Stop and Go

In a remarkably brief (six pages!) summary reversal that didn’t draw a lot of attention, the Supreme Court swiftly disposed of a 9th Circuit ruling in Stanton v. Sims.  Apparently, it doesn’t take the Court long to come up with very cool trick for circumventing the Fourth Amendment when they set their per curiam minds to it.

The situation arose in a “neighborhood, known for ‘violence associated with the area gangs.'” as situations often do.  Officer Mike Stanton got a radio run of a disturbance of a man with a bat. Upon arrival, he saw three youths, none of whom had a bat. A perfect match. Two turned and went into a building complex, while a third, Nicholas Patrick, crossed the street and “ran or walked quickly” toward a residence.

Stanton did not see Patrick with a baseball bat, but he considered Patrick’s behavior suspicious and decided to detain him in order to investigate.  See Terry v. Ohio, 392 U. S. 1 (1968). Stanton exited his patrol car, called out “police,” and ordered Patrick to stop in a voice loud enough for all in the area to hear. But Patrick did not stop. Instead, he “looked directly at Stanton, ignored his lawful orders[,] and quickly went through [the] front gate” of a fence enclosing Sims’ front yard.  When the gate closed behind Patrick, the fence—which was more than six feet tall and made of wood—blocked Stanton’s view of the yard.

Stanton believed that Patrick had committed a jailable misdemeanor under California Penal Code §148 by disobeying his order to stop;* Stanton also “fear[ed] for [his] safety.”  He accordingly made the “split-second decision” to kick open the gate in pursuit of Patrick. Unfortunately, and unbeknownst to Stanton, Sims herself was standing behind the gate when it flew open. The swinging gate struck Sims, cutting her forehead and injuring her shoulder. (Internal citations omitted and paragraph broken in two for readability.)

Dwendolyn Sims sued under §1983 for her injuries, it being her home behind the gate and the officer’s having kicked it in being without lawful authority. The trick of the decision is found in Stanton’s “belief that Patrick had committed a ‘jailable’ misdemeanor” by refusing to stop, or as the Court characterizes it, disobeying his order.

While there may be lip service concerning the right to be left alone, that apparently evaporates upon the utterance of the word “stop,” after which all bets are off for 4th Amendment protections.

The Court cast the issue as whether the officer was “plainly incompetent” by believing he was authorized to enter the fenced in yard (or curtilage, as judges like to call it) in “hot pursuit” of a dangerous potential misdemeanant. The irony, of course, is that Stanton’s “pursuit” of Patrick had nothing to do with the “man with bat” call and was predicated on nothing more than his calling out “stop” and Patrick, whom there was no probable cause for anything, electing instead to exercise his right to be left alone.

There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was “plainly incompetent” in entering Sims’ yard to pursue the fleeing Patrick.

The initial clause above should be a reminder that the tendency to avoid trying to prove intent, always a troubling proposition, often comes back to bite one in the butt. It seems fairly pedestrian to contend that Stanton was well aware that he was violating the Constitution, no matter how poorly he scored on the civil service exam, from the moment he decided to hassle Patrick, for whom he had no reason to seize, to the moment he kicked in the fence gate in “hot pursuit,” a phrase that sounds far sexier than the facts suggest.

The significance of “plainly incompetent” in this opinion relates to whether Stanton is entitled to qualified immunity.  It wasn’t sufficient that an officer have the reflective capacity of a small rock to be held liable for his conduct, but the new standard is “plainly incompetent,” that question swirling about the rule of United States v. Santana, that a person cannot defeat arrest by “by the expedient of escaping to private premises” applies to misdemeanors as well as felonies.

Remarkably, no Supreme was troubled in the slightest by the question of whether Stanton, who was there to check out a man with a bat, decided instead to toss a kid whose “suspicious” conduct was that he didn’t want to be hassled by Stanton for no reason. While throwing about words like misdemeanor and felony, no one questioned whether a baseless command to “stop” was sufficient to turn a kid who did nothing wrong into a criminal, and thus give rise to “hot pursuit” of this heinous “stop” ignorer.

To call Officer Mike Stanton’s conduct “plainly incompetent” would be underwhelming. His conduct is better characterized as basic, ordinary abuse of the sort which an empathetic Latina or Harvard academic should be particularly sensitive.  Obviously not.

But let’s not forget one significant detail: the person harmed by Stanton’s violent act of kicking open a gate onto private property didn’t harm his fleeing “stop” ignorer, but the woman whose property it is. Was it not “plainly incompetent” that Stanton, in his zeal to protect the children, to mindlessly harmed Dwendolyn Sims?

It was not, the Supremes say, because police have to make “split second decisions” to protect us from dangerous misdemeanants whose only wrong is to exercise their right to be left alone.  The only good news is that it only took the Court six pages to make this clear.

13 thoughts on “Stop and Go

  1. Steven M. Warshawsky

    You’re completely right, Section 1983 qualified immunity is a pernicious doctrine and courts frequently ignore or mischaracterize the facts to achieve the desired result: police officer immunity.

    Thankfully, qualified immunity does not have the same bite under state law (at least here in New York) because state law allows for respondeat superior liability and city governments cannot assert qualified immunity defenses (or the state law equivalents).

    The key hurdle under state law is filing the appropriate notice of claim within the short limitations period, usually 90 days from the incident. All persons who suffer harm from the police, including criminal defendants with pending charges, need to file a timely notice of claim if they wish to preserve their potential civil remedies under state law. (I have not seen any federal or state decisions that filing a notice of claim waives the Fifth Amendment privilege for criminal defendants.)

  2. RKTlaw

    Wait, the kid walked away towards a private residence, went inside a gated fence and the cop “feared for his safety”? From whom or what?

    1. REvers

      If you read enough police reports, you will come to the conclusion that cops are the biggest group of cowards on the planet. The things that totally scare the hell out of them will amaze you.

      1. SHG Post author

        “He looked at me with an aggressive stare, causing me to fear for my safety.”

        Those aggressive stares can be very scary, you know.

  3. Jim Majkowski

    Is it only coincidence that this post and the one regarding “how to bend over…” come the same day?

    1. SHG Post author

      A careful observer might note that my posts tend to pair up for a reason on any given day. It’s just what strikes me as worth writing about, and it often tends to show themes.

      1. John Barleycorn

        Themes, yeah that’s it. I just can’t decide if today’s offering is more worthy of the intro from Adam 12 or Dragnet.

        Is it just me having visions or is it really true that Sonia and Antonin
        meet over microwave popcorn and watch their favorite reruns of cop shows?

  4. David

    IANAL. Does the state itself also have immunity from a civil suit for damages, and is that related to the officer’s qualified immunity?

  5. Charlesmorrison

    I apologize about the belated comment, but I can’t help but address the apparent irony involved here. The court continues to cite, in many contexts, the “increasing professionalism” of the police as grounds not to worry too much about further erosions of our constitutional protections, while determining this officer was not “plainly incompetent.” If this was a professional officer, seems to me he was obviously incompetent.

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