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Does the Wrongful Issuance of an Arrest Warrant Violate a Person's Fourth Amendment Rights if the Warrant is Never Executed?:
The BLT has an interesting report on a case in the DC Circuit that raises a fascinating Fourth Amendment issue: Does it violate a person's Fourth Amendment rights if the government wrongfully obtains an arrest warrant authorizing the person's arrest if the warrant is quickly withdrawn and never actually executed? More specifically, if the person claims that the existence of the unlawful arrest warrant caused him harm, can he recover damages under the Fourth Amendment even though he was never searched or seized?

  It's an interesting question, and off the top of my head, I don't think I have heard of another case quite like it. On one hand, the plain text of the Fourth Amendment prohibits the issuance of a warrant not based on probable cause and not sufficiently particular: That seems to focus attention on the issuance of the warrant. On the other hand, modern Fourth Amendment doctrine generally holds that the Fourth Amendment only regulates searches and seizures, and there was no search or seizure here.

  Perhaps the most analogous case is Groh v. Ramirez, a case involving the execution of a warrant that was later discovered to be defective. The police obtained the warrant, but in the place of the warrant where the agent was supposed to type in the items to be seized, he accidentally typed in the place to be searched. It seems that no one noticed the error until after the search was executed: Notably, the affidavit and application both contained particular descriptions of the items to be seized, and the warrant was actually executed in a reasonable way. In a 5-4 decision, the Court held that the Fourth Amendment was violated and that the officer who obtained and executed the warrant could be held personally liable because the search was not accompanied by a valid warrant.

  I 'm not sure which way Groh cuts. On one hand, the opinion suggests that the harm was the search of the plaintiff's home without the required warrant. According to the Court, the lack of a valid warrant transformed the search into an unlawful warrantless search, which violated the Fourth Amendment. If you take that view, the Fourth Amendment violation would seem to be the search, not the issuance of the warrant. On the other hand, Groh doesn't necessarily rule out liability for the mere issuance of the unlawful warrant. Plus, the actual search was performed in the same way as it would have been performed had the warrant been constitutional: No one knew the warrant was bad until the next day. In light of that, it seems a little strange to say that the unconstitutionality was in the search rather than the warrant.

  Anyway, I don't have strong views one way or the other on the merits of this one, but I thought readers would find it interesting.
Melancton Smith:
I don't see the loss here. As much as I jealously guard civil liberties, I can't get behind this suit.
9.22.2009 11:15pm
Jon Roland (mail) (www):
We need to answer the questions, what rights were infringed, and what is the appropriate remedy?

I would argue that it is not a Fourth Amendment violation, for the reasons summarized by Orin, but the subject is claiming the existence of the warrant, especially if defective or unsupported, has and/or is causing him real injury. Without examining the original petition or pleadings, he could have grounds for a claim for recision, apology, or even the payment of money damages if he lost a job or contract, or it adversely affected his career or personal relationships.

What I see here is a kind of libel. In the normal course of law enforcement, issuing a warrant would not be a libel, if it was sought and processed competently and in good faith, but if it was a negligent or malicious abuse of process, then it could be equitably considered a libel.

If the violation of rights was done deliberately and maliciously, which might be evidenced by refusal to rescind, retract, and officially apologize, then it would seem the subject would have a case, either as a Bivens action or under 42 USC 1983 or even 18 USC 241 and 242.
9.22.2009 11:23pm
J. Aldridge:
Does it violate a person's Fourth Amendment rights if the government wrongfully obtains an arrest warrant authorizing the person's arrest if the warrant is quickly withdrawn and never actually executed?

No because no person was ever seized.
9.22.2009 11:28pm
Steve:
No because no person was ever seized.

The text of the Fourth Amendment certainly appears to protect against more than just seizures. "No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
9.22.2009 11:36pm
Upend, Coming:
Standing problem? No injury in fact?

Sort of like when they deal with laws that are on the books but never enforced?
9.22.2009 11:43pm
Jacob Berlove:
There is no way to reasonably doubt that Groh would have out the way had Alito been on the court instead of O'Connor. The Roberts court's usual way of dealing with cases in which a blind application of precedent would lead someone who doesn't care one way or the other about the outcome to rule in a manner distateful to the majority has been to make disingenous distinctions to officialy preserve the precedent but get the desired result. (Does anyone really think both Carhart I and Carhart II were rightly decided?) So if the consitutionality is ultimately based on what five justices would do with this case, I have no doubt the law is constitutional. The court will have no trouble distinguishing Groh away.
9.22.2009 11:45pm
J. Aldridge:
The text of the Fourth Amendment certainly appears to protect against more than just seizures.

Well if you want to get original with what the amendment means, it means one thing: Outlaws the use of general warrants for arresting or obtaining evidence. General warrants were considered "unreasonable" and illegal you know.
9.22.2009 11:48pm
Jacob Berlove:
Sorry- my wording was unclear- I think I've fixed it.

There is no way to reasonably doubt that Groh would have come out the other way had Alito been on the court instead of O'Connor. The Roberts court's usual way of dealing with cases in which a blind application of precedent (made by someone indifferent to the outcome) would produce a ruling distateful to the majority- has been to make disingenous distinctions to officialy preserve the precedent but get the desired result. (Does anyone really think both Carhart I and Carhart II were rightly decided?) So if the consitutionality is ultimately based on what five justices would do with this case, I have no doubt the law is constitutional. The court will have no trouble distinguishing Groh away.
9.22.2009 11:51pm
Mike& (mail):
I don't see the loss here. As much as I jealously guard civil liberties, I can't get behind this suit.

Spoken like someone who (thankfully) has never had a warrant issued for your arrest. ;-)

As a factual matter, having a warrant sworn out for your arrest would be traumatic. You would live in fear. You would be afraid of leaving your home. You would know that, if you were stopped while driving your car, you'd be arrested and have your car impounded. You'd be thrown into jail. You'd also need to hire a lawyer to clear the warrant. Even without an actual arrest, an arrest warrant puts a meaningful restraint on your physical liberty. It also causes subject fear, and emotional distress.
9.22.2009 11:59pm
Steve:
Well if you want to get original with what the amendment means, it means one thing: Outlaws the use of general warrants for arresting or obtaining evidence.

I don't want to "get original" with the amendment, I just want to read it.
9.23.2009 12:03am
Mike& (mail):
Standing problem? No injury in fact?

He knew about the warrant. That caused him, according to his allegations, emotional distress.

Work with some people, clearing arrest warrants. They are freaked out. In fact, the more innocent they are, the more freaked out they are.

The plaintiff in Ord was afraid to go into D.C. I can't say I'd blame him. D.C. jails are terrible. If I thought there was even a 5% chance I'd end up in one: No way I'd go into D.C. Unless you like being raped.

Even if you're not arrested, having a warrant sworn out for your arrest is bad news, guys.
9.23.2009 12:04am
GeoBarto (www):
It seems to me that if you make your living in public safety or security, being perceived as trustworthy is pretty important. Not only do you need your clients to trust you; you need to feel free to act as the situation calls for. Imagine that a prospective client does just enough research to find out you once had an outstanding warrant for illegal gun possession. Or imagine that you actually wind up shooting someone in the line of duty and a reporter on deadline does just enough research to find out you once had an outstanding warrant for gun possession. In the first case, you lose the client. In the second case, you lose your reputation.

IANAL, so I don't know the answer to this: 1) How hard would it be to find out there was a warrant issued for this guy without finding out that it was baseless? 2) If somebody uses the fact of a warrant being issued to say he's a loose cannon and he's just lucky nothing came of it, does that constitute sufficient harm that the city would have to pay for the lawyers for his libel suit and buy advertising to counter anything people read in the papers?

If I were this guy, I would want it on the record bright and clear that the warrant was issued without probable cause and that the city had majorly screwed up, just so that if anything happened in the future he would be well-positioned as a law-abiding good guy who'd already had his Constitutional rights violated by the city once, lest he get smeared as a guy with a record of cutting things close with respect to the city's gun policies.
9.23.2009 12:27am
Tim Nuccio (mail) (www):
I think "no warrants shall issue" is clearly violated. And I wouldn't have though so before this post. Thanks for bringing this up.
9.23.2009 12:34am
Guy:
Seems to me that whenever an illegal act by the government causes you harm, you have a right to sue for some sort of remedy. Whether the harm in this case merits a remedy is open for debate. The Fourth Amendment is intended to control the entire search and seizure process, and the issuance of the warrant is part of that process.
9.23.2009 12:57am
DangerMouse:
Seems pretty straightforward to me. "No warrants shall issue..." They issued a warrant. End of story.

The only thing that makes this complicated is all the crap that Judges invent. Look at the document and it's crystal clear.
9.23.2009 12:59am
Oren:

You'd also need to hire a lawyer to clear the warrant.

Or one will be appointed for you ...


Seems pretty straightforward to me. "No warrants shall issue..." They issued a warrant. End of story.

The mere fact of a 4A violation does not give rise to personal liability in all cases.
9.23.2009 1:09am
/:
No. Similarly, a law that allows the federal government to seize land without compensation is not unconstitutional if the administration promises not to use it.
9.23.2009 1:09am
Mike& (mail):
Or one will be appointed for you ...

Oh, boy, Oren: Are you at it again? You disappeared from the material warrants thread after makings lot of legal blunders on Law 101. Let's not do a sequel.

Anywho: Why would a lawyer be appointed before a suspect had been arrested? There is a line of cases indicating when the right to appointed counsel attaches it. Where are these cases standing for the proposition that you have the right to appointed counsel before a warrant has even been executed?

I suggest you start at Rothgery v. Villespie (which discusses when the right to counsel attaches) and start working your way backwards.
9.23.2009 1:27am
Skyler (mail) (www):
If there's standing at all, damages should be limited to a dollar.
9.23.2009 1:46am
Ricardo (mail):
The mere fact of a 4A violation does not give rise to personal liability in all cases.

If the issue is that the plaintiff may not be able to show that actual harm resulted, why wouldn't that be a question for the jury? The background story that was linked to above points out he runs a security company that has substantial business in D.C. If he reasonably feared being wrongfully arrested in D.C., that would interfere with his business and cause him material harm.

I suppose you could go the other direction and say the 4th Amendment does not create an individual right against warrants issued without probable cause but only against searches or seizures without probable cause. But given the actual text of the Amendment, I'm not sure how one would make that argument.
9.23.2009 2:55am
Guy:
/:,

Maybe this is nitpicky, but I would argue such a law is unconstitutional. It's just that no Court could rule such until a case requiring judgment on the issue was brought before them by someone with standing.

And to be really nitpicky, I think we all agree that it doesn't matter if the administration promises not to use it. What matters is whether the administration actually does use it.
9.23.2009 3:36am
Oren:
Mike wrote:

As a factual matter, having a warrant sworn out for your arrest would be traumatic. You would live in fear. You would be afraid of leaving your home. You would know that, if you were stopped while driving your car, you'd be arrested and have your car impounded. You'd be thrown into jail. You'd also need to hire a lawyer to clear the warrant. (my emph)

Responding to the bolded part (which was quoted right there in my message), I wrote:

Or one will be appointed for you ...

He responded

Anywho: Why would a lawyer be appointed before a suspect had been arrested?

Seen in context, it's pretty clear that I was referring to after the arrest.

PS. If the SCOTUS reverses Al-Kidd, do I get an apology or will you pout and continue to hurl schoolyard-level insults?
9.23.2009 3:46am
Oren:

If the issue is that the plaintiff may not be able to show that actual harm resulted, why wouldn't that be a question for the jury?

You are right.

I'm not contending that the issue is actual harm, I'm contending that the behavior does not give rise to personal liability even if there was actual harm. That contention might be wrong, of course -- as Orin points out, there is little caselaw on the matter, but it strikes me as reasonable.
9.23.2009 4:00am
Oren:

And to be really nitpicky, I think we all agree that it doesn't matter if the administration promises not to use it. What matters is whether the administration actually does use it.

Disagree. If the administrations threatens to use such a law (or, in the instant case, if the DC police threatened to arrest the plaintiff) as a means of getting leverage in some dispute, that would implicate the same right as if they had used it.

That doesn't seem to be the case here.
9.23.2009 4:07am
Ricardo (mail):
Oren, got it. That brings us back to the second point in my previous comment: "I suppose you could go the other direction and say the 4th Amendment does not create an individual right against warrants issued without probable cause but only against searches or seizures without probable cause. But given the actual text of the Amendment, I'm not sure how one would make that argument."

Indeed, I'm curious what that argument would look like. I know from the "Birther" lawsuits that courts have ruled that the natural-born citizen clause does not grant an individual right to not be ruled by a non-natural-born citizen. Therefore, the suits were thrown out for lack of standing.

But the business about warrants not issuing except under probable cause is in the Bill of Rights. Given the text of the Amendment and its location in the Constitution, I just don't see where one could argue it is not a grant of an individual right. Absent caselaw, isn't the first recourse to examine the actual text of the Amendment?
9.23.2009 4:21am
Guy:
Oren,

Well yeah, what I meant was that promising not to use it wouldn't protect the government from suit if they went ahead and used it anyway... it was a bad joke.
9.23.2009 4:24am
sk (mail):
"The police obtained the warrant, but in the place of the warrant where the agent was supposed to type in the items to be seized, he accidentally typed in the place to be searched. It seems that no one noticed the error until after the search was executed: Notably, the affidavit and application both contained particular descriptions of the items to be seized, and the warrant was actually executed in a reasonable way. In a 5-4 decision, the Court held that the Fourth Amendment was violated and that the officer who obtained and executed the warrant could be held personally liable because the search was not accompanied by a valid warrant."

Why in the world would anyone be a cop, given the level of idiocy in the judicial system that would come to such a conclusion?

Sk
9.23.2009 7:47am
martinned (mail) (www):
It looks like he does have injury in fact. I'm just not sure whether he should be able to sue the city. If anyone messed up here, it would be the magistrate, who is presumably immune from suit.
9.23.2009 8:42am
Melancton Smith:
My bad. I somehow missed arrest warrant and read search warrant.
9.23.2009 8:45am
Cleanville Tziabatz (www):
Plaintiff's remedy should be injunctive. Plaintiff should be allowed to put an arrest warrant out on the person who applied for the warrant at a time of plaitiff's choosing.

If there was really no damage in the first place, then the defendant would have no reason to complain about this "remedy." OTOH, if there was damage in the first place, then this remedy is good old fashioned eye for an eye justice.
9.23.2009 8:56am
Cleanville Tziabatz (www):
As far as money damages, the pertinent question is how much YOU would pay to reliably prevent a bogus warrant from issuing on YOU.

The question is NOT how much you would pay to prevent a bogus warrant from issuing on some schmoe who you don't even know.

What we have at this blog is, not surprisingly, a failure of empathy.
9.23.2009 9:13am
martinned (mail) (www):

What we have at this blog is, not surprisingly, a failure of empathy.

That is the purpose of the law: to substitute impartial rules for the whims of men. (Government of laws, not men, etc.)
9.23.2009 9:26am
Boblipton:
I don't see any harm suffered, but I do see see a failure on the part of the issuing job which might call for impeachment.

Bob
9.23.2009 9:26am
wolfefan (mail):
Why in the world would anyone be a cop, given the level of idiocy in the judicial system that would come to such a conclusion?

The chance to play Wii games for free?
9.23.2009 9:56am
Cleanville Tziabatz (www):

That is the purpose of the law: to substitute impartial rules for the whims of men. (Government of laws, not men, etc.)


No. In this case the purpose of the law is to compensate the plaintiff for the harm he suffered (if any).

To be in denial about the existence and/or size of the harm, as so many here are, is to frustrate this lgitimate purpose. Therefore, you should fight and vanquish this denial to better apply the law. Should you wise up and choose to engage this struggle, the effective weapon is called "empathy."
9.23.2009 10:00am
DennisN (mail):
I think the time element is significant, here. The article did not mention how long the unlawful warrant was in force. Was this minutes, hours, days?

What actual business the victim might have had in DC, is significant to his damages. If it can be demonstrated that he lost actual business, then I think liability would attach accordingly.

I'm much less sympathetic to a generic claim for emotional suffering.

I think he has a valid legal beef, here.
9.23.2009 1:03pm
BDavies (mail):
The harm is the warrant will likely show up on the person's criminal history for several years. Like a bad credit report, criminal history reports can effect a large range of future actions; for instance, job applications for sensitive positions. A lot of businesses do criminal history checks as part of the backgrond check of prospective employees.
9.23.2009 4:02pm
DennisN (mail):
Illinois has a pretty easy process for expunging arrest records in case of an acquittal. Is there not a similar recourse available for warrants?
9.23.2009 7:21pm
ReaderY:
I think you also need a case or controversy - stamding is at issue. I don't think you can sue simply because you don't like the fact that a warrant was issued -- it's not enough that someone (even the government) broke a law and you feel annoyed about it. What the government did has to have caused you a particularized, concrete injurty and you have to be able to prove it. If the warrant got into a database and someone found out and you lost a job opportunity or something over it, you would have standing it. But you would have to prove these events or similar occurred and injured you.
9.23.2009 8:58pm
Ricardo (mail):
Illinois has a pretty easy process for expunging arrest records in case of an acquittal. Is there not a similar recourse available for warrants?

There was an article a while back about there really is no way to effectively expunge records anymore. Commercial data providers periodically copy records over from local, state and federal databases -- even if your record is expunged at the government level it can sit in a private database for years afterward. So far, it seems there is no effective way to force these private data providers to update their systems to remove expunged records.
9.23.2009 10:21pm
Rich Rostrom (mail):
1) Wolfefan wins the thread!

2) If the existence of the warrant interferes with the person's activities, then he is injured and entitled to damages. The fact that he evaded execution of the warrant does not render it harmless, anymore than my dodging a bullet exonerates the man who fired it at me.

3) If the warrant was facially reasonable, issued in good faith, and withdrawn as soon as challenged, liability should be minimal.

4) A warrant could be issued maliciously; for instance to deter a person from appearing in court in that jurisdiction. I could imagine a corrupt local law enforcement agency issuing a warrant against someone's ex-spouse to prevent the target from appearing at a child custody hearing, allowing the other side to prevail be default. In such a case, liability should be substantial.
9.24.2009 4:14am
DennisN (mail):
Ricardo:

There was an article a while back about there really is no way to effectively expunge records anymore.


I recognize the practical impossibility of unringing the bell. But an Order of Expungement, with its expressed or implied prohibition against relying on the expunged data, at least offers a fig leaf to hide behind.
9.24.2009 2:16pm
Dr Linda Shelton (mail) (www):
Isn't there case law that if the Bill of Rights is blatantly violated then no damages need be shown? Simply denial of right to free speech for example is a tort even without damages. Is there per se defamation of character when a false arrest warrant is issued? Isn't there emotional distress if the victim of the fraudulent warrant finds out about it? As it can never be erased from all databases isn't this continuing defamation that may affect future job prospects like others have posted?
9.24.2009 2:54pm
ohwilleke:
What remedy is sought?

If the remedy sought is to quash the warrant before it is executed, on that grounds that it would be unconstitutional if executed and has the potential to cause future harm, that seems reasonable. Does a warrant automatically expire if not executed? If so, when? It isn't clear that the constitution requires a warrant to expire on any particular time frame and in some cases (e.g. DNA based arrest warrants from rape evidence) a long time between issuance and execution wouldn't be unusual.

If the existence of the unexecuted but unlawful warrant produced real money damages (e.g. the loss of a profitable contract due to an arrest record search that included this information), that also seems reasonable, at least if the warrant wasn't quashed before the harm arose.

I'm not sure that a money damages suit, as opposed to a suit to quash the warrant, is available until the violation of the constitution is intentional or reckless, however. A request to a proper person clearly stating that the warrant was in error and why might be a pre-requisite to relief.
9.25.2009 6:46pm

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