Police, The Fourth Amendment, Qualified Immunity

Is it “reasonable” to be negligent?

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Preface: The following case gets into two 4a qi questions that I find very interesting.

One question is whether it is “reasonable” for the police to be negligent when doing searches and/or seizures (such as arrests). The reason this comes up is that it is often stated by courts that mere negligence, on the part of a policeman, is either not a 4a violation, or, if it is a 4a violation, then it is a violation subject to qualified immunity. While this reasoning gets rid of section 1983 claims (because these much be based on a Constitutional violation), the reasoning leaves open state law claims based on police negligence in performing a search and/or seizure. However, it seems that most (and probably all) states mandate that there is no cognizable tort claim against a state actor (such as a policeman) who is merely negligent in performing her official duties.* The upshot of all this is that there typically seems to be no claim against a policeman who does a negligent search or a negligent seizure. If this is true, it means, to me at least, one of the following things: (i) negligence is “reasonable” as that word is used in the text of 4a; or (ii) a negligent search/seizure is unreasonable, but there is no remedy for that type of 4a violation. I find neither of these possibilities very satisfying.

The other interesting question raised by the case below is whether police ever have a duty to look for evidence that they “have the wrong guy.” One thing that courts tend to say on this question is that the policeman cannot ignore exculpatory evidence when attempting to develop probable cause and/or reasonable suspicion needed to do some kind of search and/or seizure. But this does not answer whether they need to actually make any sort of check for exculpatory evidence, especially in cases such a check would be easy. This leads to the other thing that courts tend to say in regard of exculpatory evidence, which is that police don’t have a duty to exhaust every potentially exculpatory investigative course. That is fair enough on its own terms, but does it mean that the policeman never has an actual duty, in acting as a searching or arresting policeman, to ever affirmatively look for evidence that is likely to be exculpatory? For example, a couple of posts down I blogged about a case where police did not check a protective order that they were enforcing by arrest, even though the subject of the protective order was at the scene and had a copy of the order with her.** If the policeman is going to arrest somebody on a protective order, then shouldn’t he be expected to at least read the thing first?*** Wouldn’t that be expected as part and parcel of being a “reasonable” searcher and a “reasonable” seizer? The case I am about to discuss raises this issue of unexplored exculpatory avenues in a fairly stark manner.

Without further ado . . .

Case: DURHAM v. HORNER, 11-1022 (4th Cir. 8-8-2012)

What happened: Big Stone Gap, VA police officer David L. Horner allegedly had a Confidential Informant make controlled drug buys from a suspected dealer in contraband drugs. Officer Horner did not see the alleged dealer himself, but allegedly received from the Confidential Informant certain information about the alleged dealer, such as his given name,**** locale and approximate age. Officer Horner partially matched what information he had received from his Confidential Informant to information about an individual in an internet database that the police use.***** The partially-matching man in the database (the “Plaintiff”) also had a couple of drug-use-related arrests on his record and had apparently once lived in the locale of the controlled drug buys. Notwithstanding these indications, it was the wrong guy. The Plaintiff had not lived anywhere near the locale of the alleged drug buys for six years or so. As it turns out, the Plaintiff was hundreds of miles and in a different state when the alleged controlled buys occurred. It should also be noted that there was information that did not match the Plaintiff, such as an age discrepancy and a height discrepancy.

Still, Officer Horner went after this wrong suspect and had Plaintiff extradited from the state where he lived. Plaintiff voluntarily turned himself in at the police station where he lived in Tennessee and even waived an extradition hearing in the state of his residence, apparently believing, naively as it turns out, that things would be quickly sorted out when he was taken to Virginia. Instead, the Plaintiff’s (correct) claims of innocence were ignored in Virginia and Plaintiff rotted in a jail in Virginia for three months. Eventually the authorities did figure out that they had the wrong guy and released the Plaintiff.****** Still, Plaintiff was miffed about all the time he had to spend in jail and he sued.

Decision: QI for the policeman because a grand jury indicted Plaintiff, and because Plaintiff could not prove that the grand jury indicted Plaintiff because of Officer Horner’s careless conduct in attempting to establish probable cause. The majority opinion went on to state that “we would agree with the district court that Horner was not plainly incompetent******* in assessing the probable cause issue.” However, one of the judges dissented from this conclusion and believed that Plaintiff potentially had a good section 1983 claim against Officer Horner for what he had caused to befall to Plaintiff.

Comment: It concerns me that there was no duty to confirm with the Confidential Informant that they had the right guy when Plaintiff turned himself in. I believe that this should have happened before Plaintiff was even extradited back to Virginia, and that it was negligent to fail to make this simple check******** while Plaintiff was still voluntarily at the police station in Tennessee. The policemen should have taken the Plaintiff’s picture, sent it over the internet to the police in Virginia, and Officer Horner should have confirmed with his Confidential Informant that the man in the picture was the same man who sold him the drugs in the controlled buys.********* Not doing this was negligent at the very least, and, in my view, worse than negligence. However, the majority opinion was unwilling to require this of policemen in Officer Horner’s position. The duty to investigate potentially exculpatory evidence should not be absolute and unconditional, but neither should it be non-existent. It should have been held to exist under the facts of this case.

Further comment: The Fourth Amendment requires that searches and seizures by the police be “reasonable.” What happened to the Plaintiff was not “reasonable” at all. Whether it was negligence, or something worse, it was clearly not reasonable to keep this Plaintiff in jail for three months. If state governmental-tort law makes its policemen immune from consequences for this unreasonable course of action, it seems to me that it is this state immunity law needs to give, and not the Constitutional right to be free of unreasonable seizures. If there is no claim under section 1983, because of the state immunity, then there should be a claim under the Constitution itself. Even if it was mere negligence on the part of the policeman, it is a specific type of negligence that 4a clearly forbids by its own language and without the need to resort to any ancillary federal statutes, like section 1983.


* States tend to require things like malice, wilfulness, recklessness or “wanton-ness.” Personally, I think that a lack of care in performing something as hurtful as an arrest could fairly be regarded automatically as malicious, wanton or reckless, but this does not seem to be the prevailing interpretation now or in the foreseeable future.

** Furthermore, in this day and age, it seems like policemen “out in the field” should have access to pdf scans of local protective orders on their computers and available over their wireless communications networks.

*** As noted in the blog post below, Judge Shea managed to avoid the problem of the policeman not reading the protective order by deciding that there was probable cause that its actual terms (as opposed to the incorrect terms the policeman thought it had) were violated. I think this was a pretty questionable judgement on Judge Shea’s part, but it did help him avoid a sticky wicket.

**** There may be a fact issue as to whether the Confidential Informant provided just first and last name of the alleged dealer, or whether s/he provided first, middle and last name. At any event, to the extent the Confidential Informant provided a middle name, s/he provided a wrong middle name.

***** In the opinions, much was made of the fact that the database, called, perhaps misleadingly, Accurint, conspicuously includes a disclaimer that its information is not necessarily reliable and should be “independently verified.” Nevertheless, it seems that the information about the Plaintiff contained in Accurint was true, at least so far as it went. The opinion does not say whether regcits can obtain access to Accurint to check the accuracy of information about them which is stored there.

****** Eventually Plaintiff’s cell phone records were used to show he could not have been the one making the alleged contraband sales.

******* It is not clear to me where this “plainly incompetent” standard comes from and it is not clear to me whether it is higher, or lower, than a traditional negligence “due care” standard.

******** I take no position on whether this check should have been made by means of a photographic “show up,” or a photographic “line up,” but some kind of identification should have been made by the Confidential Informant. I don’t think it was fair to say that “probable cause” existed unless and until this happened.

********* As the dissent points out, after Plaintiff was released and another suspect found, Officer Horner did check with the Confidential Informant to see if that one was the right guy. Allegedly the next suspect was the right guy.

Written by Burgers Allday

August 11, 2012 at 7:24 am

Posted in Uncategorized

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