You can be arrested for breaking into your former marital residence

The Court of Appeals often grants summary judgment on qualified immunity grounds in false arrest cases. This happens even though the trial court may actually deny summary judgment, but the police officers can take up an immediate appeal under an exception to the rule against interlocutory appeals. Since probable cause (a defense to false arrest) and qualified immunity are both objective inquiries which ask whether a reasonable officer would have believed the plaintiff was committing a crime, the police officers win these appeals more often than you think.


The case is Finigan v. Marshall, decided on July 29. Finigan went to her former marital residence to get some of her stuff back. She got a locksmith to give her the key, and she entered the house without her estranged husband's permission. You know what happens next. Someone called the police because of the suspicious activity, a possible burglary-in-progress. When deputy sheriff Marshall showed up, Finigan told him she had legal title to the property and was only retrieving her possessions. Marshall did not try to verify this information. Instead, he took Finigan to the police station and placed her under arrest. He ultimately let Finigan go and she was never charged with a crime.


This case has false arrest written all over it. The district court certainly thought so, and denied Marshall's motion for summary judgment. Marshall immediately appeals his qualified immunity argument, something you normally can't do until after the trial ends. But qualified immunity entitles police officers to this exception because they are immune from suit if reasonable officers in their shoes would have believed the arrest was legal.


The Court of Appeals finds that Marshall had probable cause to arrest Finigan for criminal trespass (a crime closely related to burglary). We make this determination based on objective factors known to Marshall, not his subjective intent in arresting Finigan. Marshall acted reasonably because he knew that Finigan was divorcing her husband who lived in the house alone. Responding to a neighbor's report of a possible burglary, Marshall also knew that Mr. Finigan had changed the locks and wasn't home. He also knew that Mrs. Finigan had somehow entered the house and removed property. Mr. Finigan did not consent to have his estranged wife enter the house.


Didn't Mrs. Finigan had title to the property? That's not enough to win the case, the Second Circuit (Winter, Katzmann and Raggi) says. "[T]he issue is her right of entry under the circumstances described above, and title does not provide an absolute right to enter at times of one's choosing without the permission of the occupant." Under New York law, "A non-resident spouse who is a titled owner of a house and enters without permission of the resident spouse may be convicted of burglarizing his or her own property." Did you know that was the law in New York? I didn't. See, People v. Glanda, 774 N.Y.S.2d 576 (2004). This may not make any sense, but actually it does, the Court of Appeals tells us, because a contrary rule "could lead to circumstances fraught with danger" in that some spouses in divorce proceedings will mistakenly believe that no one is home, triggering a violent response from the occupant.