Hemry v. Ross, 2023 WL 2439874 (10th Cir. 2023)
A Yellowstone National Park employee believed he had just seen Michael Bullinger, a fugitive who had disappeared three weeks earlier after allegedly shooting and killing three women in Idaho. The employee alerted park rangers and told them Bullinger was leaving the park in a white Toyota with a Missouri license plate. The employee was mistaken; the Toyota was carrying Brett Hemry, his wife and their seven-year-old daughter. The rangers spotted the white Toyota leaving the park and trailed it.
When Hemry noticed the rangers, he pulled over near a campground 16 miles east of the park entrance. The rangers held the Hemrys at gunpoint until sheriff’s deputies arrived; then, the rangers placed Hemry and his wife in separate police vehicles. After examining Hemry’s driver’s license, the rangers released the family. The Hemrys sued the rangers, alleging false arrest and excessive force. The trial court determined the rangers had no reason to point guns at the Hemrys and denied the rangers qualified immunity. They appealed.
The appellate court reversed, holding that in “the fact-specific context here, the law does not clearly establish this investigative stop amounted to (1) an arrest of Mrs. Hemry without probable cause, or (2) excessive force against the Hemrys.” Once the rangers asserted qualified immunity, the Hemrys were obliged to show, first, the rangers violated their constitutional rights; and second, the law was clearly established at the time of the alleged violation: “Clearly established means that, at the time of the officer’s conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. In other words, existing law must have placed the constitutionality of the officer’s conduct beyond debate.”
Because the rangers reasonably suspected they were confronting a fugitive triple-murderer accompanied by an unknown passenger, the use of drawn guns was permissible.
The appellate court held the rangers had reasonable suspicion to stop the Hemrys. Reasonable suspicion “is not, and is not meant to be, an onerous standard.” An officer need not rule out the possibility of innocent conduct, or even have evidence suggesting a fair probability of criminal activity. The court observed, “The rangers easily cleared the reasonable suspicion hurdle.” They had no reason to doubt the park employee’s report that he had seen the fugitive killer in the Toyota. Even though the tip related to a male fugitive, the rangers could reasonably suspect Mrs. Hemry was or could be a collaborator or hostage.
Mrs. Hemry also alleged the display of firearms to detain her was clearly unreasonable and transformed the detention into a de facto arrest requiring probable cause. The court disagreed, citing an earlier ruling that “the use of guns in connection with a Terry stop is permissible where the police reasonably believe they are necessary for their protection.” Because the rangers reasonably suspected they were confronting a fugitive triple-murderer accompanied by an unknown passenger, the use of drawn guns was permissible. The court also rejected the claim that pointing guns at the Hemrys constituted excessive force under the circumstances.
Finally, the court rejected the Hemrys’ claim that a 50-minute detention at gunpoint created an arrest requiring probable cause. Instead of focusing on time passed, the court considered that the two rangers spent most of the stop waiting for backup deputies to arrive: “In a stand-off with a man reasonably suspected of triple homicide—accompanied by at least one unidentified passenger—we cannot find that the rangers clearly acted unlawfully by waiting for additional officers.”
