Eighth Circuit Says Cops Can Come With Probable Cause For An Arrest AFTER They’ve Already Arrested Someone

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 Murphy 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.