The NCSL Blog


By Lisa Soronen

Imagine how often, when police officers are deciding whether to arrest someone, they are told a version of a story they don’t find believable.

Supreme CourtIn a U.S. Supreme Court amicus brief in District of Columbia v. Wesby , the State and Local Legal Center (SLLC) argues that the D.C. Circuit erred by applying an inflexible rule that when officers are making arrest decisions, they must believe a suspect’s version of the story, even when circumstantial evidence indicates otherwise.

In this case, police officers arrested a group of late-night partygoers for trespass. The partygoers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party).

The Washington Post sets the scene: "Several women were dressed only in bras and thongs, with money in their garter belts. The unoccupied residence in Anacostia appeared to have been turned into a strip club, the officers thought. The partygoers said they had been invited by a woman named 'Peaches,' although some knew her as 'Tasty.' In the end, officers Andre Parker and Anthony Campanale arrested 21 people."

Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.

The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” They partygoers claimed they did not know they lacked permission to be in the house.

D.C. Circuit granted the partygoers summary judgment, reasoning the police officers lacked probable cause to make the arrest for trespass because: “All of the information that the police had gathered by the time of the arrest made clear that plaintiffs had every reason to think that they had entered the house with the express consent of someone they believed to be the lawful occupant.”

Dissenting Judge Janice Rogers Brown concluded that summary judgment was inappropriate in this case where “the probable cause determination [that trespass occurred] turns on close questions of credibility, as well as the reasonability of inferences regarding culpable states of mind that officers draw from a complicated factual context.”

Evidence—the host not being there, the different reasons cited for the party, the lack of furnishing in the house, etc.—cast doubt on the credibility of the partygoers’ statements that they believed they had permission to enter the house.

The SLLC amicus brief points out that police officers encounter numerous situations that require split-second decision-making. For this reason the Supreme Court “has consistently assessed police officers’ decisions to search and arrest under a flexible probable cause standard that gives deference to the officers’ experience and expertise.”

The brief argues that the D.C. Circuit “deviated from this standard by applying a rigid rule that officers must believe a suspect’s statements, even when circumstantial evidence indicates otherwise.” Discouraging police from relying on their own credibility determinations will have negative repercussions in a wide range of crimes, not only trespass, which will negatively affect public safety.

John J. Korzen, Wake Forest University School of Law Appellate Advocacy Clinic, wrote the SLLC brief which was joined by the National Association of CountiesNational League of CitiesInternational City/County Management AssociationInternational Municipal Lawyers Association and the National Sheriffs Association.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.