Police, The Fourth Amendment, Qualified Immunity

“Do your panties match your dress?” allegedly said the 65 year old stranger to the 2 and a half year old girl

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This case is an interesting one to ponder when thinking about the outside limits of police powers to lawfully arrest. Part of why it is a fun case to contemplate is that it seems so ordinary and “real.” Part of the reason it is fun to contemplate is that nobody got seriously hurt, or emotionally scarred. I can’t do the case full justice in a blog post, but I will try to give the bare, errr, minimal essentials, and you can click on the link below if you want to read the full thing.

A mother was in the park with her two and a half year old daughter. The daughter was wearing a pink dress when they encountered a sixty-five year old man. After the encounter, the mother called police, and, later, when the policeman showed up, she told the policeman that the stranger had asked the daughter whether her panties matched her dress and her daughter responded inappropriately, as young children will, by lifting her dress to expose her panties, which did indeed match her dress. The policeman detained the stranger, who admitted that he told the girl that she was wearing a “pretty dress,” and stated that the child did lift her dress to expose her panties in response to his comment about her “pretty dress.” The policeman arrested the stranger for felony child molestation and for carrying a firearm in the commission of a felony. Charges were not brought after a preliminary criminal hearing decided that there was not probable cause to make an arrest.

The sixty-five year old brought a civil suit against the policeman for false arrest. Even though it has been determined that there was not probable cause to arrest, there is no civil liability against the policeman if there was “arguable probable cause” at the time of arrest. In the short, and readable, opinion linked below, Judge William S. Duffey, Jr. decided that he would not grant summary judgment (sj) and there would be qualified immunity (qi) for the policeman in the civil suit if a jury determined that “arguable probable cause” existed in light of testimony and evidence to be heard at trial with regard to disputed facts about the encounter in the park and the subsequent arrest in the parking lot of the park.

Case: Benson v. FACEMYER, Dist. Court, ND Georgia 2014

Comment: I think I would have passed this hot potato case to a jury, too, were it that I was judge.

Written by Burgers Allday

September 1, 2014 at 10:29 am

Posted in Uncategorized

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