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Does New Law Take Time to Become "Clearly Established"?
A fascinating question about qualified immunity law.
I realize that qualified immunity is a pretty unpopular doctrine, especially here at the Volokh Conspiracy. But for readers willing to accept existing Supreme Court law as a given, the Third Circuit's new decision in Bryan v. United States asks a really cool question: Are officers expected to know instantaneously of new legal rulings that clearly establish the law? Or is there some kind of allowed time delay before an officer is held liable for not conforming his conduct to a new decision? Bryan takes the latter path, and I thought readers might be interested in knowing more about it.
I. The Facts
Here's how the issue arose. On August 31, 2008, a group of travelers went on an eight-day Caribbean cruise. They started in Puerto Rico, went to some foreign ports such as Antigua and Barbados, then went to St. Thomas in the U.S. Virgin Islands. They returned to Puerto Rico on September 7, 2008.
But the trip wasn't uneventful. Customs officers suspected that the travelers were smuggling drugs. On September 5th, a customs officer in Puerto Rico, Officer Ogg, decided that the travelers' cabins should be searched. The next day, September 6th, another group of customs officers searched the cabins when the cruise ship was docked at St. Thomas. No evidence was found.
Here's the interesting part. The travelers sued in the federal district court in the Virgin Islands, arguing that the search of their cabins in St. Thomas violated the Fourth Amendment. They based their lawsuit on a Third Circuit ruling handed down September 4th, 2008, just two days before the search occurred. The new ruling, United States v. Whitted, 541 F.3d 480 (3d Cir. 2008), involved nearly identitical facts as the plaintiffs' case. A prior search of cabins had occurred on the exact same cruise ship, also while docked in St. Thomas, also for evidence of drugs. Whitted held that searches of cruise-ship cabins docked in the Virgin Islands after a trip to foreign ports requires reasonable suspicion under the Fourth Amendment. This was the first ruling of its kind in any federal circuit court.
Under qualified immunity doctrine, officers are bound by "clearly established" law. So here's the question. How long after a decision is handed down does law become "clearly established"? Was the September 4th ruling "clearly established" in Puerto Rico on September 5th, when the officer in Puerto Rico concluded that the cabins should be searched? Was it "clearly established" in St. Thomas on September 6th, when the officers boarded the ship and searched the cabins?
II. The Ruling
In an opinion by Judge Roth, the Third Circuit ruled that the Whitted decision was not yet clearly establlshed and that therefore the officers were entitled to qualified immunity:
Until September 4, 2008, there had been no ruling in the Third Circuit as to what constituted a "routine search" [for which no cause is needed under the Fourth Amendment] As for Officer Ogg, he was located in San Juan, Puerto Rico, in the First Circuit. There had not been any such ruling in the First Circuit, and the First Circuit courts would not be bound by Whitted, a Third Circuit case.
When such a ruling is made, a ruling which affects the procedures used in border searches, it is beyond belief that within two days the government could determine what was "reasonable suspicion" and what new policy was required to conform to the ruling, much less communicate that new policy to the CBP officers. We can only conclude that as of September 5, 2008, it was not clearly established in either the Third Circuit or the First Circuit that a search of a cruise ship cabin at the border had to be supported by reasonable suspicion. Accordingly, under the circumstances that Officer Ogg confronted, he did not violate clearly established law by entering lookouts for the three passengers the day after we issued our decision in Whitted. He is entitled to qualified immunity.
We conclude that the same situation applies to the St. Thomas officers. On September 6, the Whitted standard was no more clearly established than it had been the day before. Moreover, if the St. Thomas officers had been aware of Whitted, they would have known that Whitted held that unsubstantiated information from TECS can establish reasonable suspicion.
For these reasons, we conclude that the Whitted standard was not clearly established in the Third Circuit, or the First Circuit, on September 5 or 6. Within one or two days, neither Officer Ogg nor the St. Thomas officers could reasonably be expected to have learned of this development in our Fourth Amendment jurisprudence. At that time, it would not have been beyond debate that, absent reasonable suspicion, the Fourth Amendment prohibited the search of the travelers' cabins. For purposes of qualified immunity, a legal principle does not become "clearly established" the day we announce a decision, or even one or two days later.
This holding is informed by the overarching aim of the qualified immunity doctrine to insulate from civil liability "all but the plainly incompetent or those who knowingly violate the law," and the need to ensure that the relevant legal principle is framed with particularity and settled "beyond debate." We are, however, deciding only this case. For that reason, we decline to draw a bright line demarcating when a legal principle becomes "clearly established." We leave that exercise for another day.
III. A Few Thoughts
This is a fascinating case, and I'm not sure where I come out on it. Here are a few tentative thoughts.
1. Let's start with the general principle. The idea that a decision doesn't become "clearly established" the instant it is handed down strikes me as quite plausible, although not obviously correct. Qualified immunity is largely about personal culpability in either failing to know or ignoring the law. If it was very difficult to know the law at the time the search occured, a person isn't culpable for not knowing it. This was easier to see in the pre-Internet era. If you were a law nerd who wanted to know the very latest decisions, it would take you a week or so to get summaries in U.S. Law Week or to get copies of the latest slip opinions sent your way. In that environment, even a hyper-vigilant lawyer might not know about a decision that came down yesterday or two days ago.
Even today, it takes a hyper-vigilant legal nerd at least some non-zero amount of time to digest new rules. Say a circuit usually posts new opinions in the afternoon between 2pm and 3pm. Imagine that it posts a particularly important new decision one day at 2:07pm. We wouldn't expect everyone to know the new rule of the new decision at exactly 2:07pm. Imagine two officers are out in the field about to conduct a search. Officer Bob searches at 2:06pm, and Officer Stan searches at 2:08pm. A culpability-focused approach would plausibly treat those two searches the same way, even though Bob technically searched before the opinion was posted and Stan technically searched after it was posted.
2. In terms of precedent, I would think that Messerchmidt v. Millender provides at least some support for the idea that an officer isn't instantaneously reponsible for knowing new legal decisions. Messserschmidt involved a lawsuit against officers for executing a warrant that the plaintiffs claimed lacked probable cause. The Ninth Circuit agreed with the plaintiffs and ruled that qualified immunity did not apply. The Supreme Court reversed, ruling that qualified immunity attached in part because the officers had asked their bosses and some prosecutors to review the warrant application and they has said it was fine. From the opinion:
[T]he fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. . . . Messerschmidt . . . submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, who issued the requested warrant. The officers thus "took every step that could reasonably be expected of them." Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In light of the foregoing, it cannot be said that "no officer of reasonable competence would have requested the warrant." Malley, 475 U.S., at 346, n. 9, 106 S.Ct. 1092. Indeed, a contrary conclusion would mean not only that Messerschmidt and Lawrence were "plainly incompetent," id., at 341, 106 S.Ct. 1092, but that their supervisor, the deputy district attorney, and the magistrate were as well.
The Court of Appeals, however, gave no weight to the fact that the warrant had been reviewed and approved by the officers' superiors, a deputy district attorney, and a neutral magistrate. . . .But by holding in Malley that a magistrate's approval does not automatically render an officer's conduct reasonable, we did not suggest that approval by a magistrate or review by others is irrelevant to the objective reasonableness of the officers' determination that the warrant was valid. Indeed, we expressly noted that we were not deciding "whether [the officer's] conduct in [that] case was in fact objectively reasonable." Id., at 345, n. 8, 106 S.Ct. 1092. The fact that the officers secured these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.
I find this passage from Messerschmidt pretty troubling, as it can let an agent rely on others enough that no one is accountable for even pretty clear legal violations. But whether I like it or not, the case seems to say that it's not the officer's fault if he gets bad legal advice from higher-ups. And if getting bad legal advice is relevant to whether he gets immunity, then I would think it's also relevant if an officer, through no fault of his own, isn't aware of a brand-new decision. We expect officers in the field to find out about new legal decisions from higher-ups and prosecutors. If that's right, not yet knowing of a new legal decision seems something like being given bad legal advice from higher-ups and prosecutors in Messerschmidt.
3. Of course, if you say that it takes time for an opinion to become "clearly established," you then need a framework for figuring out how much time that is. This is tricky. The Third Circuit seems to have something like a "reasonable amount of time to be trained" approach, which seems to look at how long you might expect before an officer was told of the law. Another possibility would be an "actually was told of the new ruling" standard, Cf. Messerschmidt. Or maybe you combine them. Maybe you say that an officer is charged with knowing the law if either he was told about the ruling or he failed to take reasonable steps to become aware of the law that would have otherwise informed him of the new ruling.
Another approach might consider whether the new ruling was final. The day after a new circuit decision is handed down, you don't yet know if it will stay on the books. Maybe the circuit will vacate the ruling and rehear the case en banc. Maybe the panel will withdraw or amend the opinion. Maybe the Supreme Court will grant cert. One approach would be to say that new circuit court decisions aren't "clearly established" until the time for further review has passed.
On the other hand, maybe the difficulty of identifying an answer to "how long is long enough" suggests that courts shouldn't try to answer that question at all. Maybe a bright-line rule that holds officers immediately responsible for new law is best. It would also have the benefit of encouraging law enforcement to alert officers to new rulings immediately. And although it might be unfair in a few cases in theory, it's fair to wonder how often this issue actually comes up.
4. There are also some neat issues raised in Bryan about the liability for the officer in the First Circuit for following a ruling in the Third Circuit. It makes sense to say that the law of another circuit ordinarily won't clearly establish the law governing him. But I wonder if that approach makes sense in the rare situation when an officer is engaged in the planning of a search that the officer does or should know will occur in the other circuit. Does it matter if the officer is someone who usually conducts searches in his own circuit, or if he often participates in searches in many circuits? The Third Circuit didn't have to get into that level of detail in Bryan, of course. But I think there are some interesting issues raised by cross-circuit searches that may come up in other cases.
