Prank Arrest Turns Out to Be No Joke for Officers

Two Albuquerque, N.M., police officers who took part in a joke arrest of a new Southwest Airlines employee must face charges that they are liable for the psychological injuries allegedly suffered by the "arrestee" as a result of the prank, a federal appeals court in Denver has ruled.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit said Marcie Fuerschbach's constitutional claims were sufficient to survive the officers' assertion of qualified immunity.

Qualified immunity protects government officials from liability provided their actions do not violate statutory or constitutional rights that are clearly established at the time and that a reasonable person would have known about.

The appeals panel said a jury must decide if the officers can be held liable because the arrest and handcuffing were not performed as part of their official duties.

Fuerschbach worked as a probationary customer service representative for Southwest, which prides itself on being a "fun-loving, spirited company," according to the appeals court opinion. The fun-loving atmosphere includes a tradition of subjecting new employees who have survived an initial probationary period to a prank to commemorate the occasion.

According to the court's opinion, supervisor Tina Tapia and others at Southwest decided to stage a mock arrest of Fuerschbach when she finished up her probationary period. They contacted two Albuquerque police officers, defendants Duane Hoppe and Eldon Martinez, to perform the "arrest."

After being assured by Fuerschbach's supervisors that she "would be OK with it," Hoppe and Martinez made plans for the staged arrest, the opinion says.

At the time she was "arrested," Fuerschbach was working at a ticket counter crowded with customers. After the officers told her that her background check revealed an outstanding arrest warrant, they handcuffed her, asked her if there were anyone available to "bail her out" and led her away, Fuerschbach said. During the entire incident, Fuerschbach was in tears, according to her complaint.

As Fuerschbach was led away, someone jumped out and shouted, "Congratulations on being off probation!" The officers removed the handcuffs and other employees began to clap. However, Fuerschbach continued to cry all day and was finally sent home. She saw a psychologist about her distress and was diagnosed with post-traumatic stress disorder, she alleged.

Fuerschbach filed suit against the city of Albuquerque, Hoppe and Martinez in the U.S. District Court for the District of New Mexico, alleging that the officers violated her Fourth and 14th Amendment rights. The Fourth Amendment protects citizens against unreasonable searches and seizures, and the 14th Amendment makes her Fourth Amendment claim applicable to the states.

In the same suit, Fuerschbach alleged intentional infliction of emotional distress against Southwest, Tapia and Southwest manager Michael Santiago. The complaint alleged conspiracy, false arrest, assault and battery, and defamation against all defendants, as well as a claim for punitive damages.

The District Court granted summary judgment to the officers and the city and to Southwest, Santiago and Tapia in a separate order.

The 10th Circuit panel reversed the grant of summary judgment to the officers. At the same time, however, it affirmed summary judgment in favor of Southwest, Tapia and Santiago.

The panel said the New Mexico workers' compensation law precludes Fuerschbach's state law claims for false arrest, false imprisonment, assault and battery, intentional infliction of emotional distress, and civil conspiracy against the Southwest defendants.

With respect to the claims against the officers, the panel established first that a seizure occurs for Fourth Amendment purposes when "a reasonable person would have believed that she was not free to leave." After noting the circumstances of the joke arrest, the panel said a reasonable person in Fuerschbach's situation would not have felt free to terminate the encounter with Hoppe and Martinez.

Fuerschbach's allegations, if true, describe a seizure for qualified-immunity purposes, the court explained. However, the panel found a question of fact as to whether a reasonable person would have felt free to terminate the encounter given that it occurred in the context of a workplace prank.

In this case, Hoppe and Martinez had neither warrant nor probable cause for seizing Fuerschbach, that is, for handcuffing her and leading her away, the court said. The panel rejected the officers' argument that they should essentially be allowed an exception to the Fourth Amendment's "warrant and probable cause" requirement for workplace pranks.

"A law enforcement officer undertaking to seize a non-consenting private citizen will be held to the governing Fourth Amendment standard; an intent to commit a practical joke will not render the officer immune from liability," the panel said.

Turning to the state law claims against the officers, the appeals court panel again found issues for the jury as to Fuerschbach's claims of false imprisonment, false arrest, and assault and battery. It noted that neither the brevity of the seizure of Fuerschbach nor its characterization as a joke enables the officers to escape having a jury resolve the dispute as to those claims, the panel said.