Ninth Circuit Says Officers, Who Did Not Read Protective Order Before Making Arrest, Are Not Entitled To Qualified Immunity In Fourth Amendment Suit


In Beier v. City of Lewiston, (2004 WL 57747, C.A.9 (Idaho)), a lawsuit based on false arrest in violation of the Fourth Amendment to the United States Constitution, the Ninth Circuit Court of Appeals considered the issue of whether two police officers were entitled to qualified immunity after arresting an individual without first reading the protective order on which the arrest was based.


During a divorce, Susan Beier (wife), obtained a protective order against her husband, Rafael Beier. The protective order prohibited husband from contacting or attempting to contact wife and from going within 300 feet of her residence or workplace. The protective order also provided that husband would have no visitation with the two minor children of the marriage, until further ordered by the Court. A few days after wife obtained the protective order, husband attended the same church service as wife, at a church that husband had previously been attending. Wife contacted the police department, which sent two officers to the church. One of the officers confirmed with the dispatcher that a protective order had been issued but did not request information about the terms of the order. Despite husband’s claims that he was not violating the order, and despite the fact that neither of the officers had read the order (which was readily available through wife), the officers arrested husband for violating the protective order.

Husband filed a lawsuit against the police department and the officers, alleging false arrest in violation of the Fourth Amendment. The officers asked to be dismissed from the lawsuit, arguing they were entitled to qualified immunity. The district court disagreed with the officers and they appealed to the Ninth Circuit Court of Appeals.

Appellate Court Decision

In determining whether the officers were entitled to qualified immunity, the Court asked two questions:

  • Whether the officers’ conduct violated a constitutional right? The Court answered “yes” to this question, focusing on the fact that the officers did not have probable cause to arrest husband because he had not violated the protective order. Husband did not violate the order by simply being at the church – he was not within 300 feet of wife’s residence or workplace, he did not initiate any contact with wife, and he did not violate the order’s prohibition against child “visitation” because he did not initiate contact with them. Therefore, the Court determined that “any prudent officer would have concluded that there was no fair probability that [husband] had committed a crime.”
  • Was the constitutional right clearly established? The Court also answered “yes” to this question, because a reasonable officer would have ascertained the terms of the protective order before arresting husband for failing to comply with it. “Without reading or otherwise properly determining the precise terms of a particular order, there is no way to tell how that order was crafted, and, therefore, no way to know whether it was violated.” Here, the contents of the protective order were ascertainable either through official sources or by reading the copy that wife had with her.

The Court therefore affirmed the district court’s decision and sent the case back for further proceedings.

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