The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.
So, according to Portland, this constitutes just being detained and is effectively beyond any challenge of a citizen. In other words, police can routinely handcuff citizens, lock them in a police car and even tell them that they are under arrest without being subject to accountability for wrongful arrests.
Deputy City Attorney William Manlove insists that when Miller briefly jaywalked one morning while trying to catch a bus, he could be detained and handcuffed but not treated as an arrested person despite the express statement of the officer. It is an argument that would allow officers virtually unchecked authority in handcuffing citizens and holding them. It is the perfect authoritarian loophole and the city Portland wants to help establish it for future cases.
We have come to this ignoble moment due to the continued passivity of the Supreme Court in the face of rising police powers in America. Portland hopes to expand on a 2008 U.S. Supreme Court decision in Virginia v. Moore, where Justice Antonin Scalia wrote for a seven justice majority that it did not matter that a man was arrested for a crime that was a non-arrestable misdemeanor (of driving with a suspended license) in Virginia. The police could make the arrest for the non-arrestable offense and then use that arrest to search his car “incident to arrest” because they had probable cause for a crime. That still does not mean that police can now cuff, hold, and transport citizens without being held to the standard of an arrest. Notably, driving with a suspended license is still a crime — a misdemeanor — in Virginia where jaywalking is only a “violation” and not a crime.
His counsel also notes that the officer cited Miller’s failure to produce identification though he gave Miller only a second to produce his “papers.”
The fact that a relatively liberal jurisdiction like Portland is trying to establish such precedent is chilling and shows (as with the Obama Administration) that the shift toward police power is being supported by both parties. It is the perfect scene for a new America: an officer demanding a citizen’s paper and then cuffing him and throwing him into a car — only to claim later that the citizen has no basis to complain.