©2018 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

In a short per curiam decision, the United States Supreme Court considered a case where officers arrested a woman in her home for disorderly conduct and interfering with a law enforcement investigation. I note that due to brief description of the facts in the Supreme Court’s decision, the facts have been taken from the United States Court of Appeals for the Tenth Circuit’s decision.[1]

The United States Court of Appeals reported the facts as follows from Ms. Sause’s complaint:

On November 22, 2013, the defendants contacted Sause at her home while investigating a noise complaint. At first, Sause denied the defendants entry “[f]or [her] protection” because she couldn’t see through her peephole to determine who was at her door. But when the defendants later returned, Sause let them in.

“[A]ppearing angry,” the defendants asked Sause why she didn’t answer her door the first time. Sause responded by showing them a copy of the Constitution and Bill of Rights that she keeps “on display” by her front door. Lindsey “laugh[ed]” and “mock[ed]” Sause, saying, “[T]hat’s nothing, it’s just a piece of paper” that “[d]oesn’t work here.” Lindsey also turned on his body camera and told Sause that she was “going to be on” the television show “COPS.”

At some point, Stevens left Lindsey alone with Sause and her friend Sharon Johnson, who was also present. Lindsey then informed Sause that she “was going to jail,” although he “d[idn’t] know [why] yet.” Understandably frightened, Sause asked Lindsey if she could pray. Lindsey replied, “Yes,” and Sause “knelt down on . . . [her] prayer rug.”

While Sause was still praying, Stevens returned and asked what she was doing. Lindsey laughed and told Stevens “in a mocking tone” that Sause was praying. Stevens then ordered Sause to “[g]et up” and “[t]o [s]top praying.”

Sause’s complaint doesn’t explicitly state that she complied with Stevens’ orders, but it appears she at least stopped praying; when Lindsey told her that she “need[ed] to move back” to Missouri, Sause responded, “Why?” Lindsey then explained to Sause that Sause’s apartment manager told him that “no one likes” Sause.

Next, the defendants started “looking through [their] booklet” for something to charge Sause with. “Lindsey would point” at something in the book, and Stevens “would shake [his] head.”. Eventually, the defendants cited Sause for disorderly conduct and interfering with law enforcement, based at least in part on Sause’s failure to answer the door the first time the defendants “came out.”. The defendants then asked to see Sause’s tattoos and scars. Sause explained several times that she had previously “had a double mastectomy” and eventually “raised [her] shirt up” and showed the defendants her scars “because they kept asking.”. “That appeared to disgust” the defendants. And it “humiliat[ed]” Sause. [Cites to record omitted].

Sause filed a lawsuit against the officers and their agency alleging that her rights had been violated under the First Amendment, specifically the free exercise of religion. The Federal District Court dismissed the case against the officers based on qualified immunity finding that Sause failed to state a plausible First Amendment claim.

The dismissal of the case was upheld by the Tenth Circuit, which held that the law was not clearly established such that “every reasonable officer would know that the conduct at issue violates the right.” The court noted that Sause argued that the right to pray in one’s own home free from government interference in the absence of any legitimate law enforcement interest, was clearly established.

Sause then appealed to the United States Supreme Court.[2]

The Court began by noting that, if Sause’s reported facts were true, that the officers had engaged “in a course of strange and abusive conduct…” The Court also noted that one of Sause’s complaints included her allegation that the Chief of Police failed to follow up on a promise to investigate the officers’ conduct and that the present and former mayor were aware of unlawful conduct by officers.

The Court made clear that in this type of case the First Amendment rights to the free exercise of religion and the Fourth Amendment right against an unreasonable seizure are tied together. The Court noted that Sause had made both a First and Fourth Amendment claim in the lower courts but were only arguing at the Supreme Court that that her Free Exercise rights had been violated.

Some important points made by the United States Supreme Court for law enforcement to remember:

The First Amendment Protects the right to pray but it is not absolute

“There are clearly circumstances in which a police officer may lawfully prevent a person from praying at particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time would be protected by the First Amendment.”

If an officer orders a subject to stop praying during an investigation, the officer’s action implicates the Fourth Amendment.

Where an officer makes an arrest in a home based on conduct in the home, the validity of the officer’s entry will always be scrutinized and may impact the validity of the arrest.

The Court asserted that without knowing the basis for the officers’ entry into Sause’s apartment and whether the entry and remaining in the apartment was lawful it could not be determined whether the officers had violated Ms. Sause’s rights. The Court noted that Ms. Sause’s complaint, in which she represented herself initially, did not address whether the entry was lawful or what the officers were asking her to do at the time she was directed to stop praying. The Court concluded: “Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

In deciding in favor of Ms. Sause, the Court indicated that because she had filed her complaint (pro se) without an attorney, the District Court was required to construe her complaint liberally (read allegations broadly since untrained person would not understand what legal allegations were necessary).

The Court wrote:

“We appreciate that petitioner elected on appeal to raise only a First Amendment argument and not to pursue an independent Fourth Amendment claim, but under the circumstances, the First Amendmentclaim demanded consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question. Without considering these matters, neither the free exercise issue nor the officers’ entitlement to qualified immunity can be resolved. Thus, petitioner’s choice to abandon her Fourth Amendment claim on appeal did not obviate the need to address these matters.”

The Court reversed the dismissal of Ms. Sause’s lawsuit and remanded the case back to the lower courts.



[1] Sause v. Bauer, 859 F.3d 1270 (10th Cir.2017).

[2] Sause v. Bauer, 138 S. Ct. 2561 (2018).

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