Police, The Fourth Amendment, Qualified Immunity

Why didn’t the Willie’s employees just ask Lacy to leave instead of calling police?

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Case: BURDEN v. PAUL (E.D.Ky. 9-22-2011)

What allegedly happened:

On July 5, 2008, Plaintiff [] and her daughter, [Lacy], [footnote 1] were at Willie’s Sports Café (“Willie’s”) in Independence, Kentucky. Willie’s was very crowded that night because the City of Independence was holding its annual Fourth of July celebration. To deter underage drinking, Willie’s issued wristbands to patrons who were of legal drinking age and served alcoholic beverages in distinctive cups. In Plaintiff’s underlying criminal trial, [a Willie’s employee], testified that she observed Plaintiff give Lacy a drink of an alcoholic beverage. Specifically, [a Willie’s employee] stated that, while she was stocking supplies in the women’s restroom, she witnessed a young girl, later identified as Lacy, come out of a stall with two cups designated for alcoholic drinks; she was not wearing a wristband. An older woman, later identified as Plaintiff, then came out of another stall. After Plaintiff washed her hands, Lacy handed her one of the drinks. As they left the restroom, Plaintiff offered Lacy a drink from the alcohol-designated cup. Although Lacy initially refused, she then took a sip. . . . [A Willie’s employee] saw Lacy again later and concluded, based on her behavior, that she had been drinking. Specifically, [this other witness] stated that she “observed [Lacy] standing up by the liquor booth talking to two guys. She was hugging on one guy. She seemed stumbly, she smelled of alcohol.” [A Willie’s employee] . . . called Kenton County dispatch to request police to escort Lacy off the premises. Defendant and two other officers, Officer Fuson and Officer Wood, arrived at Willie’s and were led to Lacy. Officer Fuson attempted to escort Lacy off the premises, but she refused to cooperate and a struggle ensued. Officer Wood and Defendant attempted to assist Officer Fuson, but Lacy continued to resist. The officers eventually escorted Lacy to the parking lot adjacent to Willie’s where, according to Lacy, they slammed her into a wall and tackled her to the ground. Defendant does not deny that Lacy was placed on the ground, but he contends it was necessary to control her kicking. Plaintiff was not present when the police escorted Lacy to the parking lot but, after a bartender alerted her to the incident, she went in search of Lacy. Plaintiff stated that, when she first saw Lacy, she was against the wall, but by the time she reached her, Lacy was face down on the sidewalk next to the police cruiser. Plaintiff asked the officers about the circumstances of Lacy’s arrest, but they would not respond, nor would they allow her near Lacy. Eventually, Lacy was transported to the Kenton County Detention Center. After the police cruiser left, Defendant returned to Willie’s to thank management for their cooperation. While talking to Thompson and Jansen, Defendant saw Plaintiff and identified her as Lacy’s mother. [A Willie’s employee] told Defendant that she had seen Plaintiff provide Lacy with an alcoholic drink in the women’s restroom earlier that evening. Defendant asked her if she was certain that it had been Plaintiff, and [the Willie’s employee] confirmed that it was. . . .
footnote 1          In 2007, Lacy was arrested by two Independence police officers, Mark Hampton and Matt Hicks, after the police officers allegedly found a marijuana seed in her car during a drug sweep at her high school. Lacy sued the two officers, claiming they fabricated the evidence and wrongfully arrested her. That lawsuit was pending when the events giving rise to this case occurred. Ultimately, the state court granted summary judgment in favor of the officers; Lacy appealed and a decision is expected soon. Although Defendant was aware of the lawsuit on July 5, 2008, he had no involvement in it.

(emphases added)

Decision: Police are not liable here.

Comment: Assuming the Willie’s employees did not actually see Lacy drink, it seems odd that the Willie’s employees called police based on the Lacy’s behavior as described in the passage that has been emphasized above. It almost seems like it would have been 911-abuse, which is a crime in many places. Again, assuming the Willie’s employees didn’t see Lacy drink, and the opinion is strangely unclear on this point. Then that, in turn, kind of makes me wonder more about footnote 1. Oddly placed footnote. Perhaps a little naive, too.

Written by Burgers Allday

September 24, 2011 at 6:10 am

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