Bench Memos

Law & the Courts

Supreme Court Slams D.C. Circuit Judge Pillard

On Monday, the Supreme Court unanimously ruled (in District of Columbia v. Wesby) that a D.C. Circuit panel majority wrongly affirmed an award of $680,000 in damages, plus attorney’s fees, to individuals who (as Justice Thomas’s opinion for the Court puts it) “were arrested for holding a raucous, late-night party in a house they did not have permission to enter.”

The Court’s ruling is a remarkable slapdown of D.C. Circuit judge—and highly controversial Obama appointee—Cornelia Pillard, who wrote the panel opinion. (Pillard’s opinion was joined by senior judge Harry Edwards and triggered a vigorous dissent by Judge Janice Rogers Brown.) It also reflects very negatively on another Obama appointee to the D.C. Circuit, Robert L. Wilkins, who as a district judge awarded summary judgment to the partygoers. And, indeed, even more broadly, the seven judges, all Democratic appointees, who voted to deny rehearing en banc—in the face of a lengthy dissent by Judge Brett Kavanaugh, joined by Brown and the two other Republican appointees—also fared very poorly.

Justice Thomas’s opinion for the Court* rules that Pillard was wrong to hold (1) that there was no probable cause to arrest the partygoers, and (2) that the officers were not entitled to qualified immunity.

1. On the probable-cause question, the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” (Internal quotes omitted.) Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up (pp. 9-10 (citation and internal quotes omitted)), a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And 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. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

2. Pillard fares as poorly on the qualified-immunity question. The Court sets forth (pp. 13-16) the elementary and “straightforward analysis” that Pillard should have applied. The convoluted path that Pillard instead took is too confused for me to describe succinctly. (See pp. 16-17.) Suffice it to say that the Court found that the supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”

Let’s hope that the Court’s slapdown of Pillard discourages some of her colleagues from acquiescing in her poorly reasoned opinions.

*Six other justices, including Breyer and Kagan, join Thomas’s opinion in full. In a one-paragraph separate opinion, Justice Sotomayor states that she agrees on qualified immunity and would not reach the probable-cause question. In her own brief opinion, Justice Ginsburg likewise states that the officers were entitled to qualified immunity under “the current state of the Court’s precedent,” even as she questioned whether that precedent “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.

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