Revitalizing Fourth Amendment Protections: A True Totality of the Circumstances Test in § 1983 Probable Cause Determinations

48 Pages Posted: 19 Mar 2020

See all articles by Ryan Sullivan

Ryan Sullivan

University of Nebraska College of Law

Date Written: February 12, 2020


The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police brutality and false arrest claims rise, so too will the prevalence of this issue.

The Article examines rulings from all jurisdictions having addressed the topic, and highlights the matter of Thomas v. City of Galveston involving a citizen who was arrested when attempting to stop two police officers from stealing his generator in the aftermath of a hurricane. In a subsequent civil suit for false arrest, the officers defended the claim by asserting they had probable cause for the arrest, despite knowing Mr. Thomas was merely defending his property from their own mischievous conduct. Finding for Mr. Thomas, the court concluded that under certain circumstances, a police officer's awareness of the facts supporting an affirmative defense can negate probable cause. This view, however, is not universal — several other courts have reached the opposite conclusion: that an affirmative defense bears no relevance in probable cause analysis. An examination of rulings nationally reveals common themes on this issue as courts struggle to reconcile the incorporation of an affirmative defense with existing principles governing probable cause analysis.

Consideration of an available affirmative defense when analyzing probable cause helps to ensure accountability of police officers who unlawfully arrest a citizen they know, or reasonably should know, committed no crime. Scenarios such as those in Thomas v. City of Galveston are not as unique as one might assume. The Article provides numerous examples from across the country of courts grappling with this issue.

The Article brings some analytical coherence to the complicated legal and factual situations that may lead courts to abandon certain traditional rules governing probable cause in favor of more leniency for plaintiffs seeking a remedy for police misconduct. The Article concludes with a recommendation that courts adopt and apply a general rule that facts supporting an affirmative defense shall be considered among the totality of facts and circumstances available to the arresting officer, and that such exculpatory facts shall be evaluated with the same level of scrutiny afforded inculpatory facts.

Keywords: Fourth, Amendment, Fourth Amendment, Qualified Immunity, Self-Defense, Self Defense, Self, Defense, Affirmative Defense, Affirmative, Defense, Probable Cause, Probable, Cause, Galveston, Totality of the Circumstances, Police Misconduct, Police

Suggested Citation

Sullivan, Ryan, Revitalizing Fourth Amendment Protections: A True Totality of the Circumstances Test in § 1983 Probable Cause Determinations (February 12, 2020). Iowa Law Review, Vol. 105, No. 687, 2020, Available at SSRN:

Ryan Sullivan (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402.472.3271 (Phone)

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