04 March 2008

Liberty v. Security

The United States Court of Appeals for the 4th Circuit decided a case on Tuesday in favor of police on all elements of a civil rights claim involving the preventive detention of a suicidal man with a large cache of arms and ammunition. The facts drive the case and I repeat them at length from the opinion, up until the proceedural issues of the police department not returning the guns and ammunition because the individual from whom they were seized is willing to fill out a state, but not a local form are addressed:

At 1:02 P.M. on July 23, 2002, Maryland police received a call from a healthcare hotline operator. The operator said that she had just spoken to Anthony Mora, a local firefighter, who told her he was suicidal, had weapons in his apartment, could understand shooting people at work, and said, "I might as well die at work." By 1:03, multiple units were en route to Mora’s apartment. By 1:04, police had called one of Mora’s co-workers, who confirmed that Mora’s threats should be taken seriously; at some point, police also learned that Mora’s girlfriend had recently ended her relationship with him. Police arrived to find Mora in the parking lot loading suitcases and gym bags into a van, and they approached with guns drawn. By 1:13, Mora was handcuffed and on the ground. No warrant had been sought.

At that point, police and Mora began talking, and police began searching — whether with consent or without is disputed. Police first searched Mora’s luggage and van, finding one .32-caliber handgun round in a suitcase. Next, taking Mora’s keys, they entered his apartment, where they found a large gun safe in the kitchen and every interior door (including bathroom and closets) locked. Mora relinquished the combination under pressure, and inside police discovered twelve handguns, eight rifles, one shotgun, and keys to a second safe. Opening the interior doors, the second safe, and a locked file cabinet, police found guns, ammunition, gun accessories, and what police called "survival literature" in every room but the bathroom.

At that point, two officers drove Mora to a hospital to see a psychiatrist. See Md. Code Ann., Health-General § 10-622(a) (LexisNexis 2005) (authorizing involuntary emergency psychiatric evaluation if an individual has a mental disorder and presents a threat to his own safety or that of others). The other officers re-entered the apartment to seize Mora’s weapons. All told, they removed forty-one firearms — some apparently automatic, semi-automatic, or assault-style, and some loaded — as well as five-thousand rounds of ammunition, various accessories, and survivalist publications. The Gaithersburg police department took that property into custody. Again, no warrant had been sought.

We do not precisely know what the psychiatrist who saw Mora that day concluded, but Mora was not involuntarily committed, though he voluntarily admitted himself and stayed at the hospital for several days. There were also no criminal charges brought against him based on the day’s events, then or at any other time. After his stay in the hospital, Mora returned home, where he discovered that his firearms and associated property were missing. Over the next few months, he moved to Pennsylvania. Meantime, the Gaithersburg police completed their investigation (which showed that Mora was a licensed gun collector and did not have a disqualifying criminal conviction) and closed the case administratively, storing the seized property in their evidence room. In 2003, through counsel, Mora inquired about getting his property returned, and Gaithersburg police did eventually return the accessories and survival literature — but not the guns and ammunition.

The 4th Circuit notes that most of the law on search and seizure involves post-crime, rather than preventative cases, although the citation to Hamdi for the proposition that preventative detention is valid in the case of enemy combatants isn't terribly apt and is, indeed, chilling as it implies that the President's claim to have a right to detain U.S. citizens on U.S. soil for fear that a person would commit a future crime without major judicial review might have merit (which is why Jose Padilla was transferred to the 4th Circuit to be detained).

Still, this is clearly a case where there was probable cause to believe that Mora was attempting to commit a grievous crime and taking an affirmative step towards that plan. Likewise, there was clearly probable cause to believe that he was a threat to others and himself and hence that he was properly taken for a mental evalution. At 1:13 a.m., there was no violation of the United States Constitution.

The searches that follow are a closer call. The 4th Circuit reasoned that:

The authority to defuse a threat in an emergency necessarily includes the authority to conduct searches aimed at uncovering the threat’s scope. When police arrived at Mora’s apartment and handcuffed him, they did not and could not fully know the dimensions of the threat they faced. They knew only that they faced an emergency of the kind that has traditionally justified warrantless searches, even into a home. See Mincey, 437 U.S. at 392-94 (recognizing that warrantless entry into a home is permitted in exigent circumstances). As the district court emphasized, Mora might have had a bomb — not an unprecedented thing for men in his state of mind. Or as the commanding officer at the scene pointed out in his report, Mora might have taken hostage the girlfriend who, police knew, had recently broken up with him. Or Mora might have had a confederate. Even in the context of an ordinary criminal arrest, handcuffing a suspect outside his car does not eliminate officers’ authority to search the passenger compartment for weapons or evidence.

While I'm not sure that I would be as willing to make the findings of fact upon which the district court's ruling on this point was based, that there was a bona fide fear of a bomb or a kidnapped girlfriend, the facts were muddy enough that the district court's ruling on this point was probably not an abuse of discretion. The concern about a possible kidnap victim or confederate in the apartment with the weapons was meaningful.

I definitely part company with the 4th Circuit on the next question it addresses:

Mora next challenges the seizure of his guns, ammunition, firearms accessories, and survival literature. First, he questions whether there was any basis under the Fourth Amendment for taking property that was not contraband or evidence of a crime and that presented no immediate danger to the officers. Second, he argues that the Fourth Amendment’s warrant requirement had surely taken hold by the time police took his property, for at that point he was already in a police cruiser en route to the hospital.

With regard to the first subpoint, the 4th Circuit states based upon some rather dubious precedent for a case like this one that: "There are no shortage of precedents approving preventive seizures for the sake of public safety." But, this is the strong of the issues for the police.

The bigger issue is the lack of a warrant. The 4th Circuit reasoned that:

[The police] had no way of knowing whether confederates might possess access to Mora’s considerable store of firearms, or whether Mora himself might return to the apartment more quickly than expected and carry out some desperate plan. Further, it was unclear whether the weapons themselves might become evidence in a forthcoming prosecution, making the need to guard against their disappearance great.

This is unpersausive. The police could easily have stationed one or two officers to guard the premises in such an exceptional circumstance until a warrant could be obtained later that morning from a judge. It is one thing to displace the 4th Amendment's warrant requirement due to an emergency or possible emergency, and another to do so merely for the sake of convenience.

This is a relatively unprecedented case. Indeed, it would be a perfect one in which to have announced a legal rule that did not evicerate the 4th Amendment protection against warrantless search and seizure in non-emergency cases, while at the same time protecting the police officers in question from liability under the doctrine of qualified immunity.

Also, even if qualified immunity was not present, it isn't clear that the damages to Mora would have been great. No criminal charges were ever pressed. It isn't necessarily clear that Mora was entitled to possess the firearms under Maryland law after he was voluntarily committed as an inpatient for suicidal and homicidal tendencies. There would be some economic and non-economic harm, but it isn't clear that it would be a big dollar amount if put to a jury.

It also isn't obvious that the resolution of the warrantles seizure issue pre-determines the issue of whether or not the guns have to be returned (return of the other property is a moot point). By analogy, its does not follow that a criminal defendant from whom cocaine is illegally seized is entitlted to have it returned, and the 4th Circuit could have, as it ultimately did, left Mora's right to have the firearms returned, which hinges on interpretation of Maryland law, in the hands of Maryland's courts.

I quibble with the 4th Circuit in this case, because it opens the door the much greater abuses by law enforcement in cases not equally compelling. Of course, a believer in the notion that the Second Amendment provides an individual right for a lawful gun owner to bear arms which may be asserted against a state government, would also argue that the 4th Circuit's analysis is insufficiently deferrential to the constitutional rights at state in this case.

The fact that statutory law provides only the weakest basis for preventing someone like Mora from possessing firearms and ammunition after the frightening events that led to his arrest is troubling. But, it is also troubling to imply that the police have broad powers of arrest and property seizure, in the absence of statutory authority to do so, to prevent crime and advance public safety in the most general sense, particuarly given the degree to which statutory law has reached carefully balanced and politically determined compromises regarding preventative detention of the mentally ill and gun ownership by the mentally ill.

Make no mistake about it, the 4th Circuit decision in this case was a classic case of activist judges stretching to evade existing constitutional and statutory law in this area to secure a desired policy outcome. The policy outcome reached in this particular fact pattern isn't necessarily a bad policy, but it is hard to reconcile with the outcome ordained by precedent and legislative action.

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