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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)