Grieving Man Can Sue|Police Over His Arrest

(CN) - A grieving man who cussed out a police officer and paid a late-night visit to another officer's home can sue police and a county attorney for allegedly arresting and strip-searching him without probable cause, the 10th Circuit ruled.

The federal appeals court in Denver rejected a motion to dismiss the civil rights claims of Daniel Stearns, who was arrested for disorderly conduct in the wake of traffic-stop argument during which Stearns said to an officer, "You're probably the mother fucker that shot my dad."

Stearns was in Winfield, Kansas, in 2006 to attend the funeral of his father, who had been shot by local police while committing a crime.

The night before he cussed out the officer, Stearns visited the home of another police officer just after midnight, knocking on the door and saying "later" when no one answered.

Officers arrested Stearns the next day on the orders of Cowley County Attorney Christopher Smith. Stearns was taken to jail, booked and released on bond, but not before he was strip-searched for weapons and contraband.

Stearns sued Smith, the arresting officers and several other officials for violating his Fourth Amendment rights.

A district court granted qualified immunity to all defendants except Smith and three officers: two who arrested Stearns and one who searched him in jail.

Smith and the officers appealed, but the 10th Circuit primarily sided with the lower court. The panel determined that Stearns had been arrested without probable cause, and that the strip-search was unwarranted, because jailers never planned to put Stearns in the general population.

"At the time Mr. Smith ordered the arrest ... it was well-settled that profanity, especially toward police officers, does not amount to a violation of the disorderly conduct statute unless it constitutes 'fighting words,'" Judge Deanell Reece Tacha wrote.

Smith and the officers knew only that "Mr. Stearns's father had been killed by local law enforcement officers and Mr. Stearns was upset with police," Tacha added, and "these facts would not lead a reasonable person to conclude that probable cause existed to arrest Mr. Stearns for disorderly conduct."

On the strip-search claim, Tacha said it's "well-established" that a detainee "who is not placed in the general prison population cannot be strip searched if the searching officer does not at least have reasonable suspicion that the detainee possesses concealed weapons, drugs, or contraband."

However, the three-judge panel reversed the lower court's denial of qualified immunity to a police officer who merely assisted in the arrest.

"When one officer requests that another officer assist in executing an arrest, the assisting officer is not required to second-guess the requesting officer's probable cause determination, nor is he required to independently determine that probable cause exists," Tacha wrote.

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