Plaintiff was arrested and detained for three weeks without probable cause. Taking his claims as true at this point, he stated a claim. Bell v. Neukirch, 2020 U.S. App. LEXIS 33920 (8th Cir. Oct. 28, 2020):
About seven minutes after a black juvenile male with a gun fled from police in Kansas City, Missouri, officers arrested Tyree Bell a mile away from the scene. Bell and the suspect shared only generic characteristics in common: black, juvenile, and male. Bell, however, had several characteristics distinct from the suspect: he was taller than the suspect; had distinguishable hair from the suspect; and wore shorts, shoes, and socks that differed from those donned by the suspect. These distinctions are depicted on a police video recording that the arresting officers reviewed. Three weeks later, with Bell still in custody, a detective reviewed the video and concluded that Bell was not the offender. Authorities promptly released Bell and dismissed all charges. Bell then sued the arresting officers, alleging that they seized him without probable cause. He also raised claims against the detective and a sergeant who authorized the detention, and he named the sergeant, the police chief, and members of the Board of Police Commissioners of Kansas City as defendants in their official capacities based on alleged failures to train and supervise the arresting officers.
The district court, describing it as a “difficult case,” ruled that the arresting officers were entitled to qualified immunity, because a reasonable officer could have believed that there was probable cause to arrest Bell. Bell v. Neukirch, 376 F. Supp. 3d 989, 1004 (W.D. Mo. 2019). We conclude, however, that the evidence, viewed in the light most favorable to Bell, would support a finding that the arresting officers violated Bell’s clearly established right to be free from an unreasonable seizure without probable cause under the circumstances. We therefore reverse the dismissal of the claims against those officers. We affirm the district court’s grant of summary judgment in favor of the other defendants.
. . .
Taking the evidence in the light most favorable to Bell, it was clearly established at the time of Bell’s warrantless arrest that no reasonable officer in the position of Officers Munyan and Neukirch could have believed that probable cause existed to arrest Bell based on the plainly exculpatory evidence available to them. Bell wore different shorts and socks than the suspect wore at the scene. His height varied by five inches from Munyan’s real-time description of the suspect. Bell did not exhibit signs of exertion that would be expected of a suspect who ran a mile in seven minutes on a warm afternoon. Given the glaring differences, there was not arguable probable cause to believe that Bell was the fleeing suspect. Bell’s right to be free from an arrest and detention under the circumstances was clearly established. It is an obvious case of insufficient probable cause.
The officers assert that they acted reasonably because they reviewed the video recording of the suspect multiple times before confirming that Bell should be arrested. There is a factual dispute over how thoroughly they reviewed the video. Given Officer Munyan’s averment that he could not tell whether the suspect’s shorts included a broad white stripe on the side, a reasonable jury could conclude that Officer Munyan did not reasonably consider the video. But even assuming that the officers collectively watched the video eight times as they claim, it should have been obvious to any reasonable officer that Bell’s shorts and socks were different from the suspect’s shorts and socks at the scene. Qualified immunity requires more than subjective good faith; it requires objectively reasonable official conduct. Harlow v. Fitzgerald, 457 U.S. 800, 815-16 (1982). Simply scanning a video does not make conduct objectively reasonable if an officer ignores or overlooks plainly exculpatory evidence. Baptiste, 147 F.3d at 1259-60. Qualified immunity does not protect the “plainly incompetent,” Malley v. Briggs, 475 U.S. 335, 341 (1986). An officer who repeatedly watched the video and failed to take note of the substantial discrepancies between Bell and the suspect demonstrates less diligence that what is expected of competent police officers about to limit someone’s liberty by arrest.
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)