Amateur Strip-Club Arrests: Probable Cause & Qualified Immunity

Legal Sidebari

Amateur Strip-Club Arrests: Probable Cause
& Qualified Immunity
January 24, 2018
The Supreme Court overturned a lower court decision that had found a lack of probable cause, and had
denied police officers qualified immunity for arrest of participants in a late-night, strip-club-like party
held in a vacant sparsely furnished house. The case, District of Columbia v. Wesby, began when a
neighbor called police to complain about loud noise coming from a party in a vacant house. When the
police arrived, they found several scantily clad women entertaining the party goers with money
protruding from the clothes the women were wearing. The party goers claimed to have permission for the
affair from “Peaches,” a woman who was not to be found in the house. As it turned out, the officers
learned that Peaches was neither the owner nor a tenant of the house, but had merely been in contact with
the owner about the possibility of renting. The owner denied giving permission for the party. The watch
commander on the scene then ordered the officers to arrest the party goers for trespassing.

After charges were dropped, some of the party goers sued the District and individual officers for unlawful
arrest under a federal civil rights statute, 42 U.S.C. §1983. The U.S. District Court determined that the
officers had no probable cause to arrest; denied the officers qualified immunity; and granted the party
goers summary judgment. As the appellate dissenters pointed out, the jury, convened to assess damages,
awarded $680,000 to the party goers, which coupled with attorneys’ fees left the officers personally liable
for close to $1 million. A divided panel of the U.S. Court of Appeals for the District of Columbia
affirmed. The full complement of the judges of the D.C. Circuit voted not to rehear the case en banc, but
again over a dissenting minority.

The Supreme Court disagreed and reversed. Justice Thomas, in the opinion for the Court, found the D.C.
courts had erred on two counts: probable cause and qualified immunity. Probable cause is a Fourth
Amendment issue. The Fourth Amendment demands that arrests not be unreasonable. A warrantless
arrest is reasonable if officers have probable cause to believe that an individual has committed a crime in
the officers’ presence. Whether officers have probable cause – that is, whether they have grounds to
believe that “a probability or substantial chance of criminal activity” exists – is a matter of the totality of
the circumstances in a given case. The question in Wesby was whether the officers had evidence that the
party goers knew or should have known that they were partying “against the will of the lawful owner” of
the house.

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The Court concluded that the condition of the house and the conduct of the party goers provided that
evidence. Neighbors had told the officers that the house had been vacant for months. The house, inside,
bore no signs of recent normal occupancy. It was essentially unfurnished. There were no clothes in the
closets. Moreover, from the Court’s perspective, the revelers could not reasonably have thought that they
had permission for their conduct. The Court observed that “most homeowners do not invite people over
to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to
leave their floors filthy.” From all of this evidence, “a reasonable officer could conclude that there was
probable cause to believe that the party goers knew they did not have permission to be in the house.” The
Court explained that the lower federal courts had gone astray when they “viewed each fact ‘in isolation,
rather than as a factor in the totality of the circumstances.’”

The Court found the immunity assessment in the federal tribunals below faulty as well. Police officers in
the performance of their duties enjoy qualified immunity from lawsuits for money damages. They lose
that immunity if their conduct is in violation of clearly established law. The case might have ended with
the determination that the officers were not in violation of the Fourth Amendment and in fact had
probable cause to arrest the party goers. Nevertheless, the Court went on to declare that even in the
absence of probable cause the officers’ immunity would have remained uncompromised. According to
the Court, there simply was no clearly established precedent that would have alerted the officers of the
lawlessness of their conduct. In the Court’s mind, “to be clearly established, a legal principle must have a
sufficiently clear foundation in then-existing precedent.” Moreover, “the rule must be ‘settled law,’
which means it is dictated by ‘controlling authority’ or ‘a roust consensus of cases of persuasive
authority.’ It is not enough that the rule is suggested by then-existing precedent.” In Wesby, “neither the
panel majority [below] nor the party goers … identified a single precedent – much less a controlling case
or robust consensus of cases – finding a Fourth Amendment violation ‘under similar circumstances.’”

Justices Sotomayor and Ginsburg agreed with the Court that the officers were entitled to immunity but
they did concur in the majority’s Fourth Amendment analysis. Justice Sotomayor would have left the
question of probable cause unaddressed. Justice Ginsburg would have preferred that the Court’s Fourth
Amendment analysis include an examination of the officers’ purpose for the arrest.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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