Applying the Fourth Amendment to Pranks

[Mad Man]

http://volokh.com/

http://volokh.com/posts/1141421732.shtml

Orin Kerr, March 3, 2006 at 4:35pm

Applying the Fourth Amendment to Pranks:

On Tuesday, the Tenth Circuit handed down a very interesting decision applying the Fourth Amendmemt to a prank. The case is Fuerschbach v. Southwest Airlines, and was written by Judge Lucero (joined by McConnell and Brorby). From the introduction:

[BLOCKQUOTE]Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the prank. She sued the officers and the City of Albuquerque under 42 U.S.C. 1983, alleging violations of her Fourth and Fourteenth Amendment rights. . . . We conclude that Fuerschbach's allegations are sufficient to survive the assertion of qualified immunity. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve.[/BLOCKQUOTE]

The case is interesting in part because Fourth Amendment "seizures" of persons are analyzed from the perspective of the person seized. The question is whether a reasonable person in that situation would have believed she wasn't free to go, not whether the officers believed that the individual was free to go. The difference is criticial in the case of a prank: the officers know it's all a joke but the person "seized" does not. A very interesting case.


Comments

 

[scooterthegreat]

Once the handcuffs go on, I'm not free to go....

 

[ChefGW]

I guess when you're gonna punk somebody, you need to know if they can handle getting punk'd first. I would probably freak if I got arrested too...I would like to continue buying guns and dependingon the arrest, one might not be able to.

 

[beerslurpy]

Abuse of authority doesnt suddenly become ok when it is done because the officers think it would be funny.

 

[Azrael256]

Well, that's a spectacular abuse of authority in a manner I wasn't expecting. There is nothing funny about seizure. It is a serious business that is difficult enough for both sides to deal with without two officers making a mockery of the whole idea by pulling a stunt like this. I'm calling false arrest on this one. These officers clearly have no understanding of the importance of arrest powers and should be fired promptly.

 

[JerryM]

That is a prank that should get the officers fired, and the dept sued. Who needs LEOs of that caliber?

Jerry

 

[gunsmith]

poor sportsmanship on Marcie's part

She thinks the city has deep pockets, it was a joke.
the cops shouldn't lose their jobs for this....
I think we need more jovial police officers, not less.

 

[Aguila Blanca]

It's not a joke if the butt of the joke either isn't in on it, or doesn't find it funny. I would not find being "arrested" and hauled away from my workplace in handcuffs the least bit amusing, either.

I think the officers involved SHOULD lose their jobs. Their action was clearly an abuse of authority and should be dealt with accordingly. If anything, the fact that they did it intentionally and as a "joke" makes it more serious an offense, not less.

 

[The_Antibubba]

If, after putting the cuffs on, the "cops" whipped off their pants while "Bad Boys Bad Boys" played in the background, THAT would be funny. While it shows an a lack of empathy on the part of the co-workers, that the police would participate in something this without considering the ramifications-well, I'm glad their judgement didn't mean a loss of life.

Police are held to a higher standard for a reason.

 

[HankB]

These particular cops ought to be fired - arrests are serious business, and nothing to joke about.

 

[ARperson]

I have a pretty good sense of humor. But practical jokes are my biggest pet peeve. I draw the line right after jumping out and scaring someone when they aren't expecting it. At least then all you need to do is restrart his heart and clap him on the back for being a good sport.

Anything else puts a bee in my bonnet. Don't touch my personal items. Don't touch my person. If you do anyone of these items, it's not funny. NO matter what your intent was.

Getting your jollies off of someone else's humiliation or discomfort is pathetic. If I pulled a similar stunt in my line of work using my position of authority or knowledge to put another person in heart attack mode, I'd be asked to leave post haste. Like a doctor telling a person he has cancer and 2 months to live when the guy is as healthy as a horse. Or the bank teller informing the retiree that a bank computer glitch has wiped out all said retiree's savings, "so sorry."

And the gal is supposed to be a "good sport" over this how? why?

 

[Sergeant Sabre]

I have to say that it seems that US Search and Siezure law says pretty clearly that any siezure without a warrant is illegal per se . Unless it falls within certain very specifically-defined exceptions, it is indeed illegal.

In the "prank" above, I see no mention of a warrant nor any indication that the seizire was a legally-excepted probable-cause arrest. So, it's an illegal seizure and should be treated as such. The officers involved should have had better judgement. The law has no sense of humor.

P.S. Personally, I do think the above arestee should have a sense of humor, though

 

[Art Eatman]

I'm on Marcie's side all the way on this one. However, as far as damages and suchlike, I think a public apology from all concerned, plus a monetary settlement of some not-retirement-large would suffice. The SWA types and the two cops should get serious chew-out, and BadBoy sheets put in their personnel files. I'd call for a probationary period of a year or two, to see whether or not they'd learned the proper lesson about Thou Shalt Not.

That said, if these miscreants had a history of similar but lesser foolishness, they should be fired.

Art

 

[c_yeager]

On-duty employees of the state violate a citizens rights, and they expect to get away with it because it was "funny"? Does that even make the smallest bit of sense? Hell that doesnt even pass the laugh-test on the first run.

I hope everyone involved gets tagged for conspiracy to commit kidnapping because thats what they did, the reason doesnt matter. Doing it because it was "funny" isnt any less criminal than doing it for money/sex/drugs.

 

[ArmedBear]

I hope everyone involved gets tagged for conspiracy to commit kidnapping because thats what they did, the reason doesnt matter. Doing it because it was "funny" isnt any less criminal than doing it for money/sex/drugs.

...or because of "hate"...

This illustrates a problem with "hate crime" legislation. A crime happens when someone is wrongly forced to do something against his/her will. That includes fraud, kidnaping, etc.

The sentencing should take the many facts of the situation, including motive, into account, but conspiracy to commit kidnaping should be the charge.

Serious psychological injuries, though? I mean, Southwest Airlines is a company renowned for a lighthearted working environment, with pranks -- hopefully more intelligent pranks -- a part of the culture. And it's true that practical jokes are all funny 'til someone really gets hurt. But people also do get wrongly arrested periodically.

I think she may well be entitled to damages, but not to milk this excessively.

 

[answerguy]

If the defense of "it was just a joke" is allowed to stand you can bet you'll see it used in the future with regularity.

 

[Azrael256]

I'd call for a probationary period of a year or two

I dunno, Art. I rather like the idea of these dudes hitting the bricks pronto. I tend to view things in concrete, absolute terms when it comes to issues like this. I am a second amendment absolutist, and I believe that it is an act of official oppression to deny that right to anyone (but through proper legal procedure). I believe the right to effectively defend oneself from any threat using "arms" (an intentionally broad definition) is given by the "creator" (however you choose to define that), and is not restricted to American citizens.

Similarly, search and/or seizure is an absolute. I give the police a great deal of leeway when it comes to honest human mistakes. If a search is warranted but done improperly, the evidence is tainted and should be inadmissable. If an officer cannot meet a defined standard of probable cause but still had an honest reason to do a search, the evidence is still tainted. If his mistake was an honest human mistake, I would recommend more education on the execution of warrants or the definition of probable cause. People make mistakes (I know I do), and if you give a break, you'll get one.

But these dudes... Knowing full well the ramifications of a blatant disregard for constitutionally defined criminal procedure, they chose to make a mockery of the sacred duty of police officers to maintain the peace and to at all times uphold and defend the Constitution of the United States. By performing a seizure, jokingly or not, without a warrant or probable cause, they intentionally violated their oaths as police officers. Mistakes are one thing, but intentionally violating their oath is a reprehensible act, and they should not be given the trust of the public to protect and serve.

 

[DRZinn]

I think Art has it just about exactly right. It was very wrong; she was, in fact, under arrest, joke or not. But little harm was done, unless a psychologist is convinced she actually sustained "psychological harm" from the incident, which I doubt. A little distress is not harm.

 

[Art Eatman]

Don't get me wrong; I wouldn't cry if they all were fired. But, if I was "boss", I know some SW guys that would be working in the worst location on the worst shift; same for those cops. See, if they quit of their own volition, they're not eligible for unemployment.

Art

 

[jazurell]

arrest for cause

Some years ago we were able to have a(some) friend(s) arrested by the Sheriff's Department. They were taken to the United Way offices where they had to call their friends to raise funds for donation to the United Way to make bail. Of course if you indicated someone for arrest, you best have you check book ready. Although a fund raising joke, I guess even that could be stressful for someone.

 

[Taurus 66]

I believe the officers should not lose their jobs if they have clean work records and this was a first incident. Furthermore,

Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach

If there's blaming to go around, let 'em each share an equal piece of the pie.

As for the pychological trauma bit, I don't buy it. She's probably just another money hungry 'Big itch' who jumped on this prime opportunity by playing the panic stricken damsel in distress then later calling her ambulance chaser to get the wheels of justice rolling.

Lawsuit Happy America