Sunday, November 19, 2017

Cert Grant Series: Partying with the Justices

District of Columbia v. Wesby presents two Fourth Amendment issues arising from a fun and possibly wild party at an apparently vacant house. Police arrived (who invited them?) finding, among other entertainment, “scantily clad women with money tucked into garter belts” and "used contraceptives strewn about." Some attendees indicated the host, "Peaches", was not present. Police eventually identified the lawful property owner (Peaches' landlord, as luck would have it) who disowned the partygoers.

All attendees, including Mr. Wesby, were arrested for trespassing. They then sued the police for wrongful arrest (no probable cause) and lack of qualified immunity.

The questions presented are:

Do officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? and 

Was the law sufficiently clearly established to justify the denial of immunity to the officers?

Image result for image Justice Kagan
Going to a different kind of party. 
So far, the lower courts have been partiers, ruling in Mr. Wesby's favor on both questions. And it appears that SCOTUS wants to be invited to the party, too. At oral argument, Justice Sotomayor jumped right in, noting that when she is invited to a party, "I don't ask to look at their lease." And it appears that Justice Kagan may feel protective of "reasonable partygoers," noting, "there are these parties that, once long ago, I used to be invited to -- -- where you didn't -- don't know the host, but you know Joe is having a party." And then, "And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so -- and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And -- and it seems a little bit hard that they're subject to arrest."

Justice Sotomayor closed by asking Petitioner's counsel, "Twenty one people en masse arrested for trespassing for going to a party. Does that feel right?"

Party on, Mr. Wesby? We will see.

Thanks to Oyez for the transcript.

Decision below at 765 F.3d 13 (8th Cir. 2016).
Cert. granted Jan. 19, 2017

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