Misdemeanor Citations Aren't Seizures, But We Can Arrest You If You Really Want

MARTINEZ v. CARR, USCA-10 No. 06-2069, 2007 U.S.App. LEXIS 7074, on appeal from USDC-NMD, before USCJs Briscoe, Ebel, Gorsuch, opinion by Gorsuch, filed 27 Mar 2007.

LONG STORY SHORT: An officer's demand that a subject sign a misdemeanor citation promising to appear in court, or else be arrested, is not a Fourth Amendment seizure. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Plaintiff was at the New Mexico State Fair and saw several police officers walking in his direction, one of whom was looking at him. Plaintiff asked the officers if there was a problem, and some level of verbal exchange ensued, during which Plaintiff said "what the f*** are the police doing here?" and an officer threatened to ban him from the fair. The officers radioed Defendant, a New Mexico State Police officer, to come over, and when he arrived, he saw that an officer had Defendant in a wristlock. Defendant accompanied Plaintiff and the officers to the central law enforcement station at the fair. Defendant wrote a citation for resisting, evading, or obstructing an officer, a New Mexico state misdemeanor, and told Plaintiff to either (1) sign the citation and thereby promise to appear in court, or (2) be arrested, as New Mexico law provided. Plaintiff willingly signed, and officers escorted him off the premises. Defendant never physically touched Plaintiff.

PROCEDURE: Plaintiff sued Defendant in state court, which Defendant removed to the U.S. District Court for the District of New Mexico, per 42 U.S.C. § 1983 for unreasonable seizure under the Fourth Amendment. Defendant moved for summary judgment on qualified immunity grounds, arguing that issuing a citation in lieu of arrest is not a Fourth Amendment seizure. The trial court ruled that Defendant did seize Plaintiff, and clearly unlawfully, which any reasonable officer would have known. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: To defeat a qualified immunity defense, Plaintiff had to show first that Defendant violated one or more of his constitutional rights, and second that a reasonable officer in Defendant's place would have known that the complained-of conduct was illegal. Plaintiff acknowledged that Defendant wrote the citation but never touched him, and no officer who did touch him was before the court. The only question left was the purely legal one of whether a citation in lieu of arrest was a seizure for Fourth Amendment purposes.

Relatively recently, states have been providing officers with discretion to issue citations, tickets, or summonses for misdemeanors, instead of arrest. Detaining a subject long enough to write a ticket is much closer to a Terry stop than to an arrest. Officers cannot take the person to jail or conduct a search incident to an arrest. No court in America has held that a citation, summons, bail arrangement, or pretrial travel restriction is a Fourth Amendment seizure. In fact, giving Plaintiff the choice of being arrested or signing a citation, the Tenth Circuit opined, was very nearly the opposite of a seizure. Though Plaintiff could have been arrested for failing to appear, no seizure occurs until that happens, and it never did. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for entry of judgment in Defendant's favor.

EDITORIAL: I like it. Maybe some better crisis management skills would have headed the whole thing off; maybe not; but it ended well. The opinion went into some oddities of arrest v. citation, e.g., even though a motorist could be arrested for a traffic misdemeanor and have his person and car interior searched incident to the arrest, there is no such thing (yet) as "search incident to traffic ticket." An officer tried that once, and the Supreme Court busted his chops, so don't try it again, folks.

How many times have you heard "aw forget it, just take me to jail"? Some wise guys will say that (and their wish invariably is granted). Otherwise, everybody should be rooting for incentives to write citations, not arrest reports, especially in counties where there are just not enough beds in the jail. Also, watch your mouth when at the State Fair.