Let me tell you a story. Two stories, in fact. A Tale of Two Police Encounters.
The first has been in the news a lot over the past week. Ryan Moats ran a red light and was pulled over by a police officer in the Dallas suburb of Plano, Texas. Moats was rushing to the hospital to visit a dying relative, and explained this fact to the officer -- indeed, the stop was right outside Baylor Regional Medical Center -- but the officer didn't much care. Moats, by contrast, thought the stop was absurd given what was at stake, and for that reason showed the police officer very little deference; e.g., screamed "My mother-in-law is dying! Right now! You're wasting my time!"
Which made the officer angry. The officer responded with lines like: "Shut your mouth. You can either settle down and cooperate or I can just take you to jail for running a red light." Moats, after all, had indeed run a red light, and was refusing to show proof of insurance. To make clear the officer's power, he reminded Moats: "I can screw you over," so he'd better cooperate. In the end, Moats was released, but a firestorm of controversy ensued, and earlier this week the officer was placed on administrative leave, with no less than the Dallas Police Chief apologizing to Moats and his family and stating that the officer's behavior was inappropriate.
Moats, by the way, is a running back for the Houston Texans.
Fifteen hundred miles to the West, in Buena Park, California, Joseph Ramirez was sitting in the parking lot of a Rite-Aid taking a brief nap while sitting at the wheel of his car. Ramirez owned a local Outback Steakhouse, and occasionally took naps in his car during his exhausting 80-hour workweek. At around 8:00 p.m., a Buena Park police officer spotted Ramirez resting in his car and decided to check the situation out.
The officer approached the driver's side window of the vehicle -- where Ramirez was peacefully resting with his seat back reclined -- and tapped on the window. As a result, Ramirez woke up, and upon doing so, was perhaps a wee bit testy. Personally, I can emphathize with this reaction. To my chagrin, I'm not always the nicest person when I'm woken up either, especially after an incredibly long workweek. And, again, Ramirez wasn't doing anything illegal; he just wanted to take a nap.
So Ramirez opens his eyes, looks at the police officer, opens either the window or door slightly, and asks the police officer -- without the deference typically given to those in authority -- if it was really necessary for the officer to wake him up; e.g., "Is it standard procedure to go around banging on glass windows of persons that are sitting or sleeping in their cars?" The police force, like some other professions, tends to attract individuals who enjoy power, and who also do not like having their authority questioned. So the officer responds by clenching his teeth, giving Ramirez an "extreme hard look," and tells Ramirez: "Okay we were going to do this the easy way. I would have asked a couple questions and you would have been on your way. But now we will do it the hard way. Get out of your car!”
Ramirez complies, at which point the officer promptly (and without consent) conducts a search for drugs and anything else he can find, frisking Ramirez and looking inside his pockets. Finding nothing -- a fact consistent with Ramirez having previously told the officer that he neither drank nor did drugs -- the officer checks Ramirez's pulse, which the officer testifies was 132 beats per minute. (Parenthetically, this is hardly surprising given the circumstances, and in any event, I am extremely dubious about the officer's credibility on a number of points, including this one.) The officer also says that Ramirez's eyes looks dilated (again, somewhat uncredibly), and while Ramirez successfully performed the finger-to-nose sobriety test, the officer testified that in the Romberg test -- where a person is asked to close his eyes, tilt his head back, and estimate the passage of time -- Ramirez took 45 seconds to estimate the passing of 30 seconds, which is a bit outside the acceptable range of 20 to 40 seconds.
On this basis, the officer arrests Ramirez for being under the influence of a controlled substance and takes him to the station. The officer also impounds Ramirez's car.
At the station, by the way, they draw blood from Ramirez to check for drugs and/or alcohol. Negative. Ramirez was totally telling the truth.
They eventually dismiss the charges against Ramirez, who thereafter files a Section 1983 claim against the officer. Judge Taylor grants summary judgment on qualified immunity grounds, and Ramirez appeals to the Ninth Circuit.
Judge Brunetti writes the opinion, joined by Judges Kozinski and Rymer. I agree with the panel that qualfied immunity covers the initial detention of Ramirez (i.e., ordering him out of the car) and his subsequent arrest. Though I think the propriety of these acts is far from crystal clear, the fact that Ramirez was sleeping in his car plus some of the other alleged facts (that Ramirez was allegedly breathing heavily, had a high pulse rate, failed the Romberg test, etc.) are enough to preclude liability. I also agree with the panel that the search of Ramirez was neither justified nor covered by qualified immunity; simply put, there was no evidence whatsoever of any guns or other threat to officer safety. What sort of damages do you get for that search? Not much. The value of a public stop-and-frisk and an unjustified search of your pockets. But, still, there's liability.
I cannot, however, agree with the panel's rejection of Ramirez's claim that the impoundment of his car was improper. Judge Brunetti holds that the impoundment was permissible under the community caretaking doctrine, on the theory that the officer testified that he impounded the vehicle because there was a risk that it would be stolen or vandalized. But the vehicle was in a parking lot. Sure, there's always a risk that a car -- any car -- will be stolen or vandalized, but that hardly justifies its uniform towing. Moreover, the only alleged harm would be to Ramirez's own property, and if he would prefer to take the risk of leaving the car there as opposed to the certain downside of having the vehicle towed, I don't see how "community" caretaking permits the officer to veto that choice. If you ask me whether I would choose to risk some probability (say, 20%) of $500 or so damage to my car (and/or by insurance deductible) from leaving my car in a public parking lot for a couple of hours until I (or someone I know) can pick it up versus the certainty of having to pay $350 in towing and storage charges, I'd almost unformly -- and rationally -- choose the former. Permitting the police to veto that choice, allegedly merely to protect me, hardly seems a "reasonable" seizure to yours truly.
More importantly, the panel seems to me to neglect a fundamental portion of this lawsuit, and the part that's highlighted by my beginning this post with the story involving Ryan Moats. The police officer here was angry. He did what he did not to protect Ramirez, but to harm him, and not only could a reasonable jury so conclude, but I'm pretty darn positive that's right. When the officer said "Now we'll do it the hard way" once his authority was challenged, that's something I understand, and it should rightfully inform the panel's analysis. Why did the officer tow the car? He testifies that he did it to protect Ramirez's vehicle. Bullshit. He did it to teach Ramirez a lesson: that if he (or anyone else) resists being obsequious to police authority, he'll suffer, and that there's nothing he can do about it, even if he's right that he's not under the influence and is doing anything wrong. And the Ninth Circuit here tells the officer that he's exacly right: that as long as he doesn't pat Ramirez down, he can arrest him and tow his car and there's nothing at all that Ramirez can do. No liability. No admonishment. Nothing. As long as Ramirez doesn't play in the NFL, the officer gets off scot free.
I think that a reasonable jury could easily conclude that the officer was angry and, especially in light of the various conflicts in the evidence, that a plethora of the things that the officer said are either exaggerated or untrue. And, in particular, that the towing of the car was unjustified, and performed unreasonably and exclusively to punish Ramirez for his lack of deference.
One final story. If only to make it a trilogy. Judge Cercone (from the Western District of Pennsylvania) held earlier this week that it violates someone's civil rights -- and unreasonable under the Fourth Amendment -- for an officer to arrest someone merely because he gave the officer the finger in traffic. What applies to flipping someone off applies equally, in my view, to any other form of insufficient -- but legal -- deference. Including here.