Qualified Immunity Decision Reversed in Civil Rights Case
Lundstrom v. Romero, ___ F.3d ___ , 2010 WL 3222048 (10th Cir. 2010) (NM). Court reverses qualified immunity decision in favor of Albuquerque Police Department, finding that no reasonable officer would have determined that there was reasonable suspicion/probable cause to conduct the seizure/search they did, under the facts in the case.
Cops had received a 911 call that a woman had been striking a toddler in the yard next door and screaming at it, though the caller said she could see nothing. APD arrived 40 minutes later The male plaintiff answered the door to see a cop out in the bushes with a flashlight, who then pointed a gun at him. The cop asked about a child inside, the man said there were no kids there, did not believe she was a cop, asked for ID, things got belligerent, female plaintiff came out to smooth things over, cop pointed gun at her, male went inside and closed door, and called 911 to find out if the cop was really a cop. Meanwhile, many cops descended–not for the kid’s sake, but because there was a disobedient citizen behind the door of his own home. Female came outside, tried to explain things, was not questioned about a child until she volunteered that she had a grandchild. According to female, the cops were really not interested in a child. Male was inside behind closed door, female was handcuffed and told to sit on curb. Dispatch called neighbor again who confirmed what she heard but said maybe police were at the wrong address. Meanwhile cops in the back reported seeing male pacing in his bedroom, agitated. He was on the phone to 911/dispatch, who told him to put the phone down and go outside with hands up and that many cops were there. He said to dispatch if the cops beat him up he would fight back (which cops heard). He came out, was roughly cuffed and sustained some injuries. Police searched the house from anywhere between 10 and 45 minutes, while both plaintiffs remained cuffed. No child was found.
1. Reasonable for cop to point gun briefly at male, given circumstances, which cop lowered when he raised his hands and cop saw that his hand contained a cell phone. No seizure of female because she stepped between cop and male and cop did not intend to point gun at her.
2. Handcuffing of female not reasonable under circumstances–she was cooperative, no child found, male denied any child, male on phone to 911, no one asked female about a child. Cuffing was not reasonably related in scope to investigation.
3. Seizure of male when he submitted to police authority and went outside. There was no particularized and objective basis for suspecting him of wrongdoing–the caller reported a woman was striking the child. No exigencies. The seizure was unreasonable. The cuffing of the male not justified for the same reasons. Even community care-taking function standards not satisfied.
4. Clearly established law that without reasonable suspicion, an investigative detention is not allowed. Clearly established that the amount of force used by cops in this matter was excessive when all the circumstances are weighed, including fact that male presented little threat to cops. Clearly established that search of the house without a warrant is permitted in the absence of consent if there are exigent circumstances, which were not present in this case.
Cops had received a 911 call that a woman had been striking a toddler in the yard next door and screaming at it, though the caller said she could see nothing. APD arrived 40 minutes later The male plaintiff answered the door to see a cop out in the bushes with a flashlight, who then pointed a gun at him. The cop asked about a child inside, the man said there were no kids there, did not believe she was a cop, asked for ID, things got belligerent, female plaintiff came out to smooth things over, cop pointed gun at her, male went inside and closed door, and called 911 to find out if the cop was really a cop. Meanwhile, many cops descended–not for the kid’s sake, but because there was a disobedient citizen behind the door of his own home. Female came outside, tried to explain things, was not questioned about a child until she volunteered that she had a grandchild. According to female, the cops were really not interested in a child. Male was inside behind closed door, female was handcuffed and told to sit on curb. Dispatch called neighbor again who confirmed what she heard but said maybe police were at the wrong address. Meanwhile cops in the back reported seeing male pacing in his bedroom, agitated. He was on the phone to 911/dispatch, who told him to put the phone down and go outside with hands up and that many cops were there. He said to dispatch if the cops beat him up he would fight back (which cops heard). He came out, was roughly cuffed and sustained some injuries. Police searched the house from anywhere between 10 and 45 minutes, while both plaintiffs remained cuffed. No child was found.
1. Reasonable for cop to point gun briefly at male, given circumstances, which cop lowered when he raised his hands and cop saw that his hand contained a cell phone. No seizure of female because she stepped between cop and male and cop did not intend to point gun at her.
2. Handcuffing of female not reasonable under circumstances–she was cooperative, no child found, male denied any child, male on phone to 911, no one asked female about a child. Cuffing was not reasonably related in scope to investigation.
3. Seizure of male when he submitted to police authority and went outside. There was no particularized and objective basis for suspecting him of wrongdoing–the caller reported a woman was striking the child. No exigencies. The seizure was unreasonable. The cuffing of the male not justified for the same reasons. Even community care-taking function standards not satisfied.
4. Clearly established law that without reasonable suspicion, an investigative detention is not allowed. Clearly established that the amount of force used by cops in this matter was excessive when all the circumstances are weighed, including fact that male presented little threat to cops. Clearly established that search of the house without a warrant is permitted in the absence of consent if there are exigent circumstances, which were not present in this case.
posted by Anonymous at 3:13 PM
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