Mind Your Manners


By: Sara E. Brochstein

It is widely known that the Fourth Amendment protects citizens from unreasonable searches and seizures. While this is often considered in the context of an arrest, it also applies to a mental health seizure where an officer stops an individual to ascertain that person’s mental state. An officer is generally warranted to make such a seizure if the officer has probable cause to believe the person is a danger to himself or others. 

However, the analysis does not end there; a seizure supported by probable cause could be rendered unconstitutional if carried out in an inappropriate manner. While we most often see this issue arise in excessive force cases, it is important to remember that physical force is not the only conduct that can make an otherwise justified seizure unreasonable. The Eleventh Circuit recently found that, while an officer making a mental health seizure may have had adequate justification for the seizure (i.e., there was probable cause to believe the person was a danger to herself or others), the officer was not entitled to qualified immunity in light of the manner in which he conducted the seizure. 

In Phillis J. May v. City of Nahunta, Georgia, et al, an armed male officer was alone in a locked room with an elderly female citizen. The officer ordered the woman, under the implicit threat of force, to disrobe in front of him to change into more suitable clothing so that he could transport her to a hospital. The Eleventh Circuit described these actions as “clearly inappropriate” and denied the officer qualified immunity on summary judgment. Although it may have been reasonable for the officer to transport the citizen to the hospital and even require her to change clothes beforehand for safety reasons, the manner in which the officer accomplished this task was inappropriate. 

Given the recent focus on highly publicized episodes of use of force by police, it is easy to forget that physical force is not the only means through which to render unconstitutional a seizure, which may otherwise be lawful. In other words, even when probable cause is present, conduct that is unusually harmful to an individual’s privacy or physical interests can be unconstitutional and result in loss of immunity for law enforcement officers.

For any questions, please contact Sara Brochstein at [email protected].