Constitutional Law--Qualified Immunity Improperly Shields Officer Who Ignored Exculpatory Evidence in Prolonging Investigatory Stop from Liability.

• Author: Kosh, Kyra

The Fourth Amendment to the United States Constitution guarantees "[t]he right ... to be secure in their persons ... and effects, against unreasonable searches and seizures," and this protection undoubtedly extends to pedestrians walking down public streets. (1) While such pedestrians may sue police officers for Fourth Amendment violations under 42 U.S.C. [section] 1983, accused officers may invoke the affirmative defense of qualified immunity as a liability shield--so long as the officer can demonstrate they have not violated a clearly established right. (2) In Pollreis v. Marzolf, (3) the Eighth Circuit considered Officer Lamont Marzolf's interlocutory appeal after the District Court for the Western District of Arkansas denied qualified immunity on four [section] 1983 claims that a mother brought against him on behalf of her twelve- and fourteen-year-old sons whom Officer Marzolf subjected to an investigatory detention. (4) In reviewing the denial of qualified immunity de novo, the Eighth Circuit reversed the district court's order, concluding that Officer Marzolf did not violate the juveniles' Fourth Amendment rights during the detention, and should thus receive qualified immunity on all four claims. (5)

On a rainy night, Officer Josh Kirmer was conducting surveillance in a residential neighborhood in response to an anonymous tip, and he observed a known Hispanic gang member named Tomas Silva, a woman police believed to be Jennifer Price, and two unknown men in hoodies--one of whom was smaller than the other--exit Silva's driveway in a vehicle. (6) After Officer Kirmer radioed this information to nearby officers, a high-speed chase ensued until the vehicle crashed, and the suspects fled on foot in groups of two. (7) Officer Marzolf responded to the dispatch that followed, which warned that Silva had a gun during his last contact with police, and began setting up a perimeter around the crash area. (8) Just a few moments later, Officer Marzolf noticed two boys of different heights wearing hoodies--later identified as W.Y. and S.Y.--walking slowly towards him, so he ordered the boys to stop and turn away from him. (9) Although the boys immediately complied and were neither running nor visibly out of breath, Officer Marzolf kept his gun pointed at W.Y. and S.Y. while he asked for their names. (10) The boys' mother, Cassandra Pollreis, approached to speak with Officer Marzolf, but he dismissed her, ordered W.Y. and S.Y. to get on the ground, and continued with the investigatory detention--even after she informed him that they were her twelve- and fourteen-year-old sons. (11)

For nearly two minutes, Officer Marzolf stood over W.Y. and S.Y. with his firearm aimed at them, and he called for backup after failing to get proof of identification from them. (12) The boys' stepfather appeared and informed Officer Marzolf of W.Y. and S.Y.'s names and innocent whereabouts before the stop, thus independently corroborating the information from W.Y. and Pollreis, but Officer Marzolf merely acknowledged that he heard the stepfather's statements. (13) Right as Officer Ruiz arrived with his gun pointed, one of the boys reached back to adjust his clothing, which provoked Officer Marzolf to handcuff both of them-- even though dispatch had just informed the officers that only Silva and Price were still at large. (14) Then, Sergeant Franklin arrived to question the boys, who told him that they were not the fleeing suspects and repeated the same exculpatory information they already provided; Officer Marzolf subsequently began frisking W.Y. and searching the boy's pant pockets. (15) The boys' grandparents then approached, and while they spoke with the officers, another officer frisked S.Y. and searched his backpack. (16) The officers finally ended the seven-minute encounter after they finished speaking with the grandparents. (17)

Pollreis subsequently filed a 42 U.S.C. [section] 1983 action against Officer Marzolf, asserting claims for illegal seizure, illegal arrest and detention, illegal search, and excessive force on behalf of W.Y. and S.Y, in addition to her own excessive force claim. (18) Officer Marzolf moved for summary judgment, contending that he was entitled to qualified immunity against all claims because his actions were objectively reasonable. (19) He only succeeded in dismissing the claims regarding the initial seizure of W.Y. and S.Y., the frisk of S.Y., and the search of S.Y.'s backpack in district court on qualified immunity grounds. (20) In denying summary judgment on the remaining [section] 1983 claims against Officer Marzolf, the district court found that four genuine, material issues remained as to whether: reasonable suspicion supported Officer Marzolf's prolonged seizure of W.Y. and S.Y., the detention was a de facto arrest supported by probable cause, the frisk of W.Y. was a permissible warrantless search, and Officer Marzolf used excessive force against the boys. (21) On appeal, Officer Marzolf argued that the district court erred in concluding that triable facts remain on the surviving [section] 1983 claims because even if his actions were not objectively reasonable, none of his actions violated clearly established law. (22) The Eighth Circuit ultimately concluded that Officer Marzolf's actions were objectively reasonable under the Fourth Amendment, thereby reversing the district court's order. (23)

Although the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court of the United States declared in Terry v. Ohio that an officer may briefly stop and frisk pedestrians for weapons so long as they have a reasonable suspicion--based on objective articulable facts--that the pedestrians are engaged in criminal activity and are presently armed and dangerous. (24) Once the officer exceeds the scope of Terry, the investigatory stop becomes a de facto arrest that must be supported by probable cause, which is a higher standard than reasonable suspicion. (25) In determining whether an investigatory stop transformed into an arrest without probable cause, courts consider the objective reasonableness of the detaining officer's actions in light of the totality of the circumstances, including the officer's use of known information at the time of the challenged conduct and that information's reliability. (26) The introduction of plainly exculpatory evidence may make an officer's continued detention of a suspect objectively unreasonable, even if substantial inculpatory evidence alone suggests that probable cause may exist. (27) Use of force is particularly important to Fourth Amendment objective reasonableness determinations; officers constitutionally may not use excessive force, which encompasses pointing a gun for an unnecessarily prolonged period of time at a compliant, nonthreatening suspect. (28) Further, handcuffing may be unreasonable, turning a stop into a de facto arrest, if the officer does not possess some reasonable belief that the detainee is presently armed and dangerous or that restraints are necessary for some other lawful purpose--particularly to protect officer safety or maintain the status quo. (29)

Individuals may sue state and local government officials for conduct relating to an investigatory stop and receive damages under [section] 1983, but such plaintiffs must establish that they were actually deprived of their Fourth Amendment rights under color of state law. (30) The Supreme Court first made qualified immunity an available defense for officers sued under [section] 1983 in Pierson v. Ray, (31) balancing the need to hold officers accountable for civil rights violations while protecting them from the burdens of litigation where officers subjectively believed in good faith they were lawfully performing their duties. (32) Fifteen years later, in Harlow v. Fitzgerald, the Court eliminated the defendant's subjective good faith--a question of fact--from the qualified immunity analysis and adopted the current objective test, which shields officers from liability if their actions did not violate clearly established statutory or constitutional rights that a reasonable person would have known. (33) Thus, when an officer moves for summary judgment in a [section] 1983 action on qualified immunity grounds, the reviewing court must consider the facts objectively in the light most favorable to the plaintiff in determining: whether the officer violated a statutory or constitutional right; and whether the right was clearly established at the time. (34) To be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." (35) The requirement that the law be clearly established at the time of the challenged conduct helps ensure that only plainly incompetent or malicious officers are subjected to litigation under [section] 1983. (36)

Because determining the reasonableness of an officer's actions during an investigatory stop requires courts to apply a case-specific balancing test--weighing individual rights against countervailing law enforcement interests--it may be unclear whether a Fourth Amendment violation occurred at all. (37) But even where a Fourth Amendment violation seems clear, the reasonableness inquiry depends on the totality of the circumstances in each individual case, which may make it difficult for plaintiffs pursuing a [section] 1983 claim to demonstrate that their rights were clearly established in order to defeat a qualified immunity defense. (38) While the broad principles of the Fourth Amendment are sufficiently defined, plaintiffs must allege a violation of a specific constitutional right that is clearly established--based on relevant case law--because rights defined at a high level of generality do not give reasonable officers notice that their actions are unconstitutional. (39) In Anderson v. Creighton, the Supreme Court explicitly recognized the "heavy...