483 U. S. 635
June 25, 1987
Officer Anderson made a warrantless search of the Creighton house in pursuit of a bank robber, but the search was fruitless. The Creighton family wanted to sue Anderson for violation of the Fourth Amendment, but Anderson claimed he had immunity from lawsuits under the Harlow principle, which barred suits when the legality or illegality of an action wasn’t firmly established.
The Court ruled 6-3 that Anderson could claim immunity. Scalia first rehearsed the government’s interest in not being bogged down by time-consuming suits against it. He then said that federal officers could obtain immunity as a matter of law when they could have reasonably believed that the search was valid. Scalia was not moved by the linguistic argument that “unreasonable searches and seizures,” to quote the Fourth Amendment, could never be considered “reasonable” for immunity purposes. Neither did he have much use for some arguments from British Common Law, observing that American Common Law had simply gone in a different direction. Thus, on remand, Anderson was free to argue that exigent circumstances were sufficient to create a reasonable belief of the warantless search’s validity.
The Stevens dissent, joined by Brennan and Marshall, began by positing that the Harlow immunity applies only when legal standards and doctrines are themselves undefined. In this case, the question was only whether Anderson had complied with well-established legal standards. The Harlow doctrine was meant to shield high level government officials in uncharted water; it was not meant to give policemen broad immunity when they violated the Fourth Amendment. Stevens felt that there should not be two different standards for search reasonability – the Constitutional one, and the looser immunity one. He closed by stressing the importance of protecting the privacy rights of ordinary Americans.
What swayed me most was Footnote 21 in the dissent, which described the search. If its description is true, Officer Anderson acted atrociously, and deserves every punishment he can get. But more than than, I really I hate governmental immunities that are not available to everyday citizens. No ordinary criminal defendant can argue that he was reasonably mistaken about the law. Why are they held to a higher standard of legal acumen than policemen? No one should be above the law, least of all government officials.