CA10: Not clearly established that even minimal force can be used to resist alleged unlawful search

Plaintiffs were involved in a domestic dispute outside their trailer that had started to cool down, or so they said. One wanted to go into the house to retrieve shoes, but the officer insisted on following to be sure there were no weapons. There was resistance to the police entry that resulted in one plaintiff being injured and suing. The case was dismissed on qualified immunity for lack of clearly established law that even minimal force can be used to resist an alleged unlawful search. Starrett v. City of Lander, 2017 U.S. App. LEXIS 13935 (10th Cir. Aug. 1, 2017):

But the district court further observed, and we agree, that a reasonable officer could have believed that Mrs. Starrett’s actions went beyond the passive refusal to consent to a search that was at issue in Mickelson, where the defendant refused to allow an officer without a warrant to enter a locked business during non-business hours. In contrast, Mrs. Starrett shut the front door of her trailer, which blocked Sergeant Romero’s path and line of sight to Mr. Starrett. As the district court discussed, the lawfulness of arresting a person for interference with a police officer when the person actively resists an allegedly unlawful, warrantless search or entry was not clearly established at the time the officers arrested Mrs. Starrett because no previous case was sufficiently akin to the facts Sergeant Romero and Officer Ramsey encountered here.

The court examined case law from other jurisdictions, which tended to show the lack of a clearly established right to use force—even the minimal force involved in shutting a door—to resist an illegal search. Compare Hill v. Scott, 349 F.3d 1068, 1074 (8th Cir. 2003) (“In Minnesota … there is no right to resist an unlawful search or arrest”); United States v. Ferrone, 438 F.2d 381, 390 (3d Cir. 1971) (“[A] person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though that warrant may subsequently be held to be invalid.”); Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850, 865 (Neb. 2016) (“[A]n illegal search does not justify the use of force in resisting an officer”); and Dolson v. United States, 948 A.2d 1193, 1202-03 (D.C. 2008) (concluding that actions that “reinforce[] an existing barrier, e.g., locking a closed door, and even [the] creation of a new barrier, e.g., closing then locking a door” or holding a gate shut against an officer’s attempt to enter, constitute interference with a police officer because they surpass “passive resistance or avoidance” (internal quotation marks omitted)), with Esmont v. City of New York, 371 F. Supp. 2d 202, 210 (E.D.N.Y. 2005) (explaining that resisting an illegal search does not violate a New York statute prohibiting obstruction of governmental administration). “The rationale for this rule is firmly rooted in public policy: If resistance to an arrest or a search made under the color of law is allowed, violence is not only invited but can be expected,” and “[s]elf-help exposes both the officer and the suspect to graver consequences than an unlawful arrest.” Dolson, 948 A.2d at 1202 (internal quotation marks omitted).

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