Protestors Have Fourth Amendment Rights, Too: In Graves v. City of Coeur D'Alene, the Ninth Circuit Clouds Clearly Established Law Governing Searches

Authors

Holly Vance

Abstract

In Graves v. City of Coeur d'Alene, the United States Court of Appeals for the Ninth Circuit concluded that a police officer should not have arrested a protestor at an Aryan Nations parade when the protestor refused to allow the officer to search his backpack. The court held that the arrest was illegal because the officer had no probable cause to believe the protestor was carrying a weapon. However, the court also held that the arresting officer was entitled to qualified immunity and thus not liable for his violation of the protestor's rights. Qualified immunity is a privilege that shields a public official from liability in situations where the underlying substantive law is not clearly established. In Graves, the court held that under the circumstances surrounding the Aryan Nations parade, the standard for probable cause to search the protestor's backpack was not clearly established. This Note argues that the police officer in Graves searched the protestor without sufficient individualized suspicion. Instead, as a basis for the search the officer relied on a broad profile of otherwise ordinary conduct that would include a number of innocent individuals. Because the law was clearly established at the time of the search that police officers must have some individualized suspicion of a person to perform a search, and that individualized suspicion cannot be based on ordinary conduct that would include a number of innocent people, the defendant police officer was not entitled to qualified immunity.

First Page

753

Recommended Citation

Holly Vance, Notes and Comments, Protestors Have Fourth Amendment Rights, Too: In Graves v. City of Coeur D'Alene, the Ninth Circuit Clouds Clearly Established Law Governing Searches, 79 Wash. L. Rev. 753 (2004).
Available at: https://digitalcommons.law.uw.edu/wlr/vol79/iss2/7