No Qualified Immunity for Reliance on Poor Legal Advice
In Lawrence v. Reed, No.04-8030 (May 6, 2005), the Tenth Circuit denied qualified immunity in a Section 1983 claim for a police chief who towed cars from a property owner after consultation with the city attorney. The plaintiff claimed deprivation of Fourth Amendment rights for the seizure of some ninety vehicles from her "junk yard" under a local "derelict vehicle" ordinance. She also claimed deprivation of her Fourteenth Amendment rights because the ordinance provided no pre-deprivation or post-deprivation hearing. The police chief claimed qualified immunity under the "extraordinary circumstances" doctrine. The Tenth Circuit reversed summary judgment that the district court granted in favor of the police chief.
When the operative law is clearly established, a police officer's reliance upon legal advice will do him little, if any, good. This decision rests upon a number of legal fictions. First, the qualified immunity doctrine itself is a court created doctrine that is contrary to the language and intent of 42 U.S.C. Sec. 1983. Second, the concept that police officers are deemed to know "clearly established" law is a fiction, but it is the only way to limit the judicially created qualified immunity doctrine. Finally, holding a cop liable for the stupidity of a lawyer ultimately makes little sense , but it is an effective method for holding the government accountable for civil rights violations that our Supreme Court wrongly restricted with the qualified immunity doctrine.
On the key issue at hand, "extraordinary circumstances" is claimed when a public official reasonably acts upon the legal advice of an attorney. The Tenth Circuit applied this doctrine in V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, 902 F.2d 1482 (10th Cir. 1990). In V-1 Oil, a police officer relied upon a government attorney who told him he needed no warrant for a search of gas tanks of a regulated business based on a state statute. The Tenth Circuit distinguished V-1 Oil from the Ms. Lawrence's claims, because the unconstitutionality of the statute at issue was a "close call". The Tenth Circuit found that the statute at issue in the current case was clearly unconstitutional. Thus, the police chief's reliance upon the city attorney's advice was unreasonable.
The Tenth Circuit's conclusion that the police chief should have known his actions were illegal is remarkably refreshing:
The constitutional inquiry in Mr. Reed's case, by contrast, is markedly simpler. Does the statute deprive an individual of a protected property interest? If so, does the statute provide a hearing? In the context of the Rawlins derelict vehicle ordinance, these are not difficult questions and they yield a clear result. It is therefore not too much to expect Mr. Reed to know that the ordinance was unconstitutional. In spite of the layers of complexity built up around the doctrine of qualified immunity, the fundamental inquiry is fairly simple: should the officer have known that his conduct was unlawful? For the reasons set forth above, we find that Mr. Reed should have known that his conduct was unlawful.
What are we to take from this? Again, if the officer consults with an attorney about whether he needs a search warrant, for instance, the attorney's advice will do the officer no good if the law itself is clearly established. The qualified immunity doctrine imposes upon officers a requirement that they know the clearly established law. Officers cannot avoid their responsibilty to know clearly establiched law by consulting with an attorney.
This opinion also provides a good outline of the due process responsibilities of municipalties when they tow vehicles and provides a good read for that issue alone.
