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:
Hat tip: Decision of the Day.
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.
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?
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?
Could I then be convicted of resisting arrest?
"Honestly judge, I thought it was a prank."
...and the officers responded by handcuffing her and asking her if she had any outstanding traffic tickets.
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
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. . . . .
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.
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.
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?
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.
Make The News Better
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.
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?
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."
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.
I wonder if these SW Airlines supervisors also like to walk around airports joking about the bombs they have planted.
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.
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.
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?
Any idea what happened in those cases?