Peter Stirba, for the officers, is first up. He promptly gets in trouble by asserting that the law was clearly established in favor of the validity of the entry. It isn't, and it doesn't need to be for him to win. He only needs to convince the Court that the law was not clearly established the other way. Justices Souter and Ginsburg pummel him for a long time on the underlying Fourth Amendment question and why the officers didn't just get a warrant.

Finally on page 16, Chief Justice Roberts throws Stirba a life preserver. "[G]iven the posture of the ultimate issue in this case on the underlying constitutional question, you do not have to prove that you are right; isn't that correct? You have to establish that the contrary principle is not clearly established?" Right. Justice Ginsburg asks him about whether the consent once removed theory was argued in the lower courts. Stirba goes off talking about what was decided in the criminal appeal.

DSG Malcolm Stewart argues for amicus Uncle Sam. He corrects the prior error, noting that consent once removed was argued from the beginning of the civil case. He also says the Court should abandon the prior doctrine of deciding the underlying question first and the immunity question second. This is the Saucier rule,* an issue the Court raised on its own when it accepted this case. Justices Souter and Ginsburg go back to probable cause and why didn't they just get a warrant.

Justice Stevens returns to the order of decision issue. Justice Breyer wants to drop the Saucier rule. "And if it's easier to deal with the qualified immunity, deal with it and forget the rest of it." (p. 23) The Chief thinks that the Saucier rule amounts to issuing advisory opinions, a big no-no from way back.

Justice Breyer thinks the consent once removed theory is tripe, whether the invitee is an informant or an undercover officer. (p. 26) Justice Kennedy asks a question about it. Justice Souter thinks the agent and officer cases are distinguishable. Justice Kennedy is skeptical. Time up.

Theodore Metzler is up for the plaintiff. He leads off with the underlying Fourth Amendment question. Justice Kennedy asks about the undercover officer situation. He could disclose he was an officer and make the arrest himself. Why can't he bring in backup? Justice Alito: "You are advocating a rule that is going to get police officers killed, aren't they -- aren't you?" Justice Breyer says the merits are difficult. (pp. 31-32) Chief Justice Roberts agrees that the underlying question is difficult but the "clearly established" question is not.

The theory behind the Saucier rule is that if these cases are all decided on the ground that the law is not clearly established in plaintiff's favor without answering the underlying question, there is no way for the law to become clearly established. Chief Justice Roberts asks if the question could be decided in another type of case where qualified immunity does not apply, a criminal appeal or a suit against the municipality. Justice Kennedy (author of Saucier) says the police need guidance. Chief Justice Roberts reiterates there are other ways to reach the underlying question.

Justice Alito asks what if the officers read the Seventh Circuit opinion upholding such entries, "one of these opinions is written by Judge Posner, and he's the smartest man in the world...." (p. 37) Metzler responds that CA7 opinions aren't binding in CA10, where this case arose. He and Chief Justice Roberts go on for a few pages about circuit splits.

On page 42, Justice Ginsburg is back to warrants. Justice Alito is back to the undercover officer calling for backup to arrest. Metzler maintains that entry of additional officers to assist is unconstitutional even if the officer inside is in danger, as an exigency of the police's own making. Justice Kennedy is incredulous. "And you say as a practical matter we have to say that under the Constitution we can endanger -- we must endanger the officer?" (p. 44)

Justice Souter reiterates an officer/informant distinction theory. (p. 46) Metzler resists on the ground that consent really can't depend on a fact unknown to the consenter. Justice Souter bases it on privacy interests rather than consent as such. He makes an analogy to the rule that the knowledge of one police officer is imputed to the others in other contexts. It's a pretty weak analogy. Plaintiff's counsel isn't buying it, even though it's a life preserver tossed to him, and there is no indication that any of the other justices are buying it. Eventually Metzler says, "You certainly could adopt that rule, and that would be a -- an additional reason for police to enter beyond what has been thus far established by this Court." (p. 49)

There is some discussion about whether the confidential informant could assist in making the arrest. I'm pretty sure cops don't want that, and Justice Ginsburg doesn't think so, either.

Justice Ginsburg asks about a possible Fourth Amendment exception to the Saucier rule, given that these questions come up all the time in suppression motions anyway. Metzler closes by saying the underlying question is straightforward "and no reasonable officer could have believed otherwise." Given that there are federal court of appeals judges who believe otherwise, I don't think that's a winner.

Stirba on rebuttal reiterates that the officer/informant distinction is not meaningful. The undercover officer is not going to announce his identity and then call for backup. Other circuits had rejected the distinction. No questions from the bench.

The case looks like a win for the officers on qualified immunity, as I thought before the argument. How the Court will decide the underlying Fourth Amendment question and whether it will decide that question at all are toss-ups.

* CJLF filed an amicus brief in Saucier v. Katz, but not on this issue.