Ninth Circuit Correction Day:
The Supreme Court gave some relief to police officers in the Ninth Circuit today in two criminal law cases: Devenpeck v. Alford and Brosseau v. Haugen. Devenpeck was reversed 8-0, with the Chief not participating. Brosseau was reversed 8-1, with Justice Stevens dissenting.

  Brosseau is a per curiam summary reversal of a Ninth Circuit opinion by Judge William Fletcher joined by Judge Stephen Reinhardt. Fletcher and Reinhardt had held that a police officer was not entitled to qualified immunity for shooting an apparently disturbed, violent felon who repeatedly refused to surrender to the police and was attempting to escape by starting a high speed chase through a suburban residential neighborhood. The suspect was injured by the shot, but continued to drive away from the police. After he was caught, the suspect brought a civil rights action against the police for violating his constitutional rights. The trial judge had held that the officer was entitled to qualified immunity, but a divided panel of the Ninth Circuit reversed. Judge Gould dissented.

  Today the Supreme Court reversed the Ninth Circuit, with all but Justice Stevens on board for the reversal. The Court did not decide whether in fact the officer's conduct violated the suspect's constitutional rights. Instead, the Court held that even assuming it did, the violation was not so clear that it should strip the officer of her qualified immunity protection. According to the Court, the law separating excessive force from allowable force in this type of context is so fact-specific, and the cases so sparse, that the officer's conduct did not violate "clearly established law" as is required to strip an officer of qualified immunity.

  In Devenpeck, the Court rejected a Ninth Circuit doctrine that required judicial review of probable cause for an arrest to consider only evidence known to the officer for offenses "closely related" to the offense that the officer named when he made the arrest. If an officer had evidence that the target had violated Crime A and unrelated Crime B, but when he made the arrest informed the suspect that he was being arrested for Crime A, the legality of the arrest could not be judged by considering the evidence that the officer had for Crime B. In a unanimous opinion by Justice Scalia, the Court did away with this doctrine on the ground that it was based too much on the subjective intent of the officer and had perverse consequences. While designed to deter sham arrests, the Ninth Circuit rule was inconsistent with the Supreme Court's approach to probable cause and merely encouraged officers not to name the reason for the arrest.