In the instant case, the defendants pled the affirmative defense of qualified immunity in conjunction with their Answer to the Complaint. Answer at 14.
Qualified immunity not only protects government officials from liability, but can also save them from the burdens of trial and discovery. Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534 (1988); Green v. Carlson, 826 F.2d 647, 651 (7th Cir. 1987). For this reason, the use of the qualified immunity doctrine in conjunction with the summary judgment tool should be encouraged. Rakovich, 850 F.2d at 1205.
"This circuit has recently held that, even though pertinent facts may be in dispute, the question whether [qualified] immunity attaches is always one for the judge to decide." Hughes v. Meyer, 880 F.2d at 969, slip op. at 4 (citations omitted); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988); Rakovich, 850 F.2d at 1201-02. However, while the issue of qualified immunity is a question of law, it cannot be decided in the abstract; the court can only make this determination in reference to the particular facts of the case. Rakovich, 850 F.2d at 1202.
In order to make this qualified immunity determination, the court looks to how the plaintiff has characterized the defendant's actions in accordance with the facts of the case. The court than compares this characterization to the law at the time that the alleged violation occurred in order to determine if the defendant's actions violated the clearly established law. Id. at 1209. The United States Court of Appeals for the Seventh Circuit has set out the following two prong test for this determination: "'(1) does the alleged conduct set out a constitutional violation? and (2) were the constitutional standards clearly established at the time in question?'" Id. at 1210, quoting Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986). The plaintiff carries the burden of establishing the existence of the "allegedly clearly established constitutional right." Rakovich, 850 F.2d at 1209 (citation omitted).
The analysis that the court must undertake is to ask itself whether "it was clearly established that under the facts of this case [the police conduct] . . . was improper." Id. at 1211.
For situations where it is alleged that the police arrested an individual without probable cause, the standard that this court must apply to determine if qualified immunity is available has been phrased several different ways. In Rakovich the court stated that qualified immunity is available to a police officer if "a reasonably well-trained police officer could believe that his conduct did not violate a clearly established right. In other words, viewing it in a light most favorable to [plaintiff], officers of 'reasonable competence could disagree,' Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), and 'in the light of the preexisting law the unlawfulness [was not] apparent,' Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)." Rakovich, 850 F.2d at 1214.
Further, even in cases where there may not be probable cause to arrest, "if officers of reasonable competence could disagree on whether there was probable cause, the defendant would be immune from damages liability." Jones, 856 F.2d at 994 (citation omitted). Put another way, "only if no reasonable police officer could have mistakenly believed that he had probable cause to arrest is the immunity forfeited." Id.
Most recently, in the Hughes case, the Seventh Circuit commented, "we apply the 'clearly erroneous' standard of review to the district court's determination that a reasonable police officer in like circumstances could have acted as the defendants did." Hughes v. Meyer, 880 F.2d at 969, slip op. at 4 (citations omitted). As such, the standard used in determining an officer's reasonable belief as to validity of probable cause is less stringent than the standard used in determining the existence of probable cause. Id. at 5. Thus, "even in the absence of probable cause for an arrest, qualified immunity provides officers with an additional layer of protection against civil liability." Id. As Judge Coffey has stated, "a distinction exists between the constitutional standards of probable cause and the officer's reasonable belief as to the validity of probable cause." Moore v. Marketplace Restaurant, 754 F.2d 1336, 1348 (7th Cir. 1985).
Further, in deciding this motion for summary judgment regarding qualified immunity, this court must consider all of the undisputed evidence in the record. Green v. Carlson, 826 F.2d 647, 650 (7th Cir. 1987).
The court must also consider this concept of "probable cause." What exactly is it? Or more specifically, when do the police have it? This concept was recently expressed this way:
Probable cause for an arrest exists if, at the moment the arrest was made, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that an offense has been committed. Probable cause is to be determined in a "practical, nontechnical" manner. The inquiry into the existence of probable cause raises questions of "probabilities, the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false.