{"id":6914,"date":"2012-10-02T14:33:37","date_gmt":"2012-04-01T00:40:52","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-03-31T11:43:31","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6914","title":{"rendered":"CA3: Search of wrong house with three hour detention of occupant stated claim and overcame qualified immunity"},"content":{"rendered":"

Officers alleged to have entered the wrong unit during execution of a search warrant then detaining the occupants for three hours stated a \u00a7 1983 claim that overcame qualified immunity. Gomez v. Feissner<\/a>, 474 Fed. Appx. 53 (3d Cir. 2012) (unpublished):<\/p>\n

The Gomezes also claim that Feissner and Zola violated their right to be free from unreasonable seizure by detaining them for three hours during the search of their home. A “seizure” occurs when a government officer, “by means of physical force or show of authority … restrains the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Under clearly established Supreme Court precedent, it is reasonable for officers to seize the occupants of a home while conducting a constitutionally valid search thereof. Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of the search. When the search is completed, the authority expires. Id. Moreover, under Garrison, it is clearly established that once officers know or should know that they are without authority to continue a seizure, they must end it.<\/p>\n

The Gomezes allege that Feissner should have known after fifteen minutes that he had no authority to search their home. It is undisputed that for three hours beyond this point, the Gomezes were involuntarily detained by either Feissner or officers under his command. These allegations suffice to make out a violation of the Gomezes’ clearly established right to be free from unreasonable seizure, and Feissner accordingly does not have qualified immunity from this claim.<\/p><\/blockquote>\n

Note: This case states the obvious. What is galling about it is the defendant police officer arguing with a straight face that he, first, could not only enter the wrong apartment when he was on notice by unit numbers and multiple doorways and satellite dishes, but, second, he could then detain the occupants of the place wrongly searched for three hours for no apparent reason. They should settle and move on, if their position in this case hasn’t thoroughly added insult to injury and made trial inevitable. This is the double edged sword of qualified immunity: When the defense loses on qualified immunity, you’re only arguing about the damages. This is sufficiently flagrant that punitives should result.<\/p>\n","protected":false},"excerpt":{"rendered":"

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