Here is a bit more information on the situation I talked about yesterday, with an acquaintance being detained by police for being barefoot and shirtless late at night. I also got some questions that I would like to address.
Here’s what my acquaintance has added (again, slightly edited for clarity):
The police officer admitted I broke no laws being barefoot/shirtless, then he told me I would be trespassing on Wal-Mart property if I stayed, to which I said I’d gladly leave, but he wouldn’t let me go. He said he would not let me walk back home by myself, and would forcibly stop me from doing so. Yes I gave him my mother’s number as soon as I found out there was no other way to go. This was false imprisonment because he stopped my liberty of movement for no legal reason! Unfortunately, suing is out of the picture . . .
First, that bit about trespassing is a total lie (and the officer had to know that). It is only trespassing if the owner of the property has asked you to leave, and there is no indication that Wal-Mart was involved in this at all. Here’s what the Texas Penal Code on criminal trespass says:
Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
And “notice” (at least the portion relevant to us) means:
(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
And now we get to the issue of whether false imprisonment occurred. The officer did not forcibly restrain my acquaintance, but told him that he would forcibly stop him from walking home. The legal test for whether somebody is detained is whether a “reasonable person” would think that they were not free to go.
So, was my acquaintance detained? Probably. (You must really hate my using “probably”. The reason is, until a court has ruled, the answer to the question is in amorphous Schrödinger’s Cat territory, metaphorically). But it sure meets the definition.
Actually, “reasonable person” tests are also a bit of a cheat. We already know that my acquaintance did not himself feel free to leave. But that is a “subjective” answer, and you have to get into each individual’s mind to get an answer. Courts like to pretend to have precision in their rulings (now, stop laughing) so they instead develop and “objective” test, and ask what a “reasonable person” would do. Of course, that is just crystal-ball gazing of a different sort, since somehow this “reasonable person” so often just happens to agree with what the judge feels is right.
Anyways, this judge (me) says that a “reasonable person”, told by a police officer that a person could not stay and would be forcibly stopped if that person walked home on their own, would not feel free to leave. Ergo, he was detained. And, we already know that the police officer knew that no crime was being committed. Hence, that is clearly false imprisonment.
Now, on to answer a few questions:
Q: Wouldn’t the police department have been liable if you had been injured on your way home?
A: No. Police have no legal duty to protect you. Court opinion after court opinion has made that clear. If they do decide to protect you, or otherwise interact with you, they have to follow certain standards, but in this instance, no liability would attach.
Q: Wasn’t it legal because the police officer didn’t lock you up and wasn’t violent?
A: No. As addressed above, that is not the legal standard for detainment and false imprisonment.
Finally, let me talk again a bit about suing. As my acquaintance has recognized, suing for such violations is not much of a winning situation. Cards are really stacked against it coming to much. About all one can do is cool down a bit and make a careful cost/benefit analysis, and then see if there might be some other way to handle things.
Others have noted that what we have here in the U.S. is not a “justice system” but merely a “legal system.” And the legal system is a real meat-grinder. It is neither quick nor cheap. A lawyer, at a minimum, charges something like $150 an hour for services, and a case like this (particularly without any recording of the events) is going to take a lot of hours. Depositions will have to be taken; transcripts will have to be made. Investigations have to be made. You name it. We’re talking tens of thousands of dollars that need to be spent.
And for what? The purpose of a civil lawsuit is to compensate you for your loss. What is your loss for having your freedom illegally restricted? In this case, my acquaintance wasn’t taken to jail, he wasn’t beaten, and the encounter maybe took an hour or so. At most (based on other cases I’ve read), that was worth a couple of thousand dollars. So, would that be worth it?
In the heat of the moment, what one wants to do is to teach the officer a lesson. No, you cannot mess around with me. You humiliated me; you treated me like a child as if I were mentally incompetent (merely for making the fully adult choice to go barefoot and shirtless on a hot, humid Texas night). In some sense, that is was the ACLU does (but with different motivation). They teach all police departments lessons to try to lesson the occurrences of these sorts of rights violations.
But, can an individual do it? Yes, but the cost (time and money) is very high and most of us have to make that cost/benefit analysis and then bury it.
A different way of handling this so that it does not occur in the future is to consider filing a complaint with the police department. Actually, just going in and inquiring about how to file a complaint may give the opportunity to talk to somebody in the police department who will note the violation and have an off-the-record discussion about its legality with the offending officer. Or maybe my acquaintance might know or be friends with other officers on the force. Letting them know how you always go barefoot and the details of the encounter might give them the opportunity to spread that information around the police department so that they know about you and that you are not a problem.
There is often more than one way to skin a cat.