UNREASONABLE DETENTIONS AND UNREASONABLY PROLONGED DETENTIONS - OVERVIEW

While law enforcement officers do not need any evidentiary basis merely to speak to a person on the street, they do need to have a specific, particularized basis to carry out investigative detentions. If law enforcement carries out such a detention in the absence of a particularized basis for “reasonable suspicion” that a person is engaged in some kind of criminal activity, the detention can amount to a Fourth Amendment violation and be the basis for civil liability.

Inside Out: officers need particularized evidence of a crime to carry out investigative detentions. The scope of further searches that are permissible in such detentions, such a pat-down and rifling through the pockets, is a tricky, fact-based issue.

An investigative detention, which is sometimes called a Terry stop in the context of policing on the street, does not need “probable cause,” which is the level of evidence needed for an arrest: it will be legal as long as it is supported by “reasonable suspicion,” which is somewhat less granular than probable cause but nevertheless needs to be anchored in objective circumstances known to the officer and particularized to the individual being detained. The existence of such a stop depends on the totality of the circumstances and is triggered when a reasonable person would not feel “free to leave.” Brendlin v. California, 551 U.S. 249, 255 (2007). The analysis of that last factor is a little different than what common sense might imply, because most people don’t feel free simply to walk away from a police encounter under any circumstances. But the analysis does not begin and end there. Since it is a “totality of the circumstances” consideration, it looks to factors like the existence of multiple officers in the interaction, time and location, verbal commands, brandishing weapons, using handcuffs, using illumination (such as a spotlight) that makes a person understand they are the target of focused suspicion, and so on.

Another common variation of this standard occurs in a traffic stop, which also needs to be supported by “reasonable suspicion” that an occupant of the car has engaged in a crime, and has been explicitly analogized by the United States Supreme Court to a Terry stop. Rodriguez v. United States, 575 U.S. 348, 354 (2015).

Assuming an investigative stop is supported in the first place, a recurring issue in this area is what sort of searches officers can then carry out on the detained person or the items in their possession. Under Terry, it is generally acceptable for officers to carry out a pat-frisk of the detainee to ensure that they are not armed, if there is some specific basis to be concerned about weapons. Terry, 392 U.S. at 27-29. However, “A lawful frisk does not always flow from a justified stop.” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016), as amended (May 5, 2016) (quoting United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988)). Rather, “[e]ach element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.” Id.

An initial pat-frisk can then give rise to bases to go through a person’s pockets, but it may be illegal for an officer to simply turn out a detainee’s pockets without performing any sort of pat-frisk or having any other reason to think that the contents of the pocket are an officer safety matter. United States v. Brown, 996 F.3d 998, 1009 (9th Cir. 2021); Sibron v. New York, 392 U.S. 40 (1968). In a similar vein, bags and purses carried by a detainee can be frisked where there is reason to believe that the bag may contain a weapon or contraband related to the crime that is being investigated. However, a investigative detention is not, in itself, a license for law enforcement to go rifling through a bag and just see what might turn up.

Fourth Amendment violations can also arise when a detention is unreasonably prolonged after reasonable suspicion of the original crime that supported the stop in the first place has been dispelled, such that the continued detention is little more than a fishing expedition for some sort of miscellaneous wrongdoing. Unreasonably prolonged detentions are a common theme of traffic stops, because the United States Supreme Court has given law enforcement the green light to carry out “pretextual” traffic stops (in which there is some technical violation, like a broken taillight or an illegal window tint, that supports the stop but the officer is actually looking for something else), and the officer who carries out such a pretextual stop will often then look for a reason to keep the stop going, to carry out searches of the vehicle, and so on, even when the driver really ought to be ticketed and released.

Needless to say, investigative detentions, and people’s responses to such detentions, are also a scenario that gives rise to many forms of use of force, and sometimes excessive force.

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False Arrest or Imprisonment - California Law Overview

Under California law, the civil versions of “false arrest” and “false imprisonment” are the same tort: false arrest is considered simply “one way of committing a false imprisonment.” Watts v. Cnty. of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001). This cause of action will sometimes be brought as a companion to a claim under federal law for an unreasonable detention in violation of the Fourth Amendment.

The elements of this tort, under California law, are (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief. Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011). The core jury instructions are CACI Nos. 1401 and 1402.

Under California law, an officer has probable cause for a warrantless arrest “if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.” People v. Adams, 175 Cal. App. 3d 855, 221 Cal.Rptr. 298, 301 (Cal. Ct. App. 1985) (citation and quotations omitted). The fact that an arrest that appears to be supported by probable cause at the time of the arrest is later found to have been made in error does not mean there was not a basis to carry out the arrest in the first place. Peng v. Hu, 335 F.3d 970, 976-78 (9th Cir. 2003) (finding probable cause to arrest based on one witness providing sufficiently detailed facts regarding the incident). Similarly, the facts that charges ultimately did not get filed or that the defendant was later acquitted of the charges do not necessarily mean that probable cause did not exist when the officer acted. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). A case that tries to Monday-morning-quarterback the judgment of a law enforcement officer in this regard is not going to get very far, where the nature of the plaintiff’s argument is simply that the facts could have been viewed differently.

However, when a reasonable officer should have followed obvious avenues for investigation, particularly around the identity of the person being arrested or the very question of whether a crime has actually occurred, probable cause to perform a warrantless arrest may be missing. See Hutchinson v. Grant, 796 F.2d 288 (9th Cir. 1986) (police officer who mistook arrestee for a burglary suspect with the same name was not entitled to summary judgment in connection with arrest where he took no steps to verify the arrestee's identity before arresting him); Merriman v. Walton, 856 F.2d 1333 (9th Cir. 1988); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses”). In other words, failure to get the objective facts right or failure to perform required investigation is more likely to be a basis for liability than merely making a subjective weighing of a body of evidence in a manner that later turns out to be have been incorrect.

What if officers rely on a warrant in making an arrest, but the warrant is obviously defective or is for some other person altogether? Where there are obvious physical differences between the person and arrested and the person described in the warrant, the fact that the warrant exists does not render the arrest legal. See, e.g., Gant v. Cty. of Los Angeles, 772 F.3d 608, 613 (9th Cir. 2014) (noting suspect was listed as 6'1" tall and weighing 200 lbs, while arrestee's driver's license indicated that he was 5'6" tall and weighed 180 lbs). Where there is a reasonable error about who the suspect is, however, the existence of the warrant may be fatal to the claim. Hill v. California, 401 U.S. 797, 802 (1971). A warrant can also be facially defective, such that a reasonable officer should realize it is defective, where it lacks particularity or where there are other obvious problems apparent on its face. See, e.g., United States v. Leon, 468 U.S. 897, 923 (1984). Notably, these reliance-on-a-warrant scenarios are ones in which qualified immunity is likely to shield law enforcement under federal law, but a more viable path may be found under state law.

While law enforcement officials have many immunities in the performance of their duties, California Government Code section 820.4 specifically excludes from immunity government actors’ “liability for false arrest or false imprisonment.” See Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997) (“under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution").

Damages in a civil false arrest/false imprisonment claim under California law are subject to the limitation spelled out in Asgari, 15 Cal. 4th at 748: namely, that no compensation can be recovered for time spent in custody after arraignment.

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Malicious Prosecution - overview and contrast with false arrest

Law enforcement officers can violate the Fourth Amendment, and thereby open themselves up to liability, both by performance of an improper arrest and by something called “malicious prosecution.” But what’s the difference, and does this have anything to do with the actions of prosecutors, or is it just about police?

The more familiar idea, to most folks, is the bad (or “false”) arrest. A police officer or sheriff’s deputy stops and detains somebody, potentially escalating into a formal “arrest,” without a concrete, particularized basis to suspect that they’ve committed a crime. Depending on the totality of the circumstances, that may well be an unreasonable seizure, and thus a violation of the Fourth Amendment. (A false arrest overview writeup is here.)

The idea of “malicious prosecution” is related, but it’s a little more complicated, in part because the idea of “malicious prosecution” is not actually found anywhere in the Fourth Amendment and is instead drawn from state common law. Malicious prosecution occurs based on “the wrongful initiation of charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022). Proof of “malicious prosecution” also generally requires showing a malicious motive for instituting the charges and termination of the case via acquittal or discharge. Id. at 44. Some caselaw interpreting California law also suggests a requirement of showing that the defendant prosecuted the plaintiff for the purpose of denying equal protection or another specific constitutional right. See Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019).

Police officers take actions that “initiate charges,” so they can commit “malicious prosecution” even though officers are not themselves prosecutors. Chiaverini et al. v. City of Napoleon, Ohio, 144 S.Ct. 1745 (2024). Other state actors, such as a coroner or an investigator, can also commit malicious prosecution in some circumstances. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

Malicious prosecution causes of action can be asserted under both California law and under 42 U.S.C § 1983, but there are serious obstacles to this type theory either way. A federal claim runs risks of losing on qualified immunity grounds simply because there are so few pro-plaintiff decisions on the books and thus a fairly flimsy basis to show that a given legal rule was “clearly established.”

State law is also a very tricky landscape. California Government Code § 821.6 provides very strong immunities for public employees, providing that: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This language has been broadly interpreted to mean that “Under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution." Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997).

As with everything in law, there are exceptions to this broad rule. One of the most important is the language of Gov. Code § 820.21, which abrogates immunity for: (1) perjury; (2) fabrication of evidence; (3) failure to disclose known exculpatory evidence; or (4) obtaining testimony by duress, fraud, or undue influence — if committed with malice. Additionally, If the basis of a malicious prosecution claim does not stem from “the initiation or prosecution of proceedings,” the section 821.6 immunity does not apply. Leon v. County of Riverside, 14 Cal.5th 910, 924 (2023).

Actual prosecutors are typically likely to rely on police reports that allege that crimes have occurred, and so are even less likely to engage in “malicious prosecution” than law enforcement officers, unless they completely disregard what is suggested by the language of the police reports. Prosecutors also have an even broader range of immunities for their actions than do law enforcement officers.

Another interesting distinction between a “bad arrest” cause of action and a “malicious prosecution” cause of action is that they may “accrue” at very different times for purposes of determining when the statute of limitations begins to run. Most 1983 claims are subject to a 2-year statute of limitations (at least in California), but the time at which the claim accrues (starting the clock running) is governed by federal law. In a malicious prosecution case, the cause of action does not accrue until the criminal cause of action is terminated favorably to the plaintiff/defendant. McDonough v. Smith, 139 S. Ct. 2149, 2154-55, 204 L. Ed. 2d 506 (2019). Consequently, a malicious prosecution theory may be a way to pursue legal action against the individuals who caused charges to get filed in the first place (if the other elements of malicious prosecution appear satisfied and the situation is sufficiently egregious to be outside of the section 821.6 immunity) in a situation where a straightforward theory of a false arrest would be barred by the passage of time for a person who has burned up years fighting the criminal case to a successful resolution.

The idea of “malicious prosecution” can also refer to the bringing of a civil lawsuit with no basis, where there is termination favorable to the defendant and where the defendant is harmed. Such malicious prosecution claims are disfavored in California law because of their tendency to chill the use of the courts.

For free consultation about potential civil rights cases, call today.

What is the monetary value of constitutional rights?

What damages are collectible based on an unreasonable search, if nobody is physically harmed and no property is damaged?

The answer is: it depends on how you look at it. And it depends on what you are willing to fight for.

Defense lawyers will argue that there is no “harm” in this sort of scenario. No medical bills. No repair costs. From their point of view, it’s a big zero.

But the Fourth Amendment is not just a piece of paper.

The right to be from unreasonable searches and seizures is a basic part of what it means to be American. It’s an idea that we fought a war over. It’s a principle that distinguishes our system of government from that of more totalitarian nations.

As as iconic trial lawyers like Nick and Courtney Rowley have emphasized, a narrow focus on purely “economic” damages can make us miss the bigger, deeper narrative of a case, which sometimes has to do with these basic values — and with the extraordinary degree of disrespect that law enforcement sometimes demonstrates for these values, in spite of their charge to uphold the law.

When we help the defendants and the fact-finder understand this more fundamental story, we make the full value of constitutional rights apparent.

Photo by Lukas Juhas on Unsplash.