Crime & Federalism

A judge engages in judicial activism when he or she ignores material facts or misapplies clearly established law.  Two judges of the Ninth Circuit seemed to do so today in Burrell v. McIlroy, No. 02-15114.  (The case reads poorly and unclearly states the facts, governing law, and alleged misconduct.  Those are early-warning signs.)

Burrell, the plaintiff in this Section 1983 suit, was a total scumbag.  He dealt drugs and was facing charges for shooting his girlfriend.  He was under investigation for cooking crack in his home.  If Burrell died in a car accident today, we as a society would be better off.  But there's a problem.

Burrell sued in a court of law, not a court of public opinion, alleging that a police detective violated his Fourth Amendment rights by arresting him without probable cause.  And the detective did lack probable cause to arrest him.  Hey, don't belive me.  "In its briefs, the government disputed whether the encounter was an arrest, but conceded at oral argument that, if the encounter was an arrest, Detective Rector lacked probable cause to arrest Burrell."  Slip op. at 13426.  Since it's unconstitutional to arrest someone without probable cause, even bad men like Burrell, the detective who arrested him will be liable under Section 1983.  But a 2-1 panel held that the detective was not liable.  Watch carefully:

We hold that, assuming without deciding that the encounter was an arrest and the police lacked probable cause to arrest Burrell at that time, a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest Burrell and to use force in doing so....

There are two propositions here.  First, that "a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest."  Second, that a reasonable officer could have concluded that force was necessary to make the arrest.  We should expect to see two discussions.  One, that a reasonable officer would have determined there was probable cause for the arrest, and two, that the force was allowable.  The judge continues:

The particularized facts known by the officers at the time of the encounter amply show that a reasonable officer in Detective Rector’s position could have believed that he was authorized to use force to take Burrell into custody....

The panel is correct that a reasonable officer would have believed it was constitutional to use force to arrest Burrell.  But what about the first proposition, namely that "a reasonable officer in Detective Rector's position would have believed that he had probable cause to arrest"?  Where goeth thou?  Let's keep reading:

At the time of the encounter, the officers were aware that Burrell was a felon who had recently confessed to shooting his former girlfriend, and that it was highly likely that he continued to deal drugs and possess firearms. Several informants had recently stated that Burrell had just returned from purchasing cocaine in California. Indeed, one of these informants had reported that he had seen Burrell cooking crack on the stove that very day (when the informant contacted the detective), and that Burrell still kept a gun in the bedroom of his apartment.

Yes, Burrell is a bad guy.  I'm glad the officers used force to arrest him.  Am I being tough enough?  But again I ask: what about the first proposition, namely that "a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest."  What facts convinced the detective that he had probable cause to arrest?  Let's read on:

Thus, under the totality of the circumstances, a reasonable officer in Detective Rector’s position could have believed there was probable cause to arrest Burrell and to use force in doing so.

There's that pesky "and" again.  Yet the panel never discussed why "a reasonable officer in Detective Rector's position could have believed there was probable cause to arrest Burrell."  They discussed the excessive force issue, but they totally ignore the probable cause issue, even though whether the officer reasonably believed he had probable cause to arrest is dispositive. This case seems like judicial activism - though some will say that since it reaches the viscerally-correct result, it's good activism.