No Clear Duty to Release Detainee Where Probable Cause to Arrest is Dissipated, Majority Holds

Panagoulakos v. Yazzie, 2013 WL 6698134 (12/20/13) (N.M.) (Published) - A divided 10th reverses a denial of summary judgment for an APD officer. The officer incorrectly believed that all orders of protection prohibit possession of a firearm, but actually that is only true under 18 U.S.C. § 922(g) if the protected person is an "intimate partner." The plaintiff's ex-girlfriend obtained a protective order against the plaintiff. The order stated: "it may be unlawful for you to possess a firearm," but the "intimate partner" box was not checked. So the order didn't really prohibit firearm possession. After the plaintiff was arrested by others for suspicion of illegal possession of a firearm, the defendant officer checked the order and determined the plaintiff was forbidden from having a firearm. So she had the plaintiff detained. He remained in jail for 11 days. A majority of courts do not clearly impose a duty on an officer to release a detainee whose arrest was supported by probable cause even if probable cause is later dissipated. Some courts say release is mandated if an officer ascertains beyond a reasonable doubt that probable cause is unfounded. But even that test has not been adopted by a majority of the courts. Judge Holloway dissents. He says it is inherent in the nature of investigative detentions that officers learn new information, including information that undermines probable cause. When an officer learns such information, the 4th Amendment requires the officer to release the detainee. The defendant officer acted affirmatively. She didn't just fail to release the plaintiff, Judge Holloway contends.