CA2: Ordering a person to leave a courthouse is likely not a seizure, but grabbing his collar and forcing him to move is a seizure

Ordering a person to leave a courthouse is likely not a seizure. Grabbing his collar and forcing him to move is a seizure. It is subject to the reasonableness requirement. Salmon v. Blesser, 2015 U.S. App. LEXIS 16070 (2d Cir. September 10, 2015):

The circumstances in this case are not analogous to either Bostick or Delgado. Blesser was not looking to question or search Salmon at a site where he wished to remain. Nor was he seeking to prevent Salmon from leaving the courthouse. To the contrary, Blesser actively sought Salmon’s departure from the courthouse. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(c), at 619 (5th ed. 2012) (noting distinction between police conduct conveying “not that the person was ‘not free to leave,’ but rather that he was ‘not free to stay’” (emphasis in original)).

Police officers frequently order persons to leave public areas: crime scenes, accident sites, dangerous construction venues, anticipated flood or fire paths, parade routes, areas of public disorder, etc. A person may feel obliged to obey such an order. Indeed, police may take a person by the elbow or employ comparable guiding force short of actual restraint to ensure obedience with a departure order. Our precedent does not view such police conduct, without more, as a seizure under the Fourth Amendment as long as the person is otherwise free to go where he wishes. That is the crux of Sheppard v. Beerman, which concluded that a person who is ordered to leave a judge’s chambers and then escorted out of the courthouse has not been seized because the person remains free to go anywhere else that he wishes. See 18 F.3d at 153; see generally Stephen E. Henderson, “Move on Orders” as Fourth Amendment Seizures, 2008 B.Y.U. L. Rev. 1, 45 (2008) (arguing that “move on” orders are generally not Fourth Amendment seizures). Thus, if Blesser had merely ordered or escorted Salmon out of the courthouse, or even if Blesser had barred Salmon’s reentry to the courthouse, the district court could well have relied on Sheppard v. Beerman to conclude that no “seizure” had occurred. See Maxwell v. City of New York, 102 F.3d 664, 668 n.2 (2d Cir. 1996) (citing Sheppard for proposition that refusing entry does not constitute seizure).

Here, however, Blesser’s method for removing Salmon was not simply to order or escort him from the courthouse, or to use guiding force to direct him as needed. It was physically to grab him without encountering reprisal or resistance, and to use painful force to control Salmon’s movements. That distinguishes this case from Sheppard, in which no use of physical force was alleged. See Compl. ¶ 22, Sheppard v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1991) (alleging, in case brought only against judge, that on morning at issue, before judge entered chambers, principal court officer “directed” plaintiff to leave courthouse immediately, whereupon two other officers “escorted” plaintiff out of building). Whatever other actions might effect a Fourth Amendment seizure of a person ordered to depart a public area, the intentional use of physical force to restrain the person and control the movements of a compliant person certainly does. See California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (stating that “word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement”); see also Webster’s Third New International Dictionary 2057 (1986) (defining “seize” as, inter alia, “to possess or take by force” and “to take hold of”); 2 Samuel Johnson, A Dictionary of the English Language (8th ed. 1799) (defining “to seize” as, inter alia, “[t]o take hold of; to grip[]; to grasp” and “to take possession of by force”). Thus, at the point Blesser allegedly used such force, it no longer mattered whether his ultimate purpose was to secure Salmon’s departure from the courthouse or to prevent it. For such time as Blesser held Salmon by the collar and twisted his arm behind his back, Blesser was intentionally restraining and controlling Salmon’s movements, thereby transforming their encounter, even if only briefly, into a detention, which qualifies as a seizure of Salmon’s person. See Brendlin v. California, 551 U.S. at 255 (recognizing that seizure can occur even where “‘resulting detention [is] quite brief’” (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979))); United States v. Sugrim, 732 F.2d 25, 28 (2d Cir. 1984) (“A detention no matter how momentary is a seizure under the Fourth Amendment.”); see generally Henderson, “Move On” Orders as Fourth Amendment Seizures, 2008 B.Y.U. L. Rev. at 16 (suggesting that use of force could transform “move on” order into seizure if interaction thereby became, “even momentarily, a detention”). Whether such a detention or seizure is reasonable is of course another question.

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