10th Circuit Rules: Lending a Red Sweater to a Friend in July Does Not Support Probable Cause in "Shoes on a Shoestring" Robbery
In a recent, split decision by the United States Court of Appeals for the 10th Circuit, the Court reversed a lower court’s judgement against Sylvia Avila, a Hispanic girl, 13 years old at the time of the incident. The decision in Glenda Sherouse and Sylvia Avila v. Suzanne Ratchner, et al., No. 08-2105, was written by Circuit Judge McConnell. The case and appeal was brought by Mary Y.C. Han, Paul J. Kennedy, and Caren I. Friedman for the Plaintiffs-Appellants, in a hard-fought case spanning years.
The wrongful arrests of the teenage girls arose after three armed robberies, one of which occurred in an Albuquerque Shoes on a Shoestring, a store known for its quality shoes, priced within grasp of the reasonable. However, because there was enough probable cause supporting the jury’s verdict against Sylvia’s African American friend, then 14 -year-old Glenda Sherouse, the district court denied Sherouse’s Motion for Judgment as a Matter of Law. Civil Rights attorneys are sedulously scouring the opinion, in order to understand its doctrine and reasoning.
Contd ...
After three quick armed robberies in the area, Glenda and Sylvia were casually sitting outside of their apartment, quietly enjoying Albuquerque’s unique curbsides in July. An unrelated call to the police came from an area resident, reporting that two young females were acting “suspicious.” The basis of the area resident’s suspicion? “The call reported that the black female had put on a sweater given to her by Ms. Avila.... Concluding that Ms. Sherouse matched the description of the robber ... Officer Stone, handcuffed Ms. Sherouse ‘because she potentially was the one that was armed,’ patted her down, and placed her into the back of the police car. Aplt. App’x 715.” Id.
The two girls sued the police for violations of their civil rights. A jury found in favor of the Defendants and the City of Albuquerque, believing that because of a positive, but questionable, eyewitness identification of Glenda by witness Inez Rubio, the officers had enough probable cause to make the arrests. The unduly suggestive identification took place while Sherouse was in the back of the police car, and not utilizing a double-blind line-up or photo array, making it per se faulty compared with national policing standards. One officer wrote in his report that, “[n]o one was able to positively identify Sherouse as the offender. All witnesses were uncertain.” Id. at 10. The witnesses also testified at trial that police misrepresented whether they had positively identified Ms. Sherouse. Still, one of the witnesses acknowledged at trial that she had told the officer that Ms. Sherouse “looked similar to the robber.”
The lower court issued Jury Instruction 12, which reads, in part: “A police officer’s probable cause determination is not negated if the officer reasonably but mistakenly believed that probable cause existed at the time of the arrest.” Id. at 5. Reviewing this instruction, the 10th Circuit wrote that, “whether a situation indicates probable cause for arrest depends on an officer’s subjective understanding of the facts, as well as the objective application of the law to those facts.” Citing United States v. DeGasso, 369 F.3d. 1139, 1144-45 (10th Cir. 2004), the court said that while an officer’s reasonable but mistaken understanding of the facts justifying a search or seizure does not negate the legitimacy of a probable cause determination, an officer’s reasonable but mistaken understanding of the applicable law he is enforcing does. " Id. at 6.
In this case, because a teenage girl giving a red sweater to her friend is still not against the law in America, judgment as a matter of law was appropriate against the officers, as to Sylvia. In the words of Judge McConnell, “Ms. Avila may have retrieved the sweater so the two could leave, or she may have provided it to her friend for warmth. Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest.” Id. at 12.
In practical terms, the City of Albuquerque will have to pay attorneys’ fees at both the trial and appeals level, for a matter of law that could have been settled much earlier in the legal process. The case and others like it is leading some to question Mayor Martin Chavez’s “no settlement” policy, when obviously unlawful arrests take place. The City is one of the few in the country where citizens must suffer several years before receiving compensation for clear violations of their civil rights.
Overall, because of the mistaken identification made by a third party of Glenda, the jury’s determination in the officer’s favor will stand. The Court believed that Officer Stone had enough probable cause to make the arrest of the African American girl in a borrowed red sweater, despite the fact she was suggestively identified (there was no other possibility in the back of a police car). One wonders out loud: if Avila were black, and not Hispanic, whether the Court would believe there was probable cause to arrest? Perhaps every black female under the age of 30, in the vicinity of Shoes on a Shoestring that fateful day in July, had ample cause to fear wrongful arrest by City officers.
-Derek Garcia for The Kennedy Law Firm
