'You're Going to Jail Because You've Got a Case of the Attitude' - Injury & Tort Law - U.S. Tenth Circuit
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'You're Going to Jail Because You've Got a Case of the Attitude'

This week, the Tenth Circuit Court of Appeals clarified that -- despite the government's increasing interference to every aspect of a person's life -- having "a case of the attitude" is not an arrestable offense.

The Los Lunas, New Mexico Police Department received an anonymous call reporting a loud argument at Michael Storey's address. The Department dispatched Officer Taylor to investigate. Though Taylor didn't hear an argument when he arrived at Storey's residence, he proceeded to ask Storey about the yelling match.

Storey said that he and his wife had been arguing inside their home, and that she was no longer home. He refused to say what the argument was about, despite Officer Taylor's insistence that he was required to do so. Storey also refused to comply with Taylor's order that he step out of the house.

Taylor pulled Storey out of his house, and handcuffed and arrested him, explaining "You're going to jail because you refuse to comply because you've got a case of the attitude." He was charged with resisting, evading, or obstructing an officer.

Storey sued Taylor for wrongful arrest and retaliatory arrest. The district court granted summary judgment for Taylor, and Storey appealed.

The Tenth Circuit Court of Appeals reversed the district court, concluding that the Taylor lacked probable cause and exigent circumstances to justify the arrest.

To enter a home and seize an individual for a routine investigatory purpose, police must have exigent circumstances and probable cause, or a warrant, "no matter whether the seizure is an investigatory stop or an arrest."

In determining whether the risk of personal danger creates exigent circumstances, the appellate court uses a two-part test: Whether the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and the manner and scope of the search is reasonable.

Taylor claimed that he had probable cause for the arrest because Storey failed to obey a lawful order to exit the house. Taylor's argument, however, assumed that the order in question was lawful.

That assumption was wrong.

Absent exigent circumstances, Taylor had no reason to order Storey out of his house. Clearly, Storey disobeyed Taylor's order to step outside, but a sufficiently coercive order requiring an individual to leave his own house counts as a seizure subject to the protections of the Fourth Amendment.

Taylor also failed to persuade the court that there were exigent circumstances. A report of a domestic argument, alone, does not demonstrate exigent circumstances per se, and Taylor didn't point to facts beyond the domestic argument that would demonstrate exigency.

There are many reasons why the cops can arrest a person: A bad attitude is not one of those reasons.

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