A Louisa woman gets another chance at a false arrest claim against a police officer who entered her home after her ex-husband requested a check on their 11-year-old daughter.
The officer arrested the woman for battery, but Virginia law allows corporal punishment and the officer could not automatically assume that any touching of the child by the mother justified the arrest for battery, the 4th Circuit U.S. Circuit Court of Appeals said in a May 7 decision in Pleasants v. Town of Louisa.
Police earlier escorted the father during a visitation exchange between the parents, who were fighting over custody. During a later encounter, the father asked an officer to go with him to check on his daughter, who reportedly was screaming and crying in the background when the mother refused to allow the two to talk on the phone.
When the officer appeared at the mother’s door, she told him and her ex-husband to leave. The officer could see the daughter standing about 10 feet inside the doorway. As the mother tried to close the door, the officer entered to talk to the girl.
The mother sued in Charlottesville U.S. District Court under 42 U.S.C. § 1983, claiming unlawful entry and false arrest. Under the “peculiar procedural posture” of the case, the 4th Circuit upheld summary judgment for the officer on the unlawful entry claim, but reversed dismissal of the false arrest claim.
No clearly established law prohibited the warrantless entry, said 4th Circuit Judge Dennis W. Shedd. Without case law that defines the boundaries for an “exigency” for an emergency-aid exception to the warrant requirement, the officer had qualified immunity.
The law surrounding the false arrest claim raises other issues. The officer said he knew the mother had touched her daughter twice – a slap on the hand and a grab of the wrist.
Under Virginia law, a parent may use corporal punishment on a child, and “any touching of a child by a parent cannot automatically create probable cause for arrest,” the appellate panel said.
Even though Virginia law recognizes the “slightest touching” as a battery, some touching of a child by a parent “must be legally permissible,” Shedd wrote.
“A parent must often use de minimis force to reprimand or even protect his children, and such force cannot always lead to the possibility that a police officer can arrest the parent,” the court said in its unpublished opinion. The panel said it was not trying to define the level of force for probable cause to arrest, but simply stating that “application of de minimis force by a parent does not automatically create probable cause for arrest.”
The panel reversed dismissal of the false arrest claim and remanded for further proceedings.
–Deborah Elkins
Source: http://valawyersweekly.com/vlwblog/2013/05/13/mom-in-custody-dispute-may-sue-for-false-arrest/
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