Plaintiff’s father was acting erratic and was armed, and the police were called. Plaintiff was trying to defuse the situation. The SWAT team showed up, and, after a brief stand-off plaintiff’s father was shot while she was standing next to him. She was grabbed by the police, handcuffed, and detained for two hours. She stated a claim for an unreasonable detention. Two other circuits have held that detention of witnesses for over 90 minutes was unreasonable. She also alleged sufficient excessive force, and the district court was clearly erroneous in concluding otherwise. Lincoln v. Turner, 2017 U.S. App. LEXIS 21652 (5th Cir. Oct. 31, 2017):
As in Lidster, this case brings to us a matter of significant public concern. And the second factor may weigh even more in favor of the police here—Erin was present at the crime scene, and in fact was the only person inside the house with her father. Through the eyes of a reasonable police officer, she was likely to possess helpful information, and it was reasonable to seek it, at least to confirm her identity and contact information. Accepting this, the facts alleged here went beyond the bounds of a reasonable detention. This was not the type of “minimally intrusive” stop authorized by Lidster. Instead, a distressed young woman was handcuffed and left in the back of a police car for almost two hours. The stop provoked significant “anxiety and alarm,” and lasted much longer than necessary to obtain information.
Confronting a similar question, two circuits agree that detaining police cannot detain a person for a significant period of time solely because she witnessed a police shooting. In Walker, the Tenth Circuit concluded that “a ninety minute detention for this purpose [of obtaining names, addresses, and voluntary statements from witnesses] was unreasonable.” In Maxwell, the Ninth Circuit similarly found that law enforcement officers could not “detain, separate, and interrogate the [witnesses] for hours” solely as witnesses. In so holding, both courts noted that “[e]ven in the Terry stop context—which involves a suspicion of criminal activity that is absent here—the Supreme Court has never endorsed a detention longer than 90 minutes.”
As our sister circuits noted, “[w]hat little authority exists on [the] question [of witness detention], suggests that police have less authority to detain those who have witnessed a crime for investigatory purposes than to detain criminal suspects.” We agree, and find that Erin has sufficiently pled an unreasonable seizure even under the Brown v. Texas balancing test. Erin has alleged a detention that would have been unreasonable if she were a suspect.
. . .
Finally, Erin has sufficiently pled that the force used by Turner was objectively unreasonable. “To ‘gaug[e] the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for force.’ This balancing test ‘requires careful attention to the facts and circumstances of each particular case.'” Given Erin’s allegations that she did not “fight, struggle or resist in any way” and “questioned why she was being taken into custody,” Turner’s alleged force was excessive. (footnotes 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)