Supreme Court Grants Cert to Review Tenth Circuit's Millard County Decision

Last summer the Tenth Circuit, in a divided 2-1 decision, reinstated a section 1983 lawsuit brought by a drug dealer who had been subjected to a warrantless search and arrested after he sold drugs to an informant. Callahan v. Millard County. The court declined to join three other circuits in extending the "consent-once-removed" doctrine (under which there is no Fourth Amendment violation if the undercover person is a police officer) to an undercover informant. Having thus found a Fourth Amendment violation, the court held that the defendants were not entitled to qualified immunity.

I was harshly critical of the court's qualified immunity analysis, and was disappointed when the Tenth Circuit declined to grant the defendants' petition for rehearing en banc.

However, yesterday the Supreme Court granted cert (scroll down to the second page). (The case caption now reads Pearson v. Callahan, No. 07-751.) Interestingly, the Court granted cert on the issue of whether the Supreme Court's recent qualified immunity decision, Saucier v. Katz, should be overruled. Peter Stirba, the attorney for the defendants, has confirmed that neither party urged the Court to reconsider the Saucier decision.

I'll post a link to the cert petition as soon as I find it. (Right now a google search for "Callahan" and "petition" turns up a bunch of online petitions to fire former Nebraska coach Bill Callahan. Mission accomplished.)

Comments

[Kaitie Tee]

Here are links to the petition, response, and reply:

http://volokh.com/files/CallahanPetition.pdf

http://volokh.com/files/CallahanBIO.pdf

http://volokh.com/files/CallahanReply.pdf