Both probable crimes evolve from the right to be free from unreasonable seizures, which is supposed to be guaranteed to Americans by the Fourth Amendment to the U.S. Constitution. As we showed in a previous post, unlawful seizures can become criminal by violating 18 U.S.C. 242 (Deprivation of rights under color of law). (Include link to previous post.)
A seizure, of which an arrest is considered the "quintessential" example, is constitutional only if the officer has a "sufficient legal basis" for making it--in other words, he must have "probable cause."
Did Arnott have probable cause to order Carol seized for allegedly assaulting a law enforcement officer? When you study Missouri law on the subject, the answer is: "Not even close."
Did the deputy who appeared to be primarily responsible for brutalizing Carol and breaking her arm have probable cause to seize her? Again, the facts and the law lead to only one answer: "Not even close."
Greene County deputy Scott Harrison drove Carol in a squad car to the county jail and informed her that she was facing a felony charge of assaulting an officer, with a likely bond of $100,000. This apparently was based on Arnott's instructions. Carol, handcuffed behind her back with a shattered left arm, was in excruciating pain, and someone at the jail finally realized that she might be seriously injured. Carol was taken to nearby Cox North Medical Center, where X-rays showed a break so severe that it would require trauma surgery.
After realizing that Carol was badly hurt, while none of his deputies appeared to have a scratch on them, Arnott apparently decided that bringing assault charges against Carol--when she actually was the victim of an assault--might not be such a good idea.
Did Arnott have "sufficient legal basis"--any basis at all--for his claim that Carol had assaulted a law-enforcement officer. No, he did not--not for a felony or a misdemeanor.
Under Missouri law, two forms of assault--first and second degree--are felonies. The notion that Carol committed either of these would be laughable--if the repercussions were not so serious. (Arnott watched his deputy beat up Carol from about five feet away; I witnessed the same event from about 15 feet away.) A $100,000 bond would have meant a payment of $10,000 to get Carol's release from custody. I'm not sure how I would have come up with that money, so it's likely Carol would have been in jail for months--for a "crime" she did not commit--if her arm had not been broken.
The description for first-degree assault of a law-enforcement officer is found at Missouri Revised Statutes 565.081. Here is the gist of it:
A person commits the crime of assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the first degree if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer.It's hard to envision even an ethically challenged individual, such as Jim Arnott, to seriously claim that Carol tried to kill or cause serious physical injury to an officer on September 9, 2015.
The description for second-degree assault of a law-enforcement officer is found at Missouri Revised Statutes 565.082. This section is quite a bit longer than the one for first-degree assault, but here is the key language (with some repetitive language removed, for easier reading):
A person commits the crime of assault of a law enforcement officer . . . in the second degree if such person:
(1) Knowingly causes or attempts to cause physical injury to a law enforcement officer . . . by means of a deadly weapon or dangerous instrument;
(2) Knowingly causes or attempts to cause physical injury to a law enforcement officer . . . by means other than a deadly weapon or dangerous instrument;
(3) Recklessly causes serious physical injury to a law enforcement officer . . . ; or
(4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle or vessel in this state and when so operating, acts with criminal negligence to cause physical injury to a law enforcement officer . . . ;
(5) Acts with criminal negligence to cause physical injury to a law enforcement officer . . . by means of a deadly weapon or dangerous instrument;
(6) Purposely or recklessly places a law enforcement officer . . . in apprehension of immediate serious physical injury; or
(7) Acts with criminal negligence to create a substantial risk of death or serious physical injury to a law enforcement officer. . . .
Carol had no deadly weapons or dangerous instruments, she caused no physical injury (serious or otherwise), she was not intoxicated or under the influence of controlled substances . . . well, you get the idea -- none of these even come close to applying.
|X-ray of Carol Shuler's broken arm|
prior to surgical repair
A person commits the crime of assault of a law enforcement officer . . . in the third degree if:
(1) Such person recklessly causes physical injury to a law enforcement officer . . . ;
(2) Such person purposely places a law enforcement officer . . . in apprehension of immediate physical injury;
(3) Such person knowingly causes or attempts to cause physical contact with a law enforcement officer . . . without the consent of the law enforcement officer. . . .
Evidence indicates that Carol caused no physical injury to anyone. She had been given permission to enter the apartment to retrieve personal belongings, and that's what she was trying to do--she didn't purposely come in contact with an officer or anyone else. Officers initiated contact with her, not the other way around. Even as loose as the language is in this section, Arnott had no probable cause to believe Carol had committed even a misdemeanor assault -- as his own actions indicate because he apparently was planning on a felony charge.
As for the officer who broke Carol's arm, there is no doubt that he seized her. Here is the definition that applies in such cases:
"[A] person is `seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained" such that, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).
Did the officer have probable cause to seize Carol? Absolutely not, and his own words and actions indicate that. Never did he indicate Carol had violated any law that merited a show of physical force or authority. Never did he say she was under arrest or give any reason for slamming her to the ground and yanking on her arms.
I've had a tendency to write about this as a personal story -- Carol and I, after all, have been married for 26 years -- or a Missouri story. But it's much bigger than that. All Americans, in all states, are supposed to be free from unreasonable, violent, and bogus seizures.
When law-enforcement officers violate those rights, they cross into criminal territory.