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Unintentional Seizures under the Fourth Amendment:
Last week, the Ninth Circuit handed down an amended opinion in United States v. Al Nasser that raises a fascinating and rather difficult Fourth Amendment question: Is a person "seized" for Fourth Amendment purposes if he reasonably thinks an officer is trying to stop him, and he stops in response, but the officer is actually trying to stop someone else? In the case, officers had pulled over some other cars for violations, and had their lights on, and the driver of a car apparently thought he was being pulled over, too, even though he wasn't. Here's the question: Assuming, for the sake of argument, that the driver reasonably thought that he was being stopped, and that he stopped as a result of it, was the stop a seizure if no officer actually intended to stop that car?

  The Ninth Circuit concludes, in an opinion by Judge Kleinfeld (joined by Trott and R. Smith), that no seizure occurs in such a situation. I tend to think that is correct, under Brower v. City of Inyo, but it's actually a pretty difficult question. Unfortunately, I don't have time to blog all the complexities, but I did want to flag the opinion for readers interested in such a fun Fourth Amendment issue.

  Thanks to Lee Rudofsky for the tip.

  UPDATE: Some commenters think that the decision is wrong under Brendlin, but remember that in Brendlin the officer knew he was bringing that car and all of its contents to a stop and did bring the car to a stop. Also, note that if the result in this case is wrong, then an officer presumably violates the Fourth Amendment when he turns on his siren in traffic and it's not clear who he is stopping. If anyone stops out of reasonable confusion over whether he is the one the officer is trying to pull over, even if only temporarily, then the Fourth Amendment rights of the confused driver and all of his passengers are violated based on the misunderstanding. That seems like an odd result to me -- not impossible, but odd.
Harvey Mosley (mail):
IANAL, and I don't remember the name of the case, but I vaguely recall a case where SCOTUS said the intent of the officer doesn't matter in regards to searches (maybe something having to do with the plain view doctrine?)

If I am remembering correctly, why would that not apply to seizures?
2.11.2009 10:01pm
Harvey Mosley (mail):
In regard to my previous comment, the case I can't properly recall may have been about a traffic stop, and the standard the court applied was not the intent of the officer, but whether a reasonable person would feel free to leave.

Sorry to be so vague in both posts, but I'm not sure how to find those cases, if they exist.
2.11.2009 10:07pm
George Weiss (mail) (www):
harvey-
for a 4th violation-you need both a search or seizure AND that search or seizure to be "unreasonable" under the various doctrines

true that the reasonableness for a 4th amendment standard is objective-it doesn't matter what the officer thought

but the question is whether there was even a seizure in the first place becuase he was never ordered to stop.
2.11.2009 10:08pm
Prosecutorial Indiscretion:
Lee Rudofsky is a great American.
2.11.2009 10:09pm
tbaugh (mail):
I believe under Brower a seizure under the Fourth Amendment is the intentional acquisition of physical control (if an officer carelessly ran a red light and struck a pedestrian, causing injury, there might be a tort, but not a constitutional tort for an "unreasonable seizure").
2.11.2009 10:14pm
Harvey Mosley (mail):
George, thank you for the explanation.
2.11.2009 10:20pm
rs:
So, if the police is pointing a gun/taser/whatever toward my general direction &shouting "freeze", but it turns out that they are shouting at somebody behind me, it's not a seizure?
2.11.2009 10:37pm
Mike& (mail):
So the officer's state of mind doesn't matter.... when he acts in bad faith in stopping someone, and thus some evidence might be suppressed. "Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis." Whren v. United States.

It does matter when the officer does not intent to stop someone, but when evidence might be suppressed.

Makes perfect sense.

Sadly, actually, it does - if you start from the premise that evidence should not be excluded, and that Fourth Amendment violations should not be found.

Incidentally, United States v. Al Nasser only cited Whren once. The discussion of Whren is superficial. It has to be.

Actually, this is a more challenging issue. I still think the panel got it wrong.

1. Would a reasonable person have felt free to leave? I think we all agree the answer is, No.

2. Is the subjective intent of an officer relevant to a probable cause inquiry? No.

3. Can a person be seized of the police officer did not intend to seize the person? See 1 &2.

But, wait, the panel wants to give us:
4. The officer's intent is relevant, i.e., if he wanted to seize the plaintiff. Fine. Let's look at intent.

We had a case where the officer said, on cross-examination, "Heck, no the defendant wasn't free to leave - at least in my mind."

Does anyone think that the same panel would hold that where an officer intends to seize someone, there is a seizure? I'm betting not. Instead, the panel would say, "Intent is irrelevant. The issue is whether a reasonable person would have felt free to leave."

The panel says, "A person is seized when he is 'meant to be stopped by [a particular law enforcement action] . . . and [is] so stopped.'" Yet that brings the officer's subjective intent into question. I thought that was irrelevant?

Again, I think it's noteworthy that the panel glosses over Whren and a long line of cases dealing with subjective intent.

It seems pretty clear that the panel wanted to reach a pre-ordained result.

Also, if this has been a liberal panel, we'd hear about Reinhardt, or whatever. So I'll point out that all three judges here were conservative appointees. Smith (George W. Bush); Kleinfeld (George H.W. Bush); Trott (Reagan).
2.11.2009 10:40pm
David Schwartz (mail):
rs: Yep. The police must intend to specifically seize you. That the circumstances are such that you got seized doesn't matter.

The classic example would be if the police pull over a car that you are a passenger in. If the driver pulls off onto the side of the highway, such that you cannot safely exit the vehicle, you are effectively trapped until such time as arrangements can be made to get you out of there. But you have not been seized, as your predicament is due to circumstance, not police intent.
2.11.2009 10:42pm
Barristers Handshake (mail):
We finally get a case where the subjective prong matters, but it's a seizure not a search. Foiled again.
2.11.2009 10:48pm
Laura S.:
This opens a big can of worms. Whereas once upon a time suspects suddenly started dropping their bags of dope, now people are going to suddenly mistakenly think they were seized when the cop spots some evidence.

Judge: so what was the cause in stopping Mr. Jenkins

Officer: no,no I was trying to stop some else, but Jenkins stopped. It was then that I noticed...
2.11.2009 11:31pm
David M. Nieporent (www):
The classic example would be if the police pull over a car that you are a passenger in. If the driver pulls off onto the side of the highway, such that you cannot safely exit the vehicle, you are effectively trapped until such time as arrangements can be made to get you out of there. But you have not been seized, as your predicament is due to circumstance, not police intent.
Except that Brendlin says that this is wrong. A passenger is seized when the car in which he is riding is pulled over.
2.11.2009 11:39pm
Bruce:
Interesting. I have to think one reason this issue is so hard is that it rarely happens.
2.11.2009 11:41pm
Michael Alexander:
I think people are confusing a 4th amendment seizure with custody for the purposes of the 5th amendment or with the meaning of a pretextual stop.

5th amendment custody arrises depending on whether a reasonable person would feel free to leave - the language people have been quoting. This is not the standard for a 4th amendment seizure.

A 4th amendment seizure is a much lower standard (if it was not, then any time an officer conduct a seizure - a traffic stop, an investigatory stop, etc. - it would implicate the 5th amendment and require Miranda, which is not the case).

The buzz language I often use is "whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person." Terry v. Ohio, 392 U.S. 1, 16 (1968). That language, and other phrasing, all suggest a deliberate act by the police.

Mike&, I thought that Whren dealt with pretextual stops. I didn't think it had much to say about what constitutes a fourth amendment seizure.

So, if it requires some deliberate act, than a fourth amendment seizure cannot be accidentally created, and it sounds like the opinion is correct.
2.11.2009 11:53pm
Fub:
Mike&wrote at 2.11.2009 10:40pm:
We had a case where the officer said, on cross-examination, "Heck, no the defendant wasn't free to leave - at least in my mind."

Does anyone think that the same panel would hold that where an officer intends to seize someone, there is a seizure? I'm betting not. Instead, the panel would say, "Intent is irrelevant. The issue is whether a reasonable person would have felt free to leave."


Beneath this mound lies Reasonable Joe,
Fallen from a bullet's blow.
What has made his loved ones grieve?
He thought that he was free to leave.

If he stayed, the constable attested,
For loitering he'd have been arrested.
Law's consummate logic the judge unmasked,
"Before he left, he should have asked."
2.11.2009 11:54pm
Anon21:
Michael Alexander:
5th amendment custody arrises depending on whether a reasonable person would feel free to leave - the language people have been quoting. This is not the standard for a 4th amendment seizure.

Well, that's just wrong. See here, for example.
2.12.2009 12:03am
gasman (mail):
If this is not a seizure, then what defense does a reasonable person have against being inadvertently seized? It would seem that if in doubt (and one can always have some doubt) don't stop for the police unless they somehow make it unequivocal. Only problem is, that the officer would then be pretty pissed, and the interaction has escalated.
2.12.2009 12:52am
David Schwartz (mail):
Except that Brendlin says that this is wrong. A passenger is seized when the car in which he is riding is pulled over.
I agree. The court is wrong here. This case is indistinguishable from Brendlin. In both cases, the cops were trying to seize A, and wound up seizing B as well despite not trying to. If Brendlin is a seizure, then so is this.
2.12.2009 1:09am
David Schwartz (mail):
Or, to put it another way, if the cops intentionally cast a net, they have seized whatever it catches.
2.12.2009 1:11am
johnarnold:
david schwartz,

In Brendlin, the officers meant to seize the car and knew they would be seizing everything in it. Here, you are saying that the officers should pay the price for a foolish person who stopped anyways. I don't like the cases that transfer ignorance into some type of right - and this case avoids that.

For example, if the police are in hot pursuit of a purse snatcher and yell, "Stop! Thief!" - and Bernie Madoff has been walking on the sidewalk too and he puts up his hands, do you really think that the police have seized Bernie Madoff?
2.12.2009 1:29am
mike^ (mail):
Interesting discussion.

Michael alexander: I know the 5A and 4A standards are different. Did I mistate something?

Whren' entire rationale was based on officer's subject intent. Just ctrl f state of mind and intent to see what I mean.
2.12.2009 1:38am
Oren:

For example, if the police are in hot pursuit of a purse snatcher and yell, "Stop! Thief!" - and Bernie Madoff has been walking on the sidewalk too and he puts up his hands, do you really think that the police have seized Bernie Madoff?

If Mr Madoff reasonably concluded he was not free to leave, which seems true in your hypothetical, then he was seized. Of course, in real life, the officer dismisses him promptly and nothing is made of it.

Interestingly, I think we can avoid coining new law in this case by simply stating that there was objective reason to seize Nasser anyway.
2.12.2009 1:43am
David M. Nieporent (www):
I agree.
You agree with me when I was pointing out that you were misstating the law?
This case is indistinguishable from Brendlin.
Of course it's distinguishable from Brendlin. In Brendlin, the police stopped the person. In this case, they didn't.
In both cases, the cops were trying to seize A, and wound up seizing B as well despite not trying to. If Brendlin is a seizure, then so is this.
In Brendlin, they certainly were "trying to." Don't confuse intent and motive. In Brendlin, they may have been motivated by a desire to stop the driver, but they intended to stop the passenger. Here, they didn't intend to stop him at all. In fact, they didn't stop him; he just mistakenly thought they did.

As Orin says, Brower is directly on point.
2.12.2009 1:48am
Wilpert Percival Gobsmacked (mail):
So in California everyone obeying traffic laws is being seized?
Vehicle Code section 21806. Upon the immediate approach of an authorized emergency vehicle which is sounding a siren and which has at least one lighted lamp exhibiting red light that is visible . . . . to the front of the vehicle, the surrounding traffic shall, except as otherwise directed by a traffic officer, do the following:

(a) (1) Except as required under paragraph (2), the driver of every other vehicle shall yield the right-of-way and shall immediately drive to the right-hand edge or curb of the highway, clear of any intersection, and thereupon shall stop and remain stopped until the authorized emergency vehicle has passed.
Doesn't seem fair.
2.12.2009 2:49am
whit:

true that the reasonableness for a 4th amendment standard is objective-it doesn't matter what the officer thought


correct. i argued exactly that point in regards to terry frisks in another thread.



Except that Brendlin says that this is wrong. A passenger is seized when the car in which he is riding is pulled over.


this is correct. the issue is that it is still a REASONABLE seizure.


5th amendment custody arrises depending on whether a reasonable person would feel free to leave


no no no no no.

custody/5th amendment trigger/miranda is only required when a person is seized and that seizure rises to the level of a formal arrest. we have been over this.

in any # of seizures, for instance, people (reasonable) would not feel reasonable to leave, but it does NOT require miranda before questioning as long as the seizure does not rise to the level of a formal arrest (time of detention, force used, bla bla bla).

i probably make about 10 times as many seizures as i do arrests (for the purpose of 5th - a "custodial arrest".).
2.12.2009 3:32am
David Schwartz (mail):
In Brendlin, they certainly were "trying to." Don't confuse intent and motive. In Brendlin, they may have been motivated by a desire to stop the driver, but they intended to stop the passenger. Here, they didn't intend to stop him at all. In fact, they didn't stop him; he just mistakenly thought they did.
In Brendlin, when they made the decision to stop the car, they did not even necessarily know that there was a passenger in there. They were only trying to stop the driver. Their net caught the passenger quite unintentionally.

Brendlin's holding rests solely on the means being "intentionally applied" and a reasonable person not feeling free to leave. Brendlin is on all fours with this case.

I both cases, the police intended to seize someone. In both cases, someone not the target of the police and who the police did not intend to stop wound up getting stopped anyway. In both cases, the person did not reasonably feel free to leave.

In Brendlin, the police may not have even known there was a passenger in the car until after they pulled the passenger over. If you can seize someone without even knowing they exist, Brendlin stands for the proposition that accidental seizures are still seizures so long as the seizure is the reasonable result of actions intended to cause a seizure.
2.12.2009 3:40am
David Schwartz (mail):
Some commenters think that the decision is wrong under Brendlin, but remember that in Brendlin the officer knew he was bringing that car and all of its contents to a stop and did bring the car to a stop.
And in this case, the officer knew that he was bringing to a stop anyone who believed he was asking them to stop. Just as in Brendlin, in this case, the officer did not specifically intend to stop this person.

Also, note that if the result in this case is wrong, then an officer presumably violates the Fourth Amendment when he turns on his siren in traffic and it's not clear who he is stopping. If anyone stops out of reasonable confusion over whether he is the one the officer is trying to pull over, even if only temporarily, then the Fourth Amendment rights of the confused driver and all of his passengers are violated based on the misunderstanding. That seems like an odd result to me -- not impossible, but odd.
This is distinguishable because in this case, the officer doesn't intend to stop anyone. Brendlin stands for the proposition that if you cast a net to catch something, you are responsible for what you catch.
2.12.2009 3:49am
David M. Nieporent (www):
I both cases, the police intended to seize someone. In both cases, someone not the target of the police and who the police did not intend to stop wound up getting stopped anyway. In both cases, the person did not reasonably feel free to leave.
Actually, no. In this case, the police did not intend to seize anyone at the time that Al Nasser stopped.
2.12.2009 3:51am
Avatar (mail):
The case in question's just got weird facts that make it look odd.

The coyote stops because he sees a lot of flashing police lights, an officer ambles over to see what's up, he sees the illegals, he proceeds to arrest. Nothing unusual there. It would have been an entirely different kettle of fish if the cop had pulled the coyote out of the car and proceeded to search the trunk, or if the coyote had been driving along and the police car had come up behind him with lights on and just "happened" to stop because he pulled over. Or if there had been a roadblock and not just a bunch of cops on the side of the road...
2.12.2009 4:45am
David Schwartz (mail):
Actually, no. In this case, the police did not intend to seize anyone at the time that Al Nasser stopped.
The police were in the place they were acting the way they were because they were in the process of seizing someone. They were there seizing someone else, the seizure was, at that time, ongoing.

If a police car pulls up behind you and turns on his sirens, when has he stopped seizing you? When you slow down? When you pull over? When he gets out of the car? He is in the process of seizing you the whole time, and in fact you can't necessarily be sure he has intended to seize you until at least he pulls in behind you.

An intentional seizure was in progress in this case, and it caught someone else in its net.

I defy you to coherently explain when the intent to seize someone ends while you are holding someone you have seized.
2.12.2009 6:56am
David Schwartz (mail):
Brendlin and Brower v. Inyo County stand for the same principle -- if you effect an intentional seizure, you have seized whatever you have caught, so long as it does not reasonably feel free to leave. This case was decided incorrectly, and the decision directly conflicts with Brendlin.
2.12.2009 7:06am
David M. Nieporent (www):
The problem is that you keep misrepresenting Brendlin, which doesn't say anything like what you're saying. It doesn't say anything at all about casting nets. In fact, the exact opposite: it refers to a situation with a narrowly targeted stop. It's true that the officer may not know - or care about - the passengers' identities, but he nevertheless intends to stop them, whoever they are.

You simply can't generalize from that to completely unllke situations -- especially when there's another case directly on point. Lower courts are not permitted to assume that the Supreme Court overruled itself sub silentio. Brower directly forecloses your argument. You have to be trying to stop the person. In this case, the officer intended for nobody at all to stop, let alone the guy who did.
2.12.2009 9:09am
David Schwartz (mail):
The problem is that you keep misrepresenting Brendlin, which doesn't say anything like what you're saying. It doesn't say anything at all about casting nets. In fact, the exact opposite: it refers to a situation with a narrowly targeted stop. It's true that the officer may not know - or care about - the passengers' identities, but he nevertheless intends to stop them, whoever they are.
The police could not have intended to stop Brendlin if they didn't even know that he was in the car. He did intend to make a seizure, and he made that seizure in a way that caught the driver and the passenger. It doesn't matter whether or not he intended to stop the passenger, or whether he thought there was no passenger, or what.

The passenger was unintentional collateral damage. If the police could have seized only the driver, they presumably would have done so. The same is so in this case.

You simply can't generalize from that to completely unllke situations -- especially when there's another case directly on point. Lower courts are not permitted to assume that the Supreme Court overruled itself sub silentio. Brower directly forecloses your argument. You have to be trying to stop the person. In this case, the officer intended for nobody at all to stop, let alone the guy who did.
Brower says you have to be trying to stop *someone*, not necessarily the person you actually wound up stopping. There is no question in this case that there was an intentional seizure and that the actions of the police that actually stopped Al Nasser were part of that seizure.

You can try to make some silly argument that the police "intended to seize whoever was in the car" in Brendlin (even if they didn't know that Brendlin existed). But then you can make the same silly argument here -- the police "intended to seize" whoever actually pulled over in response to their show of force (including the Al Nasser who they didn't know about when they started the show of force).

Brendlin and Brower do not conflict if read the way I suggest. That when the police intend to seize someone, and they reasonably do seize someone, even someone else, then the seizure was intentional. With that reading, this case was wrongly decided.

I submit there is no other reasonable way to read Brendlin and Brower without conflict. Brendlin was misread to say what it does not say -- that the police must intend to seize the specific person they actually sized. It cannot mean this, since that wasn't even an issue in Brendlin.
2.12.2009 9:32am
Houston Lawyer:
Al Nasser basically turned himself in by stopping when he was not required. Once the "tall Border Patrol agent" saw the illegals hiding in the floor of his car, he had cause to arrest them. It is not the Border Patrol's fault that Al Nasser didn't understand that he was not being stopped (not being a citizen may have hurt him here).

The facts remind me of a friend of mine whose roommate called the cops to report a burglary. When the cops came to the house to take his statement, they found the roommate's large stash of pot. I'm sure that this kind of thing happens all the time.
2.12.2009 10:16am
33yearprof:
So we have this situation.

One can shoot (and kill) another if the actor "reasonably believes" that he was under an imminent threat of death or grievous bodily harm. Even if the actor is totally wrong as a matter of fact!

But one is not safe from a police search if the actor "reasonably believes" (based on some conduct by the police) that the officer is trying to stop him or his car. So, if you do not "reasonably believe" the officer wants you, are you free to speed off, if the officer secretly DOES want to stop you? No. The citizen must use PERFECT judgment under Orrin's rule.

Oh by the way, if the officer didn't intend to stop the car, why didn't he wave it on after the car started to stop? Maybe he thought he'd "get lucky today?"
2.12.2009 10:33am
FormerStudent:
"The citizen must use PERFECT judgment under Orrin's rule."

Or the citizen could simply ask: "Am I free to go?"
2.12.2009 10:55am
David M. Nieporent (www):
The police could not have intended to stop Brendlin if they didn't even know that he was in the car. He did intend to make a seizure, and he made that seizure in a way that caught the driver and the passenger. It doesn't matter whether or not he intended to stop the passenger, or whether he thought there was no passenger, or what.

The passenger was unintentional collateral damage. If the police could have seized only the driver, they presumably would have done so. The same is so in this case.
The same is not true in this case, because they never tried to seize Al Nasser at all. There's no reason to think the police would have done anything different in the Al Nasser case. (And in any case, since one cannot stop a car without stopping the passengers, your first statement is purely hypothetical and irrelevant to the discussion.)

You can try to make some silly argument that the police "intended to seize whoever was in the car" in Brendlin (even if they didn't know that Brendlin existed). But then you can make the same silly argument here -- the police "intended to seize" whoever actually pulled over in response to their show of force (including the Al Nasser who they didn't know about when they started the show of force).
You "can" make that argument here, except for the fact that it would be a sanctionable argument since it's actually false. The police did not intend to seize whoever pulled over. The police testified, and the court found, that they didn't want him to stop at all. Whereas they did want Brendlin to stop, since he was in a car that they wanted to stop.

The problem is that you're ignoring the actual language of Brower in favor of "principles" you're trying to draw from the case. Brower says this: Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, see Hill v. California, 401 U.S. 797, 802 -805 (1971); cf. Maryland v. Garrison, 480 U.S. 79, 85 -89 (1987), but the detention or taking itself must be willful. This is implicit in the word "seizure," which can hardly be applied to an unknowing act. Here, the act was indeed unknowing; the detention was not willful. The officers did not try to pull Al Nasser over, had no idea that Al Nasser was going to pull over, and didn’t even want Al Nasser to pull over.

I submit there is no other reasonable way to read Brendlin and Brower without conflict. Brendlin was misread to say what it does not say -- that the police must intend to seize the specific person they actually sized. It cannot mean this, since that wasn't even an issue in Brendlin.
Really? No other way? How about this: Brendlin stands for the proposition that when a car is seized, the passengers in the car are seized also.

It most certainly does NOT stand for the proposition you think -- that all "collateral damage" is also seized. The court in Brendlin rejects that claim, denying the claim that people stuck in traffic because a car in front of them is pulled over are "seized," because that's a mere "incidental restriction on freedom of movement."
2.12.2009 12:26pm
David Schwartz (mail):
Here, the act was indeed unknowing; the detention was not willful. The officers did not try to pull Al Nasser over, had no idea that Al Nasser was going to pull over, and didn’t even want Al Nasser to pull over.
All of this is true of Brendlin as well. The officers did not try to pull Brendlin over since they may not have even known that he existed. They couldn't have wanted him to pull over if they didn't know that he existed.

It most certainly does NOT stand for the proposition you think -- that all "collateral damage" is also seized. The court in Brendlin rejects that claim, denying the claim that people stuck in traffic because a car in front of them is pulled over are "seized," because that's a mere "incidental restriction on freedom of movement."
You missed the other prong of the test -- the person must reasonably believe that they are not free to go.

Really? No other way? How about this: Brendlin stands for the proposition that when a car is seized, the passengers in the car are seized also.
Right, if the first letter of their last name is 'B'. You can't treat an argument like a bus and get off at a stop, you have to follow it to the end of the line. Brendlin, for example, shows that a person can be seized even if the police did not intend to seize that person (because they didn't even know that person existed).

Al Nasser, just like Brendlin, formed a reasonable belief that he was not free to go as a result of seizures intentionally directed at others. If there's some principle that distinguishes them, nobody has stated it.
2.12.2009 1:02pm
Happyshooter:
This is a good decision on the law that will have a bad result.

Cue Dep. Smith on a highway somewhere "pulling over a car that his wife happens to driving" and just so happening to give the impression to all the out of state drivers he means them.

This will be right down there with the DUI and equipment check points.
2.12.2009 1:42pm
David M. Nieporent (www):
You can't treat an argument like a bus and get off at a stop, you have to follow it to the end of the line.
Actually, you can. Of course we reason by analogy in the law, but there is no rule that one must generalize a particular case as far as possible.

Al Nasser, just like Brendlin, formed a reasonable belief that he was not free to go as a result of seizures intentionally directed at others. If there's some principle that distinguishes them, nobody has stated it.
What distinguishes it is, in part, that your claim that it was "directed at others" in Brendlin is false. It was directed at the car, not at a single individual in the car. (As the Court noted in Brendlin, officers are free to pull over a car to arrest a passenger.)

Whereas there was no seizure at all in Al Nasser. He pulled over voluntarily. You keep ignoring the requirement that the seizure be "through means intentionally applied." There were no means intentionally applied to Al Nasser. They weren't trying to do anything.

There were means intentionally applied to Brendlin. A passenger in a car that is pulled over is simply not analogous to a random bystander that happens to be nearby when police are making an arrest. Police are seizing the car and everybody in it, intentionally.
2.12.2009 2:03pm
Edwin Maisch (mail):
My father was once traveling in a group of cars at what he admitted was well above the speed limit. A policeman waved them all over. The policeman then proceeded to work his way down the line of cars. When he got to my father, the officer asked, "Why did you stop?" My father said "You waved me over." The officer looked at my father (well over 70 at the time) looked at his car (a Honda Civic from the first year they were made) and said, "I did not wave you over, go on your way.". My father was "seized" with the urge to defend his car, but overcame it and went on his way.
2.12.2009 2:48pm
AlanO:
Reminds me of a case I prosecuted once. Driver sees cop. Driver - impaired by multiple illegal substances - decides the gig is up and pulls over. Cop thinks the car is broken down and gets out to see if the guy needs help. Driver hands bag of pot to cop and says, "I just bought this."
2.12.2009 3:29pm
Tammy Cravit (mail):

Al Nasser, just like Brendlin, formed a reasonable belief that he was not free to go as a result of seizures intentionally directed at others.


But, as the Court pointed out, Al Nasser's belief that he was (or was not) free to leave is not automatically determinative. From the opinion:


Subsequently, the Supreme Court has made clear that its decisions holding that an encounter is not a seizure when a reasonable person would feel free to leave do not mean that an encounter is a seizure just because a reasonable person would not feel free to leave. In fact, the Court has expressly rejected such an inference.


As the court notes a bit later in the opinion (at 1190) the "reasonable person" test is a necessary, but not a sufficient, condition for seizure.

Or am I misunderstanding the court's argument?
2.12.2009 4:39pm
David Schwartz (mail):
TC: You are exactly correct. I'm refuting the argument that my read conflicts with the holding in Brendlin that random passers by aren't seized. Of course random passers by would feel free to leave.

DMN:
Whereas there was no seizure at all in Al Nasser. He pulled over voluntarily. You keep ignoring the requirement that the seizure be "through means intentionally applied." There were no means intentionally applied to Al Nasser. They weren't trying to do anything.
No means were intentionally applied to Brendlin either. The police did not even know he existed.

You are correct that there must be means intentionally applied, they simply don't have to be intentionally applied to the particular person seized.

The police were in the process of executing a seizure when Al Nasser came to reasonably believe the seizure was directed at him, though the police had no specific intent to seize him (but they were intentionally seizing). The same is so of Brendlin.

You seem to keep forgetting that the policeman who waved at Al Nasser was in the process of executing a seizure when he waved at Al Nasser. The wave was part of the way the police happened to execute the ongoing seizure, just as pulling over a passenger was part of the way the police happened to execute the ongoing seizure in Brendlin.
2.12.2009 7:01pm
joe k:
From the opinion (p.1194 / p.16 in PDF):
Looking at the converse, could a police officer be held liable for damages in a § 1983 suit if someone believed that he was being stopped, even though the officer intended not to stop him?

(Italics in opinion.)

From FOX 40 News (February 9, 2009):
Attorney: BART Officer Fired Wrong Weapon

OAKLAND - Attorneys for Johannes Mehserle says the former BART police officer mistakenly pulled his pistol in the New Year's Day shooting that left one man dead.


The BART pig's defense is going to be that he didn't intend to shoot Oscar Grant in the back. And these pig-judges are going to be fine with that.

Professor Kerr may censor this comment on the grounds that “BART pig” and “pig-judges” are rude. But I'll tell you what's rude: Shooting someone in the back when they're face down on the concrete. Whether you intended the murder, or whether you just wanted to cause the dude some pain with the taser.
2.12.2009 11:28pm
David M. Nieporent (www):
The police were in the process of executing a seizure when Al Nasser came to reasonably believe the seizure was directed at him, though the police had no specific intent to seize him (but they were intentionally seizing). The same is so of Brendlin.
No, it isn't. The police weren't in the process of doing anything when Al Nasser stopped; they had already seized the people they were going to seize. They were not "intentionally seizing" anything. Once again: they directed no action at him. But in Brendlin, they did.

You seem to keep forgetting that the policeman who waved at Al Nasser was in the process of executing a seizure when he waved at Al Nasser. The wave was part of the way the police happened to execute the ongoing seizure, just as pulling over a passenger was part of the way the police happened to execute the ongoing seizure in Brendlin.
The only problem is that you're inventing facts; no policeman "waved at Al Nasser" at all. Well, that and your claims are ludicrous. In Brendlin, the policeman intended to stop the car. In Al Nasser, he didn't. Why you can't grasp this distinction is beyond me.
2.12.2009 11:52pm
David Schwartz (mail):
As for 1983 liability, no. The police may wind up seizing the wrong people from time to time. If it's reasonable collateral damage, there is no liability. Police aren't required to be perfect.

The police accidentally seized both Brendlin and Al Nasser, through means intentionally applied to effect seizures of others. They did not do so by acting unreasonably, they simply did reasonable things that created some collateral damage.
2.12.2009 11:57pm
David Schwartz (mail):
The only problem is that you're inventing facts; no policeman "waved at Al Nasser" at all.
"The tall Border Patrol agent again shined his flashlight so he would be seen and not hit. He thought Al Nasser’s car probably had illegal aliens in it, which he mentioned to the other Border Patrol agent. But he decided not to stop it, because the Border Patrol agents already had their hands
full."

Once again: they directed no action at him. But in Brendlin, they did.
If Brendlin was hidden in the back seat of the car, would you argue he hadn't been seized? No actions were ever specifically intended to seize Brendlin. An attempt to seize someone else caught Brendlin in the net.

In Brendlin, the policeman intended to stop the car. In Al Nasser, he didn't. Why you can't grasp this distinction is beyond me.
In both cases, the policemen attempted to stop others and caught someone else in their net. In both cases, they intended to seize but did not intend to seize those who ultimately claimed to have been seized. The police neither intended to stop Al Nasser nor Brendlin. They were both stopped purely as "collateral damage" of the seizure of others.
2.13.2009 12:05am
Ex Inyo County (mail):
The OP cites Brower v. City of Inyo.

I believe the correct name of the defendant in this case is County of Inyo.

Best to all.
2.13.2009 1:37am
David M. Nieporent (www):
In both cases, the policemen attempted to stop others and caught someone else in their net. In both cases, they intended to seize but did not intend to seize those who ultimately claimed to have been seized. The police neither intended to stop Al Nasser nor Brendlin. They were both stopped purely as "collateral damage" of the seizure of others.
False. In neither case was there a "net." In Brendlin, they stopped a specific vehicle, which by definition is directed at everyone in that vehicle, known or unknown. That was the whole point of Brendlin. On the other hand, in Al Nasser, they weren't stopping anybody. (They had previously stopped some other cars, but at the time Al Nasser pulled over, they were not trying to stop anyone.)

Look, this is silly. The judges disagree with you, Orin disagrees with you, and I disagree with you. You can continue to assert your interpretation of these cases. But you misunderstand Brendlin, which simply does not stand for the proposition that a bystander who mistakenly thinks he's being stopped is deemed to be seized because police are stopping someone else. Nor is Brendlin some sort of general case about "collateral damage." (See, e.g., its cite of County of Sacramento v. Lewis, where there really was collateral damage.) Brendlin is about passengers in a vehicle that is deliberately stopped. Period.

The means must be intentionally applied. They were in Brendlin, as the police intended to stop the vehicle he was in. They weren't in Brower, as the police did not intend to stop his vehicle (or indeed any vehicle). Indeed, Brendlin specifically cites Brower in rejecting your notion that an "unknowing act" -- which is what we have here -- can be a seizure.
2.13.2009 11:05am
David Schwartz (mail):
In Brendlin, they stopped a specific vehicle, which by definition is directed at everyone in that vehicle, known or unknown.
In Al Nasser, they blocked a lane of the highway. Why is that not directed at everyone who travels down that lane of the highway, known or unknown?
2.13.2009 11:56am
David M. Nieporent (www):
In Al Nasser, they blocked a lane of the highway. Why is that not directed at everyone who travels down that lane of the highway, known or unknown?
It would be, if that's what had happened. (Roadblocks are seizures.) But it isn't what happened. They did not "block" a lane of the highway. They pulled some cars over to the side of the road, which resulted in the lane being partially obstructed. You persist in not understanding the "means intentionally applied" requirement.

(To the extent that someone is delayed because they have to slow down because the lane is partially obstructed, we're back to the Brendlin situation where cars stuck in traffic because of a stop are not deemed seized.)
2.13.2009 12:39pm
David Schwartz (mail):
To the extent that someone is delayed because they have to slow down because the lane is partially obstructed, we're back to the Brendlin situation where cars stuck in traffic because of a stop are not deemed seized.
Of course, but that's because, and only because, a reasonable person would feel free to leave (he can't leave, but it's not because he's not free to). In Al Nasser's case, he had a reasonable belief that he was not free to leave.
2.13.2009 8:58pm
David M. Nieporent (www):
Of course, but that's because, and only because, a reasonable person would feel free to leave (he can't leave, but it's not because he's not free to). In Al Nasser's case, he had a reasonable belief that he was not free to leave.
And yet, it doesn't matter. Not unless you have "means intentionally applied." That's the threshold question.
2.14.2009 1:14am
David Schwartz (mail):
We had means intentionally applied, just not intentionally to Al Nasser and not intentionally to Brendlin. In both cases, the police were intentionally seizing someone else.
2.14.2009 5:55am
David M. Nieporent (www):
At this point, I conclude that Schwartz is trolling.
2.15.2009 12:28am

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