Police, The Fourth Amendment, Qualified Immunity

Judge Greg Kay writes a bad opinion on what a “lawful command” is

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Case: KATEKARU v. Egan, Dist. Court, WD Missouri 2015

What happened: A plaintiff’s nephew was living with him. During some kind of dispute with the nephew, plaintiff called police on the nephew. After that, the nephew pulled a knife and threatened to hurt himself. Plaintiff took the knife away from the nephew. When the police arrived, plaintiff gave police the knife and explained the situation. Police wanted to question the nephew, but the nephew ran away. Plaintiff went to go into his house, but police gave a command to plaintiff to stay in his front yard. Plaintiff made a derogatory comment about the policeman and went back into his house anyway. Police arrested plaintiff for “failing to obey a lawful command.”

Decision: Policeman gets summary judgement of qualified immunity (sj of qi) because plaintiff did disobey a “lawful command.”

Criticism: I think the opinion did not deal with some serious issues regarding what a “lawful command” is. Why was ordering plaintiff to stay out of his house a “lawful command” and not merely a “lawful suggestion?” In other words, it would have been lawful for plaintiff to obey the command/suggestion, but it is not clear that the lawfulness of the commanded/suggested conduct makes it lawful for the policeman to command the commanded conduct. For example, if the policeman ordered plaintiff to tie the policeman’s shoe, then would that have been a lawful command because it is legal, in Missouri, to tie another person’s shoe. Personally, I think: (i) the scope of what can lawfully be commanded must be reasonably connected to legitimate police objectives (in this case catching the nephew); (ii) that ordering plaintiff to stay out of his house was not reasonably connected to the objective of catching the nephew; and (iii) the policeman’s order was therefore not a “lawful command.”

Comment: I don’t know why a First Amendment retaliation claim was not raised. It is pretty clear under the facts that the police arrested plaintiff for making a derogatory mark towards the policeman and not because going inside his house would help the nephew evade capture.

Written by Burgers Allday

August 15, 2015 at 1:23 pm

Posted in Uncategorized

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