W.D. Va. Notes Split Re Whether ID Retention Is Fourth Amendment Violation

Per Rutledge v. Town of Chatham, Slip Copy, 2010 WL 4791840 (W.D. Va. Nov. 18, 2010):

Although no Fourth Amendment violation appears to have occurred here, even if a violation did in fact happen, Officer Roach's actions hardly constitute a violation of clearly established rights. Cleveland, 372 F.3d at 301 (for second prong of qualified immunity inquiry). The proper inquiry for determining whether a right is clearly established “is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden, 446 F.3d at 492 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Indeed, the unclear nature of the extent of the right on facts such as these is demonstrated by the circuit split on the issue of whether retaining a person's identification is a per se Fourth Amendment violation. Compare Weaver, 282 F.3d at 312 (no per se seizure in the Fourth Circuit) with Lopez, 443 F.3d at 1285 (per se seizure in the Tenth Circuit). If the answer is not clear to the various federal appellate courts, then what better position would Officer Roach be in to know the answer? The Fourth Circuit has commented that “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Henry, 501 F.3d at 377 (internal citing references and quotation marks omitted). Officer Roach's actions could not be characterized as either. Thus, even if there was a Fourth Amendment violation, Officer Roach would be entitled to qualified immunity on the facts offered by the Plaintiff.