Second Circuit: Yeah, You Can’t Arrest Someone For Asserting Their Fourth Amendment Rights

As the country most famous for enshrining civil rights, it sure seems like we spend a lot of time and money reminding the government of this fact. And it shouldn’t need to be reminded! These rights were defined by the government and considered inherent to American life. They weren’t granted. They were recognized as natural rights and it was the government that was required to respect them.

And yet there are still tons of civil rights litigation, most of it aimed at law enforcement officers who, for some reason, have far more trouble respecting rights than other government entities and employees.

Worse, cops tend to feel anyone invoking their rights must be doing something wrong. Invoking rights tends to increase shows of force, rather than negate them. Rarely does an invocation of rights stop law enforcement from doing what it wanted to do, requiring the victim of rights violations to spend their own money to file a lawsuit. In other cases, it means being subjected to the full force of a criminal trial (a place where juries and even some judges consider the accused to be guilty long before any evidence has been presented) and hoping an evidence suppression attempt is successful.

That’s why rights are violated regularly. The victims of rights violations carry the entire cost of the violation. Prosecutors may lose some evidence. Cops may occasionally see civil cases reach the jury trial stage. But in both cases, the public pays the literal price with their tax dollars for the government’s unwillingness to recognize, much less respect, their civil rights.

This case [PDF] being handled on appeal by the Second Circuit doesn’t exactly end the lawsuit. It does allow it to continue. Most importantly, despite all the procedural maneuvering, it overturns the lower court’s inexplicable conclusion that it’s ok to arrest someone just because they asserted their rights.

This one started with a concerning call placed to law enforcement, in which a person claimed the defendant had been sexually abusing his newborn daughter. (The footnote points out that the defendant’s sister-in-law made the call after seeing diaper rash on the child. The footnote says the sister-in-law “apparently suffered from a mental illness.” In any event, it was determined the defendant had never abused the child.)

Officer Pagiel Clark (along with other officers) responded to the 911 call. They were met by Larry Thompson who refused to allow them to search the home. At this point, the officers had nothing more than the 911 call to work with. They definitely did not have a warrant.

Rather than seek a warrant to search the residence for evidence of sexual abuse, Officer Clark decided to do this:

[Thompson] was arrested for obstructing governmental administration (“OGA”), in violation of New York Penal Law §195.05, and resisting arrest, in violation of New York Penal Law §205.30. The next day, Clark swore out a criminal complaint making factual allegations about the events that occurred on January 15, 2014, and formally charging Thompson with OGA and resisting arrest. As a result, Thompson was detained for two days until his arraignment, at which time he was released on his own recognizance. After arraignment, Thompson made two additional court appearances before his criminal case was dismissed.

Demanding to see a warrant is not a crime. It definitely isn’t “obstruction,” because if it was, it would render the Fourth Amendment irrelevant. Unfortunately, things didn’t go all that well for Thompson at the district court level. The court found in favor of the government (and officer Pagiel Clark, who was named as the sole law enforcement officer defendant) on certain claims. Others went to trial. The jury sided with the government and the remaining malicious prosecution claim was decided in favor of Officer Clark by the court instead of being handed to the jury.

That single claim was appealed by Thompson. It went all the way to the Supreme Court, where the nation’s top court found that Thompson had sufficiently demonstrated a “favorable termination” of his criminal case — a requirement needed to pursue malicious prosecution charges.

It went down to the district court again. This time the court sided with Thompson. And this time, the government appealed, bringing back to the Second Circuit for a second time. The government should have taken notice of the chain of judicial events. If it had, it possibly wouldn’t have wasted everyone’s time.

The nation’s top court revived the malicious prosecution claim and the lower court upheld it. The Second Circuit follows the Supreme Court’s lead. You simply cannot arrest someone for asserting their rights. That’s pretty malicious when it comes to prosecution. Or as close as is needed to put this allegation in front of a jury.

A reasonable jury could find that Clark lacked probable cause to charge Thompson with OGA because Thompson’s actions – opening his door, standing in his doorway, speaking peacefully with officers, and verbally invoking his Fourth Amendment rights – did not constitute interference. The interference “element of the statute is satisfied when an individual intrudes himself into, or gets in the way of, an ongoing police activity.”

Conversing with cops but refusing to consent to a search is not “interference” or “obstruction.” If the officers had a warrant in hand, things would have been quite different. But they didn’t, so this allegation is revived (again) and sustained.

Nor does the allegation that Thompson got a bit shout-y during this unwanted interaction change anything about the correct application of New York’s obstruction statute.

A reasonable jury could also conclude that Thompson did not exhibit “inappropriate and disruptive conduct at the scene.” The parties dispute whether Thompson yelled or raised his voice during the conversation, and who initiated the physical contact between Thompson and the officers. And Thompson testified that as soon as the officers grabbed him, he submitted, telling them “[y]ou have it” to indicate that he was not attempting to resist. Viewing the evidence in the light most favorable to Thompson, as we are required to do, we conclude that a reasonable jury could have found that Thompson did not interfere with the officers.

Finally, the court says Officer Clark is not entitled to qualified immunity on the malicious prosecution charge. He might have been, had he chosen to raise it at any time prior to this second visit to the Appeals Court. But since he didn’t, the argument is forfeited and the officer will join the plaintiff in facing a jury for a second time.

It’s a good decision but it should never have gotten to this point. The lower court blew the call in the first instance. Because it did, the man whose rights were clearly violated by this arrest has had to take his case all the way up to the top court in the land. And now he’s going to take a third trip to the district court to get this final charge sorted out.

Invoking rights isn’t a criminal act. It certainly isn’t obstruction, at least not in this case. If the cops really wanted to search Thompson’s place, they could have sought a warrant to do that. That they didn’t makes it clear they really had nothing more on their side than a show of force they hoped would coerce Thompson into complying. When he didn’t, Officer Clark decided to go the most vindictive route and have him arrested for “contempt of cop.” Hopefully, someone in law enforcement learns something from this experience, starting with Officer Pagiel Clark.