Cops Held Two Innocent Boys at Gunpoint, Forced Them to Lie on the Ground, Handcuffed Them, and Searched Them. That’s Fine, the 8th Circuit Said. -…

On a rainy January evening in 2018, 14-year-old Weston Young and his 12-year-old brother, Haden, were walking home from their grandparents' house in Springdale, Arkansas, after a family dinner. A police officer ordered them to stop, pointed a gun at them, forced them to lie on the ground, handcuffed them, and, together with a colleague, searched them. Their mother and stepfather tried to intervene, explaining who the boys were, where they had been, and where they were going. But the officer, Lamont Marzolf, rebuffed both of them, seemingly uninterested in information suggesting that he was treating two innocent boys like criminals.

"Neither [Weston] nor [Haden] did anything wrong" that night, the U.S. Court of Appeals for the 8th Circuit later observed. "The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. [Weston] and [Haden] acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions."

Whether Marzolf was "doing his job" within the parameters dictated by the Fourth Amendment is at the center of a case that the Institute for Justice is asking the Supreme Court to consider. The organization's petition, which it filed this week on behalf of Casondra Pollreis, Weston and Haden's mother, argues that the 8th Circuit erred when it concluded last August that Marzolf's actions were constitutional. Pollreis' lawyers say the appeals court's decision exemplifies a troubling tendency to expand an exception that the Supreme Court carved out of the Fourth Amendment in 1968, when it allowed "investigatory stops" based on "reasonable suspicion" of criminal activity. According to the 8th Circuit, the line between such a stop and an arrestwhich requires probable cause, a standard that Marzolf clearly did not meet"can be hazy."

If so, Institute for Justice attorney Robert McNamara says, that is only because the Supreme Court has stood by as lower courts have approved increasingly severe and invasive treatment based on reasonable suspicion. "Through silence and inaction, the Supreme Court has allowed the doctrine of 'stop and frisk' to morph into 'stop, drop, handcuff, and hold at gunpoint,'" McNamara says. "As the number of involuntary encounters between citizens and government officials has soared in recent decades, the rules protecting citizens from abuse in those encounters have withered. The Fourth Amendment is not 'hazy' when it comes to our basic right to go about our business without being assaulted by government agents who've lost their cool."

'Fleeing Criminal Suspects' Who Walk Toward a Police Car

As U.S. District Judge Timothy Brooks explained in a 2020 decision addressing Pollreis' constitutional claims against Marzolf, the "dangerous live drama" to which the 8th Circuit referred began when police received a tip. Jennifer Price, who was wanted on drug charges, reportedly was staying at 2100 Lynn Street in Springdale with Tomas Silva, "a gang member and a prior suspect in cases involving guns and drugs." Silva and Price ended up fleeing police, along with "two males, one shorter and skinnier than the other," in a Chevrolet Cobalt that crashed after police tried to pull it over. The four occupants "fled the disabled car," two running north and two running south.

Marzolf responded to a call asking officers to help catch the suspects. Per instructions, he drove to the intersection of Luvene Avenue and Lynn Street. As he did that, he heard over his radio that Silva "had a gun" the last time police encountered him. "Shit," Marzolf responded. "Almost immediately after that," Marzolf saw Weston and Haden slowly walking abreast on the sidewalk along Lynn Street. His sole basis for suspecting that they might be two of the runners, aside from their general proximity to the scene of the chase, was that one of them (Weston) was taller than the other (Haden).

Other details did not support that suspicion. Weston and Haden were walking, not running, and Marzolf later conceded in a deposition that they did not seem out of breath, as you would expect fleeing suspects to be. The boys were walking toward Marzolf's vehicle, which was clearly a police car because its blue lights were flashing. As the 8th Circuit noted, the two brothers were completely cooperative throughout the encounter, which likewise did not jibe with the idea that they were running from the police.

Although Marzolf later claimed he was worried that one or both of the boys might be armed, he had been told that the one suspect known to carry a gun, Silva, was Hispanic, while Weston and Haden are white. Silva was "wearing a blu[e] jacket with maybe a gr[a]y hoodie under," along with black jeans. Marzolf described the boys as wearing "black hoodies and khaki pants and jeans." Haden was carrying "a white backpack." In any case, Marzolf admitted in his deposition that he "was going to stop any individuals along that area that I was working because that's what your job is on the perimeter."

A dashcam video shows what happened next. When Marzolf sees Weston and Haden, he turns on his high beams and aims them at the boys. Stopping the car, he calls out, "Hey, what are you guys doing?" Weston responds and points to his home, but his words are not audible on the recording. "Hey, stop, stop," Marzolf commands. "Turn away from me." The boys follow his instructions as he points his gun at them. He asks for their names, which they give him.

Marzolf's attitude is clear from the way he responds when Pollreis, who has seen this shocking scene unfold from her front yard, politely approaches him. "Officer, officer, may I have a word with you?" Pollreis says. Although her next words are hard to make out in the recording, Marzolf says, "Yeah, I can hear you." He can hear her, but he is in no mood to listen.

"What happened?" Pollreis asks. "They're my boys."

Marzolf repeatedly orders Pollreis to "step back." She is dismayed. "Are you serious?" she asks. "I am serious," Marzolf says, drawing a Taser and pointing it at her.

"Where do you want me to go?" Pollreis asks. "I want you to go back to your house," Marzolf says.

"Are you serious?" Pollreis asks again. "They're 12 and 14 years old." Marzolf's reply is both inaccurate and telling. "I'm looking for two kids about this age right now," he says, "so get back in your house."

'Is One Taller Than the Other?'

Contrary to Marzolf's claim, the suspects were not described as "two kids about this age." The two named suspects, Price and Silva, were both in their twenties. The others, according to the 8th Circuit, were "two men." Furthermore, it is clear from this exchange between Marzolf and Pollreis that he understood Weston and Haden lived nearby with their mother, which was inconsistent with his purported belief that they might be the "fleeing criminal suspects."

While Pollreis is trying to find out what is happening to her sons and why, Marzolf reports over his radio that "I've got two juvenile individuals, dark hoodies and pants." The officer who initially tried to arrest Price asks Marzolf to "detain both of them," then adds, "Is one taller than the other? The short one should be short and skinny." When Marzolf confirms that one of the "juvenile individuals" is indeed shorter than the other, the other officer replies, "Yeah, hold onto them please."

Marzolf tells the boys to lie face down on the ground with their arms out, which they do. "Oh, my God," Pollreis responds when Marzolf tells her to go home. "You're OK, guys," she tells the boys. "I promise."

After Marzolf calls for backup, the boys' stepfather tries to intercede. "Officercan I have a word with you?" he says. "Not right now," Marzolf responds.

Pollreis' husband explains that "those are my kids" and that "we just left her parents' [house] right there." He offers to connect Marzolf with "witnesses" who can confirm that the boys were doing nothing wrong. "That's fine," Marzolf says. "I just need to find out who these kids are right now." But he already knows who they are. The stepfather repeats their names, just in case.

After Officer Adrian Ruiz arrives, Marzolf handcuffs both boys. When a sergeant shows up, Marzolf tells him, "Sarge, you've got a parent back there," which again suggests that Marzolf refused to let the boys go even though he accepted their account of what they were doing: walking home.

The sergeant asks the handcuffed boys if they were running from the police. They say no. He asks, "What are you doing down here?" One of the boys replies, "We were at our grandparents'and started walking home." The sergeant asks for their names, which they give yet again.

At this point, Marzolf starts frisking Weston and searching the pockets of his pants. "Were they running?" the sergeant asks. "No, they were just walking, sir," Marzolf replies. "OK, so these guys probably aren't them?" the sergeant suggests. "Probably not," Marzolf concedes. "I mean, we had both parents come out"

The boys' grandparents approach the police and once again confirm the account that Marzolf already seems to have accepted. During that conversation, Ruiz frisks Haden and searches his backpack, because why not? Finally, the sergeant orders the officers to uncuff the boys and let them go.

When Marzolf gets back into his car, he can be heard saying, "Dumb." Then he sighs. "That sigh," Institute for Justice attorney Keith Neely archly observes in a video about the case, "is the sound of a police officer realizing he's just violated someone's constitutional rights."

He Didn't 'Threaten to Blow Their Brains Out,' So What's the Big Deal?

The entire encounter lasted about seven minutes, which was about seven minutes longer than it should have. Judge Brooks agreed with Marzolf that the initial stop was based on "reasonable supicion," which gives you a sense of how weak that standard is in practice.

In Terry v. Ohio, the 1968 case in which the Supreme Court first allowed investigatory stops without probable cause, an officer had observed two men repeatedly walk back and forth in front of a Cleveland store, peering into the display window each time and conferring in between with each other and a third man. Suspecting that they were casing the store and planned to rob it, the officer stopped the men and received a mumbled reply when he asked what they were up to. He frisked one of the men and discovered a pistol in his overcoat.

The Court held that the stop and the search were constitutional because they were based on "specific and articulable facts" that justified the officer's suspicions. It said police may stop someone when they reasonably suspect he is engaged in criminal activity and may pat him down when they reasonably suspect he is armed. But as the Court later emphasized, that weaker standard applies to such investigatory stops only because they are "so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures' reasonable could be replaced by a balancing test."

Although Weston and Haden's completely innocent behavior bore little resemblance to the suspicious conduct described in Terry, Judge Brooks thought stopping them was reasonable in the circumstances. But he said Marzolf subsequently may have crossed the line between an investigatory stop and an arrest. "At the point the boys were handcuffed," he wrote, "there is a genuine issue of material fact in dispute as to whether a de facto arrest occurred and whether such ade facto arrest was supported by probable cause."

Brooks also thought Pollreis should be allowed to pursue her claims that Marzolf violated the Fourth Amendment by prolonging the seizure past the point where any reasonable suspicion had dissipated, by frisking Weston, and by using excessive force against both boys. The judge noted that the 8th Circuit "has held that the right not to have a gun pointed at a compliant subject was clearly established at least by February 2016," two years before Marzolf's encounter with Weston and Haden.

Two members of a three-judge 8th Circuit panel disagreed, saying Marzolf was entitled to qualified immunity because all of his actions were consistent with the Fourth Amendment. To give you a flavor of the reasoning underlying that conclusion, the majority thought holding the boys at gunpoint did not amount to excessive force because, unlike officers in earlier cases, Marzolf "did not point his gun behind either boy's ear" and did not "threaten to blow their brains out." Dissenting Judge Jane Kelly, by contrast, thought that "the stop escalated to an arrest without probable cause," that Marzolf "unlawfully searched" Weston, and that he "used excessive force by continuing to point his gun at [Weston and Haden] as they lay on the ground."

'I Was Terrified for Them'

Even if you think the initial stop was justified by reasonable suspicion, Marzolf's decision to prolong and intensify the boys' detention even as it became increasingly clear that they were innocent of any wrongdoing is hard to fathom. As Brooks pointed out, "the objective facts that came to light after the initial stop did not support a reasonable suspicion that [Weston and Haden] were the fleeing suspects."

Marzolf forced the boys to the ground after they and Pollreis told him who they were. He kept pointing a gun at them even after they were lying on the ground. He handcuffed them after Pollreis' husband confirmed that the boys were walking home following dinner at their grandparents' house, which "provided a very logical alibi," as Brooks noted. And Marzolf frisked Weston, who was still handcuffed, even as two more people, the boys' grandparents, gave the same account. Marzolf supposedly was worried because the 14-year-old had tried to "adjust his shirt or belt" (as the 8th Circuit described it) while he was lying on the ground.

"I'll never forget the feeling of watching my boys being held at gunpoint," Pollreis says. "I was terrified for them. No mother should have to witness that. We're asking the Supreme Court to fix this so that no one has to go through what my boys and I went through."

The Institute for Justice argues that the case is a "good vehicle" for the Court to clarify what Terry allows. "The fact that a police officer has gotten away with handcuffing two clearly innocent children and holding them at gunpoint makes it high time for the Supreme Court to revisitTerry," Institute for Justice attorney Marie Miller says. "The Supreme Court must make clear that police cannot flagrantly violate someone's Fourth Amendment rights without being held accountable. If the courts refuse to enforce the Fourth Amendment, we cannot expect the rest of the government to follow it."

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Cops Held Two Innocent Boys at Gunpoint, Forced Them to Lie on the Ground, Handcuffed Them, and Searched Them. That's Fine, the 8th Circuit Said. -...