EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 18, 2021

Eighth Circuit Grants Qualified Immunity to Officer Who Handcuffed, Frisked & Pointed His Gun at Innocent 12 & 14 Year-Old Boys Walking From Grandparents' House

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

[T]he Springdale Police received a tip that a woman with outstanding arrest warrants was staying in the house of a suspected gang member. During a stakeout to find that woman, an officer saw multiple people leave in a Chevy Cobalt, including two men—one smaller than the other. Another officer tried to stop the Cobalt. But the driver fled and eventually crashed the car. Four people ran from the scene: two went south and two north. Dispatch instructed officers to set up a perimeter around the site to stop the fleeing suspects.
Officer Marzolf responded to the dispatch call. As he approached an intersection near the crash site with his blue lights flashing, dispatch told him that when the police last encountered one of the four fleeing suspects he had a gun.
Soon after, Officer Marzolf saw two people (later identified as W.Y. and S.Y.) walking slowly toward him within the perimeter wearing hoodies and light-colored pants. One was taller than the other. Officer Marzolf turned on his headlights and angled his car toward the boys. He stopped and said, “Hey, what are you guys doing?” W.Y., the taller and older boy, responded by speaking and pointing past Officer Marzolf. The dash cam video does not convey his response. Officer Marzolf then said, “Hey, stop, stop, turn away, turn away from me.” The boys did so with their arms at their sides. Then, Officer Marzolf entered the video frame with his gun pointed at the boys.
Officer Marzolf then asked, “What are your names?” He next pulled out his flashlight and pointed it at the boys’ backs. One of the boys said his name multiple times. Officer Marzolf confirmed the name and kept his gun trained on the boys.
Then, the boys’ mother, Casondra Pollreis, walked up and said, “Officer, officer, may I have a word with you?” While she said more, her exact words are unclear from the recording. Officer Marzolf then spoke into his radio: “45 Springdale, I've got [W.Y.] in front of me, I've got two juvenile individuals, dark hoodies and pants.” Sergeant Kirmer responded, “OK, detain both of those.” After confirming with Officer Marzolf that one was taller and the other was short and skinny, Sergeant Kirmer repeated, “Hold on to them please.”
Officer Marzolf walked up to the boys with his gun pointed at them and told them to get on the ground. They complied. He then said, “Put your hands out.” They complied. Pollreis walked toward Officer Marzolf and asked what happened. Officer Marzolf told her to step back multiple times. She said, “They're my boys.” He then stepped toward her with his gun still pointed at the boys and said, “I am serious get back.” He drew his taser, pointed it at her, and ordered her to go back to her house. She asked, “Are you serious? They're twelve and fourteen years old.” Officer Marzolf responded, “And I'm looking for two kids about this age right now, so get back to your house.” An upset Pollreis then exclaimed, “Oh, my god. You're OK guys, I promise.”
Officer Marzolf continued to stand over the boys for nearly two minutes with his gun pointed at them. During those two minutes, he asked the boys for identification and requested backup.
The boys’ stepfather then approached and said, “Officer...can I have a word with you?” Officer Marzolf declined. The stepfather stated, “Those are my kids,” and Officer Marzolf responded, “OK.” The stepfather explained, “We just left [Pollreis's] parents’ right there. When you guys passed with your lights on, they were walking behind my car. I also have witnesses if you want me to call them.” Officer Marzolf responded, “That's fine, I just need to find out who these kids are right now.” The boys’ stepfather stated their names.
Another officer, Adrian Ruiz, arrived at the scene. At the same time, W.Y. reached back to adjust his shirt or belt and Officer Marzolf yelled, “Hey, keep your hands out!” Both officers walked toward the boys with their guns pointed at them. While Officer Ruiz continued to point his gun at the boys, Officer Marzolf holstered his weapon and handcuffed W.Y. Officer Ruiz handcuffed S.Y. Officer Marzolf then told dispatch, “I've got black hoodies and khaki pants and jeans.” Officer Ruiz said, “Black hoodie, and a white backpack....”
Sergeant Franklin, the officer in charge, arrived next. He immediately asked the boys if they ran from the police. The boys said no and explained: “We were at our grandparents...and we just started walking home.” When Sergeant Franklin asked their names, they told him. Officer Marzolf then frisked W.Y. and searched his pant pockets for weapons. Sergeant Franklin asked Officer Marzolf if they were running. Officer Marzolf replied, “No, they were just walking, sir.” Sergeant Franklin responded, “OK. So these guys probably aren't them?” And Officer Marzolf said, “Probably not. I mean we had both parents come out.”
The boys’ grandparents then walked up and identified the boys to the officers. At that time, Officer Ruiz searched S.Y.’s backpack. After speaking with the grandparents, Sergeant Franklin ordered the officers to remove the handcuffs and let the boys go.

These were the facts in Pollreis v. Marzolf, 2021 WL 3610875 (8th Cir. 2021), which led to Pollreis suing Officer Marzolf and another officer, asserting four § 1983 claims against Officer Marzolf on her boys’ behalf: (1) illegal seizure; (2) illegal arrest and detention; (3) illegal search; and (4) excessive force. The district court denied Officer Marzolf's motion for summary judgment on grounds of qualified immunity. The Eighth Circuit reversed, holding that

Although it may be of little consolation to Pollreis and her children, it bears emphasizing that neither W.Y. nor S.Y. did anything wrong, nor anything deserving of such a harrowing experience. The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. W.Y. and S.Y. acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions.

Judge Kelly dissented, arguing that

while the report of armed suspects in the area may have supported Officer Marzolf's initial decision to stop W.Y. and S.Y., his reason to believe that they were the suspects he was looking for had diminished by the time he handcuffed them. The boys were walking when he first saw them, and when he employed handcuffs he had observed that they did not seem out of breath, as might have been expected had they been fleeing a crime scene on foot....W.Y. and S.Y.’s quiet cooperation from the beginning of the encounter also would have seemed inconsistent with the behavior of people who, moments earlier, ran from a car crash to evade the police. Further, both Pollreis and the boys’ stepfather independently confirmed the name W.Y. had provided to Officer Marzolf earlier in the encounter and informed Officer Marzolf that the boys were their adolescent sons. This additional information may not have completely eliminated all suspicion, but a reasonable officer would have had cause to question whether S.Y. and W.Y. were the armed suspects....And just as the grounds for reasonable suspicion were dissipating, W.Y. and S.Y.’s behavior during the stop indicated that they were cooperative and did not present any danger to Officer Marzolf. Considering all the information available at the time, a reasonable officer would not have concluded that handcuffs were necessary to protect his safety or maintain the status quo. Accordingly, when Officer Marzolf handcuffed W.Y. the stop became an arrest....

Officer Marzolf did not have probable cause to arrest W.Y. and S.Y. Even in the initial moments of the encounter, the only evidence that W.Y. and S.Y. had committed a crime was that they were walking in the same neighborhood as fleeing suspects and seemed to match the suspects’ general description (male, wearing hoodies, and different heights). But “the fact that [they] fit a general description...in isolation [was] insufficient to justify [their] arrest.”...And, as discussed above, Officer Marzolf had even less reason to believe W.Y. and S.Y. were the suspects in question “at the moment the arrest was made.”...Yet even when presented with exculpatory information, Officer Marzolf conducted no further investigation before he put them in handcuffs....Considering the information available at the time, a reasonable officer in Officer Marzolf's position would not have believed that there was a “fair probability” or “substantial chance” W.Y. and S.Y. had committed a crime.



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This is a tough call. An armed person running from the police at night and the cop is alone. But, I'd probably go with the dissent, but for a different reason. The cop could (and should) have frisked the boys at the outset, and not finding a weapon, should have not needed to cuff them, put them on the ground and point his weapon at them.

Posted by: Fred Moss | Aug 20, 2021 12:10:04 PM

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