On a Friday night in July 2018, Des Moines police officers Ryan Steinkamp and Brian Minnehan saw Domeco Fugenschuh, a 22-year-old black man, driving west on Hickman Road. Steinkamp and Minnehan, both white, were assigned to a "special enforcement team" focused on illegal guns, drugs, and gang activity. They had no reason to believe Fugenschuh was involved with any of that, but they decided to follow him anyway because he "sat up slightly" and "turned his head to stare at the officers" as he passed them.
After the cops followed Fugenschuh for several blocks, he expressed his irritation at the unjustified attention by giving them the finger. Steinkamp and Minnehan did not like that, so they continued following Fugenschuh and pulled him over for an invented traffic violation. During the stop, the officers handcuffed Fugenschuh, roughed him up, searched his car, and arrested him for the alleged traffic infraction. They also charged him with marijuana possession after the car search turned up a bit of pot and a portable phone charger that they mistakenly thought was a digital scale.
When Fugenschuh sued Steinkamp and Minnehan for a litany of constitutional violations, they argued that they were shielded by qualified immunity, which bars federal civil rights claims against government officials unless their alleged misconduct violated "clearly established" law. Last Saturday, U.S. Chief Magistrate Judge Helen C. Adams rejected that defense, ruling that a jury should hear Fugenschuh's allegations because it might reasonably conclude that Steinkamp and Minnehan ignored constraints that should be familiar to every police officer in the country.
The decision was a small victory for civil liberties, and the abuses that Fugenschuh suffered pale beside the sort of outrageous police conduct that tends to attract national attention. But this run-of-the-mill case nicely illustrates the wide discretion that the Supreme Court has given police officers to harass motorists for no good reason—leeway that cops nevertheless manage to exceed on a regular basis.
The facts of the traffic stop are mostly undisputed, conceded by the officers and/or verified by dash and body camera footage. Steinkamp and Minnehan pulled Fugenschuh over after he stopped at a red light, signaled a right turn, and turned onto 30th Street. When Steinkamp approached Fugenschuh's car, he initially refused to explain the justification for the stop. Instead he ordered Fugenschuh out of the car and handcuffed him.
After Fugenschuh "asked numerous times why he was stopped," Steinkamp claimed Fugenschuh had "cut off" a car that was moving north on 30th Street, as evidenced by the fact that the driver had applied his brakes. Fugenschuh disputed that account, which apparently irked Steinkamp, who "proceeded to bend Fugenschuh over the hood of the patrol car," "pull his handcuffed arms up above his body," and push his face into the hood of the car.
While frisking Fugenschuh, Steinkamp asked if he had insurance, at which point Fugenschuh began cursing at the cops. "You're going to jail now," Steinkamp responded.
Steinkamp "pulled Fugenschuh off the hood of the patrol car and walked him to the door of the patrol car as Fugenschuh continued to curse at the officers," Adams notes. "Minnehan opened the patrol car door and told Fugenschuh to 'have a seat.' Less than one second after Minnehan told Fugenschuh to have a seat, Steinkamp shoved Fugenschuh into the back of the patrol car, telling him to 'get in the car.' Fugenschuh fell, hitting his head on the patrol car and landing on his handcuffed wrists. Steinkamp's body-worn camera footage shows Fugenschuh complaining of pain and the officers ordering Fugenschuh to 'get up' and 'sit in the car' repeatedly to which Fugenschuh responded, 'give me a second' and 'I can't.' Fugenschuh continued to make noises of discomfort while sitting in the patrol car with his legs out of the vehicle. The officers continued to ask Fugenschuh to 'get in the car' until Fugenschuh pulled his feet into the patrol car."
Inside the patrol car, Steinkamp told Fugenschuh, "We don't care about this petty crap. We don't deal with that crap, but when you act the way you acted from the get-go, when we were sitting there and you looked at us, like, real hard and start[ed] flipping us off…" Steinkamp evidently did not finish the thought, perhaps because he realized that flipping cops off, arguing with them, and speaking harshly to them are not crimes. Perhaps he also realized (although this might be giving him too much credit) that admitting he acted out of personal pique would support a claim that he retaliated against Fugenschuh for constitutionally protected speech.
At this point, Minnehan searched Fugenschuh's car. According to Fugenschuh's original complaint, which he filed in state court before the case was transferred to federal court in July 2020, the cops "falsely alleged that they smelled marijuana to justify the search."
Although the officers' misidentification of Fugenschuh's phone charger as a digital scale suggests they initially thought they had nabbed a pot dealer, he was charged only with possession. According to Fugenschuh's complaint, Minnehan "specifically noted that he doesn't usually take people to jail for marijuana possession." Prosecutors dropped that charge in October 2018.
As for the purported traffic offense, the cops initially charged Fugenschuh with violating Section 321.311 of the Iowa Code, which says "the approach for a right turn and right turn shall be made as close as practical to the right-hand curb or edge of the roadway." During Fugenschuh's trial, the prosecutor, after realizing that provision did not fit the conduct that Steinkamp and Minnehan supposedly observed, "amended the initial charge." The prosecutor changed the charge to a violation of Section 321.322(1), which says a driver making a turn "shall yield the right-of-way to any vehicle on the intersecting roadway which has entered the intersection or which is approaching so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection."
Fugenschuh, who was representing himself, wanted to present video of the stop, which he said would show he was not guilty of that charge. But he "was informed that because the prosecution had not presented the video as evidence, the video was unavailable." After Fugenschuh was convicted, he got access to the video, which he used to challenge his conviction.
During the post-conviction trial, Minnehan "testified he was unaware what the initial charge under Iowa Code § 321.311 criminalized." Steinkamp conceded that "Fugenschuh had not violated" that provision. And after viewing the video, a judge concluded that Fugenschuh was not guilty of the substitute charge either.
"The video demonstrates there was no actual danger or near collision or immediate hazard," the judge said. "Fugenschuh was out of the intersection before the Second Car entered it and the cars were never very close to each other, demonstrating the Second Car was not 'approaching so closely as to constitute an immediate hazard during the time [Fugenschuh] was moving across or within the intersection.'"
To sum up, the evidence suggests that Steinkamp and Minnehan followed Fugenschuh for no good reason, decided to pull him over because they got the finger, and manufactured an excuse to do that based on a claim that was contradicted by the video footage. They immediately ordered him out of the car and handcuffed him, which is not standard procedure for a routine traffic violation (even a real one), and had already decided to arrest him because of his attitude before they found the pot that led to the possession charge. And that search was based on an unverifiable claim about what the officers' noses supposedly detected.
According to Fugenschuh, Minnehan admitted that he would not typically take someone into custody for low-level marijuana possession, let alone a minor traffic violation. Steinkamp's recorded comments and his rough treatment of Fugenschuh, who was handcuffed and not offering any physical resistance or posing any plausible threat, reinforce the impression that the officer lost his temper because he perceived Fugenschuh as disrespecting his authority.
This evidence, Adams concluded, made several of Fugenschuh's claims plausible. He will be allowed to argue that Steinkamp and Minnehan violated his Fourth Amendment rights when they "unreasonably seized him by detaining him for a non-existent turning violation"; that Steinkamp used excessive force, another Fourth Amendment violation, when he "shoved Fugenschuh onto the hood of the car and pushed Fugenschuh after Minnehan had commanded Fugenschuh to get into the patrol car"; and that the same actions qualified as assault and battery under Iowa law. Adams also allowed Fugenschuh to pursue a First Amendment claim: that Steinkamp and Minnehan punished him for constitutionally protected speech.
Fugenschuh is by no means guaranteed victory on any of these claims. Adams found that they hinge on "disputed questions of material fact" and noted evidence that the officers might cite to rebut them. But based on the existing record, it certainly looks like Steinkamp and Minnehan crossed several legal lines.
Although the Supreme Court drew those lines, its decisions also have encouraged the sort of behavior described in Fugenschuh's lawsuit. His complaint alleges that Des Moines police officers "pretextually stop motorists on a regular basis." According to the Supreme Court's 1996 ruling in Whren v. United States, there is nothing unconstitutional about that: Police may stop a driver whenever they "have probable cause to believe that a traffic violation has occurred," even when the true motive is finding evidence of an unrelated crime.
Because state traffic codes include myriad rules governing the maintenance and operation of motor vehicles, many of which are picayune, arbitrary, obscure, or ambiguous, that rule allows cops to stop pretty much any car they want. And they have a strong motive to use that power. Pretextual traffic stops not only allow cops to seize contraband and make arrests; they present an opportunity to commit roadside robbery by seizing money under civil forfeiture laws. Since that money is used to pad police budgets, cops have a financial incentive to stop first and ask questions later.
Police officers, of course, are not supposed to invent traffic violations out of whole cloth. But when a cop claims someone committed a traffic violation, his word will generally prevail unless there is independent evidence that contradicts it. That is what happened in this case, until Fugenschuh managed to obtain the video that persuaded a judge he had not done what Steinkamp and Minnehan claimed.
Even when a driver actually commits a minor traffic violation (which, again, is hard to avoid, given how many rules there are to break), why would a cop order him out of his car and handcuff him? In this case, it's pretty clear why: Steinkamp and Minnehan were mad because Fugenschuh "started flipping us off," even though courts have held that such gestures are constitutionally protected. But Steinkamp and Minnehan did not need any particular reason. In the 1977 case Pennsylvania v. Mimms, the Supreme Court said cops may order legally detained motorists out of their cars at will, based on general concerns about officer safety. Two decades later, the Court extended that rule from drivers to passengers in Maryland v. Wilson. Once Steinkamp and Minnehan had taken Fugenschuh into custody, frisking him also was legally authorized based on the same general concerns.
Why was Fugenschuh arrested? Again, we know why, based on Steinkamp's own words. But Steinkamp had the power to punish Fugenschuh for his disrespect because the Supreme Court has approved custodial arrests for minor traffic offenses, even when they are not punishable by jail.
What about the car search? Since 1925, the Supreme Court has recognized a "vehicle exception" to the Fourth Amendment's general search warrant requirement. The rationale in that case, Carroll v. United States, was that police who suspect a vehicle contains contraband cannot reasonably be expected to obtain a warrant, given that the vehicle could easily be moved during the time that would take. Although the availability of electronic warrants undermines that rationale, we are stuck with a rule that was inspired by the challenges of enforcing alcohol prohibition in the 1920s.
Officially, police still need probable cause to search a vehicle. But probable cause is easily manufactured in this context. As this case illustrates, the purported odor of marijuana, whether real, imagined, or invented, suffices—at least in jurisdictions where that drug remains illegal. A purported "alert" by a drug-sniffing dog, whether real, imagined, or invented, likewise will do the trick. So in practice, police not only have the power to stop any car they want; they also have the power to search it.
None of this means that what Steinkamp and Minnehan did in this particular situation was legal. To the contrary, Adams found credible evidence that it was not. But the existing rules invite fudging, which in many cases won't be officially recognized because the arrestee does not file a lawsuit or successfully challenge a conviction. When the Supreme Court gives cops a mile, they are bound to take an extra inch.
The post Cops Arrested Him for a Fictitious Traffic Violation Because He Flipped Them Off appeared first on Reason.com.
