Eighth Circuit Says Cops Can Come With Probable Cause For An Arrest AFTER They’ve Already Arrested Someone
from the do-what-now dept
Well, this is a bit of a doozy. This case — via the Institute for Justice — involves a possible First Amendment violation but somehow ends with a judicial blessing of cops who make things up after the fact to justify an arrest that has already taken place.
That’s literally what happened here. Mason Murphy was walking down a Missouri road when he was accosted by Officer Michael Schmitt. From the opening of this very unfortunate decision [PDF]:
Schmitt stopped his car, approached Murphy, and asked Murphy to identify himself. Murphy refused to identify himself, and Schmitt put Murphy in handcuffs after nine minutes of argument. Murphy asked why Schmitt arrested him, and Schmitt refused to answer.
So far, it would appear no criminal act was committed and that the cuffing of Murphy by Schmitt was in retaliation for Murphy’s refusal to identify himself and, First Amendment-wise, his refusal to shut up.
I said “so far,” but nothing really changed following this first nine minutes of unjustified detention. It continued. And it got worse.
On the drive to the sheriff’s department, Murphy again asked Schmitt why he was being arrested. Schmitt responded that the arrest was for “failure to identify.”
Now, that could have been a legitimate charge. State law does allow officers to demand identification in certain cases.
They shall also have the power to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad and whither he is going.
Note the bold print, though. To demand identification from Murphy, Officer Schmitt would have needed to suspect his walking on the side of the street was a criminal act. But Schmitt apparently didn’t consider this to be a criminal act. Nor did he seem to have any idea whether any criminal act had been committed that would justify (1) his demand Murphy identify himself, and (2) the subsequent arrest for “failure to identify.”
None of that happened. Officer Schmitt arrested first and asked rather desperate questions later.
Once at the station, Schmitt can be heard making a call to an unknown individual and saying he “saw the dip shit walking down the highway and [he] would not identify himself.” Schmitt then asked the unknown individual: “What can I charge him with?”
Without any predicate suspected offense, Officer Schmitt could not demand Murphy identify himself. Murphy could not have possibly violated the law Schmitt first thought he could arrest him for. Schmitt appears to have recognized this fact, hence his call for charging advice that might allow him to reverse engineer the probable cause to support his actions.
Meanwhile, Murphy sat in a cell for two hours until officers identified him via a credit card in his wallet and released him.
Murphy sued, claiming his First Amendment right to mouth off to a law enforcement officer was violated by this obviously retaliatory arrest that was completely unsupported by probable cause.
Both the lower court and the appeals court say there was probable cause, even if Officer Schmitt didn’t appear to know it at the time he accosted and cuffed Murphy.
A Missouri statute requires pedestrians to “walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.” Mo. Rev. Stat. § 300.405.
Murphy agreed there was probable cause to arrest him under this statute, but pointed out this was much like the Supreme Court’s Nieves case, where the court decided any probable cause for an arrest automatically defeats First Amendment retaliation claims. The justices in this case noted there are exceptions to this rule, like the sudden enforcement of laws law enforcement officers had never bothered to enforce prior to the retaliatory arrest.
The parties agree Schmitt had probable cause to arrest Murphy because Murphy was in violation of Missouri Revised Statute § 300.405. Murphy argues the facts in this case fit into the possible Nieves exception because, like the hypothetical in Nieves, this is a situation where “officers have probable cause to make arrests, but typically exercise their discretion not to do so.”
[…]
The Supreme Court in Nieves gave an example of an individual who is arrested for jaywalking in an intersection where “jaywalking is endemic but rarely results in arrest” while the individual is “vocally complaining about police conduct[.]” Nieves 139 S. Ct. at 1727. Murphy relies heavily on the similarities between jaywalking and walking on the wrong side of the road to prove his point.
The Eighth Circuit says the cases aren’t comparable. Murphy submitted no evidence showing this law enforcement agency routinely saw people violating this pedestrian law but chose not to enforce it. And, as far as the court’s counterargument goes in terms of case specifics, it’s correct.
But that ignores the bigger issue: Officer Schmitt — as captured on his own recordings — never once mentioned anything about this law or Murphy’s violation of it. Instead, he opted for “failure to identify” and only released Murphy once his identification had been forcibly obtained and he could find no other reason — including this particular law — to charge him with a crime.
So, while the court may see this as a straight-up exercise of the Supreme Court’s Nieves precedent (probable cause beats First Amendment claims), it ignores the fact the officer’s own statements and actions showed he did not actually have probable cause to effect the arrest and that all justifications for the stop, detention, and arrest of Murphy were obtained after the fact. That’s the bigger problem. By focusing on the law that went unmentioned by the arresting officer, the court is giving its blessing to cops who arrest first and seek justification later.
The dissenting opinion lays it all out in all of its ugliness:
Later events indicate Officer Schmitt was scrambling to justify the arrest. While in the police car, Officer Schmitt told Murphy he was arrested for “[f]ailure to identify.” He then changed his tune when he told someone via his police radio that Murphy was stumbling and walking on the wrong side of the road. Yet Murphy was not stumbling or acting impaired. When Officer Schmitt arrived at the jail with Murphy, he made a phone call in which he described Murphy as a “dip shit walking down the highway” who “would not identify himself” and “ran his mouth off.” He then asked, “What can I charge him with?” Later, Officer Schmitt falsely claimed that Murphy was drunk. Officer Schmitt even admitted on multiple occasions that he did not “smell anything” on Murphy. Despite all this, Officer Schmitt insisted Murphy “sit here for being an asshole.” Roughly two hours later, Murphy was released.
Sure looks like retaliation from here. It was “contempt of cop,” which isn’t a crime, but every cop somehow believes it is and will seek any law at all to justify their decision to make innocent people sit in jail for “being an asshole.” If being an asshole was a crime, most cops would violate this law multiple times a day.
It’s that chain of events that matters and the post facto attempt to justify the arrest for a law most likely rarely, if ever, enforced makes it clear this was plain old retaliation.
Under these factual allegations, I cannot join the majority’s conclusion that Murphy failed to state a plausible claim. If the Sunrise Beach Police Department regularly enforces the Missouri statute prohibiting a person from walking on the wrong side of the road, one would suspect Officer Schmitt and the other officers he spoke with would have had little trouble identifying that law as the basis for the arrest. Instead, viewing the factual allegations in the complaint in a light most favorable to Murphy, Officer Schmitt arrested Murphy for challenging and criticizing him before later exploring various legal justifications for the arrest. Indeed, the allegations of post hoc decision-making indicate pretext, which supports application of the Nieves exception.
Schmitt retains the qualified immunity he really didn’t earn. He hassled somebody who wasn’t receptive to being hassled and turned his inability to walk away from a confrontation he created into two hours of misery for someone who was doing nothing more than walking down a road. And because of this ruling, cops like Schmitt will continue to engage in this sort of behavior because the courts are telling them they’ll just keep getting away with it.
Filed Under: 1st amendment, 8th circuit, identification, mason murphy, michael schmitt, missouri, probable cause
Comments on “Eighth Circuit Says Cops Can Come With Probable Cause For An Arrest AFTER They’ve Already Arrested Someone”
Everything changed now (statement of historical fact from future historians)
The 8th circuit has just endorsed the practice of authorizing time travel expositions to run surveillance on crimes and their antecedents so that prosecutors may fully understand the persons and events leading up to any crime.
This will also end Brady disclosures since you can’t even argue the witnesses saw your evil twin commit the crime if the prosecutors have a video record of you from birth to committing the crime to arrest and arraignment.
Sadly, this does not eliminate crime, but it does introduce new philosophical approaches to criminology. For example, is it possible to commit a crime which is so victimless that no one’s life is touched by the event. Can you, for example, desecrate a mathematical theorem in the privacy of your head?
Re:
conspiracy theorists
Re: Re:
Poe’s Law, actually. Or I am saying that I am a time traveller, in violation of many regulations and accords.
Re: Re: Re:
nah your a conspiracy theorist from a right wing site
Re: Re: Re:
ain’t no way your saying any facts and just saying conspiracy theory garbage from twitter
Re: Re: Re:
you narcissistic clown
Gutless cowards in robes
And like that the eight circuit effectively enshrined ‘contempt of cop’ as a criminal offense within it’s jurisdiction since a cop can now arrest anyone they don’t like and take as long as they need to find something to charge them with.
Lemme tell you it’s a good thing the legal system isn’t riddled with laws to the point that it’s basically impossible not to break one or more if someone is motivated to find one to nail you with otherwise this seems like the sort of ruling that will result in massive amounts of abuse by corrupt and/or power-tripping cops, further fanning the flames and driving the wedge between them and the public even deeper.
Re: Get a Warrant
our current ‘legal system’ is quite deliberately ultra-complex and arbitrary — BECAUSE it is primarily a system of CONTROLLING the general populace, NOT of defending that populace against injustice
ordinary cops now have been ‘given’ the very broad and tyrannical JUDICIAL power of discretionary ARREST
Formal judicial Arrest Warrants were always routinely ROUREQUIRED by LEO’S, up until late 19th Century in America — this offered citizens substantial protection against assault by dumb or badge-heavy cops
Cops, literally act the same way when they were working hand in hand with the kkk.
The fact that multiple judges think arresting someone and then having them sit in jail while cops try to justify the arrest is acceptable is depressing.
And some still wonder why Europe has the states listed as a high risk destination 🤔
Re:
Canada is now doing that too.
Though we’re still arguing about whether the “Safe Third Countries” agreement (refugee/asylum law) with the USA should be maintained or scrapped.
Ah-HA!
So this is how cause and effect are supposed to work. I had it backwards.
Re:
It is cause and effect, the cause ‘I have arrested you’, the effect ‘I will now find out why I arrested you’.
Fault, is the approach.
“walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.”
Why demand. Just stop off and ask hwats his name, and offer a ride.
To the location in town they want to go.
Or
To the other side of town to save the person a couple miles.
JUST suggest that you need a name and ID to let them ride in the car.
If not given, LEAVE. Sit in the area the person would need to pass. and WAVE as they walk by. The “Sorry”, “I offered”. attitude.
Who the fuck gets arrested for walking in the wrong direction? Enforcement would have been to slow down and advise the guy to cross the road and face traffic. There is zero reason for identification or arrest. It’s bad calls all the way down.
Identity swap typo
“None of that happened. Officer Murphy arrested first and asked rather desperate questions later. ”
should be:
“None of that happened. Officer Schmitt arrested first and asked rather desperate questions later.
Well, obviously… it was a reference to Murphy’s Law. 😉
Maybe this case would justify a new variant — we could call it Schmitt’s Law …
Nobody else caught this:
I should think that the word “Up” is missing from that statement, as in
Of course, my dirty mind did think of other meanings for that original wording….
Remember...
You have the right to remain silent.
Re:
I mean, it won’t prevent you from being hauled in for contempt of cop while they look for something to charge you with but sure, you do have that right.
Times arrow
How is this even up for debate? Cause precedes an effect, not vice versa.
Re:
Given judges in the US consider police to be the dumbest people on the planet bar none it’s entirely within character for them to treat ’cause and effect’ as too complex an idea for police to understand.
Title Funny
The way my browser is here at work, I read the title as “Eighth Circuit Says Cops Can Come”. I uh, had a chuckle.
Sometimes ya gotta amuse yourself.
Article 8th circuit
This misuse of the law issued by the 8th circuit is terrifying. These judges must be roved from the bench immediately. Their ruling leaves pice to make up changes, arrest, harm and kill at will which directly violates the Constitution. This is a pitical. Act by fascist right wing corrupt judges. God help us
Ambiguity and Conundrums in Missouri’s Pedestrian Laws:
Missouri Revised Statute RSMO 300.405 states:
Additionally, Missouri Revised Statute RSMO 300.410 mentions:
Analyzing the aforementioned provisions:
Given these statutes, a pedestrian could face a legal conundrum. If they choose to prioritize personal safety and walk on the side of the road where they can best see oncoming traffic, they could be in violation of RSMO 300.405. Conversely, if they strictly adhere to walking on the left side but need to cross the road where no crosswalk exists, they could violate RSMO 300.410.
The interplay between these laws creates a catch-22 for pedestrians in areas without adequate infrastructure. They must navigate these ambiguities, potentially risking citation or detention for making decisions that seem safest or most practical in the moment. Such gray areas in the law can lead to arbitrary enforcement and may disproportionately affect those unfamiliar with these nuances.