Boston College Law Review Volume 60 | Issue 1 Article 5 1-29-2019 Mass Arrests & the Particularized Probable Cause Requirement Amanda Peters South Texas College of Law Houston, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/bclr Part of the Criminal Law Commons, Criminal Procedure Commons, Fourth Amendment Commons, and the Law Enforcement and Corrections Commons Recommended Citation Amanda Peters, Mass Arrests & the Particularized Probable Cause Requirement, 60 B.C.L. Rev. 217 (2019), https://lawdigitalcommons.bc.edu/bclr/vol60/iss1/5 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. MASS ARRESTS & THE PARTICULARIZED PROBABLE CAUSE REQUIREMENT AMANDA PETERS INTRODUCTION ............................................................................................................................ 218 I. THE HISTORICAL SIGNIFICANCE OF MASS ARRESTS ................................................................ 224 II. PROBABLE CAUSE FOR MASS ARRESTS .................................................................................. 228 A. What Is “Probable Cause” in the Criminal Context? ........................................................ 228 B. What Is Probable Cause in the § 1983 Context? ................................................................ 231 C. What Is Probable Cause in the Mass Arrest Context? ....................................................... 234 III. IMMUNITY FROM SUIT AND PARTICULARIZED VERSUS "GROUP PROBABLE CAUSE" .......... 240 A. Unlawful Arrest Liability and Immunity ............................................................................. 241 B. Federal Court Analysis of Probable Cause in Mass Arrest Lawsuits ................................. 245 1. Section 1983 Cases Cited by Plaintiffs .......................................................................... 246 2. Section 1983 Cases Cited by Defendants ...................................................................... 253 IV. WAYS TO REDUCE INCIDENTS OF MASS ARRESTS ................................................................ 261 A. Lawful Mass Detentions as an Alternative to Unlawful Mass Arrests ................................ 262 B. Increased Law Enforcement Training ................................................................................ 266 C. Diversified Arrest Policymaking Authority ........................................................................ 267 CONCLUSION ............................................................................................................................... 269 217 MASS ARRESTS & THE PARTICULARIZED PROBABLE CAUSE REQUIREMENT AMANDA PETERS* Abstract: Three Supreme Court cases—United States v. Di Re, Ybarra v. Illi- nois, and Maryland v. Pringle—established the need for individualized or par- ticularized probable cause in multiple-suspect arrests and searches. These three Supreme Court decisions have been used by plaintiffs seeking to sue po- lice departments and municipalities under 42 U.S.C. § 1983 for civil rights vi- olations stemming from mass arrests unsupported by probable cause. Oddly enough, these decisions have also been relied upon by defendants who allege that the law is unclear when it comes to particularized probable cause and multiple-suspect arrests. This Article seeks to carefully examine the history of mass arrests in America and analyze the probable cause requirement of the Fourth Amendment along with existing federal cases on multiple-suspect, group, and mass arrests, to demonstrate that the jurisprudence in this area is settled and clear. The Fourth Amendment’s probable cause analysis is and should be no different for individual arrests than for high-volume arrests. INTRODUCTION The Fourth Amendment of the U.S. Constitution mandates that all ar- rests be supported by probable cause.1 The U.S. Supreme Court has repeat- edly described probable cause as the facts and circumstances the officer knows that would warrant a reasonable, prudent person in believing a crim- inal offense has been, is being, or will be committed by the suspect.2 Offic- © 2019, Amanda Peters. All rights reserved. * Helen and Harry Hutchens Research Professor and Professor of Law, South Texas College of Law Houston. I would like to thank Natalie Stanley for her research assistance, Claire Caton for introducing me to the “Waco Biker Shootout” cases, and the South Texas College of Law Houston administration and faculty for their encouragement and support of faculty research and scholar- ship. 1 U.S. CONST. amend. IV. 2 Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Adams v. Williams, 407 U.S. 143, 148 (1972); Beck v. Ohio, 379 U.S. 89, 91 (1964); Draper v. United States, 358 U.S. 307, 313 (1959); Brinegar v. United States, 338 U.S. 160, 175– 76 (1949); Carroll v. United States, 267 U.S. 132, 162 (1925). In United States v. Chadwick, Judge Tauro stated: We do not handcuff our government agents by requiring that they arrest only when the facts upon which they wish to rely would warrant a man of reasonable caution— as opposed to one of extraordinary sophistication—in concluding criminal activity 218 2019] Mass Arrests and the Particularized Probable Cause Requirement 219 ers must have probable cause to arrest a specific person.3 The Supreme Court calls this particularized probable cause.4 When officers make an unlawful arrest without probable cause, signif- icant criminal and civil consequences follow. Evidence seized pursuant to that arrest may be excluded or the case may be dismissed. Unlawfully ar- rested individuals may file civil rights lawsuits under 42 U.S.C. § 1983 al- leging that their Fourth Amendment rights were violated.5 Indeed, this is a common § 1983 claim.6 Probable cause is not always easy to establish, par- ticularly in weak or complex cases.7 This challenge is magnified when of- ficers arrest individuals en masse. Mass arrests happen more frequently than one might imagine. Any number of scenarios might give rise to a high-volume arrest: protests, police raids, undercover stings, even raucous parties. There are numerous cases that illustrate the incidence of mass arrests.8 In 2018, the Supreme Court defended was taking place. They are merely required to meet a standard that can be under- stood by the average reasonably prudent person. 393 F. Supp. 763, 769 (D. Mass. 1975), aff’d, 532 F.2d 773 (1st Cir. 1976), aff’d, 433 U.S. 1 (1977). 3 See Illinois v. Gates, 462 U.S. 213, 229–31 (1983) (evaluating whether a confidential in- formant’s tip established the requisite probable cause for the arrest of a husband and wife); Texas v. Brown, 460 U.S. 730, 741–42 (1983) (noting that probable cause is necessary to support the seizure of property in plain view); Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (stating that a search or seizure of a person must be supported by probable cause); Berger v. New York, 388 U.S. 41, 59 (1967) (explaining that the purpose of the probable cause requirement is protecting constitutional- ly protected areas from state intrusion until the state has reason to believe that a specific crime has been or is being committed). 4 Ybarra, 444 U.S. at 91. 5 42 U.S.C. § 1983 (2018); see Vodak v. City of Chicago, 639 F.3d 738, 750 (7th Cir. 2011) (describing plaintiffs’ primary complaint in a class action civil rights lawsuit as the city of Chica- go’s decision to arrest 900 people without probable cause). 6 DAVID B. BROOKS, TEXAS PRACTICE: CIVIL RIGHTS SUITS § 2.31 (2d ed. 2018) (citing excessive force and arrest without probable cause as the two most common § 1983 claims in Tex- as lawsuits); Tal J. Lifshitz, Note, “Arguable Probable Cause”: An Unwarranted Approach to Qualified Immunity, 65 U. MIAMI L. REV. 1159, 1166 (2011) (“[Section] 1983 litigation has sky- rocketed to combat numerous constitutional violations—with the Fourth Amendment’s prohibition against unreasonable searches and seizures being a popular vehicle for such claims.”); Jessica R. Lonergan, Protecting the Innocent: A Model for Comprehensive, Individualized Compensation of the Exonerated, 11 N.Y.U. J. LEGIS. & PUB. POL’Y 405, 409 (2008) (stating that exonerees fre- quently raise lack of probable cause in civil rights lawsuits). 7 Lifshitz, supra note 6, at 1185 (“The concept of probable cause has been grounded in crimi- nal law and procedure for over two centuries. Ease of application and clarity, however, are not qualities with which the standard is endowed.”). 8 See, e.g., Wright v. Cuyler, 563 F.2d 627, 628 (3d Cir. 1977) (considering the arrest of be- tween eight and twenty persons who fit the description of the assailant); Wong v. Hayakawa, 464 F.2d 1282, 1282 (9th Cir. 1972) (noting that an undisclosed number of student protesters were arrested at one time); Urban v. Breier, 401 F. Supp. 706, 708 (E.D. Wis. 1975) (examining the arrest of fifty-four persons). Older opinions also used the phrase “dragnet arrests.” See, e.g., Ed- 220 Boston College Law Review [Vol. 60:217 the actions of Washington D.C. officers who arrested twenty-one partygoers in an abandoned house, sixteen of whom sued alleging that the officers lacked probable cause to arrest them.9 In 2015, 177 motorcycle enthusiasts who gathered in Waco, Texas were arrested following