On Monday the Tenth Circuit issued a stunningly bad qualified immunity decision. In Callahan v. Millard County, a drug dealer was charged in state court as the result of a sting operation, but the Utah Court of Appeals threw out the charges on Fourth Amendment grounds. He then sued the officers for violation of his civil rights. The federal district court, in turn, threw out his lawsuit on qualified immunity grounds.
The Tenth Circuit, per Judge Murguia (sitting by designation from the District of Kansas), reversed. The court held that Callahan's Fourth Amendment rights were violated under the following circumstances: Callahan invited an undercover confidential informant into his home for the purpose of selling the informant methamphetamine. As soon as the transaction was completed, the informant alerted police officers, who then entered Callahan's home and arrested him.
As the court acknowledged, under the "consent-once-removed" doctrine, there would have been no Fourth Amendment violation if the undercover person was a police officer and not an informant. In a matter of first impression, however, the Tenth Circuit declined to join three other circuits in extending the doctrine to informants.
Having determined that Callahan's rights were violated, the court moved to the next step in the qualified immunity analysis, and examined whether the right was so clearly established that the officers knew or should have known that their conduct was unconstitutional.
Unbelievably, the court defined the right at issue as "the right to be free from unreasonable searches and seizures." Of course, at that level of abstraction, everything would be clearly established, and the qualified immunity analysis would be an ineffectual way of protecting law enforcement officers from the burdens of full-fledged discovery and trial. In effect, Judge Murguia's formulation of the "clearly established" prong completely guts qualified immunity.
In dissent, Judge Kelly vehemently disagreed with the majority's analysis, arguing that (a) the consent-once-removed doctrine should be extended to undercover informants (in this regard, he reasonably questions why a homeowner’s legitimate expectation of privacy should be greater when he allows a confidential informant into his home and sells drugs to him rather than a full-fledged undercover officer), and (b) it could not possibly have been clearly established at the time that the consent-once-removed doctrine did not apply, where the Tenth Circuit had not yet addressed the issue and three other circuits had extended the doctrine to undercover informants.
The consent-once-removed issue is debatable, and while I find Judge Kelly's dissent far more persuasive, I think a good argument could be made against extending the doctrine to informants. But I find the court's "clearly established" analysis utterly indefensible. One can only hope that the defendants in this case file a petition for rehearing, and an en banc panel fixes this terrible decision. (In this regard, it is interesting to note that neither judge in the majority would participate in an en banc decision.)
Finally, this case further underscores my observation earlier this year that appellate panels with visiting judges appear to be far more likely to produce dissenting opinions.
Comments