conduct was clearly established,” focusing on the general right to be free from excessive force.25 The Ninth Circuit then concluded that the reasonableness inquiry into the amount of force used should be determined by a jury, ruling out qualified immunity for the officer.

The Supreme Court disagreed with the Ninth Circuit and pointed out that its reasoning would contravene the purpose of granting qualified immunity at an early stage of court proceedings “so that the costs and expenses of trial are avoided where the defense is dispositive.”26 To satisfy this purpose, the Supreme Court ruled that the first inquiry into a request for qualified immunity must be whether a constitutional right would have been violated on the facts alleged; then, and only if the answer to the first inquiry is affirmative, does the question of whether the right was clearly established at the time of the alleged violation have to be answered. The Supreme Court also disagreed with the Ninth Circuit’s rationale that only a jury could decide whether the force used in this instance was excessive, making its two-step approach workable even in excessive force claims.27

While the Supreme Court’s guidance in Saucier provided a mandatory two-inquiry test to be used for future qualified immunity cases and while that test was effective for the facts at hand, rigid compliance to the two-step inquiry soon fell out of favor. Lower courts struggled to apply Saucier because it was not always practical to decide whether a constitutional violation occurred before addressing whether the constitutional right at issue had been clearly established. While some lower courts began deviating from the Supreme Court’s rigid two-inquiry approach, others were at least expressing frustration with it.28 Even the Supreme Court itself did not always see fit to follow its own mandate. In Brousseau v. Haugen, another excessive force allegation against a law enforcement officer was resolved by affording the officer qualified immunity.29 However, in finding qualified immunity appropriate, the Court deviated from its own pronouncement from three years earlier in Saucier. In a per curium opinion in Brousseau, the Court found in this case that the officer’s use of force—shooting an unarmed but “disturbed felon, set on avoiding capture through vehicular flight”—fell in the “hazy border between excessive and acceptable force.”30

Because of the close-call nature as to whether the amount of force used was reasonable, the Court granted qualified immunity based on the lack of a clearly established right, rather than any possible constitutional violation or lack thereof. Based on the Supreme Court’s earlier decision in Saucier, however, that was exactly the dilemma the Ninth Circuit found itself in when deciding Brousseau.31 Recognizing that it was not only the Ninth Circuit Court of Appeals that found itself in the position—“unnecessarily to decide difficult constitutional questions when there [was] available an easier basis for the decision”—of whether qualified immunity should apply, the Supreme Court modified the mandatory formula it set forth in Saucier.32

In 2009, the Supreme Court decided Pearson v. Callahan.33 The case involved the warrantless arrest of a subject at his home immediately following his sale of illegal drugs to a police informant. The arresting officers relied on the notion of “consent once removed” to make entry into the home following the informant’s drug purchase. The arrested homeowner sued the arresting officers, asserting that the warrantless entry of his home was a Fourth Amendment violation, arguing that “consent once removed” was limited to an undercover officer being invited in and that it did not apply in cases where an informant was invited in.

The officers requested qualified immunity. The district court deemed that they were entitled to immunity. The U.S. Court of Appeals for the Tenth Circuit methodically applied the two-pronged inquiry handed down by the Supreme Court six years earlier and determined that the grant of qualified immunity was improper.34 Recognizing that the “Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages,” the Court, in granting certiorari, “directed the parties to address the question whether Saucier should be overruled.”35 A unanimous Court softened the mandatory nature of the Saucier approach, receding from without totally abandoning it. Justice Alito, writing for the entire Court, stated that “[o]n reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”36 Not surprisingly, in the case before them, the Court found the issue of qualified immunity easier to determine based on whether any violation (if one occurred at all) was of a clearly established right. Here, the Court found that at the time of the officers’ actions, it was not clearly established that those actions were unlawful.37

With the now-flexible Saucier test in place for three years, the Supreme Court has ruled on three qualified immunity cases involving law enforcement/public safety personnel in just the past several months.

2012 Qualified Immunity Cases

In Messerschmidt v. Millender, the Supreme Court ruled that officers were entitled to qualified immunity.38 Like the Groh v. Ramirez case discussed earlier, this case involved officers executing a search warrant later determined to be invalid.39 A detailed review of the facts leading up to the civil lawsuit at issue in Messerschmidt is required to appreciate the Court’s holding.40

When Shelly Kelly decided to leave her boyfriend Jerry Ray Bowen, she requested the presence of Los Angeles County, California, Sheriff’s Department officers while she packed her things because of Bowen’s past violent actions against her and others. When the officers got called away, Bowen showed up, and a violent encounter ensued. Kelly was able to get to her car and attempted to flee. However, before she could, Bowen got a black, sawed-off shotgun with a pistol grip, ran in front of Kelly’s car, pointed the gun at her, and told her that if she tried to leave, he would kill her. When she sped away, Bowen fired at the car five times, blowing out the car’s left front tire, but did not prevent her escape. Kelly found police officers, described the incident, and mentioned that Bowen was a member of the Mona Park Crips—a local street gang—and provided a picture of Bowen.

The named defendant in the subsequent civil lawsuit, Detective Curt Messerschmidt, was assigned to investigate. Kelly provided to Messerschmidt the address of Bowen’s foster mother as a probable location for him. She also advised him of Bowen’s gang connections. Through independent investigation, Messerschmidt confirmed Bowen’s connection to the foster mother’s address and that Bowen was an active gang member. In reviewing Bowen’s 17-page criminal history, Messershmidt learned that Bowen had been arrested on at least 31 occasions, including nine times for firearms offenses.

Based on his investigation, Messerschmidt obtained a search warrant for the foster mother’s home, authorizing the search for and seizure of, among other items, “All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic] to fire ammunition. Any firearm capable of firing or chambered to fire any caliber ammunition. Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips,’ including writings or graffiti depicting gang membership, activity, or identity.”41

Messerchmidt prepared two affidavits to support his warrant request. The first described Messerschmidt’s extensive law enforcement experience, including his lengthy work involving gang-related crimes. The second affidavit, which was expressly incorporated into the search warrant, described the incident between Bowen and Kelly in great detail, to include a discussion of the sawed-off shotgun used in the assault. The affidavit also requested that the search be allowed to take place at night because of Bowen’s gang ties. “The affidavit concluded by noting that Messerschmidt ‘believe[d] that the items sought’ would be in Bowen’s possession and that ‘recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.’”42 Before submitting the application and affidavits to a magistrate, a sergeant and a lieutenant in Messerschmidt’s department, as well as an assistant district attorney, reviewed Messerschmidt’s work. A magistrate issued the warrant, and officers executed the search two days later. The officers, including Detective Messerschmidt, seized only the foster mother’s shotgun, a box of .45 caliber ammunition, and a California Social Services letter addressed to Bowen.

The Millenders (Bowen’s foster mother and her daughter) subsequently filed a civil lawsuit in federal court suing, among others, Detective Messerschmidt, alleging that the search warrant at issue was invalid under the Fourth Amendment. The federal district court ruled against the individual defendants as to qualified immunity and found that the “warrant’s authorization to search for firearms was unconstitutionally overbroad because the ‘crime specified here was a physical assault with a very specific weapon’—a black sawed-off shotgun with a pistol grip—negating any need to ‘search for all firearms.’”43 The district court also found the warrant overbroad in that it allowed for the seizure of gang-related materials, but there “was no evidence that the crime at issue was gang-related.”44

On appeal to the Ninth Circuit Court of Appeals, the three-judge panel reversed, finding that the officers were entitled to qualified immunity because “they reasonably relied on the approval of the warrant by a deputy district attorney and a judge.”45 However, the en banc Court of Appeals granted a rehearing and reversed the three-judge panel, denying qualified immunity because the affidavits and warrant “failed to ‘establish probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of crime.’”46

The Supreme Court began its analysis of the qualified immunity issue by pointing out that “[w]here the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in ‘objective good faith.’”47 But, Chief Justice Roberts, writing for the majority, goes on to say that the magistrate’s issuance of a warrant is not the end of the qualified immunity inquiry. Qualified immunity still will “be lost, for example, where the warrant was ‘based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’”48 The Court did not find this to be the situation in this case. Accordingly, the Court found that qualified immunity was appropriate.

With respect to the authorization to seize all firearms, the Court noted that “it would not be unreasonable for an officer to conclude that there was a ‘fair probability’ that the sawed-off shotgun was not the only firearm Bowen owned,” and it “certainly would have been reasonable for an officer to assume that Bowen’s sawed-off shotgun was illegal.”49 Therefore, Chief Justice Roberts continued, “a reasonable officer could conclude that there would be additional illegal guns among others that Bowen owned.”50 Chief Justice Roberts also explained that a reasonable officer could believe that seizing all firearms rather than just the sawed-off shotgun could be necessary to prevent Bowen from using a different weapon to do harm to Kelly.
Chief Justice Roberts then turned to the authority to seize gang paraphernalia during the search. Following a brief discussion of the potential uses for evidence of Bowen’s membership in a gang, Roberts concludes by simply stating, “[w]hatever the use to which evidence of Bowen’s gang involvement might ultimately have been put, it would not have been ‘entirely unreasonable’ for an officer to believe that the facts set out in the affidavit established a fair probability that such evidence would aid the prosecution of Bowen for the criminal acts at issue.”51

Because reasonable officers could have reached these conclusions on the items to be seized, it cannot be said that the officers in this case violated anyone’s clearly established statutory or constitutional rights of which a reasonable person would have known. Therefore, the Court did not have to determine whether the facts presented in the affidavits—alone or taken together—actually did establish probable cause. The Court pointed out that this is because the “‘officers’ judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not ‘plainly incompetent.’”52 This is consistent with one of the goals of qualified immunity, which is to “give government officials breathing room to make reasonable but mistaken judgments.”53

The Supreme Court decided two other qualified immunity cases shortly after ruling in Messerschmidt. In Filarsky v. Delia, the city of Rialto, California, hired Steve Filarsky, a private attorney, to assist in the internal investigation into one of its firefighters named Nicholas Delia.54 The city suspected that the firefighter remained on medical leave when he was capable of returning to work. The city initiated surveillance on Delia and observed him purchasing building supplies. Thinking Delia was doing a project at his home, rather than returning to work, the city ordered him to appear for an interview where Filarsky was present. After confronting Delia with their suspicions, fire department officials asked for consent to search Delia’s home to see whether the work was ongoing or completed. He refused to provide consent, but was compelled by the department to produce the building materials onto his lawn so that the city officials could be sure he had not been working at his home during his medical-related absence from work.

Delia brought a civil lawsuit against numerous individuals, including the private attorney, for a violation of his Fourth Amendment rights. Initially, the federal district court granted summary judgment to all of the individual defendants based on qualified immunity because there had not been a violation of a clearly established right.55 However, the Ninth Circuit Court of Appeals concluded that while the order to produce the materials from his home onto his lawn did violate Delia’s Fourth Amendment rights, the court ruled that all defendants except for Filarsky, the private attorney, were entitled to qualified immunity because that right was not clearly established at the time the order was given.56 Finding no dispute that qualified immunity was appropriate in the case, the Supreme Court agreed only to determine whether the private attorney also was entitled to its protection even though he worked for the government on something other than a permanent or full-time basis.

The Supreme Court found no reason to differentiate between the other defendants in this case and Filarsky. In fact, the Court found several reasons for treating them the same. Among those reasons was that “[a]ffording immunity not only to public employees but also to others acting on behalf of the government similarly serves to ‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’”57 The Court noted the hypocrisy that would result if some people doing a job for the government could be sued personally, while government employees performing the same tasks would be protected by qualified immunity.

Finally, the Supreme Court also entertained a qualified immunity case involving Secret Service Vice Presidential Protective Detail members in Reichle v. Howards.58 The issue in the case was not whether the Secret Service agents had probable cause to arrest, but whether they were immune from the suit that alleged the arrest was in retaliation for political speech protected by the First Amendment.

The defendants in the civil suit were Secret Service agents assigned to protect Vice President Richard Cheney while he visited a shopping mall in Beaver Creek, Colorado, in 2006. When one of the agents overheard Steven Howards say he was going to ask the vice president an inflammatory question, the agents watched Howards closely. The agents saw Howards approach Cheney, make a comment to him, and touch the vice president before walking away. When questioned by the agents, he denied touching the vice president. Howards was arrested and charged with harassment under Colorado law. That charge was dismissed, but Howards brought a civil lawsuit claiming both First and Fourth Amendment violations. After the U.S. District Court for the District of Utah denied the agents’ request for qualified immunity, the Circuit Court of Appeals for the Tenth Circuit concluded that because the agents had probable cause to arrest Howards, they enjoyed qualified immunity from the Fourth Amendment claim. However, the Tenth Circuit denied qualified immunity as to the First Amendment allegation. The Supreme Court reversed, affording qualified immunity from the First Amendment allegation as well.

The Court used its prerogative of first considering the “clearly established” prong of the two-prong inquiry into whether qualified immunity was available in reaching its conclusion. To be clearly established, the Court reminded, “a right must be sufficiently clear ‘that every reasonable official would [have understood] that what he was doing violates that right.’”59 Because “[t]his Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause[,] nor was such a right otherwise clearly established at the time of Howards’ arrest,” it stood to reason that the Secret Service agents involved in Howards’ arrest were entitled to qualified immunity.60


Law enforcement is a difficult profession. It presents many challenges and risks, as well as great rewards, to those who undertake it. One of the risks associated with law enforcement is the possibility of being sued civilly for an action taken in the course and scope of one’s employment. In an effort to mitigate the costs and burden of defending oneself from a lawsuit, government actors are entitled to assert immunity as a barrier to being sued. For law enforcement officers, the level of immunity available is qualified immunity. As the name implies, this type of immunity is protective, but is not an absolute guarantee against successfully being sued. It is comforting, though, to know that the purpose of qualified immunity is to protect all but “the plainly incompetent or those who knowingly violate the law.”61 As this article has demonstrated, the test to determine whether qualified immunity should be afforded officers has changed over the years, but the objective nature of the doctrine itself has remained unchanged for nearly 30 years. This objective determination often shields competent law enforcement officers from defending a suit itself, much less from being found liable at the conclusion of a suit.



1 42 U.S.C. §1983 provides this statutory remedy against state and local law enforcement officers, while the Supreme Court created the same cause of action to be taken against federal law enforcement agents in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). For a full discourse on the cause of action itself and the elements required for the officer or agent to be found liable, see R. Schott, “Double Exposure: Civil Liability and Criminal Prosecution in Federal Court for Police Misconduct,” FBI Law Enforcement Bulletin, May 2008, 23-32.

2 Fed. R. Civ. P. 12(b) sets forth the time frame and the required manner in which to assert traditional defenses, such as “lack of subject matter jurisdiction,” “improper venue,” and “failure to state a claim upon which relief can be granted.” The rule also makes clear that “[i]f a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim.”

3 Supra note 1; and Harlow v. Fitzgerald, 457 U.S. 800 (1982).

4 Supra note 3 at 818.

5 Id. at 806 (emphasis added).

6 Id. at 807 (internal citations omitted).

7 Id. at 815 (citing Wood v. Strickland, 420 U.S. 308, 322 (1975) (emphasis in original)).

8 Supra note 4 at 814.

9 Supra note 6.

10 Malley v. Briggs, 475 U.S. 335, 341 (1986).

11 Anderson v. Creighton, 483 U.S. 635, 645 (1987).

12 540 U.S. 551 (2004).

13 Id. at 554.

14 Id.

15 U.S. Const. Amend. IV.

16 Id. (emphasis added).

17 Id. at 558.

18 Id. at 563.

19 Id. at 564 (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988, n. 5).

20 523 U.S. 833 (1998).

21 U.S. Const. Amend. XIV, which states, in pertinent part, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”

22 Supra note 20 at 855.

23 533 U.S. 194 (2001), receded from, Pearson v. Callahan, 555 U.S. 223 (2009).

24 Id. at 199.

25 194 F.3d 962, 967 (9th Cir. 1999).

26 Supra note 23 at 200.

27 Id. at 201-209.

28 See, e.g., Egolf v. Witmer, 526 F.3d 104 (3rd Cir. 2008); Robinette v. Jones, 476 F.3d 585 (8th Cir. 2007); and Ehrlich v. Town of Glastonbury, 348 F.3d 48 (2nd Cir. 2003).

29 543 U.S. 194 (2004).

30 Id. at 200; and Id. at 201, quoting Saucier v. Katz, 533 U.S. 194, 206.

31 The Ninth Circuit did find that taken in the light most favorable to the party asserting injury, the officer’s actions violated a constitutional right and that the right had been clearly established. Haugen v. Brousseau, 339 F.3d 857 (9th Cir. 2003).

32 Supra note 28 (Breyer, J., concurring).

33 555 U.S. 223 (2009).

34 Callahan v. Millard Cty, 494 F.3d 891 (10th Cir. 2007), cert. granted, 552 U.S. 1279 (2008).

35 Supra note 33 at 231.

36 Id. at 236.

37 Id. at 245.

38 __U.S.___, 132 S. Ct. 1235 (2012).

39 Supra note 12.

40 This recitation of facts is from the Supreme Court opinion, supra note 35. Only direct quotes from the opinion will be cited further.

41 Supra note 38 at 1242.

42 Id. at 1243.

43 Id. (quoting Millender v. County of Los Angeles, Civ. No. 05-2298 (C.D.Cal., Mar. 15, 2007), App. To Pet. For Cert. 106, 157).

44 Id.

45 Millender v. County of Los Angeles, 564 F.3d 1143, 1145 (9th Cir. 2009).

46 Supra note 38 at 1244 (quoting Millender v. County of Los Angeles, 620 F.3d 1016, 1033 (9th Cir. 2010)).

47 Id. at 1245 (quoting United States v. Leon, 468 U.S. 897, 922-923 (1984)). The Court goes on in a footnote following this quote to point out that while Leon involved the proper application of the exclusionary rule to remedy a Fourth Amendment violation, the same standard of objective reasonableness defines the qualified immunity accorded an officer who obtained or relied on an allegedly invalid warrant.

48 Id.

49 Supra note 38 at 1246 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); and supra note 38 at 1246.

50 Id.

51 Id. at 1248-1249 (quoting United States v. Leon, 468 U.S. at 923).

52 Id. at 1249 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

53 Id. (quoting Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2085 (2011)).

54 ___ U.S. ___, 132 S. Ct. 1657 (2012).

55 Id. at 1661.

56 Id.

57 Id. at 1665 (citing Richardson v. McKnight, 521 U.S. 399, 408 (1997), quoting Wyatt v. Cole, 504 U.S. 158, 167 (1992)).

58 566 U.S. ___ (2012).

59 Id. at ___, citing Ashcroft v. al-Kidd, 563 U.S. ___, ___, (2011), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).

60 566 U.S. at ___ (2012).

61 Supra note 10.


The U.S. Department of Justice’s Office of Tribal Justice and the FBI’s Legal Instruction Unit, Office of General Counsel, provide the following clarification to the article “Indian Country and the Tribal Law and Order Act of 2010” that appeared in the May 2012 issue. The article states that the Metlakatla Tribe is not subject to PL-280. That is not accurate. All Indian country in Alaska is subject to PL-280, including the Metlakatla Tribe’s reservation. In Alaska and other areas subject to PL-280, tribes still possess authority to exercise criminal jurisdiction if they so choose. The Tribal Law and Order Act (TLOA) encourages but does not grant cross-deputization for law enforcement officers working in Indian country. The article incorrectly states that the Indian Civil Rights Act of 1968 (ICRA) prohibits the use of the exclusionary rule in tribal courts. In fact, the ICRA does not prohibit the use of the exclusionary rule in tribal courts. Also, the Major Crimes Act includes two additional criminal offenses that did not appear in the article: felony child abuse and neglect. Finally, while the TLOA provides for many important changes in the Indian country criminal justice system, the Act did not appropriate any funding for implementation.

Also, the editorial staff would like to advise readers that the word “They” was left out of the first sentence on page 18 of the article “Picketers, Protesters, and Police: The First Amendment and Investigative Activity” that appeared in the August 2012 issue. The sentence should have read, “They involve war protesters, death penalty protesters, persons participating in labor disputes, and political protesters and take the form of marches, rallies, and boycotts.” The sentence in the August issue has been corrected in the online version.