Case Law and Legal Issues: A private citizen’s refusal to cooperate in an investigation does not provide an officer with probable cause to arrest, use of excessive force, or retaliate.  

• Arrests 
• Probable Cause to Arrest 
• Refusing to Cooperate as Probable Cause to Arrest 
• Excessive Force in Making an Arrest 
• Retaliatory Arrests 

• Absent the use of physical force or a submission to the assertion of authority, a person is not arrested. 
   
• Qualified immunity protects an officer from civil liability when it is objectively reasonable for an officer to believe that he or she had probable cause to make an arrest.  
   
• In determining how much force may be used in making an arrest, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight, all are to be considered.  
   
• Arresting someone in retaliation for them having expressed an opinion or making a comment violates that person’s First Amendment right to freedom of expression. 

On April 30, 2019, someone (not named) observed a “dark grey Ford Mustang” being driven “erratically” in Fountain Valley, California, by a white male with black hair between the ages of 25 and 30. More importantly, the caller reported seeing a blindfolded female passenger in the car. The caller was able to record the license number and report that as well. A registration check provided the police with the name of the owner, Benjamin Hill, and an address.  

Fountain Valley Police Department Officers Stuart Chase and Gannon Kelly drove to Hill’s home to check the well-being of the passenger. Unbeknownst to the officers, Hill was taking his blindfolded wife to a restaurant for a surprise anniversary dinner.  

As the officers arrived at the residence, Teresa Hill – Benjamin’s mother – happened to be pulling into the driveway with her grandchildren in tow. She verified that Benjamin did in fact live there, and that he owned a grey Mustang. Asked for Benjamin’s cellphone number, she declined to answer the question, wanting to first warn her son about the officers before they had a chance to call him. Why she wanted to warn him is never explained. Stephen Hill – Benjamin’s father – then came out of the house. The officers told the couple that they were investigating a report of “erratic driving,” and that they needed to talk to Benjamin. Stephen didn’t believe the officers. As Teresa went inside, intending to call Benjamin and warn him about the police looking for him, Stephen continued to talk with the officers, demanding that they tell him “what was really going on.”  

So, the officers told him about the report of a blindfolded female passenger in the car. Still declining the officers’ requests for Benjamin’s cellphone number, Stephen told the officers that his son was merely out with his wife and that he would pass along the officers’ business cards. The officers told Stephen to take his granddaughter inside the house and return with Stephen’s cellphone number. Stephen went inside.  

About then, the officers noticed someone in the house through a bedroom window. Chase approached the window and saw a young male who matched Benjamin’s description. Believing this person to be Benjamin, the officer told him through the window to come out of the house. But the young male – who turned out to be Benjamin’s brother, Brett – walked out of sight. Stephen was then seen entering the bedroom and closing the curtains, not hearing (or ignoring) Chase ask through the window who the other person was.  

With this lack of cooperation, the officers suspected that Benjamin’s parents were hiding him from them. Seeing Teresa, Stephen and the as-of-yet unidentified young male through a window of the apparently locked front door, the officers threatened to arrest them all for “obstruction” if they didn’t come out.  

Stephen and Brett then came out, with Stephen attempting to close the door behind him as he told the officers they could not go in. As he did so, Officer Kelly placed his foot in the doorjamb, preventing it from being fully closed. Stephen later denied that he closed the door on Kelly’s foot. The officers then grabbed Stephen, led him to the lawn and took him to the ground while kneeling on his back as they handcuffed him. Teresa and Brett then came out of the house. Stephen later said that in the process of being arrested, his glasses cut his forehead and that he suffered injuries to his neck and back. It is unknown whether Benjamin was ever contacted. 

The Hills sued the officers and the city of Fountain Valley in federal court pursuant to 42 U.S.C. § 1983, for using excessive force on Stephen and the unreasonable seizure of all the Hills on Fourth Amendment issues. The lawsuit also alleged First Amendment retaliation on behalf of Stephen. The officers’ summary judgment motion was granted, dismissing the entire case, and the Hills appealed the Fourth and First Amendment issues. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, affirmed the dismissal.  

Fourth Amendment issues: Brett, Teresa, and Stephen Hill all maintained that the police officers violated their Fourth Amendment rights against unreasonable seizure when they were ordered to exit the home or face arrest for obstruction. (Benjamin, who was not a party to the incident at the Hills’ residence, was not a part of this lawsuit.)  

The court summarily disposed of Brett and Teresa’s argument, noting that they neither of them were ever seized. As such, they cannot say that they were unlawfully arrested. In so ruling, it was noted that for a seizure to occur, there must be “either physical force...or, where that is absent, submission to the assertion of authority.” (California v. Hodari D. (1991) 499 U.S. 621, 626.) Neither Brett nor Teresa were ever physically arrested nor submitted to the threat of an arrest. They stayed locked behind their front door, only to exit for the purpose of checking on Stephen when he was physically subdued by the officers. Thus, the court ruled that “Brett and Teresa were not seized and they cannot pursue their Fourth Amendment claims.”  

As for Stephen, however, he was arrested, being taken down physically and summarily handcuffed. “Law enforcement can make a warrantless...arrest if the officers faced exigent circumstances and had probable cause supporting the arrest.” (Payton v. New York (1980) 445 U.S. 573, 589-590.) The court held that the officers here did not have probable cause to arrest Stephen for obstruction. That’s because “it is well established under California law that even an outright refusal to cooperate with police officers cannot create adequate grounds for police intrusion without more.” (Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3rd 1010, 1023.)  

California law has also held that passively blocking a door or refusing to open a door after a proper police demand are examples of permissible refusals to cooperate with police. (People v. Wetzel (1974) 11 Cal.3rd 104.)  

Even so, however, the court found that “qualified immunity” protects an officer from civil liability when it is objectively reasonable for an officer to believe that he or she had probable cause to make an arrest. Here, the two-judge majority held that the rules as described above were not so sufficiently settled as to put the officers on notice that arresting Stephen for obstruction of justice was unlawful. “Given these unique facts and the urgency to act, we do not believe that all reasonable officers would agree that there was no probable cause in this instance.” The officers, therefore, were entitled to qualified immunity. The dissenting justice disagreed on this issue and would have found civil liability for having made a false arrest. 

Excessive Force claims: Stephen Hill also alleged that when the officers arrested him, they used excessive force in doing so, also a violation of the Fourth Amendment. Issues of excessive force “require a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” (Graham v. Connor (1989) 490 U.S. 386, 388, quoting Tennessee v. Garner (1985) 471 U.S. 1, 8.)  

The Supreme Court has provided an “inexhaustive list” of government interests that might justify an officer’s use of force, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Ibid; citing Garner at pages 8-9). The Court further noted what all law enforcement officers have known from the first day on the job: that “police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” (Id. at 396-397.)  

With these basic rules in mind, the court held that Stephen experienced only an inadvertent cut on his head from the take-down on the grassy lawn, injuries that were minimal when compared to other use-of-force cases. The court ignored his claims of back and neck injuries. Further, Stephen’s noncompliance occurred during an investigation into a potential kidnapping, not a minor offense. Although the situation at the Hills’ home was tense and escalating, it was not as dangerous as in other cases. With all this in mind, the court found the balance of interests favored the government. The court thus concluded that the officers did not violate Stephen’s Fourth Amendment right against excessive force, the force as used here being reasonable under the circumstances.  

First Amendment/Retaliation allegations: Stephen claimed that his arrest was conducted in retaliation for inquiring about why the officers really wanted to contact his son, and as such, his First Amendment freedom of speech rights were violated. The court disagreed. The rule is that if a plaintiff is able to establish the lack of probable cause for his arrest, “then the Mt. Healthy test governs.” (Referring to Mt. Healthy City Board of Education v. Doyle (1977) 429 U.S. 274.) Per Mt. Healthy: “The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant (officers) can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.”  

In ruling that this retaliation allegation was properly dismissed by the trial court in this case, the Ninth Circuit held that Stephen failed to show that “retaliatory animus” was a substantial factor behind his arrest, rejecting his claim that his comment “what was really going on” and saying that he wanted to make sure “everything’s on the up and up” had “perturbed the officers.” Stephen was unable to provide any evidence to show that the officers were in fact perturbed, finding instead that “it seems dubious that the officers would be upset because of benign statements such as “what was really going on.”  

The court noted that “law enforcement officers are routinely subjected to much more vitriolic rhetoric” than occurred in this case. The court further noted that “even if the officers were ‘perturbed,’ no evidence suggests that they would not have arrested him absent those statements.” Rather, “(t)he record suggests the officers arrested Stephen because they believed, though mistakenly, that he was hiding a suspect in a potential kidnapping case.” 

Conclusion:  “The Hills (were) understandably aggrieved by what happened to them. But the law protects good-faith mistakes by the Fountain Valley police officers investigating a potential kidnapping,” the ruling stated. The trial court’s granting of the Fountain Valley officers’ summary judgment motion, therefore, was upheld.  

I happen to be wearing a sweatshirt as I write this brief that says, “BREATHE EASY, DON’T BREAK THE LAW.” What this shirt reflects is my sincere belief that too many police-citizen confrontations are precipitated by the citizen’s lack of simple cooperation. Although private citizens are not legally required to cooperate with law enforcement, as noted above (at least generally), confrontations such as occurred here can most often be avoided if the citizen had just done so.  

In teaching classes to private – non-law enforcement – individuals, I tell them that if they feel they are being wronged in some way during a contact with a police officer, it is best to simply cooperate. Later, after the fact, they can file a formal citizen’s complaint. It is my experience that such citizen complaints are thoroughly and fairly investigated with appropriate disciplinary measures taken if the officer is found to be in the wrong. 

That way, no one gets arrested and, if the officer is found to have inappropriately handled the contact, recognizing he or she is also entitled to due process, the appropriate punishment will be administered later. Seems simple enough to me.