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Bell v. Neukirch, 2020 WL 6304897 (8th Cir. 2020)
A 911 caller reported a couple of Black juvenile males playing with guns outside a house. The caller described the first suspect as having dreadlocks, wearing a white t-shirt and jeans, and having a gun in his pocket. The caller gave his phone number.
Responding officers called the complainant as they were driving to the scene. He told them the boys had gone into the house. As the two officers drove up, they saw three Black juvenile males. An officer chirped the siren and the juveniles turned to look. One juvenile ran and an officer chased. The officer shouted, “Drop the gun,” and the juvenile tossed a gun over a fence.
The officer could not catch the fleeing juvenile. He broadcast the suspect description as: “Black male. Dreads. Blue shorts.” The officer then added: “Juvenile Black male, 17-18, about 5’10,” skinny, blue shorts, white t-shirt, shoulder-length dreads. He was taking his shoes off. I’m not sure what kind of shoes he had.” The patrol car dash camera showed that the suspect wore a plain white t-shirt; dark solid-color shorts; and long, striped, gray socks that rose to near mid-calf.
Seven minutes later, another officer in the area saw Tyree Bell walking and talking on his cell phone. The officer asked by radio whether the officer who had given chase was sure the suspect had removed his shoes and explained he was watching “a younger Black male with … braids or dreads … white shirt, with black-and-white shorts.” As the two officers were speaking by radio, Bell walked past the police car.
The officer could see Bell wearing a white t-shirt, black shorts with a wide white stripe on each side, short black socks and black Nike Air Jordan basketball shoes trimmed in red with a red logo on the tongue. Bell’s hairstyle was short dreadlocks. The officer got out and called Bell over to him, who immediately complied. Bell was not breathing hard, as he would be if he’d just run from the other officer, though he was a little sweaty, as it was a hot day. The officer frisked Bell, finding nothing, and asked for identification. Bell said he was not carrying identification and that he was coming from his cousin’s house down the street. The officer handcuffed him.
The officer who had chased the suspect came to Bell’s location and identified him as the suspect who ran. Bell denied he had seen police or run away. The two officers briefly looked at dash camera video at the initial scene. A detective arrived to follow up on the report of suspects with guns. The officers told the detective they had reviewed the video and identified Bell as the suspect with a gun who fled. Bell was taken to a juvenile detention center.
Three weeks later, the detective reviewed the dash camera video recording for the first time. He concluded Bell was not the suspect who fled from police. Bell’s shorts had “a white colored pattern on the front/sides,” while the suspect’s shorts were “black or dark blue.” The suspect wore “long grey colored socks that rode halfway up his calves,” while Bell’s socks “were short and black in color.” Bell was taller than the suspect and his hair was markedly different from the suspect. The detective reviewed the information with a prosecutor, who dropped the charges and released Bell.
Bell sued, alleging the officers seized, arrested and detained him without probable cause and that no reasonable officer could have believed probable cause existed. A trial court granted qualified immunity to the officers. Bell appealed.
The court of appeals reversed the grant of qualified immunity and remanded the case for trial. The court held no reasonable officer could have believed there was probable cause to arrest Bell based on the plainly exculpatory evidence readily available to them. First, the court cited the several differences in Bell’s appearance and that of the suspect seen on the dash camera. The only things they truly had in common is they were young Black men wearing white t-shirts. Bell was five inches taller. When he was stopped a mile away from the initial scene, he wasn’t breathing heavily and was not perspiring heavily – strong evidence he had not just run a mile. The suspect’s hair was all black and bushy; Bell’s hair was in short dreadlocks with colored tips. The suspect wore low-cut shoes or sandals, while Bell wore black Nike Air Jordan basketball shoes trimmed in red with a red logo on the tongue.
The officers asserted the discrepancies in appearance were not so noticeable that they could tell the suspect and Bell apart. The court noted that, in addition to the distinct differences observed by the judges as they viewed the dash camera video and Bell’s photograph, the detective immediately realized the officers had arrested the wrong suspect once he got around to viewing the dash camera recording. The court was critical of the officers for not confirming Bell’s involvement by corroborating his identification with the other juveniles and the 911 caller.
In a case involving an arrest without probable cause, officers have qualified immunity if they reasonably but mistakenly conclude there was probable cause (Anderson v. Creighton, 483 U.S. 635 (1987)). Courts sometimes use the phrase “arguable probable cause,” where the probable cause determination is “close enough.” “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable” (Borgman v. Kedley, 646 F.3d 518 (8th Cir. 2011)). Nonetheless, in a case where there was easily available exculpatory information that would have shown there was no probable cause to arrest Bell, the officers were not entitled to qualified immunity.
One of the appellate judges observed, “This case is hardly the model of good police work.” The court concluded, “This is an obvious case of insufficient probable cause.” Officers are frequently cautioned to slow down in approaching dangerous situations. Pause, take a moment to think when there is discretionary time. This is a case where there was time for a pause by the patrol officers to review the dash camera video of the suspect, compare it to Bell, and listen to and perhaps investigate Bell’s claims that he had just left his cousin’s house down the street. There was also time for a pause by the detective to review the video recording before three weeks passed. A few additional minutes of investigation would have certainly prevented liability for Bell’s unlawful arrest.
NEXT: No qualified immunity for shooting prone suspect in the back
