Trainspotting plaintiff cannot pursue false arrest claim

The 16 year-old plaintiff was a Westchester County train enthusiast who liked to stand by the tracks and monitor their performance. Someone reported him to the police -- if you see something say something! Upon arrival, the police saw him holding a camera with a backpack on the ground and two electronic devices (one was a scanner) were next to him. The police did not take plaintiff up on his offer to produce a letter from the MTA that allows him to do this, as they thought he might instead activate a sabotage device with his phone. He was arrested for trespass, but that charge was later dropped.

The case is Grice v. McVeigh, decided on September 29. This case represents the clash of two principles: the right to be free from false arrest without probable cause and our present-day fears of terrorism. The Court of Appeals (Jacobs and Walker) holds that the arresting officers are entitled to qualified immunity, which gives public officials the benefit of the doubt in close cases if an objective police officer would have also made the arrest. In what I see as a pattern in recent years, the Second Circuit frequently grants qualified immunity to the officers in a false arrest case, reminding us that the Supreme Court has been generous with this defense, which is "forgiving" and "protects all but the plainly incompetent or those who knowingly violate the law." An officer's bad judgement may not be enough for the plaintiff to win the case.

The Court says the officer had reasonable suspicion to stop and cuff plaintiff, either for lawful interference with a train or for trespass, as this officer had recently been trained on railroad sabotage, and someone in nearby Putnam County had recently been caught with a homemade device wrapped in black tape and a radio-controlled antenna. The officer had never previously heard of what the Court of Appeals calls "trainspotting," and he was not legally required to credit an innocent explanation, a principle that is embedded in Second Circuit case law. "It was not unreasonable for a lone officer to handcuff Grice in order to ensure that Grice could not press a detonator button on any electronic device until the tracks could be searched."

Judge Parker dissents. While he says the officer had the right to initially ask plaintiff questions, that Terry stop ripened into an arrest because plaintiff was cuffed and not free to leave. He then attacks the majority for dropping a footnote summarizing recent cell phone use by terrorists. "If a generalized fear of terrorism coupled with the possession of a cell phone is sufficient to justify an arrest, then our Fourth Amendment is in real jeopardy," as practically every American has a cellphone. Since the officer should have recognized that plaintiff was a train buff and the officers continued plaintiff's detention even after they cleared him of any threat to the railroad.