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Back to Archives | Back to May 2005 Contents 

Chief's Counsel

A Little Advice May Buy You Immunity

Elliot B. Spector, President, Sack Spector Karsten, West Hartford, Connecticut

f you find yourself wondering whether you have probable cause to make an arrest or sufficient basis to conduct a search or make an entry into a home, or if you have some doubt about a disciplinary decision or policy issue, call your local attorney and ask for advice. Make sure you give him or her all the relevant information and then ask what to do. More often than not, you’ll get the correct answer. In the unlikely event that the attorney gives you the wrong advice, you may still be entitled to qualified immunity because you made the good-faith effort to ask for advice.

That’s what Trooper Hainey did in Norway, Maine, when he consulted with an assistant district attorney while reviewing the evidence he obtained during a search to determine whether or not he had probable cause to make an arrest. After prosecutors decided not to issue a complaint and the charges were dropped, Hainey found himself being sued for false arrest.

Demonstration of Good Faith

The court found that although Hainey was walking a thin line between probable cause and mere suspicion, his actions were certainly not plainly incompetent and the fact that he took the precaution to speak to a local prosecutor buttressed the conclusion that his actions were objectionably reasonable, thus entitling him to qualified immunity.1

The court further explained that although the prosecutor cannot wave a magic wand and magically transform an unreasonable probable cause determination into a reasonable one,

it stands to reason that if an officer makes a fullpresentation of the known facts to a competent prosecutor and receives a green light, the officer should have stronger reason to believe that probable cause existed. And as a matter of policy, it makes eminently good sense, when time and circumstances permit, to encourage officers to obtain an informed opinion before charging ahead and making an arrest in uncertain circumstances.

Qualified Immunity Cases

In this case, the First Circuit followed other circuits that have made similar determinations. In Kijonka v. Seitzinger2 the court also recognized that a pre-arrest consultation with a prosecutor may lend reasonableness to an officer’s conclusion that probable cause exists and thus may help to establish qualified immunity. “Consulting a prosecutor may not give an officer absolute immunity from being sued for false arrest, but it goes far to establish qualified immunity. Otherwise the incentive for officers to consult prosecutors—a valuable screen against false arrest—would be greatly diminished.”3

In Dixon v. Wallowa County4 police seized a home where a rape had occurred a day after they completed the execution of a search warrant, when they learned that a tenant was moving her belongings out of the home. Fortunately, they asked for advice from the district attorney before seizing the premises.

The Ninth Circuit Court of Appeals cited prior precedent where they listed four questions relevant in determining whether an officer’s reliance on advice from counsel was reasonable: “(1) Whether the attorney was independent, (2) whether the advice addressed the constitutionality of the proposed action, (3) whether the attorney had all the relevant facts, and (4) whether the advice was sought before or after the officer’s actions.” The court found that the reliance on the attorney’s advice was evidence of good faith and upheld the district court’s denial of a new trial for the plaintiff following the jury decision in which they heard evidence that the officers relied on the attorney’s advice.

In Wadkins v. Arnold5 the Fourth Circuit found instructive the Ninth Circuit decision in Arnsberg v. United States6 in which the court found officers entitled to qualified immunity after they relied on counsel’s advice. “Counsel’s advice would prevent a reasonable person from knowing that Arnsberg’s constitutional rights were being violated.”7 The Court further explained that it would be plainly unreasonable to rule that arresting officers must take issue with the considered judgment of an assistant U.S. attorney and a federal magistrate. Similarly, the Fourth Circuit in Wadkins stated that the fact that the detective consulted with the commonwealth’s attorney and received authorization for his actions was compelling evidence that should be taken into consideration in determining the reasonableness of the detective’s actions.

In Davis v. Zirkelbach8 officers claimed immunity under the extraordinary circumstance exception when they acted on the advice of a prosecutor regarding the use of a tape-recorded conversation obtained from a wiretap of plaintiff’s office phone. The court agreed that the officers were entitled to such immunity, as “a contrary conclusion on these facts would create a perverse incentive for police officers faced with an unusual problem: If they sought advice from counsel that turned out to be wrong, they would be liable, but if they maintained a deliberate ignorance, they might be able to get away with arguing that no reasonable officer would have found that the rule applied to their particular situation.”

Four Tests for an Attorney’s Advice

A year earlier, the Seventh Circuit Court of Appeals ruled that officers who unconstitutionally took children from their mother, but who were acting on the advice of the district attorney, were entitled to immunity because they acted on the attorney’s advice. The court described four tests to determine whether immunity would apply when relying on the advice of counsel:

•      The advice is specifically tailored to particular facts giving rise to the controversy.
•      Complete information has been provided to the attorney.
•      The attorney is competent to give advice of the nature requested.
•      Action is taken soon after the advice is given.

The lesson is that, if time permits, a call or a visit to an attorney regarding a questionable constitutional action will serve two purposes. First, it probably will prevent officers from committing an unconstitutional act, and, second, even if the actions are later found to be unconstitutional, the seeking of the advice will be strong evidence that the officers are entitled to qualified immunity. When officers do request such advice, they should provide the attorneys with complete information and act in accordance with the advice. In the rare event that the officer knows that the advice is contrary to law, the officer should seek a second opinion but should definitely not assume that the immunity protection will be available when they know that the attorney has given them improper advice.

Consult a Specialist

Officers cannot assume that everyone who has a law degree is capable of answering questions related to an arrest, a search, or another legal matter relating to law enforcement. Officers should rely on attorneys who specialize in police-related issues. Just as a cardiac patient would not want a dentist to perform heart surgery, an officer would not want legal advice from a divorce attorney on a Miranda issue.

The best option available to some officers is a police legal advisor. These attorneys specialize in law enforcement-related legal matters and are there to provide advice to officers and document the questions and answers for future use.

The second best option is a prosecutor’s office. Although most prosecutors encourage officers to seek advice and are more than willing to assist, some may be reluctant since they are not clothed with absolute immunity for giving legal advice to the police.9

The third obvious option is the city attorney’s office. Bear in mind that some city attorneys specialize in other areas of law and do not have the expertise to give competent legal advice on law enforcement-related matters.

Finally, if none of the above alternatives are readily available, attorneys in private practice specializing in police matters may prove to be a practical resource.

Little Downside to Asking for Advice

There is little downside to asking for advice. Most factual circumstances can be described within five or 10 minutes and a truly competent attorney in the field can respond immediately with the correct answer. But even if the attorney doesn’t have the answer, or provides the wrong answer, the fact that you’ve asked will put you in a far better position when claiming qualified immunity or challenging discipline. So go ahead and ask.

1 Cox v. Hainey, no. 04-1761 (1st Cir. 2004).
2 363 F.3d 645 (7th Cir. 2004).
3 Id. at 648.
4 336 F.3d 1013 (9th Cir. 2003).
5 214 F.3d 535 (4th Cir. 2000).
6 757 F.2d 971 (9th Cir. 1985).
7 Id. at 982.
8 149 F.3d 614 (7th Cir. 1998).
9 Burns v. Reed, 500 U.S. 478 (1991).


From The Police Chief, vol. 72, no. 5, May 2005. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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