POLICING SUSPICION: QUALIFIED IMMUNITY AND "CLEARLY ESTABLISHED" STANDARDS OF PROOF.

• Author: Stoughton, Seth W.

INTRODUCTION. 38 I. A LOW DEGREE OF CERTAINTY: STANDARDS OF PROOF IN POLICING. 40 A. Fourth Amendment Standards of Proof. 43 B. Defining "Probable Cause" and "Reasonable 45 C. Developing Suspicion. 49 II. A HIGH DEGREE OF SPECIFICITY: QUALIFIED IMMUNITY AND THE "CLEARLY ESTABLISHED" ANALYSIS. 57 A. Civil Liability in Policing: 42 U.S.C. [section] 1983 and Bivens. 57 B. Qualified Immunity. 59 III. A PERFECT STORM PRECLUDING ACCOUNTABILITY: REQUIRING HIGHLY SPECIFIC FACTS FOR LOW CERTAINTY EVENTS. 0.62 A. Reasonable and Unreasonable Suspicions. 63 B. The Expansion of Police Discretion. 0.67 C. Contempt of Cop. 0.72 IV. NAVIGATING THE STORM. 73 CONCLUSION. 77 INTRODUCTION

Suspicions amongst thoughts are like bats amongst birds, they ever fly by twilight. Certainly they are to be repressed, or at least well-guarded; for they cloud the mind ... they are defects, not in the heart, but in the brain ... for commonly they are not admitted, but with examination, whether they be likely or no; but in fearful natures they gain ground too fast. There is nothing makes a man suspect much, more than to know little; and therefore men should remedy suspicion by procuring to know more, and not to keep their suspicions in smother.

-Francis Bacon, Of Suspicion (1)

Suspicion is an essential and defining characteristic of modern policing. As officers patrol on foot or in vehicles, they consistently observe behavioral cues, assessing whether a person is acting properly within expected norms to determine if there is a need for police action. If so, the officer then determines whether the subject should be watched, stopped, questioned, frisked, or arrested. The Supreme Court identified certain infringements on individual liberty and privacy that are lawful only when officers have a certain level of suspicion in particular propositions. (2) This sounds simple enough, but the factual bases on which officers make their determinations are complicated. Concluding that someone is not "acting properly" is a complex issue; both aspects of a suspicion-driven decision--that is, both whether to intervene and how to intervene--are subject to considerable scrutiny and have been debated by scholars, litigated by attorneys, and addressed by the courts. The development of suspicion in Fourth Amendment jurisprudence--including the factors on which officers rely, the specific conclusions to which they come, and the relative strength of their conclusions--plays a critical gateway role in the criminal justice system.

Despite its practical importance, the concept of suspicion is nebulous. The lack of clear contours in Fourth Amendment jurisprudence creates obstacles to police accountability. The Court's reluctance to articulate operationalizable guidelines for suspicion in the context of policing has created a constitutional standard that is "not capable of precise definition or mechanical application." (3) This imprecise standard injects a substantial degree of uncertainty into any ex post review of whether an officer acted within the scope of their authority. Enter the contemporary incarnation of qualified immunity, a legal doctrine that insulates officers from civil lawsuits unless they violate the constitution in a manner that was "clearly established" at the time such that "a reasonable official would understand that what he is doing violates" the Constitution. (4) That standard requires a substantial degree of certainty that the officer was acting outside the scope of their authority before officers can be sued successfully.

This Article explores the intersection of substantive Fourth Amendment doctrine and the "clearly established" prong of the qualified immunity analysis, proceeding in four parts. Part I describes legal standards of proof generally before focusing specifically on the two Fourth Amendment quanta implicated in policing: probable cause and reasonable suspicion. It outlines the amorphous, self-referential manner in which the Supreme Court has defined those standards, noting the low degree of certainty that they require and explaining the process by which courts determine whether officers have met those standards in various situations. Part II briefly reviews qualified immunity, with particular emphasis on the "clearly established" prong and the high degree of specificity that it requires. Part III demonstrates how the combination of the high degree of specificity required for the law to be considered "clearly established" and low degree of certainty required for both reasonable suspicion and probable cause serves as a barrier to accountability. The conclusion briefly discusses the potential to change both the legal predicate for police action and the highly deferential scope of qualified immunity before identifying the development of suspicion as a discrete issue worthy of academic attention that could pave the way toward a deeper and more empirically rigorous definition of suspicion in policing.

Existing empirical work, especially in the criminological literature, largely favors a detached, empirical examination of officer behaviors. For example, scholars have studied how officers' pick and choose the targets of their enforcement actions (e.g., traffic stops) from among the population that they can lawfully stop, (5) as well as how they exercise their authority in the context of a coercive civilian interaction (e.g., requesting consent to search a vehicle during a traffic stop). (6) These inquiries are important, but they have been divorced from the legal standards under which officers operate. This Article advances the conversation by setting the stage for a more robust inquiry. It identifies the practical importance of the intersection between substantive Fourth Amendment standards of proof and police accountability, and establishes a theoretical framework for studying the development of suspicion in the context of policing in the United States.

1. A Low DEGREE OF CERTAINTY: STANDARDS OF PROOF IN POLICING

   Few concepts in the United States legal system are more foundational than that of the "standard of proof." A standard of proof is a measure of the strength of the evidence for a particular proposition, a minimum degree of certainty that must be established as a predicate for some legal decision or action. For example, to convict a criminal defendant (action), the government must establish beyond a reasonable doubt (standard of proof) that the elements of a particular crime have been satisfied (proposition). To prevail in most civil litigation (action), the plaintiff must prove that the preponderance of the evidence (standard of proof) supports their legal claim (proposition).

   Scholars describe distinct standards of proof as points along a continuum that ranges from "No Proof as 0% and "Beyond all Doubt" as 100%. (7) That presentation is useful in charting the interrelationship between the standards of proof, but there are two reasons why plotting standards on a spectrum can be misleading. The first is conceptual; courts take the position that at least some of the standards of proof cannot be quantified, (8) so assigning a percentage--any percentage--to explain a particular legal standard of proof is a task that is doomed to failure. The second is practical; the United States legal system does not use the entirety of the mathematical spectrum, but rather focuses on specific thresholds. (9) There is no governmental action, for example, that requires as a predicate proof "Beyond all Doubt." The most common standards of proof, from the highest degree of certainty to the lowest degree of certainty are:

   * Proof beyond a reasonable doubt;

   * Clear and convincing evidence;

   * Preponderance of the evidence;

   * Substantial evidence;

   * Probable cause;

   * Reasonable suspicion;

   * A scintilla of evidence; and

   * No evidence.

   The certainty gap between any two standards--say between "preponderance of the evidence" and "clear and convincing evidence"--may be substantial, but it is not significant in the way that a numerical spectrum suggests. Once one threshold is reached, such as there being a preponderance of the evidence, the only question is whether the next threshold--clear and convincing evidence--is met, not whether the evidence is closer to a specific spot on the spectrum.

   The standard of proof that governs any given legal dispute reflects the importance of the underlying issue by representing the degree of certainty required to resolve the issue. As the Supreme Court indicated, "[t]he function of any standard of proof is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" (10) In essence, the standard of proof "indicates the relative importance society attaches to the ultimate decision" by reflecting the acceptable error rate, striking a balance between the need for accuracy and the risk of errors." The more severe the legal decision's consequence or action, the less acceptable are false positives, and therefore, the higher the required standard of proof.

   To return to an easy example, the criminal conviction of an innocent person is viewed as especially problematic; jurists have long argued that it is better for five, (12) or ten, (13) or twenty (14) guilty people to go free than it is for one innocent person to suffer an erroneous conviction. The standard of proof for criminal conviction is correspondingly stringent. As the Supreme Court held, the Constitution requires that "[t]he prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder 'beyond a reasonable doubt' of the facts necessary to establish each of those elements." (15) Further, the Court recently held that the Constitution allows for conviction only when jurors conclude unanimously that the state has established proof of guilt beyond a reasonable doubt. (16)

   In contrast, there is...