Officers are often asked to witness private property owners, store managers, or security personnel as they issue criminal trespass warnings to people who have violated a rule of the business.  While it’s fine for officers to do this, they should be mindful that constitutional requirements still apply to the officer’s actions during the issuance of the criminal trespass warning.

This was illustrated in McCall v. Jacobitz[i], in which the Ninth Circuit Court of Appeal examined whether officers were entitled to qualified immunity when they kept a man detained in handcuffs after they determined he had not committed a crime, so that casino security personnel could issue the man a criminal trespass warning.  The facts of McCall are as follows:

On October 10, 2017, the security team of a Las Vegas casino called “The D” informed the LVMPD that McCall may have been dealing drugs in front of The D. Based on that information, Jacobitz and Muenzenmeyer conducted a Terry stop of McCall on the second floor of The D. After placing McCall in handcuffs, Jacobitz and Muenzenmeyer searched his person for weapons (no weapons were found) and ran a warrant check on him (which came back clean). About ten minutes into the stop, Jacobitz told McCall that the Officers had “nothing” on him regarding any drug activity. Nonetheless, despite all criminal suspicion justifying the detention having been dispelled, Jacobitz and Muenzenmeyer continued to detain McCall—in handcuffs—solely so that The D could have the opportunity to issue him a trespass warning. A few minutes later, Hafen and Ramirez-Marillo arrived with members of The D’s security team, who took several more minutes to issue McCall—still in handcuffs—a trespass warning. Eighteen minutes after the stop began, McCall was finally uncuffed and escorted out of The D by the Officers. McCall was cooperative at all times.[ii]

McCall filed suit and alleged that the four officers (Jacobitz, Muenzenmeyer, Hafen, and Ramirez-Marillo) violated his Fourth Amendment rights by continuing to detain him after it was determined the officers had “nothing.”  Further, he alleged that it was not reasonable to detain him in handcuffs.  The officers filed motions for summary judgment.  The district court denied qualified immunity for the officers and the officers appealed to the Ninth Circuit Court of Appeals.

The court of appeals noted that, to defeat the officers’ motion for qualified immunity, the plaintiff had to show (1) that the officers violated the plaintiff’s rights under the constitution, and (2) that the right was clearly established at the time of the violation such that a reasonable officer in the same situation would have had “fair warning” he was violating the constitution.

The officers raised three arguments why they are entitled to qualified immunity.

First, the officers argued that they were entitled to qualified immunity for detaining McCall after it was determined that there was no evidence to support the allegation that he had been dealing drugs.  The officers continued to detain McCall, in handcuffs, so security personnel from the casino could issue him a criminal trespass warning.

The Ninth Circuit disagreed with the officers and stated

It was clearly established in 2017 that a Terry-stop detainee must immediately be released once the investigation fails to elicit probable cause to arrest. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (holding that a Terry stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop“).[iii]

Further, the court cited Thomas v. Dillard[iv] in which the Ninth Circuit Court of Appeals held that

[T]he officer must have reasonable suspicion ‘the person apprehended is committing or has committed a criminal offense.[v]

Thus, in light of the above, the court of appeals held

Once [Officer] Jacobitz told McCall that the Officers had “nothing” on him regarding any drug activity, the Officers needed a separate constitutional basis for further detention. The D’s private interest in issuing McCall a trespass warning is no such authority—trespass warnings are not criminal in nature.[vi]

Second, the officers argued that it was reasonable to handcuff McCall at the beginning of the Terry stop and leave him handcuffed until he received a criminal trespass warning.  McCall argued that the officers unreasonably handcuffed him at the beginning of the Terry Stop and unreasonably kept him handcuffed after it was determined he was unarmed and not involved in a crime.

The court of appeals stated

We recognize that it is sometimes appropriate for police officers to handcuff a Terry-stop detainee (say, for police safety). However, “‘handcuffing . . . is not part of a typical Terry stop'” and requires “special circumstances.” Washington v. Lambert, 98 F.3d 1181, 1188, 1189 (9th Cir. 1996) (quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982)). Based on the facts presented—which we view in the light most favorable to McCall, see Isayeva, 872 F.3d at 946handcuffing McCall was inappropriate and violated clearly established law. See Washington, 98 F.3d at 1192; Meredith v. Erath, 342 F.3d 1057, 1062-63 (9th Cir. 2003)[vii]

Thus, the officers were not entitled to qualified immunity for the handcuffing claim.  It should be noted, even if the court held it was reasonable to initially handcuff McCall at the beginning of the Terry stop, after the officers determined that they had “nothing” on McCall, they should have unhandcuffed him, because at that time, their justification to further detain him had ended.

Third, Officers Hafen and Ramirez-Marillo were the officers that brought the security to team to where the other officers had McCall detained so the security team could issue a criminal trespass warning.  Officers Hafen and Ramirez-Marillo argued that they were not “integral participants” in detaining McCall and handcuffing McCall.

The court of appeals noted that neither Hafen nor Ramirez-Marillo unhandcuffed McCall until after the criminal trespass warning was issued.  The court stated that this made them “more than mere bystanders.”  While they did not use the term “duty to intervene,” that is essentially what the court used to deny the officer’s qualified immunity, noting that they were not “mere bystanders,” because they did not unhandcuff McCall.

Practice Pointers:

  1. To detain a person for a private business to issue a criminal trespass warning, the officers must have existing reasonable suspicion or probable cause that the person is involved in criminal activity. If no reasonable suspicion exists, the encounter must be consensual.
  2. Officers may not continue to detain a person, absent reasonable suspicion or consent, to wait on a business owner, manager or security to issue the person a criminal trespass warning.
  3. Regarding handcuffing suspects during Terry stops, the Ninth Circuit cited Washington v. Lambert, as discussing when officers may handcuff a suspect during a Terry In that case, the court cited the following cases as examples where they have held it was reasonable to handcuff someone during a Terry stop:

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 20-15724 (9th Cir. Decided August 18, 2021 )

[ii] Id. at 1-2

[iii] Id. at 3 (emphasis added)

[iv] 818 F.3d 864 (9th Cir. 2016)

[v] Id. at 4 (emphasis added)

[vi] Id. (emphasis added)

[vii] Id. (emphasis added)

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