The line between the lawful and the unlawful is often vague.
Harlow's “clearly established” standard demands that a bright line be crossed. The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances. In 1983 the relevant case law was still developing; courts, including the Supreme Court of the United States, talked about flexibility and special law enforcement interests that might apply here. The key issue in this case had not been clearly settled: whether the exigent circumstances surrounding the questioning of the only eyewitness to a fresh homicide where the perpetrator was supposedly still at large were within the “middle ground” between
Terry and
Dunaway so that the officers investigating the murder could properly detain Barts awhile.
See Lippert, 59 Ill.Dec. at 824, 432 N.E.2d at 610. To be sure,
Dunaway had been decided and would apply where old crimes were being investigated and multiple police officers took a lone suspect—who had in no way initiated the contact with law enforcement officials—from a private home to police headquarters. But this was not such a case. Other cases indicate that
Dunaway has limits, especially in more exigent situations.
See, e.g., Vena, 77 Ill.Dec. at 582, 460 N.E.2d 886. When Scarlett Barts rode to the police station with other family members to assist in finding the assailant of her father,
Dunaway 's limits had not been defined in this circuit. The bright line of “clearly established law” remained to be staked out by a process of inclusion and exclusion in individual cases.