Advise-of-Counsel Defense in Qualified Immunity Cases?

In Ewing v. City of Stockton, No. 08-15732 (9th Cir. Dec. 9, 2009) (here), police officers arrested a woman for a crime she did not commit.  According to the Ewing panel, there wasn't probable cause for the arrest.  However, before making the arrest, the police talked to a prosecutor.  What result?

The lawsuit against the police officers was dismissed, because the police spoke to a prosecutor before booking the woman.

[T]he officers were entitled to rely on the legal advice they obtained from Fleming.  Many courts, including this one, have endorsed such consultation, see, e.g., Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (citing Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985)), and while it will not automatically insulate an officer from liability, “it goes far to establish qualified immunity.” Id.; see also Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004)(“Although following an attorney’s advice does not automaticallycloak [officers] with qualified immunity, it can show the reasonableness of the action taken.”) (internal quotation marks omitted).
That outcome is troublesome.  To avoid liability, a police officer need only find a friendly neighborhood prosecutor to offer him some mealy-mouthed advice.

Yet the panel offers a salve.  They properly (holy judicial integrity, batman!) applied Burns v. Reed, 500 U.S. 479 (1991).
The Ewings concede that Fleming is entitled to absolute immunity for his decisions to charge Heather and Mark with murder and not to release them between November 10 and 15, see Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (stating that a prosecutor’s failure to dismiss charges after learning of new information is protected by absolute immunity), but argue that he is not so entitled for advising the officers to add book [guessing "add book" is a typo - Mike, King of Typos] murder charges on November 8. We agree.
The Supreme Court has clearly stated that with respect to advising police, prosecutors are entitled to qualified not absolute immunity. Burns, 500 U.S. at 492-95. Noting the absence of a common law tradition supporting absolute immunity, the Court stated: “Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability forgiving advice to the police, but to allow police officers only qualified immunity for following the advice. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.” Id. at 495 (internal citation omitted).
In the present case, the district court appears to havemistakenly limited Burns to apply only to situations whereprosecutors advise police about prospective investigative techniques. Although the Burns Court sometimes characterized the prosecutor’s role as “investigative,” it clearly held that with respect to advising police that they had probable cause to arrest, the prosecutor was not entitled to absolute immunity.
Id. at 16238.

Under Burns, a prosecutor is not absolutely immune for legal advice.  Lester F. Flemming gave terrible legal advice.  Based on my reading of the opinion, his advice was given in bad faith; and he should be investigated by the State Bar of California.

While I disagree with allowing police to rely on an advice-of-counsel defense, one might consider this a reasonable disagreement.  After all, the judges did not disingenuously give the prosecutor a pass.  Intellectually bankrupt judges certainly would have misapplied Burns.

Not all disagreements are due to dishonesty.  Sometimes, we just disagree.  And sometimes it means that those we disagree with are right, and it's we who are wrong.  Though I shall make no concessions!

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