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Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (U.S.Wash.,1997)
I agree that Ms. Kalina performed essentially
the same “function” in the criminal process as the police
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986), and so I join the opinion of the Court. I write
separately because it would be a
shame if our opinions did not reflect the awareness that our “functional”
42 U.S.C. § 1983 immunity questions has produced some curious
inversions of the common law as it existed in 1871, when
§ 1983 was enacted. A conscientious prosecutor reading our cases
should now conclude that there is absolute immunity for the decision
to seek an arrest warrant after filing an information, but only
qualified immunity for testimony as a witness in support of that
warrant. The common-law rule was, in a sense, exactly opposite.
There was, of course, no such thing as absolute
prosecutorial immunity when
§ 1983 was enacted. (Indeed, as the Court points out,
ante, at 506, n. 11, there generally was no such thing as
the modern public prosecutor.) The common law recognized
a “judicial” immunity, which protected judges, jurors and grand
jurors, members of courts- martial, private arbitrators, and various
assessors and commissioners. That immunity was absolute, but it
extended only to individuals who were charged with resolving disputes
between other parties or authoritatively adjudicating private rights.
When public officials made discretionary policy decisions that did
not involve actual adjudication, they were protected by “quasi-judicial”
immunity, which could be defeated by a showing of malice, and hence
was more akin to what we now call “qualified,” rather than absolute,
immunity. I continue to believe that “prosecutorial functions,
had they existed in their modern form in 1871, would have been considered
Burns v. Reed, 500 U.S. 478, 500, 111 S.Ct. 1934, 1947, 114
L.Ed.2d 547 (1991) (SCALIA, J., concurring in judgment in
part and dissenting in part).
That conclusion accords with the common
law's treatment of private prosecutors, who once commonly
performed the “function” now delegated to public officials like
petitioner. A private citizen who initiated or procured**511
a criminal prosecution could (and can still) be sued for the tort
of malicious prosecution-but only if he acted maliciously and without
probable cause, and the prosecution ultimately terminated in the
defendant's favor. Thus, although these private prosecutors
(sometimes called “complaining witnesses”), since they were not
public servants, were not entitled to quasi-judicial immunity, there
was a kind of qualified immunity built into the elements of the
The common law also recognized an
absolute immunity for statements made in the course of a judicial
proceeding and relevant to the matter being tried. That
immunity protected both witnesses and attorneys, and could not be
defeated even by an allegation that the statement was maliciously
false. See, e.g., F. Hilliard, Law of Torts 319 (1866). It
was, however, an immunity only against slander and libel actions.
At common law, therefore, Kalina would
have been protected by something resembling qualified immunity if
she were sued for malicious prosecution. The tortious act
in such a case would have been her decision to bring criminal charges
against Fletcher, and liability would attach only if Fletcher could
prove that the prosecution was malicious, without probable cause,
and ultimately unsuccessful. Kalina's false statements
as a witness in support of the warrant application would not have
been an independent actionable tort (although they might have been
evidence of malice or initiation in the malicious prosecution
suit), because of the absolute privilege protecting such testimony
from suits for defamation.
The Court's long road to what is, superficially
at least, the opposite result in today's opinion, began with
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976), which granted prosecutors absolute immunity for
the “function” of initiating a criminal prosecution. Then, in
Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d
96 (1983), the Court extended a similar absolute immunity to
the “function” of serving as a witness. And in
Malley v. Briggs, supra, it recognized the additional
“functional category” of “complaining witness.” Since this category
entitled to only qualified immunity, the Court overturned a directed
verdict in favor of a police officer who had caused the plaintiff
to be arrested by presenting a judge with a complaint and an affidavit
supporting probable cause. The Court said:
“[C]omplaining witnesses were not absolutely
immune at common law. In 1871, the generally accepted rule was that
one who procured the issuance of an arrest warrant by submitting
a complaint could be held liable if the complaint was made maliciously
and without probable cause. Given malice and the lack of probable
cause, the complainant enjoyed no immunity.”
Id., at 340-341, 106 S.Ct., at 1095-1096.
That statement is correct, but it implies
a distinction between “witnesses” (absolutely immune) and “complaining
witnesses” (at best qualifiedly immune) which has little foundation
in the common law of 1871. That law did not recognize two kinds
of witness; it recognized two different torts. “In this sense, then,
Malley 's discussion of complaining witnesses is a feint.
The Court was not awaking to a different type of witness ... so
much as recognizing a different cause of action-the action for malicious
Police Witness Immunity Under § 1983, 56 U. Chi. L.Rev. 1433, 1454
(1989). By the time
Malley was decided, however, the Court's methodology
forced it to express its conclusion in terms of whether the particular
“function” at issue would have been entitled to immunity at common
law. See, e.g.,
Briscoe, supra, at 342, 103 S.Ct., at 1119 (“[Our] cases
clearly indicate that immunity analysis rests on functional categories”).
By inventing “a new functional category: the complaining witness,
who (in the Court's specially-tailored history) was liable at common
law and so is liable under
§ 1983,” Comment, supra, at 1454,
Malley moved the Court's immunity jurisprudence much
closer to the results the common law would have achieved.
But no analytical approach based upon “functional analysis” can
faithfully replicate the common law, as is demonstrated in the Court's
opinion today. By describing the subset of actors in the criminal
process who are subject to suit as “complaining witnesses,**512
” the Court implies that testifying is the critical event. But
a “complaining witness” could be sued for malicious prosecution
whether or not he ever provided factual testimony, so long as he
had a role in initiating or procuring the prosecution; in that sense,
the “witness” in “complaining witness” is misleading. As applied
to the police officers in
Malley, that confusion was more or less harmless. Here,
Malley collide to produce a rule that stands the common
law on its head: Kalina is absolutely immune from any suit challenging
her decision to prosecute or seek an arrest warrant, but can be
sued if she changes “functional categories” by providing personal
testimony to the Court.
Imbler 's principle of absolute prosecutorial immunity,
and the “functional categories” approach to immunity questions imposed
by cases like
Briscoe, make faithful adherence to the common law embodied
§ 1983 very difficult. But both
Imbler and the “functional” approach are so deeply embedded
§ 1983 jurisprudence that, for reasons of stare decisis,
I would not abandon them now. Given those concessions,
Malley 's distortion of the term “complaining witness”
may take us as close to the right answer as we are likely to get.
Because Kalina's conduct clearly places her in that functional category,
I agree with the Court that she is not entitled to absolute immunity
under our precedents.
[Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (U.S.Wash.,1997)]
BACKGROUND ON OFFICIAL/QUALIFIED IMMUNITY
for the claimant, ...makes a very ingenious argument... That the maxim
of English constitutional law, that the king can do no wrong, is one
which the courts must apply to the government of the United States,
and that therefore there can be no tort committed by the government…..
not easy to see how the first proposition can not have any place in
our system of government.
no king to whom it can be applied. The President, in the exercise of
the executive functions, bears a nearer resemblance to the limited monarch
of the English government than any other branch of our government, and
is the only individual to whom it could possibly have any relation.
It cannot apply to him, because the Constitution admits that he may
do wrong, and has provided a means for his trial for wrongdoing,...
by the proceeding of impeachment.
to be observed that the English maxim does not declare that the government,
or those who administer it, can do no wrong; for it is a part of the
principle itself that wrong may be done by the government power, for
which the ministry, for the time being, is held responsible; and the
ministers personally, like our President, may be impeached; or, if the
wrong amounts to a crime, they may be indicted and tried at law for
We do not understand that either in reference to the government
of the United States, or to the several States, or of any of their officers,
the English maxim has an existence in this country.”
Langford v. U.S., 101 U.S. 341, 3423 (1879)
Why do IRS agents get away with so many violations
of due process with immunity?
The answer is that they are protected from prosecution by our
federal courts under the contemporary doctrine of “sovereign immunity”.
As you can tell by the quote above from the U.S. Supreme Court back in 1879, support for sovereign immunity was not always endorsed
by the courts. As these
courts have become corrupted over the years in the process of expanding
and upholding the income very tax that pays their salaries, the corrupt
black-robed lawyers in these courts have had to contradict historical
precedent by protecting especially those who enforce and administer
the income tax from personal liability for criminal wrongdoing and lawlessness.
Below is an explanation of how agents of the government are insulated
and protected from legal liability for wrongdoing:
According to one IRS revenue agent we spoke with IRS agents are
told by their management that they are not allowed to reveal their first
name, only their employee number.
Without the full name and identifying information about the employee,
it is more difficult to figure out who to serve with legal papers if
you want to prosecute individual agents.
The IRS service bureaus for specific regions are usually located
outside of the jurisdiction of the state they serve.
For instance, Ogden Utah services large parts of California.
Why isn’t the service bureau for California inside of California?
We would argue it is because that makes it much more difficult
to personally serve agents who have broken the law or to prosecute them
under the laws of your state, because they don’t live in your state.
Citizens who want to sue IRS agents or criminally prosecute them
have to go outside of their state to serve the agent, which is much
more difficult to coordinate, costly, and expensive.
The U.S. supreme Court has upheld the notion that persons acting
as agents for the U.S. government have at least a limited immunity from
prosecution because of illegal, unethical, or questionable acts they
commit while on duty. This
is called official immunity.
As we talked about in section
11.16 entitled “How the Federal Judiciary Stole the Right to
Petition: Judicial Arrogance
and Bias Against the Right to Petition”, the federal judiciary has also
for all intents and purposes destroyed our right to petition the government
for redress of grievances and wrongs committed either by agents working
for the government or by the government itself.
One also cannot sue the U.S. government without their consent,
and this is called judicial immunity or sovereign immunity.
Why would they give their consent if you sued them for wrongful
taking of federal income taxes?
All of these factors conspire to make it very difficult if not
impossible for the average sovereign Citizen of the several states to
protect his/her constitutional rights.
Below is a quote from the U.S. supreme Court on
the subject of the types of official immunity in the case of
Nevada v. Hicks, No. 99-1994 (U.S. 06/25/2001):
see, e.g., Westfall v. Erwin, 484 U. S. 292, 296-300 (1988), and qualified
immunity, see, e.g., Harlow v. Fitzgerald, 457 U. S. 800, 813-819 (1982),
are designed to protect state and federal officials from civil liability
for conduct that was within the scope of their duties or conduct that
did not violate clearly established law. These doctrines short circuit
civil litigation for officials who meet these standards so that these
officials are not subjected to the costs of trial or the burdens of
discovery. 457 U. S., at 817-818. For example, the Federal Employees
Liability Reform and Tort Compensation Act of 1988, commonly known as
the Westfall Act, allows the United States to substitute itself for
a federal employee as defendant upon certifying that the employee was
acting within the scope of his duties. 28 U. S. C. §2679(d). Nevada
law contains analogous provisions. See Nev. Rev. Stat. §§41.032, 41.0335-41.0339
(1996 and Supp. 1999). The employee who successfully claims
therefore invokes the immunity of the sovereign. When a state or federal
official asserts qualified immunity, he claims that his actions were
reasonable in light of clearly established law. Anderson v. Creighton,
483 U. S. 635 (1987). In those cases, we allow that official to take
an immediate interlocutory appeal from an adverse ruling to ensure that
the civil proceedings do not continue if immunity should be granted.
Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985).”
v. Hicks, No. 99-1994] (U.S.
Below is a quote from the U.S. supreme Court on
the subject of official immunity in the case of “
Westfall Et Al. v. Erwin Et Ux.,484 U.S. 292 (1988):
v. Matteo, 360 U.S. 564 (1959), and Howard v. Lyons, 360 U.S. 593 (1959),
this Court held that the scope of absolute official immunity afforded
federal employees is a matter of federal law, "to be formulated by the
courts in the absence of legislative action by Congress." Id., at 597.
The purpose of such official immunity is not to protect an erring official,
but to insulate the decisionmaking process from the harassment of prospective
litigation. The provision of immunity rests on the view that the threat
of liability will make federal officials unduly timid in carrying out
their official duties, and that effective government will be promoted
if officials are freed of the costs of vexatious and often frivolous
damages suits. See Barr v. Matteo, supra, at 571; Doe v. McMillan, 412
U.S. 306, 319 (1973). This Court always has recognized, however, that
official immunity comes at a great cost. An injured party with an otherwise
meritorious tort claim is denied compensation simply because he had
the misfortune to be injured by a federal official. Moreover, absolute
immunity contravenes the basic tenet that individuals be held accountable
for their wrongful conduct. We therefore have held that absolute immunity
for federal officials is justified only when "the contributions of immunity
to effective government in particular contexts outweigh the perhaps
recurring harm to individual citizens." Doe v. McMillan, supra, at 320.
And finally, below is a description of qualified
immunity from the u.S. supreme Court in the case of
Harlow Et Al. v. Fitzgerald, 457 U.S. 800 (1982)
“Government officials whose special functions or constitutional
status requires complete protection from suits for damages -- including
certain officials of the Executive Branch, such as prosecutors and similar
officials, see Butz v. Economou, 438 U.S. 478, and the President, Nixon
v. Fitzgerald, ante, p. 731 -- are entitled to the defense of absolute
immunity. However, executive officials in general are usually entitled
to only qualified or good-faith immunity. The recognition of a qualified
immunity defense for high executives reflects an attempt to balance
competing values: not only the importance of a damages remedy to protect
the rights of citizens, but also the need to protect officials who are
required to exercise discretion and the related public interest in encouraging
the vigorous exercise of official authority. Scheuer v. Rhodes, 416
U.S. 232. Federal officials seeking absolute immunity from personal
liability for unconstitutional conduct must bear the burden of showing
that public policy requires an exemption of that scope. Pp. 806-808.”
Ryan v. Bilby, 764 F.2d 1325 (9th Cir. 1985):
and prosecutor involved in taxpayer's prosecution for failure to file
returns were absolutely immune from taxpayer's subsequent civil suit
seeking damages against them."
"Prosecutor enjoys absolute
immunity from civil damages liability when he acts in quasi-judicial
"Internal Revenue agents
are absolutely immune from civil damages liability to taxpayers alleging
"Internal Revenue agents
are immune from liability for constitutional torts insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which reasonable person would have known.""
[Ryan v. Bilby, 764 F.2d
1325 (9th Cir. 1985)]
The cite above uses the tricky word taxpayer, which we know means the
person they are referring to is "liable" for the tax in question. If
he is indeed liable for the tax, then of course it's reasonable to say
that everyone involved has absolute immunity. But if he was instead
referred to as an "American" or a "U.S. national", then the case would
be entirely different. NEVER, EVER, EVER either refer to yourself as
a "taxpayer" or allow others to use this word to describe yourself,
or your case will be doomed and your rights will be violated.
Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885):
"A defendant sued as a wrongdoer, who seeks to substitute the
State in his place, or to justify by the authority of the State, or
to defend on the ground that the State has adopted his act and exonerated
him, cannot rest on the bare assertion of his defense. He is bound
to establish it. The State is a political corporate body, can
act only through agents, and can command only by laws.
It is necessary, therefore, for such a defendant, in order to complete
his defense, to produce a law of the State which constitutes his commission
as its agent, and a warrant for his act. This the defendant in
the present case undertook to do. He relied on the Act of January
26, 1882, requiring him to collect taxes in gold, silver, United States
treasury notes, national bank currency, and nothing else, and thus forbidding
his receipt of coupons in lieu of money. That it is true, is a
legislative Act of the government of Virginia, but it is not a law of
the State of Virginia. The State has passed no such law, for it
cannot; and what it cannot do, it certainly, in contemplation of law,
has not done. The Constitution of the United States and its own
contract, both irrepealably by any act on its part, are the law of Virginia;
and that law made it the duty of the defendant to receive the coupons
tendered in payment of taxes, and declared every step to enforce the
tax, thereafter taken, to be without warrant of law, and therefore a
wrong. He stands then, stripped of his official character, and
confessing a personal violation of the plaintiff's rights, for which
he must personally answer, he is without defense."
"In the discussion of such questions the distinction between the
government of a State and the State itself is important and should be
observed. In common speech and common apprehension they are usually
regarded as identical; and as ordinarily the acts of the government
are the acts of the State, because within the limits of its delegation
of power, the government of the State is generally confounded with the
State itself, and often the former is meant when the latter is mentioned.
The State itself is an ideal person, intangible, invisible, immutable.
The government is an agent, and, within the sphere of the agency, a
perfect representative; but outside of that it is a lawless usurpation.
The Constitution of the State is the limit of the authority of its government,
and both government and State are subject to the supremacy of the Constitution
of the United States and of the laws made in pursuance thereof.
So that, while it is true in respect to the government of a State, as
was said in Langford v. U.S., 101 U.S. 341 [Bk. 25, L.Ed. 1010],
that the maxim that the King can do no wrong has no place in our
system of government; yet it is also true, in respect to the State itself,
that whatever wrong is attempted in its name is imputable to its government
and not to the State, for, as it can speak and act only by law, whatever
it does say and do must be lawful. That which therefore is unlawful
because made so by the supreme law, the Constitution of the United States,
is not the word or deed of the State, but is the mere wrong and trespass
of those individual persons who falsely spread and act in its name."
"This distinction is essential to the idea of constitutional
government. To deny it or blot it out obliterates the line of demarcation
that separates constitutional government from absolutism, free self-
government based on the sovereignty of the people from that despotism,
whether of the one or the many, which enables the agent of the state
to declare and decree that he is the state; to say 'L'Etat, c'est moi.'
Of what avail are written constitutions, whose bills of right, for the
security of individual liberty, have been written too often with the
blood of martyrs shed upon the battle-field and the scaffold, if their
limitations and restraints upon power may be overpassed with impunity
by the very agencies created and appointed to guard, defend, and enforce
them; and that, too, with the sacred authority of law, not only compelling
obedience, but entitled to respect? And how else can these principles
of individual liberty and right be maintained, if, when violated, the
judicial tribunals are forbidden to visit penalties upon individual
offenders, who are the instruments of wrong, whenever they interpose
the shield of the state? The doctrine is not to be tolerated.
The whole frame and scheme of the political institutions of this country,
state and federal, protest against it. Their continued existence is
not compatible with it. It is the doctrine of absolutism, pure, simple,
and naked, and of communism which is its twin, the double progeny of
the same evil birth."
v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885)]
Berends v. Butz, 357 F.Supp. 143 (1973):
"The doctrine of sovereign immunity, raised by defendants, is
inapplicable since plaintiff's content that the defendants' action were
beyond the scope of their authority or they were acting unconstitutionally."
v. Butz, 357 F.Supp. 143 (1973)]
Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284 (U.S.,2004)
An officer conducting a search is entitled to qualified immunity if “a
reasonable officer could have believed” that the search was lawful “in
light of clearly established law and the information the searching officers
Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97
L.Ed.2d 523 (1987). As the Court notes, this is the same objective
reasonableness standard applied under the “ ‘good faith’ ” exception
to the exclusionary rule. See ante, at 1294, n. 8 (citing
Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986)). The central question is whether someone in the officer's
position could reasonably but mistakenly conclude that his conduct complied
with the Fourth Amendment.
Creighton, supra, at 641, 107 S.Ct. 3034. See also
Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d
Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d
589 (1991) (per curiam).
An officer might reach
such a mistaken conclusion for several reasons. He may be unaware of
existing law and how it should be applied. See, e.g.,
Saucier, supra. Alternatively,*567
he may misunderstand important facts about the search and assess the
legality of his conduct based on that misunderstanding. See, e.g.,
Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34
(1995). Finally, an officer may misunderstand elements of both the
facts and the law. See, e.g.,
Creighton, supra. Our qualified immunity doctrine applies regardless
of whether the officer's error is a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact.
Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d
895 (1978) (noting that qualified immunity covers “mere mistakes
in judgment, whether the mistake is one of fact or one of law”).
The present case involves a straightforward mistake of fact.
Although the Court does not acknowledge it directly, it is obvious from
the record below that the officer simply made a clerical error when
he filled out the proposed warrant and offered it to the Magistrate
Judge. The officer used the proper description of the property to be
seized when he completed the affidavit. He also used the proper description
in the accompanying application. When he typed up the description a
third time for the proposed warrant, however, the officer accidentally
entered a description of the place to be searched in the part of the
warrant form that called for a description of the property to be seized.
No one noticed the error before the search was executed. Although the
record is not entirely**1296
clear on this point, the mistake apparently remained undiscovered until
the day after the search when respondents' attorney reviewed the warrant
for defects. The officer, being unaware of his mistake, did not rely
on it in any way. It is uncontested that the officer trained the search
team and executed the warrant based on his mistaken belief that the
warrant contained the proper description of the items to be seized.
The question is whether the officer's mistaken belief that the warrant
contained the proper language was a reasonable belief. In my view, it
was. A law enforcement officer charged with leading a team to execute
a search warrant for
illegal weapons must fulfill a number of serious responsibilities.
The officer must establish probable cause to believe the crime
has been committed and that evidence is likely to be found at the place
to be searched; must articulate specific items that can be seized, and
a specific place to be searched; must obtain the warrant from a magistrate
judge; and must instruct a search team to execute the warrant within
the time allowed by the warrant. The officer must also oversee the execution
of the warrant in a way that protects officer safety, directs a thorough
and professional search for the evidence, and avoids unnecessary destruction
of property. These difficult and important tasks demand the officer's
full attention in the heat of an ongoing and often dangerous criminal
An officer who complies fully with all
of these duties can be excused for not being aware that he had made
a clerical error in the course of filling out the proposed warrant.
Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d
72 (1987) (recognizing “the need to allow some latitude for honest
mistakes that are made by officers in the dangerous and difficult process
of making arrests and executing search warrants”). An officer who drafts
an affidavit, types up an application and proposed warrant, and then
obtains a judge's approval naturally assumes that he has filled out
the warrant form correctly. Even if the officer checks over the warrant,
he may very well miss a mistake. We all tend toward
myopia when looking for our own errors. Every lawyer and every judge
can recite examples of documents that they wrote, checked, and double-checked,
but that still contained glaring errors. Law enforcement officers are
no different. It would be better if the officer recognizes the error,
of course. It would be better still if he does not make the mistake
in the first place. In the context of an otherwise proper search, however,
an officer's failure to recognize his clerical error on a warrant form
can be a reasonable mistake.
The Court reaches a different result by construing the officer's error
as a mistake of law rather than a mistake of fact. According to the
Court, the officer should not receive qualified immunity because “no
reasonable officer could believe that a warrant that plainly did not
comply with [the particularity] requirement was valid.” Ante,
at 1293. The majority is surely right that a reasonable officer must
know that a defective warrant is invalid. This much is obvious, if not
tautological. It is also irrelevant, for the essential question here
is whether a reasonable officer in petitioner's position would necessarily
know that the warrant had a clerical error in the first place. The issue
in this case is whether an officer can reasonably fail to recognize
a clerical error, not whether an officer who recognizes a clerical error
can reasonably conclude that a defective warrant is legally valid.
The Court gives little attention to this important and difficult
question. It receives**1297
only two sentences at the very end of the Court's opinion. In the first
sentence, the Court quotes dictum from
United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405 (1984),
to the effect that “ ‘a warrant may be so facially deficient- i.e.,
in failing to particularize the place to be searched or the things to
be seized-that the executing officers cannot reasonably presume it to
be valid.’ ” Ante, at 1294. In the second sentence, the Court
informs us without explanation that “[t]his is such a case.” Ante,
at 1294. This reasoning is not convincing.
the passage from
Leon that the Court relies upon, it helps to recognize that
most challenges to defective search warrants arise when officers rely
on the defect and conduct a search that should not have occurred. The
target of the improper search then brings a civil action challenging
the improper search, or, if charges have been filed, moves to suppress
the fruits of the search. The inquiry in both instances is whether the
officers' reliance on the defect was reasonable. See, e.g.,
Garrison, supra (apartment wrongly searched because the searching
officers did not realize that
there were two apartments on the third floor and obtained a warrant
to search the entire floor);
Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34
(1995) (person wrongly arrested and searched because a court employee's
clerical error led officer to believe a warrant existed for person's
McCleary v. Navarro, 504 U.S. 966, 112 S.Ct. 2324, 119 L.Ed.2d
243 (1992) (White, J., dissenting from denial of certiorari) (house
wrongly searched because informant told officers the suspect lived in
the second house on the right, but the suspect lived in the third house
on the right).
The language the Court quotes from
Leon comes from a discussion of when “an officer [who] has
obtained a [defective] warrant and abided by its terms” has acted reasonably.
468 U.S., at 922, 104 S.Ct. 3430. The discussion notes that there
are some cases in which “no reasonably well trained officer should rely
on the warrant.”
Id., at 923, 104 S.Ct. 3430. The passage also includes several
examples, among them the one that the Court relies on in this case:
“[D]epending on the circumstances of the particular case, a warrant
may be so facially deficient- i.e., in failing to particularize
the place to be searched or the things to be seized-that the executing
officers cannot reasonably presume it to be valid.”
The Court interprets this language to
mean that a clerical mistake can be so obvious that an officer who fails
to recognize the mistake should not receive qualified immunity.
Read in context, however, the quoted language is addressed to a quite
different issue. The most natural interpretation of the language is
that a clerical mistake can be so obvious that the officer cannot reasonably
rely on the mistake in the course of executing the warrant. In other
words, a defect can be so clear that an officer cannot reasonably “abid[e]
by its terms” and execute the warrant as written.
Id., at 922.
We confront no such issue here, of course.
No one suggests that the officer reasonably could have relied on the
defective language in the warrant. This is a case about an officer being
unaware of a clerical error, not a case about an officer relying on
one. The respondents do not make the
usual claim that they were injured by a defect that led to an improper
search. Rather, they make an unusual claim that they were injured simply
because the warrant form did not contain the correct description of
the property to be seized, even though no property was seized. The language
Leon is not on point.
Our Court has stressed that “the purpose of encouraging recourse to
the warrant procedure” can be served best by rejecting overly technical
standards when courts review warrants.
Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d
527 (1983). We have also stressed that qualified immunity “provides
ample protection to all but the plainly incompetent or those who knowingly
violate the law.”
Malley, 475 U.S., at 341, 106 S.Ct. 1092. The Court's opinion
is inconsistent with these principles. Its analysis requires our Nation's
police officers to concentrate more on the correctness
of paper forms than substantive rights. The Court's new “duty to ensure
that the warrant conforms to constitutional requirements” sounds laudable,
ante, at 1293, n. 6, but would be more at home in a regime of
strict liability than within the “ample room for mistaken judgments”
that our qualified immunity jurisprudence traditionally provides,
Malley, supra, at 343, 106 S.Ct. 1092.
For these reasons,
[Groh v. Ramirez,
U.S. 551, 124 S.Ct. 1284 (U.S.,2004.)]
U.S. Department of Agriculture,
815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App.
DC 101, (CA DC 1991).
"When lawsuits are brought against federal
officials, they must be brought against them in their "individual"
capacity not their official capacity. When federal officials perpetrate
constitutional torts, they do so ultra vires (beyond the powers)
and lose the shield of immunity."
[Williamson v. U.S. Department of Agriculture,
815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S.
App. DC 101, (CA DC 1991)]
Gallegos v. Haggerty, N.D. of New York,
689 F. Supp. 93 (1988)
"Personal involvement in deprivation of
constitutional rights is prerequisite to award of damages, but defendant
may be personally involved in constitutional deprivation by direct
participation, failure to remedy wrongs after learning about it,
creation of a policy or custom under which unconstitutional practices
occur or gross negligence in managing subordinates who cause violation."
[Gallegos v. Haggerty, N.D. of New York,
689 F. Supp. 93 (1988)]
Jeffers v. Gomez, 9th Circuit, Case # 99-15867:
Government officials enjoy qualified immunity from civil damages unless
their conduct violates "clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); see also Behrens, 516 U.S. at 306 (describing
Harlow's standard as one of "objective legal reasonableness"). "A public
official is not entitled to qualified immunity when the contours of
the allegedly violated right were sufficiently clear that a reasonable
official would understand that what he [was] doing violate[d] that right."
Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (alterations in
original) (citation and internal quotations omitted). Determining whether
a public official is entitled to qualified immunity "requires a two-part
Was the law governing the state official's conduct clearly established?
Under that law could a reasonable state official have believed his conduct
was lawful?" Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995) (citing
Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993)).
standard " `gives ample room for mistaken judgments' by protecting `all
but the plainly incompetent or those who knowingly violate the law.'
" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting Malley
v. Briggs, 475 U.S. 335, 343 (1986)).
v. Gomez, 9th Circuit, Case # 99-15867]
U.S. Attorney Manual, Title 4, Civil Resource Manual: 33 Immunity of
Government Officers Sued as Individuals for Official Acts
33 Immunity of Government Officers Sued as Individuals
for Official Acts
rule at common law was that in order for a government official to
be protected by absolute immunity for common law torts, not only
did the official have to be acting within the outer perimeter of
his/her official duties, but the conduct at issue also had to be
discretionary in nature. Westfall v. Irwin, 484 U.S. 292, 297-298
(1988). In enacting the Federal Employees Liability Reform and Tort
Compensation Act of 1988 (FELRTCA), Congress abrogated this common
law rule and extended absolute immunity for common law torts to
all federal employees regardless of whether the conduct at issue
was discretionary. See United States v. Smith, 499 U.S. 160 (1991).
FELRTCA confers such immunity by making the Federal Tort Claims
Act the exclusive remedy for all common law torts committed by federal
employees while acting within the scope of their office or employment.
28 U.S.C. § 2679(b)(1). However, the immunity conferred by FELRTCA
does not extend or apply to suits against federal employees for
violation of the Constitution or federal statutes. Thus, government
officials sued for constitutional torts continue to be protected
only by qualified immunity. 28 U.S.C. § 2679(b)(2). See Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982); Butz v. Economou, 438 U.S.
478 (1978). Where applicable, qualified immunity protects an official
from trial and the burdens of litigation. See Mitchell v. Forsyth,
472 U.S. 511, 526 (1985).
Attorney Manual, Title 4, Civil Resource Manual: 33 Immunity of
Government Officers Sued as Individuals for Official Acts]