Technically, Any Number of Seconds Can Be Split Any Number of Times

Yesterday, in Chestnut v. Wallace,* the Eighth Circuit denied an officer qualified immunity. That itself is arguably worthy of noting, since the Eighth Circuit is not exactly predisposed to denying qualified immunity.

The case itself is straightforward: a man (Chestnut) quietly observed a St. Louis police officer perform a traffic stop from about 30 - 40 feet away, while leaning against a tree. The officer viewed this as suspicious, and called for backup. A new officer asked for Chestnut's name, birthday, and social security number; he refused to provide the last of these. The officer then frisked Chestnut for weapons, found none, and then proceeded to have Chestnut handcuffed. After about twenty minutes and a conversation with the officer's supervisor, Chestnut was released. Since observing the police does not provide reasonable suspicion of criminal activity, and since people are allowed to not answer questions from the police (such as providing their social security number), no reasonable officer could have had suspicion of criminal activity, and so there is no qualified immunity.

Judge Gruender dissented. This is considerably less noteworthy, since an officer could probably shove a handcuffed detainee off a six-story building and Judge Gruender would conclude he has qualified immunity.

I do want to flag one thing though, from the end of Judge Gruender's opinion. He writes that "police officers are not—and should not be—expected to parse fine distinctions between statutory and constitutional law in split-second decisions." This rhetoric of "split-second decisions" is increasingly common in judicial opinions that seek to insulate police officers from accountability, particularly in use-of-force cases. Maybe we have sympathy for it in that context, maybe we don't.

But it is interesting to see this rhetoric make a near-reflexive showing in this case, as nothing about the police's interaction with Chestnut involved anything like a "split-second decision". There were no sudden movements, no unpredictable reversals or unexpected flinches. Chestnut was far away from the action and was not an imminent threat to anyone. By the time he was placed in handcuffs, the police already knew he was unarmed. That Judge Gruender nonetheless characterizes this case as involving a "split-second" decision suggests that anything the police do deserves that label. But it's just not true. Not every decision a police officer makes in the field is a "split-second" one; the decision to detain Chestnut certainly was not. It was a decision taken after many seconds, under no particular pressures and with ample time to deliberate.

In that same paragraph, Judge Gruender hoarily remarks that police officers in the field are not "participating in a law school seminar." Indeed, they are not. They are taking real actions which have real consequences for real people. Kevin Chestnut was placed in handcuffs for having the temerity to look at the police in public. That's a terrible thing to have experienced; obscured though it might be behind rhetoric of "reasonable suspicion" and the fuzzy line between "detention" and "arrest". We should step out from the legalese fictions that justify qualified immunity, and start taking the reality of what the police do -- and who they are doing it to -- a lot more seriously.

* The opinion was authored by Judge Arnold, joined by Judge Grasz -- and I'll reiterate again what a pleasant surprise Judge Grasz has been on qualified immunity issues.