The Volokh Conspiracy - When Asserting Your Constitutional Rights is Cause for Suspicion:

I just came across a Fourth Amendment case, Cady v. Sheahan, 467 F.3d 1057 (7th Cir. 2006), that isn't new but has annoyed me enough to blog about it anyway. It's a case that I'm sure the Seventh Circuit panel found silly — you can listen to the argument here — but I actually think may have a lot of merit. At the very least it's an example of how courts often don't take the Fourth Amendment rules governing Terry stops as seriously as they should.

  Here are the facts. Cady had filed a civil suit against a police officer, and he showed up at a Cook County courthouse in Bridgeview, Illinois sometime between 6:15 and 6:30 a.m on August 22, 2001, to serve process on the officer during an early morning shift-change. He was carrying a briefcase, and his clothes were dirty and wrinkled. He stood outside the courthouse by the sidewalk and waited for the shift change so he could serve process.

  An officer approached Cady to see what he was doing, but Cady apparently declined to answer the officer's question. The officer alerted another officer, Lucio, and Lucio decided to investigate. Lucio approached Cady and asked what he was doing; Cady responded that he was "a federal process server." Officer Lucio asked for Cady's ID. Instead of giving the officer an ID, Cady engaged in a legal discussion with the officer of whether was any law requiring him to have identification with him. In fact, there wasn't. The facts aren't totally clear, but it seems that Cady had chosen not carry an ID that morning because he had researched the law and knew he was not required to do so.

  After a few minutes, Cady asked to speak with Lucio's supervisor. Sargeant Barbat arrived on the scene and asked Cady why he was there and asked to see his ID. Cady stated that he would not reveal his identity "unless he was assured that it would not be used against him in a future criminal prosecution." (This is the Fifth Amendment standard, in case you're wondering.) He also asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," tracking the language of the Illinois Terry stop statute. Cady bolstered his many legal questions and discussion points with supporting legal documents, including a law dictionary and a copy of the Federal Rules of Civil Procedure that he retrieved from a briefcase he was carrying.

  Now we get to the interesting part from a Fourth Amendment standpoint. One of the officers present took the briefcase from Cady and placed it on the hood of a squad car. Then two officers searched the contents of the briefcase. They found a Sullivan's Law Directory, a Bible, an address book, and a pen. No weapons were found. The officers started looking through the books for a name so they could figure out who Cady was. Inside the Bible, they found a name. The officers then closed the briefcase and placed it in their squad car.

  Cady was also personally frisked at this time, but no weapons were discovered. The officers then ran the name that appeared in Cady's Bible through their squad car computer:

Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back[.]

Faced with the threat of arrest for refusing to disclose more information, Cady told the officers his name and date of birth. The officers ran that through the computer and found there was no warrant out for his arrest. They then gave him back his briefcase and sent him on his way. The entire incident lasted "between twenty and thirty minutes."

To read the rest of this post, click here.

Cady then filed a pro se lawsuit against the officers for violating his Fourth Amendment rights in seizing him, searching his briefcase, and then frisking him. The district court granted summary judgment to the officers on the ground that the Fourth Amendment was not violated, and the Seventh Circuit affirmed in a decision by Judge Kanne (joined by Judges Ripple and Williams).

First, the Seventh Circuit held that there was reasonable suspicion that justified stopping Cady and frisking him for weapons. According to the court, "an officer is entitled to conduct a limited stop and related protective search for weapons of an individual who is lurking amongst the bushes outside a courthouse two hours before it opens, is shabbily dressed, carrying a briefcase, claims to be a federal process server, refuses to provide identification upon request, and is evasive in response to police questioning." Searching the briefcase and frisking Cady was justified because the officers could reasonably believe their safety was in danger:

In the course of a Terry stop, an officer may conduct a protective search for weapons of an individual's person, and area within his control, if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." [Terry v. Ohio] The officers in this case were faced with an individual who was lurking outside a courthouse well before it opened to the public, was shabbily dressed, had not showered, carried a briefcase, and claimed to be serving federal process on a Sheriff's officer. Cady was evasive in response to the officers' questions, and repeatedly reached into his briefcase. Under the circumstances, a reasonably prudent officer would be concerned for the safety of the officers and civilians in the area, as well as for Cady himself.

Cady also argued the the Terry stop had gone on too long and went too far, including holding his briefcase away from him even after it was clear it contained no weapons. The Seventh Circuit disagreed on the theory that any delay was Cady's own fault:

Cady's refusal to provide identification aside, he engaged the officers in a dialog concerning the legal significance of Supreme Court precedents and the Federal Rules of Civil Procedure, asked to speak with a supervisor, failed to correct the officers' obvious belief that he was claiming to be a federal agent, and threatened to sue the officers. The total length of the stop was between twenty and thirty minutes. The officers worked diligently to resolve the situation, and released Cady as soon as they determined that he was not a threat to safety at the courthouse. The permissible scope and duration of the investigative stop were not exceeded.

  It's not surprising at all that Cady lost his lawsuit. He is a repeat pro se litigant in the Seventh Circuit — what the Seventh Circuit called "an extremely experienced pro se litigant." And he was acting strangely at a courthouse, a building that judges are particularly inclined to protect zealously. He was also reufusing to go along with the officers' questions.

  Still, as a matter of law, the court's explanation strikes me as incredibly lame. I can perhaps see the case for detaining Cady temporarily in light of the strangeness of his appearance and the unusual time and place. But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning? What was the threat to officer safety? Invoking your constitutional rights doesn't pose a threat to officer safety. Nor does asking an officer to clarify if he has seized under the Fourth Amendment you pose a threat. Acting like a lawyer doesn't mean you have a gun or a knife.

  Plus, frisks are only permitted under Terry if the search is for weapons. As far as I can tell, there was no reason to think that there was a gun in the briefcase. In their deposition, the officers made what strikes me as a highly unpersuasive claim that they were worried that after pulling out Black's Law dictionary and the Fed R. Civ. Pro., Cady might also have a gun in there that might come out next. Yeah, sure. Any ideas why they looked through the Bible, opening it up to the cover page where a name might be? What, did they think Cady had a very thin gun tucked in the cover page? It seems obvious that the officers searched the brief case because they wanted to know who Cady was. It was a search for ID, not guns. Now, maybe that's an understandable human reaction. But Terry just doesn't allow it, and Terry is the law.

  Anyway, the oral argument and the opinion suggest that the panel was just inclined to give court security officers the benefit of the doubt here. For example, at one point in the oral argument, Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case." But I think this case deserved a lot more careful analysis than the panel gave it: Cady may be a homeless guy and a repeat litigant, but his Fourth Amendment rights count as much as anyone else's.

	[Orin Kerr, September 11, 2008 at 12:12am] Trackbacks When Asserting Your Constitutional Rights is Cause for Suspicion: I just came across a Fourth Amendment case, Cady v. Sheahan, 467 F.3d 1057 (7th Cir. 2006), that isn't new but has annoyed me enough to blog about it anyway. It's a case that I'm sure the Seventh Circuit panel found silly — you can listen to the argument here — but I actually think may have a lot of merit. At the very least it's an example of how courts often don't take the Fourth Amendment rules governing Terry stops as seriously as they should. Here are the facts. Cady had filed a civil suit against a police officer, and he showed up at a Cook County courthouse in Bridgeview, Illinois sometime between 6:15 and 6:30 a.m on August 22, 2001, to serve process on the officer during an early morning shift-change. He was carrying a briefcase, and his clothes were dirty and wrinkled. He stood outside the courthouse by the sidewalk and waited for the shift change so he could serve process. An officer approached Cady to see what he was doing, but Cady apparently declined to answer the officer's question. The officer alerted another officer, Lucio, and Lucio decided to investigate. Lucio approached Cady and asked what he was doing; Cady responded that he was "a federal process server." Officer Lucio asked for Cady's ID. Instead of giving the officer an ID, Cady engaged in a legal discussion with the officer of whether was any law requiring him to have identification with him. In fact, there wasn't. The facts aren't totally clear, but it seems that Cady had chosen not carry an ID that morning because he had researched the law and knew he was not required to do so. After a few minutes, Cady asked to speak with Lucio's supervisor. Sargeant Barbat arrived on the scene and asked Cady why he was there and asked to see his ID. Cady stated that he would not reveal his identity "unless he was assured that it would not be used against him in a future criminal prosecution." (This is the Fifth Amendment standard, in case you're wondering.) He also asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," tracking the language of the Illinois Terry stop statute. Cady bolstered his many legal questions and discussion points with supporting legal documents, including a law dictionary and a copy of the Federal Rules of Civil Procedure that he retrieved from a briefcase he was carrying. Now we get to the interesting part from a Fourth Amendment standpoint. One of the officers present took the briefcase from Cady and placed it on the hood of a squad car. Then two officers searched the contents of the briefcase. They found a Sullivan's Law Directory, a Bible, an address book, and a pen. No weapons were found. The officers started looking through the books for a name so they could figure out who Cady was. Inside the Bible, they found a name. The officers then closed the briefcase and placed it in their squad car. Cady was also personally frisked at this time, but no weapons were discovered. The officers then ran the name that appeared in Cady's Bible through their squad car computer: Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back[.] Faced with the threat of arrest for refusing to disclose more information, Cady told the officers his name and date of birth. The officers ran that through the computer and found there was no warrant out for his arrest. They then gave him back his briefcase and sent him on his way. The entire incident lasted "between twenty and thirty minutes." To read the rest of this post, click here. Cady then filed a pro se lawsuit against the officers for violating his Fourth Amendment rights in seizing him, searching his briefcase, and then frisking him. The district court granted summary judgment to the officers on the ground that the Fourth Amendment was not violated, and the Seventh Circuit affirmed in a decision by Judge Kanne (joined by Judges Ripple and Williams). First, the Seventh Circuit held that there was reasonable suspicion that justified stopping Cady and frisking him for weapons. According to the court, "an officer is entitled to conduct a limited stop and related protective search for weapons of an individual who is lurking amongst the bushes outside a courthouse two hours before it opens, is shabbily dressed, carrying a briefcase, claims to be a federal process server, refuses to provide identification upon request, and is evasive in response to police questioning." Searching the briefcase and frisking Cady was justified because the officers could reasonably believe their safety was in danger: In the course of a Terry stop, an officer may conduct a protective search for weapons of an individual's person, and area within his control, if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." [Terry v. Ohio] The officers in this case were faced with an individual who was lurking outside a courthouse well before it opened to the public, was shabbily dressed, had not showered, carried a briefcase, and claimed to be serving federal process on a Sheriff's officer. Cady was evasive in response to the officers' questions, and repeatedly reached into his briefcase. Under the circumstances, a reasonably prudent officer would be concerned for the safety of the officers and civilians in the area, as well as for Cady himself. Cady also argued the the Terry stop had gone on too long and went too far, including holding his briefcase away from him even after it was clear it contained no weapons. The Seventh Circuit disagreed on the theory that any delay was Cady's own fault: Cady's refusal to provide identification aside, he engaged the officers in a dialog concerning the legal significance of Supreme Court precedents and the Federal Rules of Civil Procedure, asked to speak with a supervisor, failed to correct the officers' obvious belief that he was claiming to be a federal agent, and threatened to sue the officers. The total length of the stop was between twenty and thirty minutes. The officers worked diligently to resolve the situation, and released Cady as soon as they determined that he was not a threat to safety at the courthouse. The permissible scope and duration of the investigative stop were not exceeded. It's not surprising at all that Cady lost his lawsuit. He is a repeat pro se litigant in the Seventh Circuit — what the Seventh Circuit called "an extremely experienced pro se litigant." And he was acting strangely at a courthouse, a building that judges are particularly inclined to protect zealously. He was also reufusing to go along with the officers' questions. Still, as a matter of law, the court's explanation strikes me as incredibly lame. I can perhaps see the case for detaining Cady temporarily in light of the strangeness of his appearance and the unusual time and place. But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning? What was the threat to officer safety? Invoking your constitutional rights doesn't pose a threat to officer safety. Nor does asking an officer to clarify if he has seized under the Fourth Amendment you pose a threat. Acting like a lawyer doesn't mean you have a gun or a knife. Plus, frisks are only permitted under Terry if the search is for weapons. As far as I can tell, there was no reason to think that there was a gun in the briefcase. In their deposition, the officers made what strikes me as a highly unpersuasive claim that they were worried that after pulling out Black's Law dictionary and the Fed R. Civ. Pro., Cady might also have a gun in there that might come out next. Yeah, sure. Any ideas why they looked through the Bible, opening it up to the cover page where a name might be? What, did they think Cady had a very thin gun tucked in the cover page? It seems obvious that the officers searched the brief case because they wanted to know who Cady was. It was a search for ID, not guns. Now, maybe that's an understandable human reaction. But Terry just doesn't allow it, and Terry is the law. Anyway, the oral argument and the opinion suggest that the panel was just inclined to give court security officers the benefit of the doubt here. For example, at one point in the oral argument, Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case." But I think this case deserved a lot more careful analysis than the panel gave it: Cady may be a homeless guy and a repeat litigant, but his Fourth Amendment rights count as much as anyone else's.