RUSSELL ANDERSON, PETITIONER V. ROBERT E. CREIGHTON, JR., ET AL.

   No. 85-1520

   In the Supreme Court of the United States

   October Term, 1985

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   The Solicitor General, on behalf of Russell Anderson, petitions for
a writ of certiorari to review the judgment of the United States Court
of Appeals for the Eighth Circuit in this case.

                       PARTIES TO THE PROCEEDING

   The petitioner is Russell Anderson.  The respondents are Robert E.
Creighton, Jr., and Sarisse Creighton, the plaintiffs in this case who
brought suit on their own behalf and on behalf of their children,
Shaunda Creighton and Tiffany Creighton.

   The City of St. Paul and St. Paul police officers John J. DeNoma,
Kevin T. Daniels, Robert C. Ashton, John J. Gelao, William A. Snyder,
and Jerome P. Stephan were defendants in the district court, but their
cases were remanded to state court and they did not appear in the
court of appeals.

            TABLE OF CONTENTS
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Questions Presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-17a) is
reported at 766 F.2d 1269.  The opinion of the district court (App.,
infra, 18a-26a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 12,
1985.  A petition for rehearing was denied on October 15, 1985 (App.,
infra, 27a).  On January 4, 1986, Justice Blackmun extended the time
for filing a petition for a writ of certiorari to and including March
14, 1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(l).

                          QUESTION PRESENTED

   In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held that
government officials performing discretionary functions are entitled
to qualified immunity from damages liability so long as their conduct
does not violate clearly established constitutional rights.  In this
case, the court of appeals held that petitioner was not entitled to
qualified immunity for his warrantless entry of respondents'
residence, because it was clearly established that the warrantless
entry of a house is unlawful in the absence of exigent circumstances.

   The question presented is the following:  When the general legal
rule relevant to the constitutionality of an official's behavior makes
reference to the circumstances of the particular case, is the
qualified immunity provided by Harlow overcome by a mere showing that
the general legal rule was well established, or must the court further
determine that the official could not have reasonably believed that
his own conduct was lawful in light of the facts and circumstances as
they reasonably appeared to him.

                               STATEMENT

   1. Shortly before 3:30 p.m. on Veterans Day, November 11, 1983, the
Minnesota Federal Savings and Loan in St. Paul, Minnesota, was the
subject of an armed robbery.  App., infra, 19a.  Petitioner, a special
agent of the Federal Bureau of Investigation (FBI), was contacted at
home and immediately went to the bank to begin his investigation.
Petitioner arrived at roughly 4:30 p.m., and, along with two other FBI
agents and St. Paul police officers, interviewed several eyewitnesses
to the robbery.  From persons who were at the scene of the robbery and
who were in the neighborhood, petitioner learned that the robber had
used a getaway car that was described as burgundy or maroon and silver
in color, possibly darker and possibly a Buick.  From a teller,
petitioner also obtained a description of the bank robber, whom
petitioner believed was Vandaain Dixon.  At 6:30 p.m., petitioner went
to a local police station, where he helped prepare a photographic
display for the two bank tellers who had seen the robber.  The tellers
arrived at 7:30 p.m., and a half-hour later each teller independently
and positively identified Dixon as the bank robber by selecting his
photograph from a 12-photo display.  App., infra, 19a, 20a;  Affidavit
of Russell Anderson para. 2-8, at 1-5 (Apr. 16, 1984).  /1/

   Petitioner was familiar with Vadaain Dixon, because Dixon had a
long history of armed robbery and violence dating back to 1974.  /2/
Dixon had been arrested in May 1983 and charged with committing seven
bank robberies, one of which occurred in the Twin Cities area, and he
had pleaded guilty in October 1983 to four of those robberies.
Following the entry of his guilty pleas and pending the completion of
a presentence investigation, Dixon had been assigned to the Volunteers
of America half-way house, where he was permitted daily four-hour
furloughs.  However, Dixon did not return to the half-way house by
6:00 p.m. on November 9, 1983, and a warrant for his arrest issued.
App., infra, 19a-20a;  Affidavit of Russell Anderson para. 7, at 3-4,
para. 9, at 5-6;  Affidavit of William Johnson para. 4, at 2, para. 6,
at 3 (June 4, 1984).

   From his investigation of Vadaain Dixon's robberies, petitioner
also knew that Dixon had used an accomplice in each of the four
robberies to which he had pleaded guilty, and that Dixon's wife Cheryl
had admitted driving the getaway car on two of those occasions.
Moreover, petitioner had been informed by Dixon's probation officer
that Cheryl Dixon had been residing at the home of respondents Robert
and Sarisse Creighton, Vadaain Dixon's sister, from the time of the
arrest in May 1983, for one of the bank robberies charged against
Vadaain Dixon, until November 9, 1983.  While there, Cheryl Dixon
often used the Creightons' car to drive her husband to and from the
half-way house so that they could spend his daily furloughs together
at the Creightons' residence.  App., infra, 20a;  Affidavit of Russell
Anderson para. 7, at 3-4, para. 12, at 7;  Affidavit of William
Johnson paras. 5-6 at 2-3.

   After the bank tellers identified Vadaain Dixon, petitioner and the
police officers decided that Dixon should be apprehended as swiftly as
possible, given his history of violence.  Petitioner and the police
officers immediately proceeded to the home of Dixon's mother, Iris.
/3/ With her consent, petitioner and the police officers searched for
Dixon, unsuccessfully.  Dixon's brother Jamie, who was there at the
time, told petitioner that the Creightons owned a red Oldsmobile and
said that Vadaain Dixon might be at their grandmother's home.  Because
the grandmother's home was en route to the Creightons, petitioner and
the police went there next, but they again did not find Vadaain Dixon.
 In the meantime, the local police confirmed from a computer check
that the Creightons owned a burgundy or maroon Oldsmobile, which was
similar to the getaway car used in the bank robbery.  App., infra,
20a-21a & n.2;  Affidavit of Russell Anderson paras. 10-12 at 6-7.

   At approximately 8:40 p.m., petitioner and the police officers
arrived at the Creightons' home.  The facts are in dispute regarding
what transpired at the Creightons' home during the ensuing search for
Vadaain Dixon.  /4/ However, several facts are uncontested.  During
the course of the search, respondent Sarisse Creighton and her
children became quite distraught.  App., infra, 2a-4a, 21a.
Respondent Robert Creighton was struck by a St. Paul policeman, was
arrested for obstructing legal process, and was released the following
day without being charged with an offense.  Id. at 3a-4a, 22a.
Petitioner had nothing to do with the incident in which Robert
Creighton was injured.  Id. at 22a, 24a n.4.  /5/ And neither Vadaain
nor Cheryl Dixon was found at the Creightons' home.

   2. Respondents later brought suit in state court against petitioner
and several other defendants, /6/ claiming, inter alia, that the
officers' warrantless entry into their house violated the Fourth
Amendment, and seeking damages from petitioner and the other
defendants under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), and 42 U.S.C. 1983.  After removing this suit to federal
court, petitioner moved for summary judgment on the ground that he was
entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S.
800 (1982), because his warrantless entry was not clearly established
as unlawful under the circumstances.  The district court granted
petitioner's motion, ruling that his warrantless entry into the
Creightons' house did not violate the Fourth Amendment.  App., infra,
23a-26a.

   Focusing on the facts of this case as known by petitioner, the
district court held that petitioner had probable cause to believe that
Vadaain Dixon had robbed the St. Paul bank /7/ and that Dixon was at
the Creightons' residence.  /8/ App., infra, 23a.  The court also held
that petitioner's warrantless search was lawful because there were
exigent circumstances justifying an immediate entry into the
Creightons' home to arrest Dixon and to prevent him from disposing of
evidence of the robbery.  Id. at 23a-24a & nn.3-4.  /9/ Finally,
relying, inter alia, on Warden v. Hayden, 387 U.S. 294 (1967), the
court held that petitioner's warrantless entry was lawful because at
the time that he entered the Creightons' residence he was still in
"hot pursuit" of Dixon (App., infra, 24a-25a).  /10/ Accordingly, the
court held that petitioner was entitled to qualified immunity under
Harlow, because his warrantless entry did not violate the Fourth
Amendment.  Id. at 25a & n.5.  /11/

   3. The court of appeals reversed and remanded the case for trial
(App., infra, 1a-17a).  At the outset, the court of appeals held that
the district court erred in granting summary judgment for petitioner
regarding the lawfulness of his entry into the Creightons' residence,
on the ground that there were disputed questions of material fact
whether petitioner had probable cause to believe that Dixon was at the
Creightons' house.  Id. at 7a-12a.  /12/ The court also found that the
hot pursuit exception to the warrant requirement was not applicable,
because petitioner was not in continuous pursuit of Dixon from the
time that the robbery occurred (id. at 12a-13a), and the court found
no evidence to support the claim that a warrantless entry was
necessary to prevent the destruction of evidence (id. at 13a-14a).
Finally, the court ruled that the exigent circumstances exception did
not apply, because there were disputed facts as to whether petitioner
had a "'strong reason'" to believe that Dixon was at the Creightons'
house, whether Dixon would escape if not immediately apprehended, and
whether the entry was peaceful.  Id. at 14a-15a.

   In a brief discussion of the question, the court of appeals also
held that petitioner was not entitled to qualified immunity, since it
was clearly established that the warrantless entry of a home was
unlawful in the absence of exigent circumstances.  App., infra,
15a-17a.  The court explained that "'if the law was clearly
established, the immunity defense ordinarily should fail(,) since a
reasonably competent public official should know the law governing his
conduct'" (id. at 16a (quoting Harlow, 457 U.S. at 818-819)).  Then,
adverting to its earlier discussion of the lawfulness of petitioner's
entry, the court held that "the Creightons' fourth amendment rights
and the 'exigent circumstances' doctrine were 'clearly established'"
at the time of petitioner's entry (App., infra, 16a) and that
"(petitioner) has cited no persuasive reason why he could reasonably
have been unaware of this clearly established law" (id. at 17a).
Accordingly, without undertaking to decide whether petitioner's own
actions were clearly unlawful under well-established law, the court of
appeals held that he was not entitled to qualified immunity.

                   REASONS FOR GRANTING THE PETITION

   This case presents an important, unsettled, and recurring question
concerning the proper standard for resolving a claim of qualified
immunity by public officials in general, and by law enforcement
officers in particular.  In Harlow v. Fitzgerald, 457 U.S. 800 (1982),
the Court held that a public official is entitled to immunity from
liability in damages when his conduct is objectively reasonable as
measured by reference to clearly established law.  In this case, the
court of appeals held that the only inquiry required by Harlow is
simply whether the general principles of law governing a police
officer's actions -- such as probable cause and exigent circumstances
-- were clearly established at the time in question and that no
consideration of the lawfulness of the police officer's own conduct in
the case at hand is necessary or permissible.  The court of appeals
altogether refused to undertake this latter inquiry, ending its
analysis once it concluded that the warrantless entry of a home was
forbidden in the absence of exigent circumstances and that this
principle was clearly established at the time of petitioner's entry.

   That ruling, which conflicts with decisions of this Court and
several other courts of appeals, nullifies the qualified immunity
defense in the situations that will most frequently arise and in which
the defense is most necessary:  i.e., when the application of a
settled rule of law to the particular facts confronting a law
enforcement officer is problematic.  This Court recognized the
significance of this question by granting certiorari to decide it in
Whitley v. Albers, No. 84-1077 (Mar. 4, 1986), but the Court did not
reach the question, because it resolved the case on other grounds
(slip op. 15).  Accordingly, review here is clearly warranted.

   1. The court of appeals held that petitioner was not entitled to
qualified immunity because it was clearly established at the time that
he entered the Creightons' residence that a warrantless entry of a
home was unlawful in the absence of probable cause and exigent
circumstances.  However, the court of appeals did not determine
whether petitioner's own conduct was clearly unlawful;  instead, the
court resolved this issue simply by reference to the general Fourth
Amendment principles set forth by that court and this one.  In so
ruling, the court of appeals seriously misread this Court's decisions
and misapplied the principles governing the qualified immunity
defense.

   a. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held
that government officials performing discretionary functions are
entitled to immunity from damages liability so long as their conduct
does not violate clearly established statutory or constitutional
rights that a reasonable person would have known.  See also Mitchell
v. Forsyth, No. 84-335 (June 19, 1985), slip op. 18.  The focus of the
inquiry, the Court explained, should be on "the objective
reasonableness of an official's conduct, as measured by reference to
clearly established law." 457 U.S. at 818 (footnote omitted).  The
Court's subsequent decisions in Davis v. Scherer, No. 83-490 (June 28,
1984), and Malley v. Briggs, No. 84-1586 (Mar. 5, 1986), make clear
that the existence of a general legal standard serves only as the
beginning of the analysis under Harlow, not the end, and that the
approach followed by the court of appeals was in error.

   The question in Davis was whether the failure of state officials to
provide a state employee with a hearing before he was discharged
violated his clearly established due process rights.  In ruling that
the officials were entitled to qualified immunity, the Court
acknowledged that its prior decisions had required "'some kind of a
hearing'" in this setting (slip op. 8 n.10 (citation omitted)), but
found that the employee's right to a pretermination hearing was not
clearly established since "the Court had not determined what kind of a
hearing must be provided" or "specif(ied) any minimally acceptable
procedures for termination of employment" (ibid).  Examining the
procedures actually afforded to the discharged employee, the Court
found that the state officials were "(n)o(t) * * * unreasonable" in
concluding that the discharged employee received what due process
demanded.  Id. at 8.  Davis thus makes clear that the existence of a
general legal standard does not resolve the qualified immunity
analysis under Harlow and that the lawfulness of the defendant's
conduct in the particular situation at issue must be clearly
established for an immunity defense to fail.

   Malley v. Briggs, supra, confirms that conclusion.  There, in
rejecting the contention that a police officer is entitled to absolute
immunity for an arrest based on a warrant, the Court reaffirmed that
under Harlow a police officer is entitled to qualified immunity "if
(he) acted in an objectively reasonable manner" (Malley, slip op. 5),
which must be resolved by reference to the facts and circumstances
confronting the official (ibid.).  Moreover, Malley expressly held
that "the same standard of objective reasonableness that we applied in
the context of a suppression hearing in (United States v. Leon, No.
82-1771 (July 5, 1984)) defines the qualified immunity accorded an
officer whose request for a warrant allegedly caused an
unconstitutional arrest" (Malley, slip op. 8 (footnote omitted)), and
the Court's decision in Leon requires an analysis of the facts known
to the officer himself (see Leon, slip op. 27).  /13/ As the Court in
Malley summarized (slip op. 5):  "Defendants will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer
would have concluded that a warrant should issue;  but if officers of
reasonable competence could disagree on this issue, immunity should be
recognized." See also Mitchell v. Forsyth, slip op. 23 n.12 (noting
that, although a public official will not be immune simply because the
warrant requirement has not previously and expressly been held
applicable in identical circumstances, "in cases where there is a
legitimate question whether an exception to the warrant requirement
exists, it cannot be said that a warrantless search violates clearly
established law").  Malley therefore demonstrates that the court of
appeal erred by failing to determine whether petitioner should have
known that his warrantless entry into the Creightons' home was clearly
unlawful.  /14/

   b. That conclusion is fully consistent with -- in fact, it is
compelled by -- the principles underlying the qualified immunity
doctrine.  "Implicit in the idea that officials have some immunity --
absolute or qualified -- for their acts, is a recognition that they
may err.  The concept of immunity assumes this and goes on to assume
that it is better to risk some error and possible injury from such
error than not to decide or act at all." Scheuer v. Rhodes, 416 U.S.
232, 242 (1974);  see also Procunier v. Navarette, 434 U.S. 555, 562
(1978);  Wood v. Strickland, 420 U.S. 308, 319 (1975);  Chagnon v.
Bell, 462 F.2d 1248, 1261 (D.C. Cir. 1980), cert. denied, 453 U.S. 911
(1981).  When a general principle of law is not clearly established,
Harlow provides that a government official cannot be saddled with
personal liablity, because an official "(cannot) reasonably be
expected to anticipate subsequent legal developments, nor could he
fairly be said to 'know' that the law forbade conduct not previously
identified as unlawful" (457 U.S. at 818).  See also Forsyth, slip op.
22-23;  Pierson v. Ray, 386 U.S. 547, 557 (1967) ("a police officer is
not charged with predicting the future course of constitutional law").
 The same considerations also apply when the question is how a court
will apply a general legal standard to the particular facts
confronting a government official.

   The broad standards contained in the constitutional text -- such as
"due process," "equal protection," or "cruel and unusual punishment"
-- do not by themselves necessarily provide sufficient guidance to a
public official to conform his conduct to constitutional requirements,
even when there is no dispute that those standards are themselves
firmly established.  If the establishment of a general legal standard
were by itself sufficient to deprive a public official of qualified
immunity, an official would often have no way of knowing whether his
decisions might later provide the basis for a suit for damages.
Imposing damages liability on a public official in those circumstances
would force him to make the same type of prediction that Harlow found
to be unwarranted when the general rule of law was not itself clear.
Moreover, the imposition of damages liability on a public official
simply because he has trespassed on an already-existing, but abstract,
general legal standard would eliminate the qualified immunity defense
in every case in which there is a "legitimate question" (Forsyth, slip
op. 23 n.12) or a "reasonable * * * disagree(ment)" among public
officials (Malley, slip op. 5) regarding how the courts will apply
that standard to a particular set of facts.  That result would
"disrupt the balance * * * between the interests in vindication of
citizens' constitutional rights and in public officials' effective
performance of their duties." Davis, slip op. 11.  As the Court has
recognized, "(t)he imposition of monetary costs for mistakes which
were not unreasonable in the light of all the circumstances would
undoubtedly deter even the most conscientious (official) from
exercising his judgment independently, forcefully, and in a manner
best serving" the public interest (Wood v. Strickland, 420 U.S. at
319-320).  It would, instead, "contribute not to principled and
fearless decision-making but to intimidation" (Pierson, 386 U.S. at
554) -- the very result that qualified immunity has always been
designed to prevent.  See Harlow, 457 U.S. at 818-819;  Procunier, 434
U.S. at 562;  Wood, 420 U.S. at 319.  The court of appeals' truncated
approach to the question whether petitioner was entitled to qualified
immunity would lead to these unfortunate results.

   c. The importance, in resolving a qualified immunity claim, of
focusing on the application of a general principle of law to the
specific conduct at hand is particularly evident where a law
enforcement officer is alleged to have violated the Fourth Amendment.
Law enforcement officers normally are not trained legal technicians,
yet they are expected to make quick decisions, often involving
complicated legal issues, "'in the midst and haste of a criminal
investigation'" (Malley, slip op. 5 (Powell, J., concurring in part
and dissenting in part) (citation omitted)) that can take place in
"rapidly unfolding and often dangerous situation on city streets"
(Terry v. Ohio, 392 U.S. 1, 10 (1968)).  Countless officers in the
field must make daily decisions under difficult circumstances and
without the opportunity for reflection that the courts will have if a
suit is later brought against the officer.  The legal questions that
stem from the actions that a police officer must take "(i)n a
kaleidoscopic situation * * * where spontaneity rather than adherence
to a police manual is necessarily the order of the day" (New York v.
Quarles, No. 82-1213 (June 12, 1984), slip op. 6) can easily leave
room for disagreement among the judges who must later resolve the
matters.  Where that is true, there is no basis for faulting an
officer who made a reasonable but erroneous judgment regarding the
existence of probable cause or exigent circumstances.  See Malley,
slip op. 5;  id. at 4-5 (Powell, J., concurring in part and dissenting
in part).

   The refinement of the broad standards set forth in the text of the
Fourth Amendment by the decisions of this Court and the lower courts
often provide even a reasonably well-trained officer with little more
than general guidance in deciding how to exercise his judgment in
carrying out his enforcement responsibilities in a manner consistent
with constitutional requirements.  Many of the decisions that a police
officer must make on a daily basis, such as whether to stop and
question a suspect, can only be resolved by applying general Fourth
Amendment principles on a case-by-case basis to the particular facts
at hand.  See, e.g., United States v. Sharpe, No. 83-529 (Mar. 20,
1985), slip op. 10 ("(m)uch as a 'bright line' rule would be
desirable, in evaluating whether an investigative detention is
unreasonable, common sense and ordinary human experience must govern
over rigid criteria").  Even a "reasonably competent officer" (Malley,
slip op. 5) may find it difficult correctly to assess the facts in
light of the governing law in the highly-charged situation that he
must confront.

   The legal standards discussed by the courts below -- probable cause
and exigent circumstances -- well illustrate this point.  "(P)robable
cause," the Court has noted, "is a fluid concpet -- turning on the
assessment of probabilities in particular factual contexts -- not
readily, or even usefully, reduced to a neat set of legal rules"
(Illinois v. Gates, 462 U.S. 213, 232 (1983)).  Whether a police
officer has probable cause to make an arrest depends on "whether at
that moment the facts and circumstances within (his) knowledge and of
which (he) had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the (suspect) had committed or
was committing an offense" (Beck v. Ohio, 379 U.S. 89, 91 (1964)).  In
addition, although the warrantless entry of a home is presumptively
unlawful (see, e.g., United States v. Karo, No. 83-850 (July 3, 1984),
slip op. 8;  Payton v. New York, 445 U.S. 573, 586 (1980)), it is also
the case that "exigent circumstances" will justify an immediate entry
to arrest a suspect (see, e.g., United States v. Santana, 427 U.S. 38,
42-43 (1976);  Warden v. Hayden, 387 U.S. 294, 298-299 (1967);  see
generally Welsh v. Wisconsin, 466 U.S. 740, 749-750 (1984)) and that,
by definition, the question whether there are exigent circumstances in
a given case cannot be answered without assessing the facts as they
reasonably appeared to the responsible officer.  This Court's
decisions in Santana and Hayden found that an immediate entry was
justified under the circumstances of each case, but did not provide a
comprehensive test for measuring the existence of exigent
circumstances.  427 U.S. at 42-43;  387 U.S. at 298-299.  Similarly,
the lower courts have recognized that there can be no bright-line
answer to the question whether a warrantless entry to arrest a suspect
is permissible and have developed different approaches to this
question.  /15/ In sum, the question whether there are exigent
circumstances, like the question whether there is probable cause,
cannot be resolved simply by virtue of the fact that a general
standard exists.  It is therefore hardly surprising that in such cases
"(i)nadvertent errors of judgment" and "honest mistakes" will
"inevitably occur given the pressures inherent in police work having
to do with serious crimes." Bivens v. Six Unknown Named Agents, 403
U.S. 388, 418 (1971) (Burger, C.J., dissenting).

   Under the court of appeals' ruling, however, police officers are
not free from the threat of liability and litigation unless they
correctly assess how a court will resolve the merits of any Fourth
Amendment question that may arise.  Even if a police officer
reasonably believes that his conduct is lawful under clearly
established law -- as petitioner believed here -- his claim to
qualified immunity will be defeated upon nothing more than a showing
that he trespassed upon a general principle of law.  That result is
wholly unjustified.  Denying a police officer the benefit of qualified
immunity simply because a general standard such as probable cause or
exigent circumstances is clearly established would put him in the
"unhappy" dilemma of "choos(ing) between being charged with
dereliction of duty if he does not arrest when he has probable cause,
and being mulcted in damages if he does." Pierson, 386 U.S. at 555.

   Nor can it be said that petitioner's conduct in this case was so
obviously unlawful that an examination of the facts known by him to be
true was unnecessary.  Petitioner clearly had probable cause to
believe that Vadaain Dixon was responsible for the bank robbery.
Dixon had a history of armed robbery and had pleaded guilty to four
armed bank robberies only one month earlier;  he fit the bank tellers'
description of the robber, and two tellers had positively identified
him from a photo display.  The district court's finding in this regard
(App., infra, 23a) was not disturbed by the court of appeals.
Moreover, the district court also found that petitioner had probable
cause to believe that Vadaain Dixon was at the Creightons' home.
Ibid.  /16/ Petitioner had been told by Vadaain Dixon's probation
officer that Dixon and his wife Cheryl had both admitted that she was
living at the Creightons' home and that Cheryl had been using their
car on a daily basis to pick up her husband at the halfway house and
take him to the Creightons' home.  Furthermore, the description of the
getaway car, even if not precisely identical to the Creightons' car,
was a legitimate factor for petitioner to consider, particularly when
coupled with Vadaain and Cheryl Dixons' statements as to her
whereabouts.  Finally, relying on the factors previously applied by
the Eighth Circuit in United States v. Kulcsar, 586 F.2d 1283, 1287
(1978), the district court ruled that there were exigent circumstances
that justified petitioner's warrantless entry.  App., infra, 23a-24a.
The district court's ruling that petitioner's conduct did not violate
the Fourth Amendment is entitled to substantial weight on the
qualified immunity issue.

   2. The lower courts are in disarray as to the correct approach to
the resolution of a qualified immunity claim.  Contrary to the court
below, several other courts of appeals have held that the inquiry
under Harlow does not end with the finding that a general principle of
law was well-established, but continues until the court determines
whether, in the circumstances of the case, the defendant should have
known that his own conduct was unlawful.  For example, in Floyd v.
Farrell, 765 F.2d 1, 5 (1st Cir. 1985), the court held that "a police
officer should not be found liable under (42 U.S.C.) Section 1983 for
a warrantless arrest because the presence of probable cause was merely
questionable at the time of the arrest" (id. at 5) and that "so long
as the presence of probable cause is at least arguable," the officer
is entitled to immunity (ibid.).  In resolving that inquiry, the court
held, "the question we must ask is whether another officer, standing
in (the defendant's) shoes and having the same information (the
defendant) had, would reasonably have come to the conclusion that he
had probable cause to arrest (the suspect)" (ibid.).  Similarly, in
Briggs v. Malley, 748 F.2d 715, 719 (1st Cir. 1984), aff'd, No.
84-1586 (Mar. 5, 1986), which concerned a police officer's liablity
for obtaining an arrest warrant, the court expressly held that the
qualified immunity issue must be resolved by reference to the facts
known by the officer.  As the court held, "only where an officer is
'constitutionally negligent,' that is, where the officer should have
known that the facts recited in the affidavit did not constitute
probable cause, will liability attach.  Where the sufficiency of the
facts fall into the grey area appropriate for judicial determination,
submission of the affidavit to a magistrate will insulate the officer
from liability." 748 F.2d at 721.  See also Hobson v. Wilson, 737 F.2d
1, 26 (D.C. Cir. 1984), cert. denied, No. 84-1139 (Mar. 25, 1985)
(recognizing that an interpretation of Harlow requiring only that
broadly defined rights be clearly established "would, of course,
undermine the premise of qualified immunity that the Government actors
reasonably should know that their conduct is problematic").  /17/

   By contrast, other courts have rejected an immunity claim on the
ground that the legal standard was clearly established, without
determining whether the application of that standard to the particular
facts of the case was also clear.  See Bass v. Wallenstein, 769 F.2d
1173, 1186 (7th Cir. 1985) (holding that defendants were not entitled
to immunity because the Eighth Amendment standard of "deliberate
indifference to inmates' serious medical needs" was clearly
established at the pertinent time);  Fujiwara v. Clark, 703 F.2d 357,
361 (9th Cir. 1983) (denying qualified immunity because "(t)he law
governing the conduct of Appellees was then clearly established");
see also Trejo v. Perez, 693 F.2d 482, 488 n.10 (5th Cir. 1982)
(emphasis in original) (stating that "(t)he Fourth Amendment rule on
warrantless arrests is 'clearly established law.' If an arrest lacks
probable cause for its support, it is, objectively speaking, in
violation of clearly established law.").  This confusion among the
circuits warrants resolution by this Court.  /18/

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   RICHARD A. OLDERMAN

      Attorneys

   MARCH 1986

   /1/ Several days later, an accomplice to the robbery was arrested
and gave a statement naming Vadaain Dixon as the robber.  App., infra,
19a n.1;  Affidavit of Russell Anderson para. 7, at 3.

   /2/ For example, in August 1979, shortly after being released from
state prison, Dixon robbed a liquor store in St. Louis Park,
Minnesota, and took a hostage at gunpoint.  Affidavit of Russell
Anderson para. 9, at 5-6.

   /3/ Her home was closer to the police station and to the bank than
the Creightons' house, and Vadaain Dixon's brother Jamie, who had once
helped Vadaain and Cheryl Dixon escape after a prior robbery, was
staying there.  App., infra, 20a-21a & n.2.

   /4/ Compare Affidavit of Russell Anderson paras. 14-18, at 8-10,
with Affidavit of Robert Creighton, Jr. 2-3 (May 30, 1984);  Affidavit
of Iris Dixon 4-5 (May 30, 1984);  Affidavit of Sarisse Creighton 2-6
(May 30, 1984).

   /5/ According to petitioner, respondent Robert Creighton provoked a
St. Paul police officer by attempting to grab his weapon.  App.,
infra, 22a;  Affidavit of Russell Anderson para. 16, at 9.  According
to respondent Robert Creighton, the police officer's assault was
unprovoked.  App., infra, 3a;  Affidavit of Robert Creighton, Jr. 2-3.
 However, since this appeal involves only the question of petitioner's
entitlement to qualified immunity on the charge of unlawful entry, the
facts concerning what transpired during the actual search of the
Creightons' home are irrelevant.

   /6/ Respondents Robert and Sarisse Creighton brought this suit in
their own behalf and on behalf of their children against petitioner,
the City of St. Paul, several identified St. Paul police officers, and
others unknown to them.

   /7/ In making this ruling, the district court relied on the
witnesses' description of the robber, the tellers' identification of
Vadaain Dixon from the photo display, and Dixon's past criminal
activity and current fugitive status.  App., infra, 23a.

   /8/ The district court relied on the following facts:  the
probation officer who was performing Dixon's presentence investigation
had told petitioner that Dixon's wife had said that she was residing
with the Creightons and was using their car;  Vadaain Dixon himself
had admitted that his wife was living with the Creightons and used
their car so that they could spend his furloughs together;  petitioner
knew that Dixon's wife had been his accomplice on past occasions;  and
Dixon's brother had told petitioner that the Creightons owned a
burgundy or red car that matched the description of the getaway car
used in the robbery, a fact confirmed by the St. Paul police from a
computer check.  App., infra, 23a.

   /9/ In so ruling, the district court relief on the following
factors, first identified by the District of Columbia Circuit in
Dorman v. United States, 435 F.2d 385, 392-393 (1970) (en banc), and
previously applied by the Eighth Circuit in United States v. Kulcsar,
586 F.2d 1283, 1287 (1978), as considerations in determining whether
the warrantless entry of a home to arrest a suspect is permissible:
(1) armed robbery is a grave offense;  (2) Vadaain Dixon was
reasonably believed to be armed and dangerous, given his past record
and his status as fugitive;  (3) petitioner had probable cause to
believe that Dixon had committed the bank robbery;  (4) petitioner had
probable cause to believe that Dixon was at the Creightons' home;  (5)
it was likely that Dixon would escape if he were not swiftly
apprehended, given his status as a fugitive, his access to an
automobile, and his proceeds from the robbery;  and (6) petitioner's
initial entry into the Creightons' home was peaceful, and the violent
acts, which petitioner was not alleged to have committed, occurred
after the entry.  App., infra, 23a-24a & nn. 3-4.

   /10/ As the district court explained, petitioner entered the
Creightons' house only 40 minutes after the bank tellers had
identified Vadaain Dixon as the robber, and petitioner's entry was the
culmination of his continuous efforts to identify the robber and to
locate Dixon once he had been identified.  App., infra, 25a.

   /11/ The district court also dismissed the 42 U.S.C. 1983 claim
against petitioner, on the ground that he did not act under color of
state law, as well as the 42 U.S.C. 1985 claim against petitioner, on
the ground that respondents had not pleaded the requisite class-based
animus.  App., infra, 26a.  In addition, the court dismissed the state
law tort claims against petitioner.  Ibid.  Finally, the court granted
the motion filed by the remaining defendants to remand the case to
state court.  Ibid.  Respondents did not appeal these aspects of the
district court's order.  Id. at 5a.

   /12/ The court of appeals found that petitioner's description of
the getaway car was ambiguous at best and, when construed in
respondents' favor, described "a two-tone red and silver car" (App.,
infra, 9a (emphasis in original)), while respondents owned a solid
maroon car.  The court also credited respondents' claim that discovery
would have shown that a local newspaper had reported the following day
that the FBI stated that no getaway car had been seen and that the St.
Paul police asked one of their neighbors about a red and silver car
with yellow license plates, whereas the Creightons' car had
white-and-blue plates.  Ibid.  Second, the court criticized petitioner
for not obtaining a search warrant the day before the robbery, since
he then knew that Vadaain Dixon had jumped his bond.  Id. at 10a.
Moreover, the court credited respondents' affidavits that Cheryl Dixon
had not resided with them since the summer of 1983.  Id. at 11a.  The
court also stated that petitioner should have been skeptical regarding
the truth of Vadaain and Cheryl Dixon's statements to her husband's
probation officer that she was living with respondents and using their
car.  Id. at 11a-12a.  Finally, the court stated that the information
known to petitioner suggested that Cheryl Dixon had been living at the
Creightons' house only up to November 1, not November 11.  Id. at 12a.

   /13/ Leon held that evidence seized under an invalid search warrant
should not be suppressed at trial because, on the facts of that case,
"the officers' reliance on the magistrate's determination of probable
cause was objectively reasonable." Slip op. 27.  As the Court
explained, the "application for a warrant clearly was supported by
much more than a 'bare bones' affidavit," which, in turn, "provided
evidence sufficient to create disagreement among thoughtful and
competent judges as to the existence of probable cause." Ibid.

   /14/ The Court's judgment in Malley also makes this clear.  In
remanding the case for further proceedings, the Court expressly held
that "whether (the officer's) conduct in this case was in fact
objectively reasonable * * * must be resolved on remand." Slip op. 9
n.8 (emphasis added).

   /15/ Several courts, including the Eighth Circuit, have followed
the approach first set forth in Dorman v. United States, 435 F.2d 385
(D.C. Cir. 1970) (en banc), "a leading federal case defining exigent
circumstances" (Welsh, 466 U.S. at 751), which identified several
factors (see App., infra, 14a-15a n.7, 24a n.3) to be considered in
making this determination.  See, e.g., United States v. Baldacchino,
762 F.2d 170, 176-177 (1st Cir. 1985);  United States v.
Martinez-Gonzalez, 686F.2d 98, 100-102 (2d Cir. 1982);  United States
v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir. 1978);  United States v.
Campbell, 581 F.2d 22, 26 (2d Cir. 1978);  United States v. Shye, 492
F.2d 886, 891-892 (6th Cir. 1974);  Salvador v. United States, 505
F.2d 1348, 1351-1352 (8th Cir. 1974);  Vance v. North Carolina, 432
F.2d 984, 990-991 (4th Cir. 1970).  On other occasions, courts have
cautioned against adopting a "'checklist-type (of) analysis'" (Llaguno
v. Mingey, 763 F.2d 1560, 1564 (7th Cir. 1985) (en banc)), but even
then the court have recognized that a bright-line rule is not
possible.  Ibid.  ("(t)he operative word in the Fourth Amendment is
'unreasonable';  so the question ought to be, were the police
unreasonable in not getting a warrant in the circumstances that
confronted them?").  Compare LaFave, "Seizures" Typology:  Classifying
Detentions of the Person to Resolve Warrant, Grounds, and Search
Issues, 17 U. Mich. J.L. Ref. 417, 454-458 (1984).  In still other
situations, the courts have looked to the facts of the case at hand to
determine whether a warrantless entry was "imperative" (McDonald v.
United States, 335 U.S. 451, 456 (1948)).  See, e.g., United States v.
Manfredi, 722 F.2d 519, 522 (9th Cir. 1983);  United States v.
Hultgren, 713 F.2d 79 (5th Cir. 1983);  United States v. Titus, 445
F.2d 577, 578-579 (2d Cir.), cert. denied, 404 U.S. 957 (1971).

   /16/ Although the court of appeals ruled that there was a factual
dispute on this issue (App., infra, at 7a-12a), that court's ruling in
this regard was in error.  Whether there is probable cause turns on
the facts reasonably believed by an officer at the time of the arrest,
even if those facts may turn out in part to be wrong.  See, e.g.,
Illinois v. Gates, 462 U.S. at 231-235, 245 n.14;  Franks v. Delaware,
438 U.S. 154, 165 (1978);  Hill v. California, 401 U.S. 797, 803-804
(1971);  1 W. LaFave, Search and Seizure Section 3.2, at 466 (1978).
Accordingly, the court of appeals' reliance on facts that were not
known to petitioner at the time of his entry, such as the newspaper
report the following day or the conversation between one of the local
police officers and respondent's neighbor (App., infra, 9a), were
immaterial, as the district court ruled (id. at 25a n.5).

   /17/ See also, e.g., LeSavage v. White, 755 F.2d 814, 821 (11th
Cir. 1985) ("(t)he question of qualified immunity under Harlow is one
of reasonableness -- would a reasonable person in (the defendant's)
shoes have known he was violating (the plaintiff's) constitutional
rights?");  Zook v. Brown, 748 F.2d 1161, 1165 (7th Cir. 1984)
(defendants were entitled to qualified immunity for disciplining of a
public officer for endorsing a local ambulance service since the
application of the First Amendment to the particular facts of the case
was unclear);  Evers v. County of Custer, 745 F.2d 1196, 1203 (9th
Cir. 1984) (individual defendants entitled to qualified immunity for
declaring that a certain road, claimed by a private party to be her
property, was public, because it was not clear that due process
required notice and a hearing before a declaration that a road is
public can issue);  Bailey v. Turner, 736 F.2d 963, 969-972 (4th Cir.
1984) (prison guard entitled to a jury instruction on qualified
immunity in connection with his use of mace on a prisoner because
there was no per se rule forbidding its use);  O'Hagan v. Soto, 725
F.2d 878, 879 (2d Cir. 1984) (police officer entitled to qualified
immunity for questioning a suspect in the absence of counsel because
it was not clearly established whether the suspect had a Sixth
Amendment right to counsel at the time of the questioning).

   /18/ As noted above, this question was presented in Whitley v.
Albers, slip op. 15, but the Court did not reach it.

   APPENDIX