It was Frank Robinson at ESPN who said that close only counted in horseshoes and hand grenades, but then, he wasn’t a judge, so what did he know? Of course, that was before the Supreme Court decided Heien and gave us the reasonably stupid cop rule. And Arizona has more than its share of reasonably stupid cops.
TaRaHawk von Brinken sued Tucson police officers James Voss and Richard Legarra in June 2014, claiming they unlawfully arrested him after he refused to show Voss his driver’s license.
Von Brinken claimed he was driving behind a friend when Voss pulled the friend over into a bowling alley parking lot. Von Brinken followed and parked in the same lot, away from Voss and his friend’s vehicle.
It’s not that von Brinken did anything wrong, even a traffic infraction. It’s not that the cops pulled him over, even though they pulled over his friend whom he was following. Nonetheless, the cops did as cops are wont to do, demand his papers.
As a driver, von Brinken was required to possess a driver’s license. As a driver, von Brinken was required to show it to the cops upon demand, even though there is a secondary question of whether, by going up to an uninvolved driver for whom no reasonable suspicion of the commission of an offense existed, the demand for his license was a seizure. After all, if that’s permissible, then it would be similarly proper for cops to randomly demand licenses from every driver of a stopped car just for kicks.
The distinction here was that the duty to show a license, in the absence of reasonable suspicion, gave rise only to a civil infraction, as held by District Court Judge James Soto, who denied qualified immunity to the officers.
“While plaintiff knowingly refused to show his license to Voss, this was only a violation of § 28-3169(A) which is a civil traffic violation” Soto wrote.
It was not an arrestable offense, so the cops couldn’t enjoy the comfort of qualified immunity for arresting von Brinken for his refusal. This made the Ninth Circuit Court of Appeals cry:
Voss and Legarra are entitled to qualified immunity unless von Brincken shows “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct,” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011), which he has not done. An official violates a clearly established right if “every ‘reasonable official would have understood that what he is doing violates that right.’”
A “reasonable” cop is a low enough standard.* But “every” reasonable cop? Whew.
In determining whether qualified immunity applies, the Supreme Court has reminded us “not to define clearly established law at a high level of generality.” Id. at 742. “The general proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Id.
If this strikes you as so utterly vague as to be meaningless, than you obviously aren’t a cop in search of qualified immunity. The vaguer the rhetoric, the more latitude the court has in reaching whatever decision feels right. And so the Ninth Circuit did:
An officer in Voss’s position could reasonably believe that Arizona Revised Statutes section 28-3169(A) required that von Brincken produce his driver’s license upon Voss’s demand, and that section 28-622 in turn made von Brincken’s refusal to comply with Voss’s lawful order a misdemeanor.1
And this is so because . . . reasons. The court offers no explanation, though it’s worthy of note that footnote 1 explains that the cops didn’t even argue this point, but that the court came up with this on its lonesome. Where one might hope a circuit court would give a passing nod to some actual basis for its opinion, this court just keeps repeating the word “reasonable” because if they say so enough, it must be true.
And because I’m a nice guy, I’m going to help the judges out: the cops were given qualified immunity because von Brinken was being a dick by refusing to show his license, and they’re not going to let this guy get money when all he had to do was give up his license like every good American driver in Arizona should do.
What makes me say this? The dissent by Chief Judge Sidney Thomas, of course.
Because it is undisputed that Officer Voss did not conduct a traffic stop of von Brincken before demanding to see his driver’s license, the arrest for failure to produce the driver’s license lacked probable cause and was therefore unconstitutional. To hold otherwise, as the majority does, turns a traffic offense statute into a “stop and show me your papers” statute.
But that, of course, tacitly incorporates the expectation that the guys who are busy seizing you, ordering you to do stuff and, should you fail to be compliant in the right way at the right moment, might shoot you dead for your threatening stare and furtive nostril gesture.
Furthermore, the right to be free from unreasonable seizures was clearly established at the time of von Brincken’s arrest. This is so even though the Arizona Supreme Court has not previously held that being pulled over while driving is a prerequisite to a reasonable arrest pursuant to Arizona Revised Statute § 28-1595(B).
While it might seem pandering to give credence to the notion that it’s way too hard for cops to be expected to distinguish between civil statutes, for which there can be no arrest, and criminal statutes, Judge Thomas nonetheless gives it a go.
See Demuth v. Cty. of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015) (“While the law must be unambiguous to overcome qualified immunity, that doesn’t mean that every official action is protected . . . unless the very action in question has previously been held unlawful. [O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances. This is especially true in the Fourth Amendment context, where the constitutional standard— reasonableness—is always a very fact-specific inquiry.”)
In other words, just because someone can dig up the most trivial factual distinction to separate what a court has previously explicitly condemned from the story told in the opinion doesn’t mean the cops get a free ride on an obvious constitutional violation, such as the difference between a law that’s civil and a law that’s criminal.
But then, Chief Judge Thomas was dissenting, so you can either show the cops your papers or go to jail. Bitte. Is that too much to ask in America?
*Remarkably, the opinion doesn’t cite to Heien for the proposition that reasonable police officers have no obligation to know the law before they set about destroying someone’s life.