No, Sen. Casey Calling Police Kidnappers Is Not “Mostly Right”

jonathanturley

6 years ago

I was recently called by the Philadelphia Inquirer on a fact check of Sen. Bob Casey (D., Pa.) claim that officers in Portland of “kidnapping and holding citizens without charges.” I explained that the common hyperbolic claim of kidnapping is legally unfounded. The newspaper still found that Casey was “mostly right.” This is why I believe he was wrong. He was not alone however in his judgment.

First, the controversy. There have been a couple of incidents that I believe raise serious issues of unlawful arrest. One is the much discussed arrest of Mark Pettibone, who was taken into an unmarked minivan after being stopped on street. He said that he was taken to a cell and read his Miranda rights. However, he was later released without a charge.

The case is under investigation. It is not clear if the police had probable cause for the arrest. Police are not allowed to remove people from the streets to determine later if they are being sought for federal crimes. Notably, Judge Michael Mosman stated in court that

“There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the state’s allegation that Mr. Pettibone’s seizure lacked probable cause.”

So, for the purposes of analysis, this appears an unconstitutional arrest. However, does that make it a kidnapping? The answer is no.

The Oregon criminal code expresses states “A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person.” The government would argue that the arrest was done with legal authority, even it if was mistaken on the identity of the individual.

The federal kidnapping provision states is worded differently:

(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—

(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;

(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;

(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;

(4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or

(5) the person is among those officers and employees described in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

(b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce. Notwithstanding the preceding sentence, the fact that the presumption under this section has not yet taken effect does not preclude a Federal investigation of a possible violation of this section before the 24-hour period has ended.

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.

(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than twenty years.

Some professors have stated that this is clearly criminal kidnapping. In the story, Berkeley Dean Erwin Chemerinsky states “Apprehending a person by force and holding him or her in captivity without legal authority is the definition of kidnapping.”

The problem with Chemerinsky’s view is that it sweeps too broadly. It would literally make every unlawful arrest by police into cases of kidnapping. That would treat officers in thousands of such cases in history as kidnappers. Before we decides that we had have the equivalent of thousands of Lindbergh babies, we might want to check the criminal code and cases.

These cases are uniformly handled as unlawful arrests because they lack of the intent associated with kidnapping. Officers make mistakes. I have both sued and represented law enforcement officers. According to the federal government, dozens of arrests have been made and charged. It has insisted that the officers suspected Pettibone of being a person accused of federal offenses. That does not make the arrest lawful. Moreover, the government is wrong in claiming that this was not an arrest. Pettibone was not free to leave. He was in custody. As the Supreme Court held in Ybarra v. Illinois, “seizure of a person must be supported by probable cause particularized with respect to that person.”

However, courts have rejected even claims of unlawful arrest in cases of mistake. In Hill v. California, 401 U.S. 797, 802 (1971), the Supreme Court held a mistaken arrest was still constitutionally valid if there was probable cause to arrest the person sought and there was a reasonable belief that the arrestee was, in fact, the person sought.

There has not been an allegation in Portland of the type of massive arrests conduct by the DC police in our World Bank case to suppress protests. The federal government is claiming that most of those detained were charged. Absent such evidence of systemic suppressive arrests, this is more likely to be viewed as a standard unlawful arrest. Under Chemerinsky’s view and that of Senator Casey, we would have thousands of kidnapping cases. I cannot find a single case that fits this fact pattern where a court has a classified the act as kidnapping. Perhaps one exists but, given the unfortunate regularity of unlawful arrests, the record is telling.

Where we have seen “kidnapping” raised is where police officers are acting outside of their jurisdiction or even in another country. For example, in Frisbie v. Collins, 342 U.S. 519, 520 (1952), the defendant alleged that he was kidnapped in Chicago by Michigan police to face trial for murder in Michigan. The Court found that the act met the definition of the Federal Kidnapping Act in 1932. since Michigan police officers acted outside their territorial jurisdiction, without legal authority. It did not however toss out the charges:

“Despite our prior decisions, the Court of Appeals, relying on the Federal Kidnaping Act, held that respondent was entitled to the writ if he could prove the facts he alleged. The Court thought that to hold otherwise after the passage of the Kidnaping Act “would in practical effect lend encouragement to the commission of criminal acts by those sworn to enforce the law.” In considering whether the law of our prior cases has been changed by the Federal Kidnaping Act, we assume, without intimating that it is so, that the Michigan officers would have violated it if the facts are as alleged. This Act prescribes in some detail the severe sanctions Congress wanted it to have. Persons who have violated it can be imprisoned for a term of years or for life; under some circumstances violators can be given the death sentence. We think the Act cannot fairly be construed so as to add to the list of sanctions detailed a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction. We cannot.”

That was a case where officers knew that they had no authority to conduct the arrest since they were outside of their jurisdiction. In these cases, the federal officers will claim that, if this was an arrest, they were simply mistaken on the identity or made a mistaken decision under extreme conditions to remove the individual.

As I stated to earlier, my greatest concern is that these officers may have removed an individual to another location because they wanted to question the suspect without particularized suspicion. They have cited the dangerous conditions of the encounter given attacks on police. That is not a defense. It would effectively gut the requirement and limits under Terry v. Ohio as well as other foundational cases. You cannot remove an individual for the purposes of questioning without consent or probable cause. I fail to see the reasonable basis for the belief that an officer can do so.

However, that is not what is generally treated as kidnapping. We need lawmakers and law professors to frame these very serious issues for the public, not engage in hyperbolic exaggeration or embellishment. The fact is that no one seriously believes that an unlawful arrest of a couple individuals in a volatile area of rioting would ever be viewed as actual kidnapping. We need to focus on the real issue: the unlawful arrest. I am very concerned that any federal officer would think that he or she could remove an individual against their will just to talk to them or decide if they had probable cause. That is why the inspector general investigation on these controversies are so important.

If the facts turn out that there was no individual suspicion, let alone the needed probable cause, this is an egregious violation of the Fourth Amendment. Thus, it could be claimed that this is done without legal authority, but it was carried out with either mistaken belief of such authority or a mistaken identity of the suspect. That is why Sen. Casey’s statement is mostly wrong.

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