Yesterday, Arthur Larkin from New York City sent me the transcript of oral argument in the DC v Wesby case so I could pass it along. Tip of the hat to Arthur. I'm going to send a link as the link will pass through the email systems better. Long story short, IMLA filed a brief in Wesby both at the petition stage and at the merits stage. It seems clear that the Court will side with the officers and hold that they were entitled to immunity. As Arthur noted in his email to me there are three justices who seem solidly with the officers and three who seem leaning toward the Plaintiffs. With three hard to predict (of those Thomas is one since he doesn't ask questions to telegraph his position) and Kennedy and Kagan the others. During the course of the argument, the Justices seemed bent on addressing whether partygoers' intent fell within the calculus of probable cause (and I suppose how a police officer might make that calculus). Strange to think that any of nine adults faced with the prospect of deciding whether there's probable cause to arrest a person for unlawful entry where the officers have these facts: 1. Several tips that a party in a vacant house is happening (one from a DC councilmember); 2. The house looks like a vacant house with scant furnishings (mattresses and a few chairs), filthy conditions, used condoms strewn around the house; 3. Partiers running or hiding; 4. Partiers having evasive and inconsistent answers about the source of their invitation; 5. Their host's absence 6. And more. True enough as some of the court seemed to believe if you were one of those who was innocently there, you'd not want to be arrested, but as Justice Kagan recognized, the court needs to view this from the officer's point of view. I'd like to think that as with many similar cases the oral argument doesn't fully allow faithful predictions of how a justice might vote. Indeed, we can look to many examples where we might have predicted a vote one way based on a question or statement at argument only to see the resulting vote come out different. Here, having faith that the members of the court will come to their collective senses when they write this up that they will recognize that probable cause to arrest is a different test from whether there is probable cause (or good reasons) to proceed to trial or sufficient evidence to convict. Maybe the Court will sidestep the whole probable cause argument (though I doubt it) and simply opine that the law was not settled when the officers made the arrest and therefor the officers should have had immunity. Let me add to this note a refrain I often repeat - if you have a case at the Supreme Court - consider getting SCT counsel before you file your petition and before you file a response even if just for advice. Mr. Wesby ultimately got SCT counsel, but probably too late. His attorneys were admonished by the Chief Justice for violating Rule 15. While the attack was directed at Supreme Court Counsel during argument, the problem arose at the petition stage where the attorneys for Wesby in their response to the petition effectively admitted to many facts that during argument before the court and in their brief at the merits stage they claimed were in dispute. DC on the other hand has an amazing stable of appellate lawyers and we're proud to have them as members of IMLA and you'll see from the transcript how well they handled the argument before the court. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/15-1485_2924.pdf Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 51 Monroe Street Suite 404 Rockville, Maryland 20850 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Conference October 14- October 18, 2017 - Niagara, Ontario, Canada (Passport required) To register, go to: http://imla.org/events/conferences#registration IMLA's Annual Seminar and Section 1983 Defense Conference - April 20- April 23, 2018 Washington, DC