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Vol. 39 No. 6 November / December 2010
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Highlights of This Issue

Special Bulletin

  • Police Reliance on Advice of Prosecutor, If Objectively Reasonable, Will Shield Police From Civil Liability

United States Supreme Court

  • LELR Publisher Files Amicus Brief in Key Search and Seizure Case
  • Selected Pending Cases for the 2010-2011 Term

Federal and State Decisions

  • Arrest, Search and Seizure Issues: what constitutes search; drug dog; warrantless search; exigent circumstances; detaining people at search scene; inventory searches; improper motive; closed containers; traffic stops; front license; reasonable suspicion of drug offenses; surveillance camera; switching from traffic to criminal focus; consent; defendant’s presence at scene of search
  • Interrogation Issues: two-step process; Missouri v. Seibert; invocation of right to counsel; police advising suspect what counsel will do; waiver; mental disability
  • Trial Procedure Issues: police witness; testimony about drug courier profile; hearsay v. police procedure
  • Civil Liability/Personnel Law: responding to medical emergency; investigating child abuse calls; excessive force, use of taser during booking strip search; subduing crack cocaine addict; drunk and belligerent subject; tackling traffic violator; police chief free speech; defamation suit; Garrity statement; legal advisor liability


    Special Bulletin
    United States Supreme Court
    Arrest, Search and Seizure
    Trial Procedure
    Civil Liability/Personnel Law
    Annual Digest/Full Copy Service
    Annual Index of Cases Reported
    Renewal/Order Form; Internet Services

Special Bulletin

Special Bulletin: Civil Liability of Police Officers; Good Faith Immunity; Reliance on Prosecutor’s Advice
Kelly v. Carlisle, No. 09-2644 (3rd Cir. 2010).

A police officer was sued for alleged violation of constitutional rights in arresting the plaintiff for a violation of a state Wiretap and Electronic Surveillance statute when plaintiff videotaped the officer during a traffic stop. An assistant prosecutor advised the officer by radio that the videotaping was a violation of the statute. The officer was entitled to qualified immunity because the right to videotape the police was not clearly established at the time of the arrest. The fact that the officer consulted the prosecutor before making the arrest, however, was no blank check for qualified immunity.

“Neither the Supreme Court nor this court has squarely addressed the question of whether a police officer’s reliance upon legal advice cloaks him with qualified immunity. . . .

". . . [A] police officer is not entitled to qualified immunity if ‘a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ [Malley v. Briggs, 475 U.S. 335 (1986)], at p. 345 . . .

"Like the Supreme Court in Malley, we reject the notion that a police officer’s decision to contact a prosecutor for legal advice is per se objectively reasonable. Nevertheless, we recognize the virtue in encouraging police, when in doubt, to seek the advice of counsel. Considering the proliferation of laws and their relative complexity in the context of a rapidly changing world, we cannot fairly require police officers in the field to be as conversant in the law as lawyers and judges who have the benefit not only of formal legal training, but also the advantage of deliberate study.

“Consistent with these principles, the First Circuit has stated that advice obtained from a prosecutor prior to making an arrest ‘should be factored into the totality of the circumstances and considered in determining the officer’s entitlement to qualified immunity.’ Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004) (collecting cases from other circuits). . .

“Although we agree with much of the First Circuit’s opinion in Cox, we do not adopt its ‘totality of the circumstances’ approach. In our view, encouraging police to seek legal advice serves such a salutary purpose as to constitute a ‘thumb on the scale’ in favor of qualified immunity. Accordingly, we hold that a police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause. That reliance must itself be objectively reasonable, however, because ‘a wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one.’ Id. at 34. Accordingly, a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.”


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