"Twenty-one people en masse arrested for trespassing for going to a party. Does that feel right?" asked Supreme Court Justice Sonia Sotomayor, in a case that sees District of Columbia cops on the hook for false arrest.
Neither Sotomayor nor her SCOTUS colleagues seemed impressed with the city's contention that guests at a 2008 D.C. house party should have known they were trespassing. The guests had been invited there for a bachelor shindig, directly or secondhand, by a woman named Peaches, and they had little reason to suspect she was lying about having recently rented the house.
"You are saying that anytime a policeman goes into a house and there's a party and people tell you, somebody invited me, and it turns out that that somebody didn't have a right to be in the house, you can arrest [the invited guests]?" Justice Stephen Breyer asked the city's attorney during oral arguments last Wednesday.
When invited to a party at someone's home, "I don't ask to look at their lease," said Sotomayor. "I don't ask to—for them to establish, to my satisfaction or anyone else's, their right to be there. I assume if they're there, they can invite me in."
It might seem silly that the Supreme Court is discussing a rogue bachelor party, but the case could have big implications for police accountability. The "Supreme Court should not further expand the doctrine of qualified immunity in the context of the Fourth Amendment's probable cause requirement," argues the American Civil Liberties Union. That would weaken Americans' ability "to hold government officers accountable for their unconstitutional actions," and would diverge from "the principles undergirding the Framers' intent in drafting the Fourth Amendment's prohibition on unreasonable seizures." Yale Law School filed a brief supporting the partygoers.
Party at Peaches'
Upon being called to the house by a complaint from neighbors, D.C. police "heard loud music playing inside" and "saw a man look out the window and then run upstairs" when they knocked, according to the city's summary of the case. Police claim the door was ajar and when they entered, there was "a strong odor of marijuana" and women were in their undergarments "with money hanging out [from] their garter belts." Some people were standing around drinking; some were getting lap dances.
Police eventually determined that this was a party thrown by Peaches, who had hired the dancers, invited some guests (who invited guests of their own as well), and recently stepped out to go to the store. But while Peaches was in negotiations with the house's owner to rent the place (and may have even had keys), she had never actually sealed the deal on the lease and did not have permission to throw a party there—all things she admitted to the police when they called her from the party.
Peaches did not implicate her guests in the scheme, and they claim that they didn't know of her deception (or, in some cases, didn't know who lived at the house but had no reason to suspect they were trespassing). Still, all 21 people at the house were arrested for unlawful entry and taken to the police station, where they were detained for several more hours.
All 21 would be booked for disorderly conduct, though those charges were eventually dropped. The group filed a lawsuit seeking damages from the city and the arresting officers, alleging false arrest and violation of their Fourth Amendment rights.
A district court sided with the partygoers, finding that D.C. police lacked probable cause to arrest them for unlawful entry. "Nothing about what the police learned at the scene suggests that [partygoers] 'knew or should have known that [they were] entering against the [owner's] will," wrote the court. A jury awarded each responded $35,000 to $50,000, with the city and officers Andre Parker and Anthony Campanale jointly liable for the total $680,000 tab.
The city appealed, and in January the Supreme Court agreed to hear the case. At issue in District of Columbia v. Wesby is whether police had probable cause to arrest the partygoers for trespassing and, even if they didn't, whether they are entitled to qualified immunity "because the law was not clearly established in this regard."
Party at Joe's
The mechanics of house-party invites were the subject of ample discussion during last week's oral arguments.
Justice Breyer described his partying days as being back in the "Middle Ages," but said he was aware that people had house parties in which invitations spread though word of mouth and not everyone knew the hosts:
The people today, younger people frequently say, hey, there's a party at Joe's house. And before you know it, 50 people go to Joe's house. And they all—they don't really ask themselves does Joe own the house or rent the house or something. It's Joe's house. But the normal assumption would be it's Joe's house. And nobody questions it. So what's the evidence here that's different from that?
For several rounds of back and forth, D.C. Solicitor General Todd Kim, arguing on behalf of the city, continued to assert that it was different because in this case the host didn't have permission to throw a party there, provoking outbursts from Breyer. Kim eventually added that the home was "sparsely furnished," that guests acted suspicious when talking to police, that they may have been smoking pot, and that there were hints of untoward sexual activity, such as (used and unused) condoms in an upstairs room.
"A readily available inference to a reasonable officer was that the partygoers were not blameless dupes tricked into someone else's house, but the simpler explanation, they were trespassing to throw a party with drugs and strippers in a place where they thought they wouldn't be caught," Kim told the court.
The original police report stated that Officer Parker had found and field tested marijuana at the party but Parker later said this was a mistake and no drugs had been found.
Setting Rules for Future Cops
Robert A. Parker, assistant to the solicitor general, argued that "if a person finds himself or herself in a compromising situation—here, finding themselves in a vacant home…where they, as a matter of fact, are an intruder who is committing the actus reus of a crime, and especially if there are surrounding circumstances that would lead a reasonable observer to think that that may be what really is going on, then the deck is stacked against that person."
"So whenever you see a sparsely furnished house with some people in it," responded Breyer, "and they say word got around that Joe invited everybody to his house for a party, it turns out that Joe hadn't rented the house, you can arrest them. Isn't that what you're saying?"
The justices dismissed the sparse furnishings as not at all incriminating for someone who just leased a house, noted that the utilities were all still working, and pointed out that sometimes parties got messy, leading to ever more silly justification from the the city's attorneys.
JUSTICE SOTOMAYOR: What—what was that? If all it had, according to you, was a bed and some folding chairs and utilities that worked, nothing had been turned off, what happens during a party?
MR. PARKER: Well—
JUSTICE SOTOMAYOR: Disarray? So what was different in this disarray from a party?
MR. PARKER: Well, the—the evidence in the record indicates that the house was considerably more dirty than just an ordinary house. In fact, one of the individuals who went to the house said that the floor was so dirty, she was unwilling to sit on it.
Justices seemed similarly skeptical of the city's claims that booze, weed, or anything else known about the party should have tipped guests off. "It just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here…and it seems a little bit hard that they're subject to arrest," said Justice Elena Kagan, pointing out that "we are setting rules and those rules are going to affect how police officers act in the future as well."
JUSTICE KAGAN: And when looked at from the reasonable partygoer's view, there are these parties that, once long ago, I used to be invited to where you didn't—don't know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties?…I mean, from the partygoers' point of view, they just know that Joe is having a big party, and it's a good time, and—and maybe there will be some liquor and maybe there will be some recreational drugs.
The plaintiffs' lawyer, Nathaniel Garrett, challenged the city's claim that the house was self-evidently vacant. "The bed, the chairs, which were not folding chairs…the stereo, the utilities were on. Somebody was paying the utility bills. There were candles. There was food in the refrigerator. There were window coverings. There was shower curtains."
"What is the evidence that these individuals knew that they weren't supposed to be here or at least were negligent in not knowing them?" asked Garrett.
Sotormayor said she suspected "that if police officers arrived at a wealthy home and it was white teenagers having a party, and one of them says, 'My dad just bought this house— and I told the kids they could have a party,'" the teens would be cut some slack. "Those kids wouldn't be arrested. Maybe the kid who lied might be, but I doubt very much those kids would be arrested."
According to the American Civil Liberties Union, future arrests could be even more unfair if the Supreme Court sides with the D.C. police. "The Framers of the Fourth Amendment envisioned broad monetary liability for officers who committed unconstitutional acts," the group reminded the court. "Given the intensely fact-specific nature of the probable cause inquiry, and the limitless factual contexts in which arrests are made, that is a recipe for transforming qualified immunity into close-to-absolute immunity for warrantless searches and seizures."