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Applying the Fourth Amendment to Pranks:
On Tuesday, the Tenth Circuit handed down a very interesting decision applying the Fourth Amendmemt to a prank. The case is Fuerschbach v. Southwest Airlines, and was written by Judge Lucero (joined by McConnell and Brorby). From the introduction:
  Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the prank. She sued the officers and the City of Albuquerque under 42 U.S.C. 1983, alleging violations of her Fourth and Fourteenth Amendment rights. . . . We conclude that Fuerschbach's allegations are sufficient to survive the assertion of qualified immunity. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve.
  The case is interesting in part because Fourth Amendment "seizures" of persons are analyzed from the perspective of the person seized. The question is whether a reasonable person in that situation would have believed she wasn't free to go, not whether the officers believed that the individual was free to go. The difference is criticial in the case of a prank: the officers know it's all a joke but the person "seized" does not. A very interesting case.

  Hat tip: Decision of the Day.
Justin (mail):
I would have gone further... actual police officers who actually tell you that you are seized makes you seized. The officer's state of mind is irrelevant to the 4th amendment question itself.

As to the "qualified immunity" portion, qualified immunity only goes as to whether the officer's mistake was reasonable. Here, the officer did not make a mistake.

Or are people allowed to "not submit" to an arrest, and then defend their actions by saying they thought it was "just a prank" and thus they did not have to submit to a lawful authority?
3.3.2006 4:49pm
Some Guy (mail):
Oh my, "serious psychological injuries"? Well, perhaps not quite as "serious" as the foot-in-the-ass-up-to-the-ankle I would prescribe to this professional victim were it left up to me.
3.3.2006 4:54pm
ur_land:
Professional victim is a little much. She was arrested and handcuffed by the cops and then told is was a joke. It's not like she cut off her finger and put it in some chili.
3.3.2006 4:56pm
Brian G (mail) (www):
Let me add this. The decision was also based on the Delgado case, a New Mexico Supreme Court decision that allowed those who suffered intentional torts to sue outside of Workers' Compensation. Thhey failed to meet the second element, which requires a showing that the employer knew that injury would result. In this case, the employers considered it and thought she would be amused.
3.3.2006 5:02pm
Dan Palmer:
I don't know that what happened to her was sufficient to cause 'serious psychological injuries' but I would think that there is still valid cause for a law suit and the two officers should be fired.

There is far too much mistrust of law enforcement (which is not entirely unwarranted I'm afraid) in this county already and there should be no room for officers who think it is an acceptable 'joke' to handcuff an individual and 'pretend' to arrest them.

How is this woman ever supposed to trust the police, who theoretically are there to 'Protect and Serve' again?
3.3.2006 5:02pm
Redman:
The next time the police try to arrest me, I'll resist by claiming I'm convinced this is all a prank hatched by some nefarious friend.

Could I then be convicted of resisting arrest?

"Honestly judge, I thought it was a prank."
3.3.2006 5:02pm
Chris S.:
Yeah, they lost me at the point where she started crying in front of gathering co-workers and asked if it was a joke...

...and the officers responded by handcuffing her and asking her if she had any outstanding traffic tickets.
3.3.2006 5:08pm
Steve P. (mail):
While her supervisors are off the hook (horseplay jurisprudence), seems to me that the officers are fair game. After all, she was arrested by cops at her job, in front of many customers, and led away. According to the USCA it clears the hurdles required for seizure. She took it a lot harder than many people would have (constant crying at the time, diagnosed with PTSD), but I definitely don't see how she's a 'professional victim'.
3.3.2006 5:09pm
Dave:
This needs to be analyzed from the victim's perspective. Period. Even if there were no injuries, her coworkers acted unconstitutionally. By their own admission, they had no probable cause for any of this, and it was not reasonable.

But these sorts of things go wrong all the time. In the last few months, a paramedic killed his coworker by "jokingly" shocking her with a defribulator.

Personally, I think that getting arrested by my coworkers and friends (this isn't the sort of thing you'd do to someone you didn't know), I'd find that pretty traumatic.

Dave
3.3.2006 5:19pm
Been There, Done That:
The very fact that it was a prank meant the officers understood it would cause her distress.
3.3.2006 5:30pm
Greedy Clerk (mail):
Oh my, "serious psychological injuries"? Well, perhaps not quite as "serious" as the foot-in-the-ass-up-to-the-ankle I would prescribe to this professional victim were it left up to me.

I hope one day you are arrested in front of a bunch of people in public and led away in handcuffs. It hardly surprises me that this woman suffered psychological injuries, which are real injuries which can be far more debilitating than physical ones. If people like you were in charge, mental illness would probably still be treated as a devil's curse or something. You ought to be ashamed of yourself. Typical of a certain breed of right-wing commentator (e.g. PowerLine, Instapundit, Malkin, etc.) who are so willing to let others do their dirty work and then put them down when they get injured. . . . .

3.3.2006 5:52pm
Apodaca:
Why does this seem so familiar? Ah, yes: Zarcone v. Perry
3.3.2006 5:58pm
Mark H.:
Greedy Clerk, I'm with you all the way. People potentially have a variety of phobias, some fear heights, some are claustrophobic etc.

For me, I need to be in control of the situation at all times, I'm sure beyond a shadow of a doubt my mind and heart would be racing if I were handcuffed -- depending on how long it lasted, I can easily see the psychological injury aspect. I would most certainly not be amused in the least regardless of the duration of the prank.
3.3.2006 6:06pm
Houston Lawyer:
I enjoyed this prank in Days of Thunder. I agree that there should be no immunity here, but it's certainly a jury question on whether she gets any actual compensation.
3.3.2006 6:10pm
Jim Rhoads (mail):
GC:

I agree with your assessment of Some Guy's comments, but why the gratuitous hyperbolic inclusion of the PowerLine and Instapundit blogs in such company?

I cannot imagine John Hinderaker, his colleagues on PowerLine or Glen Reynolds (who after all is a law professor and, apparently a pretty good one) making that kind of knee jerk comment.

Sorry, I think that was a cheap shot.
3.3.2006 6:19pm
Wintermute (www):
Eggshell plaintiff rule in effect for pranks?
3.3.2006 6:36pm
Gene Vilensky (mail) (www):
GC:

I'm with Jim here. I was completely with you, GC, all the way until you started bashing Instapundit, et al. Why do that when you have a reasonable point that many would agree wtih otherwise?
3.3.2006 6:45pm
KeithK (mail):
Houtson Lawyer has it right. The cops certainly shouldn't have immunity here and a jury should decide whether the alleged psychological injuries merit compensation. If I were on the jury I would probably be relunctant to award damages because I'm relatively skeptical of this kind of claim as injury. But I can imagine facts that would warrant compensation.
3.3.2006 6:53pm
The NJ Annuitant (mail):
I don't see why a prank is worthy of legal protection. On the other hand, I would demand compelling proof of the injuries claimed. Otherwise, leave these parties as you have found them.
3.3.2006 7:29pm
Robert Racansky:
A conservative is a liberal who's been mugged. A libertarian is a conservative who's been arrested.

The next time the police try to arrest me, I'll resist by claiming I'm convinced this is all a prank hatched by some nefarious friend. Could I then be convicted of resisting arrest?


I don't know about other states, but in Colorado, yes.


Colorado Revised Statutes 18-8-103. Resisting arrest.

(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(a) Using or threatening to use physical force or violence against the peace officer or another; or

(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts "under color of his official authority" when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.


Even if somebody like Valerie Serna had resisted her kidnappers, she could have been charged with a crime.
3.3.2006 7:37pm
NYU 1L:
I haven't taken Con Law, so I don't know that much about the 4th amendment argument. But I'm amazed that a trial court would throw out the intentional infliction of emotional distress and assault and battery tort claims. That part of the case seems ridiculously easy.
3.3.2006 7:45pm
JJ Stokers (mail) (www):
Unbelievable that police officers would agree to this. I do like the prank, it is funny. But they shouldnt have used real police officers and they shouldnt have gone as far as they did. Injury claims are suspect ...

Make The News Better
3.3.2006 8:19pm
Dylanfa (mail) (www):
RR:

A peace officer acts "under color of his official authority" when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.
It's more than just arguable that no officer could have decided "in good faith" that an arrest should be made by him because some people asked him to help them with a prank.
3.3.2006 8:20pm
Jake:

It's more than just arguable that no officer could have decided "in good faith" that an arrest should be made by him because some people asked him to help them with a prank.


Heck, it's even arguable whether they were exercising judgment at all. Perhaps an analogy could be drawn to the corporate cases suggesting you don't get business judgment rule protection if you don't even try to exercise judgment.

The whole thing reads like a Bad Idea Jeans commercial.
3.3.2006 8:25pm
Matt22191 (mail):
I'm almost certainly wrong about this, but my gut reaction to this opinion is that the court seriously overthought it. To my knowledge, qualified immunity only attaches to actions taken within the scope of a public officer's official duties. If I were the district judge I'd have been very strongly inclined to reject the officers' qualified immunity defense simply because arresting people in furtherance of private parties' little jokes pretty clearly isn't what police get paid to do. I guess the courts must take a much broader view of the scope of a police officer's official duties than do I.

By the way, did anyone else notice footnote 5? "Referring to Fuerschbach's reaction as 'histrionic,' 'overwrought,' and 'hysterical' does not aid the officers in that regard, but does constitute a lack of decorum by counsel." That's the second time in two weeks or so that I've seen a Tenth Circuit opinion slam a lawyer (not that the lawyers didn't deserve it). Is that a fluke? Is the Tenth especially hard on counsel? Or does this happen more often than I realize in other circuits?
3.3.2006 8:45pm
Dave Hardy (mail) (www):
A conservative is a liberal who's been mugged. A libertarian is a conservative who's been arrested.

SPLENDID!

Reminds me of the "prank" that the US Park Service attorneys told me the Capital Area motorcyle division (which they commented often seemed like outlaw bikers with arrest powers) played.

They were sitting around their clubhouse (yes, they had one) when one of them decided to drop a flash-bang grenade into another's lap. After pulling the pin.

A flash-bang is like a half-pound M-80 firecracker. We're talking an incredible detonation with lots of concussion and thermal release. The victim wound up in the hospital. And lucky to recover -- I've heard of a person who lost a hand to one of them. The one who dropped it said "but I heard they were nonlethal."
3.3.2006 9:12pm
Smithy (mail) (www):
I just read that Bill O'Reilly had some callers arrested for repeatedly calling into his show and using obscentities. Does that qualify as a prank? It seems to me that what they did there is illegal.
3.3.2006 11:31pm
Visitor Again:
My experience in criminal law, 40 years' worth, tells me normally law-abiding citizens find arrest a traumatic experience. Some become hysterical from fear and worry. And one of the first thingw normally law-abiding people who are told they are under arrest at their homes or offices do is ask the arresting officers if they have to wear handcuffs in front of their neighbors or collegues, for fear of public humiliation and loss of their reputation.

Why do so many find it hard to recognize that this woman suffered real damages from this outragoous and ridiculous prank? Some of the comments above indicate an inability to put one's self into the woman's shoes. These commenters are reacting as if the joke was for their benefit, as if they were part of the audience for the prank. What a hoot; no harm done because she had no physical injuries and her liberty was taken away only momentarily and in jest. One hopes peremptory challenges will rid the jury of such people before damages are decided.

Why on earth would anyone think this funny? Is it now acceptable to laugh at someone else's shock and discomfort? What if she'd had a heart attack or a stroke? I've read that people have even committed suicide rather than face arrest, even on fairly minor charges.

The immunity doctrine didn't even warrant consideration in the case; the police officers weren't acting in their official authority, although they purported to and led the victim to think they were. The police officrs and the supervisors who arranged the prank should also be fired or at least disciplined for gross lack of judgment.
3.4.2006 12:07am
Lev:
The problem was that they should have been stripper "police officers" from The Village People or Chippendales.

I wonder if these SW Airlines supervisors also like to walk around airports joking about the bombs they have planted.
3.4.2006 12:45am
Yankee_Mark:
Indeed the key here is the ability to see things from the perspective of the prank's victim. This sounds like the same mentality that opines that nobody should fear being searched, questioned, arrested, etc. if they are innocent or "unless they have something to hide."

Being in the crosshairs of the power of the State should be scary enough to anyone in itself ... and that's before considering that innocent people actually do get arrested &convicted. The rarity of this is cold comfort to those who are unfortunate enough to be on the receiving end.
3.4.2006 12:59am
carpundit (www):
Anyone know what happened to the officers? I believe they should be dismissed from the department for shockingly poor judgment.


As for the Qualified Immunity, it should fail here, because the standard for overcoming it was met: Did the officers' actions violate clearly-established constitutional rights of which a reasonable officer would have known? Yes.

Fourth Amendment law is clear: seizure is viewed from the perspective of a reasonable person in the arrestee's position. No other officer could think otherwise.

"Qualified immunity protects all but the plainly incompetent, or those who knowingly violate the law." in this case, the former without question.
3.4.2006 8:22pm
Mike G in Corvallis (mail):
Hmmmm ... This happened in Albuquerque's Sunport airport terminal, a location where, post 9/11, I'd expect some degree of federal jurisdiction to apply. (And I might be wrong; IANAL.)

Two armed men committed what was arguably assault, battery, and kidnapping on Marcie Fuerschbach, in an air terminal. Now, ordinarily I'd view with contempt an attempt to federalize an ordinary case by stretching federal statutes to apply in novel ways, but in this case ... screw the bastards 'til their ears bleed. (Yes, I've been falsely arrested. How could you tell?) Is there any way to get the Feds involved? Would any federal statutes apply here?

And her supervisors admittedly conspired among themselves and with the cops to have them commit these unlawful acts. Helloooo! RICO? Anybody home?
3.5.2006 3:03am
Lev:
Time has passed, but every once in a while a local police department will pull over drivers to give them "attaboys" or something for safe driving.

Any idea what happened in those cases?
3.6.2006 12:10am