Lawrence v. City of Rawlins, WY

BRISCOE, Before HARTZ, and McCONNELL,'Circuit Judges. McCONNELL, Circuit Judge. Reed, Defendant Mike the chief police Rawlins, in Wyoming, seized over 70 dere- lict vehicles from the property of Joan Lawrence, plaintiff in this case. Mrs. Lawrence sued Mr. Reed (along with the city and mayor), alleging violations her Fourth Amendment right against un- reasonable seizures and her Fourteenth Amendment right process. to due The district court found that Mr. Reed had violated Mrs. Lawrence’s clearly estab- lished rights under the Fourth and Four- Amendments, teenth but it held Mr. Reed immune from suit because his consultation city with the attorney constituted “extraor- dinary circumstances” preventing him from knowing the clearly established law. Mrs. Lawrence has since settled with the city and the mayor, and she appeals now the district court’s grant of immunity to Mr. Reed.

On appeal, Mr. Reed concedes that he violated Mrs. clearly Lawrence’s estab- lished rights. constitutional The only question, then, is whether he should be held immune from suit because of his con- sultation city or, with the attorney alterna- tively, because of his reliance on the Raw- lins derelict vehicle ordinance. On basis of two circumstances, these Mr. Reed Moats, Bruce T. argues Law Offices of Bruce T. that a reasonable posi- officer his Moats, P.C., Cheyenne, WY, for tion Plaintiff- should not have known that his con- Appellant. duct was unlawful. We disagree and very on the vehicles derelict storing court’s the district REVERSE

therefore Mr. Lawrence same property. claim Lawrence’s of Mrs. dismissal ac- Agreement, a Settlement city entered proceedings. for further remand relin- Lawrence which Mr. cording derelict right to store any claim of quished I. proper- his portions certain on vehicles salvage yard owns Mrs. Lawrence of the land least including at some ty, atop yard sits Rawlins, The Wyoming. Spruce yard and salvage between Between the Street. of Spruce hill south disagree about wheth- parties Street. piece another lies Street Spruce hill and right retained Mr. Lawrence er Lawrence. by Mrs. owned also property, industrially vehicles store derelict (the to the part next property Part of property. zoned portion rest, industrial; zoned yard) salvage sight of derelict with the Confronted Street, resi- is zoned Spruce fronts which Au- approaching rapidly vehicles rise to giving to the events Prior dential. fair, considered city council gust 2002 assort- suit, stored an Lawrence Mrs. this go to court Either it could options. two only metal not scrap ment of vehicles Agree- Settlement and enforce indus- but also salvage yard, in the pur- ment, the vehicles it could remove or land. her portions and residential trial ordinance. vehicle the derelict to suant Lawrence from Mrs. the Across street judi- ponderous would involve The former home Fairground, County lies the Carbon hearings be- adversarial proceedings, cial Fair and County Carbon renowned of the like; and the magistrate impartial fore an (over Appar- years running).1 Rodeo process a streamlined provided latter vehicles found the derelict ently, fair-goers vehicles, junking derelict seizing and for city coun- to the complained unsightly and hearings, no war- No defined. broadly council, to its responsive ever cil. The one month warning just a letter rants-— constituents, meeting. a convened beforehand, on the vehicles tags a few enter before, city could and then day Law- in fact. Mrs. meetings, Many what- and seize property Mrs. Lawrence’s of con- been a source had rence’s vehicles to der- be arguably appeared city ever vehicles when the least since at tention elict.2 late Mr. Lawrence enjoin the sought to any prohibits racing derelict vehicle ordinance The 2002 Fair were barrel for the 1. Slated per- ''allowing] or from dog property owner and competitions; horse roping and un- swine, any to remain showmanship mit[ting] derelict vehicle shows; beef sheep, and milk-out; property more than for clinics; beauty pageant; on such a sheltered dairy contests; property owner cake, thirty days,” makes the cooking and and pie, chili and any such vehi- http:// removal of derby. responsible for the demolition Id, (last 8.20.040(A). Excepted this § visited cle. w3.trib.com/~rcccoc/fair.htm 15, 2005). premises of on the prohibition "vehiclefs] are February . operated in a lawful enterprise a business op- necessary to the “(1) when place and manner any is: vehicle that

2. A derelict vehicle enterprise.” Id. business eration it unable extent that Inoperable to the 8.20.040(C). function; (2) § original intended perform its reasonably determined dismantled; "is (3) vehicle Once wholly Wrecked Partially or whom, ordinance does (4) operation; legal prevents extent to the derelict" — given thirty- city has say once recycled or to be Junked or intended —and notice, vehicle city may on the days’ place Code Municipal scrapped.” Rawlins impound. Id. intent 8.20.020(B). a notice § simple City city he city opted attorney seizure. consulted the once more. Attorney “[j]ust sent Mrs. Lawrence a let- He recalls that it was Lewis a discussion 26, 2002, February notifying her as to to proceed proceed, ter on whether or not the derelict vehi- proceed that her vehicles violated and decision to was made.” days, city cle ordinance and had to be removed with- Over the next several towed thirty days. Mrs. Lawrence then met over 70 of Mrs. Lawrence’s vehicles to its city attorney and asked for more landfill. time, undergo eye need to based her Mrs. Lawrence then initiated this surgery anticipated and the construction of § suit alleged under U.S.C. 1983. She transport a road to the vehicles from the (along city that Mr. Reed with the Spruce property up Street the hill to the mayor) violated her Fourth and Four salvage yard. City Attorney Lewis relent- teenth rights by seizing Amendment her ed. property without a warrant or a hearing. problem up again But the flared in Au- The district court denied the summary By gust time the Carbon Coun- judgment city motions of the mayor, ty Fair swing and Rodeo was full granted but Mr. motion Reed’s complaints fair-goers rolling were ground that he was immune from suit. city in. The council addressed issue Mrs. Lawrence has since settled with .the thereafter, August meeting. Shortly its city and mayor, appeals now the dis City Attorney Lewis sent another letter to trict grant summary judgment court’s Lawrence, 9, 2002, August Mrs. warning for Mr. Reed. We review the district her that had the vehicles to be moved court’s Reynolds decision de novo. thirty days city within or else the would Powell, (10th 370 F.3d Cir. expense. remove them at Mrs. Lawrence’s 2004). Meanwhile, Police Chief Reed met with II. city attorney city manager to dis- cuss how to enforce the derelict vehicle § 42 provides U.S.C. 1983 They 30-day ordinance. discussed the no- “[e]very person” who acts under color of process, tagging require- tice the 24-hour deprive state law to another of constitu ment, removal of the vehicles. rights party tional “shall be liable to the respond

When Mrs. Lawrence failed to injured law, equity, an action at suit in letter, August tagged 9 Mr. Reed her proper proceeding or other for redress.” 7,- on night, vehicles October 2002. That Although this statute “on its face admits of helper Mrs. Lawrence and a all moved but immunities,” Pachtman, 424 no Imbler v. residentially a few vehicles from the zoned 409, 417, 984, U.S. 96 S.Ct. 47 L.Ed.2d 128 property fronting Spruce Street to the in- (1976), Supreme recognized has Court dustrially property zoned behind. Based several, including qualified the doctrine of Agreement, the 1982 Settlement Mrs. immunity, exempts government which offi right Lawrence believed she had the damages cials from suits civil under store the vehicles there. grant certain circumstances. This of im munity Mr. Reed arrived next

When morn- is intended to balance two con hand, ing begin operation, the removal he cerns. one an On when official abus office, noticed that Mrs. damages may Lawrence had moved the es his “an action for caution, only vehicles. Out of an abundance of offer the realistic avenue for vindica- 8.20.070(B). later, Twenty-four § city may hours remove the vehicle. Id.

1230 anticipate develop- its future Harlow officials to guarantees.” tion of constitutional ments, immunity is therefore 800, 814, qualified 102 S.Ct. 457 U.S. Fitzgerald, v. (1982). appropriate. 2727, On the other L.Ed.2d 396 73 hand, officials to government exposing established, clearly we If the law was substantial social damages “entail[s] suits inquiry: wheth step reach the third costs,” Creighton, U.S. Anderson er, that the law was spite of the fact 3034, 635, 638, 97 L.Ed.2d 523 107 S.Ct. established; “extraordinary circum clearly (1987), litigation, expenses as “the such as reliance on the advice stances” —such energy press- official from the diversion of ‘prevented’ or on a statute —“so counsel issues, ... the deterrence ing public knowing that his actions official] [the of- acceptance public citizens from able unconstitutional that he should were offi- public ... the deterrence of [and fice clearly of a imputed knowledge unflinching discharge óf cials 'the from] Roska, 328 F.3d at right.” established ” Harlow, 814, at their duties.’ U.S. only “rarely.” Id. 1251. This occurs S.Ct. challenged has not the district Mr. Reed Mrs. Law- finding court’s he violated attempt Supreme Court has rence’s Fourth and Fourteenth Amend- these two ed to strike the balance between rights were rights ment and that these by shielding government officials concerns acted. clearly established at the time he damages for civil “insofar as from suits issue, the On the Fourth Amendment dis- clearly not violate es conduct does their exigent cir- trict court found that neither statutory rights or constitutional tablished special justified nor needs cumstances person would have of which reasonable warrantless seizure of Mrs. Lawrence’s ve- Al at 102 S.Ct. 2727. known.” Id. hicles, and that therefore the seizure was derived from this though courts have atOp. Dist. Ct. 29-30. On unreasonable. tests, the variety multi-part statement a issue, court found that process the due objectively an inquiry essential is: would vehicle ordinance violated due the derelict have known that reasonable official his city to process because it allowed the de- Anderson, was unlawful? See conduct property Mrs. Lawrence of her with- prive 3034. In the Tenth U.S. hearing. out a Id. at 30-32. We take Circuit, employ three-step inquiry. we findings given as a because Mr. these Peterson, 328 See Roska ex rel. Roska challenge Reed does not them. (10th 1247, 1230, 1239-40, Cir. F.3d then, only question appeal, is 2003). First, plain we ask “whether the “extraordinary whether circumstances” ex- true, if a consti allegations, tiffs establish knowing clearly not, cused Mr. Reed from tutional violation.” Id. at 1239-40. If points established law. Mr. Reed to two dismissed; so, if to the the suit is we move why reasons he neither knew nor should was clearly step: second “whether law that of have the seizure Mrs. Law- known alleged time the viola established at the clearly established rence’s vehicles violated step occurred.” at 1247. This tions Id. city law: consultation with the attor- his gives opportunity the official an to show ney, and his reliance on the derelict vehicle nor that he “neither knew should have ordinance. legal known of the relevant standard” be clearly cause the law was not established A. Harlow, acted. at at the time he U.S.

819, not In some cases consultation with 102 S.Ct. 2727. the law is Where established, extraordinary attorney not an can create the clearly require courts do circumstances that excuse a violation of to conclude is that it generally is reason clearly established law. V-1 Oil Co. v. rely able to on the city attorney’s advice— Wyo., Dept. Environmental State that it is job, the attorney’s police not the (10th Quality, 902 F.2d Cir. officer’s, point out when a statutorily 1990). course, “Of such [consultation] authorized course of conduct violates the inherently extraordinary, few Constitution. But argument is an this that things in government are more common officers should not be held responsible for receipt than the advice.” In legal Id. knowing the place, law the first not that stead, above, as noted question consultation city with the attorney some ‘prevented’ whether the consultation “so how interfered with knowledge. that Giv knowing [the that official] his actions en Mr. Reed’s concession his conduct were unconstitutional that he should not violated Mrs. Lawrence’s clearly estab imputed knowledge clearly of a lished rights, and given Supreme Roska, right.” established 328 F.3d at Court’s admonishment that “a reasonably claim, evaluating When such a we competent public official should know the totality circumstances, look to the conduct,” Harlow, law governing his including such as: how un “[1] factors 819, 102 at U.S. Mr. Reed must equivocal, specifically tailored to the point to something his consultation with particular giving facts rise to the contro city attorney prevented him from was, versy, the advice [2] whether com knowing the law. This he has not done. vant circumstances. plete These four how soon after the advice was received the F.2d at 1489 disputed action was taken.” V-1 advising attorney(s), competence information had factors are not the (internal been ^[3] attorney(s), citations provided to the prominence only omitted). Oil, and [4] of his rele 902 the district Accord based on “we cannot determine whether attorney’s] The district court granting Mr. consultation with the Roska, attorney advice related court’s Reed 328 F.3d immunity consultation because therefore grant 1254 (reversing specifically city attorney. on the basis erred immunity ... [the case,

In this particularly find we the conduct in question: removing [the significant the fact that Mr. City Reed and plaintiff] from any his home without pre- Attorney Lewis never once discussed the deprivation procedures.”).

applicable governing constitutional Mr. law Reed’s conduct. Mr. Reed concedes that a B. warrant or notiee-and-hearing required are Alternatively, argues Mr. Reed depriving before a citizen of their proper that he should not be held ty; responsible for he also concedes that these constitu knowing the unlawfulness of requirements tional his conduct clearly were estab because his conduct by and that authorized the lished he violated them. Yet was he argues now that Rawlins derelict his consultation with vehicle ordinance. the We city attorney recognized have once that an officer’s never mentioned —who requirement statute, the on a regulation, “reli[ance] a warrant or notice- state or and-hearing official prevented policy him that explicitly sanctioned the —somehow knowing from that in procedures question” may these were conduct absolve the offi constitutionally required. This cannot cer from knowing that his conduct was Roska, the case. really What Mr. Reed wants us unlawful.3 F.3d 1251-52. We have help 3. even listed few factors to a us determine when on a statute reliance is rea- enforcement, that charge of code states that offi- the sensible notion reflects This De- informed this was legis- “Mrs. Lawrence “rel[y] to on the be able cers should her junk on that numerous cars partment is that a statute determination lature’s residentially ... located on were City property Port- Grossman constitutional.” Cir.1994). (9th to be relocated property and needed zoned land, 33 F.3d to the industrially property zoned to the is course, principle not without this Of A Aplt’s App. 54. memorandum south.” said that “where also limit—we have official, Wawrziniack, building from Paul ‘patently that is conduct authorizes statute Drinkhouse, con- city manager, Paul the to fundamental constitutional violative understanding agreement. of the this not firms on the statute does reliance principles,’ Roska, the derelict vehi- suggests All that of this conduct.” officer’s immunize the Grossman, apply. did not cle ordinance quoting 1253 n. F.3d at rely on Thus, can officers at 1209. 33 F.3d concerned, however, simply are not We their conduct—but that authorize statutes not the derelict vehicle or with whether obviously unconstitu- is not if the statute or not but with whether applied, ordinance inquiry is overarching Again, tional. it conclude that officer would a reasonable of the whether, of the existence spite offi- require we do not applied. Just as have statute, officer should a reasonable rulings, predict novel constitutional cials unlawful. that his conduct was known predict novel require them we do not Instead,

statutory rulings. the focus 1. is on what a qualified immunity inquiry argu- strong presents Lawrence Mrs. have known. officer should reasonable ordinance the derelict vehicle ment that Here, Lawrence concedes that Mrs. conduct. She Mr. Reed’s did authorize its applies ordinance on derelict vehicle Agree- maintains 1982 Settlement that the that argues she face to her but property; city and the her husband ment between out Agreement carved Settlement derelict right store reserved her zoned industrially for her exception an industrially portion zoned vehicles she has failed to property. produce, What Although Agreement property. of her however, that Reed any evidence Mr. Lawrence required the late Mr. specifically have known about the 1982 knew or should residen- the vehicles to remove Absent evi- Agreement. such Settlement it portion property, of his tially zoned dence, agree- cannot conclude that the we industrially zoned no mention of the makes Reed’s unreasonable Mr. ment rendered yard. The salvage next to property ordi- that the derelict vehicle conclusion Lawrence implication, argues, Mrs. nance his conduct. authorized right to store vehicles retains she dere- property, her portion apply. does not lict ordinance vehicle inquiry. But this does not end our wheth important Another consideration is city is some evidence that

There reasonably con Reed could have er Mr. view Settle- shared Mrs. Lawrence’s the statute was constitutional. from cluded that A Agreement. ment memorandum above, always officers are not we city development director As noted Kilgore, Ron desuetude; (4) whether "(1) and degree specificity with has into the of fallen sonable: reasonably could have concluded conduct in the officer the statute authorized the which Roska, (2) was constitutional.'' com- that the statute the in fact question; whether officer statute; (3) 328 F.3d at 1253. the statute plied with the whether

1233 rely legislature’s judg- entitled to the absence of directly case law on that a statute is constitutional: point, ment is not something we require would that “where statute authorizes conduct is Here, however, predict. officers to ‘patently violative of fundamental constitu- provides whatsoever; ordinance no hearing principles,’ reliance on the statute tional an officer need not understand the niceties does not immunize officer’s conduct.” of to Mathews know that it is unconstitu Roska, 33, quoting F.3d at 1253 n. 328 decisions, tional. Our and those of other Grossman, 33 F.3d at 1209. This means circuits, have made abundantly clear that obviously that some statutes are so uncon- when the state an deprives of individual require stitutional that we will officials property example, by an impounding —for second-guess legislature and refuse individual’s vehicle—it provide must an enforce unconstitutional statute —or individual with notice a hearing. and See damages they face a suit for if don’t. The Utah, 1165, Summers v. State 927 F.2d of question is whether Mr. Reed’s enforce- (10th Cir.1991) (owner impounded of 1169 ment of the derelict vehicle ordinance is vehicle hearing); Propert must receive a v. such a case. Columbia, 1327, District 948 F.2d 1332 (D.C.Cir.1991) (same); Coombs, Draper v. We think it is. “The funda (9th Cir.1986) 915, (ordinance 792 F.2d 923 requirement mental process due is the authorizing towing providing but no hear opportunity to be ‘at a meaningful heard ” ing process); violates due Huemmer v. in a meaningful time and manner.’ Mayor City City, Council Ocean 319, 333, Mathews v. Eldridge, U.S. (4th Cir.1980) 371, (ordinance 632 F.2d 893, (1976). 47 L.Ed.2d 18 Time and “manifestly is provides defective” when it again, Supreme Court has made clear where, no hearing). especially This is that true hearing required “some form of here, only as the state not impounds before an finally deprived individual is of a property permanently disposes vehicles but although interest.” Id. And of them. Propert at Court has crafted a nice 948 F.2d 1332. balancing test to Cf. hearing determine what such a should look sum, In a hearing is fundamental “[t]he

like,4 we need not consider that test here Mathews, requirement process,” of due because the Rawlins derelict vehicle ordi 333, 893, at U.S. 96 S.Ct. and the provides hearing nance no whatsoever. Rawlins derelict vehicle ordinance does pretend even provide one. This ais precisely why This is Mr. Reed obvious constitutional violation sufficiently should have known ordinance was that Mr. Reed should have known about. unconstitutional. Had the derelict vehicle Reed, therefore, Mr. was not entitled to provided ordinance pre- some form of or ordinance, rely on the post-deprivation qualified immu- hearing a constitu —even tionally nity inappropriate. inadequate Wong Accord one—we would not Honolulu, necessarily City County & expect F.Supp.2d reasonable officer to (D.Haw.2004) (officer know it was unconstitutional. 957-58 For not enti- provides once the hearing, rely ordinance its tled to authorizing a statute im- constitutionality turns on a poundment court’s resolu and destruction of derelict ve- test, which, tion of the Mathews balancing hicles without hearing). notice or a (1) .requires balancing (3) government's Mathews interest and the action, private (2) interest affected official procedural require- burdens of additional deprivation the risk of an erroneous 424 U.S. ments. 96 S.Ct. 893. procedural, safeguards, value of additional to have expected not be known should III. unconstitutional. that the search was heavily, not without and Mr. Reed relies v. reason, in V-1 Oil Co. on our decision argues that his Mr. Reed case Id. Dept. Environmental Wyo., State of of conducted a analogous: he warrantless (10th Cir.1990), and Quality, F.2d 1482 day by advised the same he was seizure on why that case does in order on a word is unchal- attorney previously a city the that Oil, defen the control here. In V-1 not his conduct. lenged ordinance authorized Wyoming Depart dant, an official of the We, however, conclude that V-1 Oil is Quality, conducted ment of Environmental True, Reed, like Mr. the distinguishable. in of a Oil station search V-1 a warrantless Oil, in consulted an defendant V-1 Lander, defendant noticed Wyoming. The him a attorney previously who told that removing concrete above the the workers authorized his con unchallenged statute storage underground gasoline station’s underly factors important duct. But two the tanks, concerned that and he became in grant immunity of V-1 Oil are ing the station, groundwater of a known source First, this case lacks absent here. the in unlawful con engaged was pollution, Oil, in present that was V-1 urgency being permis refused duct. After twice said, where, attorney’s we have the advice the property, the defendant sion to enter immediately.” to be acted on “required was attorney gen a consulted senior assistant Denver, City County Cannon a court order attorney sought eral. (10th Cir.1993). Oil, In V-1 F.2d premises, the authorizing inspection an attorney’s in on the ad any delay acting one no unable to because but was obtain waiting until by, example, the vice— then the was available. He advised judge judge a morning to find who following Wyoming that the Environmen defendant authorizing a court order the could issue Quality Act authorized warrantless tal potentially valu search —risked loss night, Later that search of station. ongoing regulatory of an vio able evidence defendant, along policeman with a Thus, gave proportionally lation. we Attorney, City entered the Lander reliance greater weight to officer’s underground inspected premises, circumstances de advice of counsel where tanks, sample from the and took soil snap in the face of manded decision area. exposed Here, contrast, there uncertainty. was Although we this search concluded as Mr. Mrs. urgency, no Lawrence clearly con violated V-1 Oil’s established City and the had been wran Rawlins rights, we found the defendant stitutional gling over the same derelict vehicles for on his consulta immune suit based over two decades. attorney general tion with assistant Environ Wyoming reliance on and his distinguishing A second reason for V-1 Quality Act. held that: mental relied-upon We in is the Oil difference above, As we officers are in defen- statutes. noted [the reasonable officer [A] they is, rely an who not entitled on statutes should position officer dant’s] —that And this know are unconstitutional. conducts a warrantless search present by fully precisely in- where V-1 Oil day he was advised same cases formed, diverge: although both involve government attor- case high-ranking statute, statute, had reliance on an unconstitutional neys particular that a which court, unconstitutionality the statute V-1 any lawfully yet been tested call, whereas the unconsti- Oil was close particular search— authorized becomes, question derelict vehicle The then tutionality of the Rawlins should the officer in is obvious. V-1 Oil have known that ordinance Wyoming Quality Environmental Act was matter, initial the constitutional As an thought unconstitutional? We not. We do substantially in was more inquiry V-1 Oil expect not even reasonable officers to con There, the rele complex than it is here. duct and complicated, multi-part resolve Wyoming was the Environ vant statute precisely constitutional tests. And that is Act, Quality and the constitutional mental required what was in V-1 Oil. An officer act fit within an question was whether the confronting the constitutional issue V-1 exception requirement to the warrant for through Oil would have to wade several “pervasively regulated businesses.” Reso layers multi-part inquiries before he question of this constitutional re lution even reached the dispositive standards. First, multi-stage inquiry. quired (Is Once he reached those standards whether Court had to determine V-1 Oil “sufficiently comprehensive statute and de part pervasively regulated was of a indus fined,” time, “carefully and is it limited in try, taking into account the various feder place, scope”?), and he would find that al, state, regulations governing and local they were much difficult more to apply dealers, reg and those gasoline comparing than a bright-line Finally, rule. even if regulatory regimes ulations to the in other the officer how to apply knew those stan Oil, industries. V-1 902 F.2d at 1486. would, facts, dards, he find that the of V-1 was, fact, concluding After that V-1 Oil indeed, presented Oil a close we and case— industry, pervasively regulated the Court disagreed district court on the ultimate had to determine whether the authorized resolution the constitutional issue. Un “reasonable,” inspection applying was circumstances, der these would be too it. three-part Burger, test of New York v. expect much to the officer to know that the 2636, 96 L.Ed.2d 601 U.S. was statute unconstitutional. (1987). important part most this inquiry The constitutional in Mr. Reed’s test, found, requirement the Court was ease, contrast, markedly simpler. “provide[ that the a constitution ] statute deprive Does the statute an individual of a warrant,” ally adequate substitute for a search so, If protected property interest? does Oil, 902 F.2d at which V- provide hearing? In the the statute (1) means that the statute “must be suffi context of the Rawlins derelict vehicle or- ciently and that the comprehensive defined dinance, questions these are not difficult property help owner of commercial cannot they yield and a clear result. It is there- property but be aware that his will be expect much to fore not too Mr. Reed subject periodic inspections undertaken know that the ordinance was unconstitu- (2) specific purposes,” “must be tional. time, carefully place, scope.” limited in (internal quotations Id. at 1485-86 omit IV. ted), 702-03, quoting Burger, 482 U.S. fairly spite layers complexity

107 S.Ct. 2636. After a detailed In built statutory analysis, up qualified doctrine of immu- Court concluded around the “sufficiently nity, inquiry fairly that the statute com the fundamental sim- was prehensive provide ple: the officer have known that his and defined” con should stitutionally adequate substitute for a war conduct was unlawful? For the reasons rant, above, set forth we find that Mr. Reed and was therefore unconstitutional. id. at should have known that his conduct was See unlawful, subjective element of this “fre and we therefore REVERSE the defense immunity quently proved incompatible its grant ha[d] court’s district claims, and admonition ... that of Mrs. Lawrence’s insubstantial [the] dismissal proceed claims should not to trial.” Id. at proceedings. REMAND further for 815-16, 102 S.Ct. The official’s sub HARTZ, Judge, dissenting: Circuit jective question faith good was of fact ordinarily by that could be resolved respectfully Supreme I dissent. The 816, summary judgment. Id. at 102 S.Ct. im- opinion providing qualified Court only 2727. Not did officials therefore have munity “extraordinary in circumstances” trial, to bear the burden of but also the clearly despite the violation of established justify searching, issue could burdensome law, 800, Fitzgerald, v. 457 Harlow U.S. discovery thought process of the official’s 818-19, 2727, 102 L.Ed.2d 816-17, 102 es. Id. at S.Ct. 2727. (1982), guidance little on cir- gives what “extraordinary.” cumstances are The ma- To ease these burdens Harlow held jority may well have construed the term government performing “that officials dis correctly. very But concerns ex- cretionary generally functions are shielded pressed suggest in Harlow to me that liability damages from for civil insofar as qualified Sheriff Reed is entitled to immu- clearly their conduct does not violate es nity. statutory rights tablished or constitutional person of which a reasonable Recognition qualified immunity bal- would have 818, 102 at in known.” Id. S.Ct. 2727. “Reli vindicating rights ances the interest objective ance on injured reasonableness of an by of a victim a violation of law conduct, official’s as measured refer against against the “social costs” of suits law,” clearly ence to established the Court government expenses officials: “the of liti- explained, gation, disrup “should avoid excessive energy the diversion official from issues, government tion of pressing public permit ... the resolu the deterrence many tion of insubstantial claims on sum acceptance public of able citizens office, mary judgment.” Id. danger being that fear of [and] ‘dampen sued will the ardor of all but Thus, purpose objective of the clear- resolute, or irresponsible most the most ly-established-law test was to act as officials], [public unflinching dis- protect public shield to liti- servants from ” 814, charge of their at duties.’ Id. 102 gation, impose liability not as sword to Biddle, (quoting Gregoire S.Ct. 2727 however, recognized, on them. The Court (2d 579, Cir.1949) J.)) (L.Hand, F.2d clearly-established-law test also (second in original). brackets "can imposing serve as the standard for Harlow, qualified immunity liability. Before was qualified-immuni- The traditional if ty immunity unavailable the official “knew or reason- had test denied when the ably should have known that reasonably the action he official knew or should have sphere unlawful, took within his responsi- official known that the action was id. bility 2727; would violate the constitutional 102 S.Ct. and the Court ob- rights plaintiff, clearly or if he took the served that the law was estab- “[i]f lished, action with immunity ordinarily the malicious intention to cause defense deprivation fail, rights reasonably competent constitutional or should since a injury.” other Id. at public govern- 102 S.Ct. 2727 official know the law should (internal brackets, 818-19, emphasis, quotation ing his conduct.” Id. at 102 S.Ct. omitted). marks requiring proof point But of 2727. At this the Court introduced exception clearly-established-law conduct, to the governing lished law their it is grapple that we with in this case: largely reasonably test true that competent “Nevertheless,” said, it “if the public official officials sufficiently are versed pleading extraordinary they the defense claims the law that know not to take certain prove circumstances and can he nei actions seeking proper without legal ad have they ther knew nor should known of the vice. If clearly violate established standard, legal advice, relevant the defense should law without having sought legal again, be sustained. But the defense holding good them liable makes sense. objective primarily would turn factors.” But there is little in holding sense officials 819, 102 Id. at S.Ct. 2727. liable for unlawful action that received the imprimatur properly of sought legal ad It meaning seems to me that the of vice. The legal Harlow fiction should not extraordinary circumstances must be ex be say reasonably extended to that compe light amined in of policies underlying public tent officials legal know when the policy the Harlow decision. The behind they advice contrary receive is to clearly objective permit Harlow’s test was to established law. prompt litigation termination of that un is likely Overly Moreover, application succeed. strict legal to extend the fiction test, however, of that could undermine the that far would undermine a critical pur- policy protecting reasonably competent pose qualified of of immunity reducing “the — public from litigation. danger officials Given the that being fear of sued will dampen complexities today, resolute, of the law it should not the ardor of all but the most or surprising to find intelligent, irresponsible officials, conscien the most public in tious, public well-trained servants who do the unflinching discharge of their duties.” (internal clearly not know all the established law Id. at quota- S.Ct. 2727 omitted). governing their conduct. The in statement tion marks and Surely brackets reasonably Harlow that competent public public policy practice public favors the clearly law, know seeking officials established id. officials legal regarding advice 818-19, legal questionable is a fiction. practices. Is it wise to hold they those officials liable when follow that Nevertheless, test; objective and the advice? proper discharge When the of the embraces, legal fiction it can advance the action, requires official’sduties do we want policies qualified immunity behind if the acting the official to flinch in —because extraordinary-circumstances exception is fear of litigation after counsel advis- —-even properly extraordinary- understood. The Thus, my es that the action is lawful? in exception circumstances encompass should view, incorrect advice is an legal extraordi- those situations in legal which the fiction nary cloaking circumstance an official with applying does not make sense and that when, here, qualified immunity it as comes problems quali- fiction would create that from highest level nonsubordinate at- immunity my fied In is intended to avert. with, torney whom the official is to consult view, goal this can by be advanced includ- attorney fully and the informed ing extraordinary as an circumstance the planned surrounding action and the cir- specific official’s reliance on advice cumstances. attorney nonsubordinate of sufficient stat- them, regarding specific challenged ure ac- As I prec- understand this court’s stated, Although, tion. I previously as it Is edents are consistent this view. We that reasonably competent public recognized doubtful have four considerations de- actually clearly officials know all the termining estab- whether reliance on counsel con- based) prohibits or restricts them extraordinary “[1] circumstances: stitutes attorney does not doing so. The tailored specifically unequivocal, how argument or legal the official’s advice rise to the need giving facts particular to the controversy, the advice was, ^[2] whether to reach a conclusion. What important all provides the official relevant to is whether provided had been complete information advising attorney(s), ^[3] promi information concerning both the problem intended course of conduct. attorney(s), of the competence nence and received the formation provided the The relevance specific ty, 902 F.2d V-1 Oil Co. (internal ations is obvious: rely on advice unless the ^[4] action taken how citations and the advice authorizes attorney with all relevant disputed action was Wyo. Dep’t Envtl. soon after 1482, 1489 the official is not entitled and footnotes by first two consider the official. the advice was (10th Cir.1990) official has omitted). taken.” Quali the in nary it, nary? Public officials do delineating official is established Chief established-law I all the time. term seeking suspect circumstance, Reed is the prevented “extraordinary this legal proposition legal rule. How can one view exception It Supreme however, truly advice as extraordi- greatest circumstances” knowing clearly it, and should do is an extraordi- to the Court’s use of when a because the hurdle clearly- public by fully informed official is misdirected and fourth factors —the stat- The third certainly appears It time to take chief counsel. attorney ure cases are rare. reported should seek action—are interrelated. One legal advice that time possible the best may possibility fear the Perhaps some action example, For if immediate allows. public official and collusion between to required, may there be time consult government attorney, with the official city attorney; if the only with an assistant attorney for seeking pass a free from the applicable on expertise assistant has they conduct know to be unlawful. both law, may rely to appropriate it be why This fear of collusion is one reason reject I Ms. assistant’s advice. would private reliance on advice from counsel appeal on that the argument Lawrence’s that conduct is lawful is not defense extraordinary-circumstances test cannot § 2.04 crime under the Model Penal Code there was no need for apply here because jurisdiction. every and in almost See immediately. to act Chief Chief Reed LaFave, Wayne R. Criminal Substantive Attorney. City with the Reed consulted 5.6(e)(4) (2d ed.2003). § the other Law On to do with the extra What was the Chief hand, the Model Penal Code library to the law to check go time— 2.04(3)(b)(iv) recognizes § a defense for City Attorney had misread whether the interpre- reliance on “an official reasonable cases? body officer or public [who tation of the government majority’s reading undoubtedly counsel] relied disagree I with the for the charged by responsibility offi- law precedents requiring public our as or interpretation, administration enforce- pertinent cial to discuss the law with defining law the offense.” In the real world—not ment advising lawyer. officials, less surely And the risk of collusion is legal even the world fictions— them, turning govern- counsel when to a nonsubordinate competent go most attorney relying than when on a they want do and ment with an idea of what (consti- attorney by person seek- private paid inquire whether there is some law Moreover, government tutional, statutory, ing case- clearance. regulatory, or attorney may tempted be to shield a who liability likely official from would

public of his or her own

deterred the risk

liability authorizing specific unlawful despite being fully

act informed of the

circumstances. present fully

In the case Reed Sheriff City Attorney

informed the of the relevant in

surrounding circumstances and how he City proceed. Attorney

tended to

gave imprimatur. contrary his It would be underlying

to Harlow’s concern about

“dampening] the ardor of all but the most

resolute, irresponsible public or the most

officials, unflinching in the discharge of duties,” at

their U.S.

2727, to tell officials like the sheriff that rely

they cannot on their chief nonsubordi government attorneys post

nate but must (to

pone action conduct their own research professor

or call a the nearest law

school?) being or risk sued. judgment

I would affirm the below. SIMKINS, Plaintiff-Appellant,

Willie J. BRUCE; Cline;

Louis E. Sam Hutchin- Facility

son Correctional Mail Room

Staff; Defendants, Six Unknown De-

fendants-Appellees.

No. 04-3072. Appeals,

United States Court of

Tenth Circuit.

9,May

Case Details

Case Name: Lawrence v. City of Rawlins, WY

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 6, 2005

Citation: 406 F.3d 1224

Docket Number: 04-8030

Court Abbreviation: 10th Cir.