4th Amendment case raises intriguing free-speech question
An excessive-force case in Oklahoma involving a Fourth Amendment claim also presented an interesting free-speech question: Does a person have a First Amendment right to refuse to answer a police officer’s question during an investigatory visit?
In 2004, Vicki Koch, of Del City, Okla., and her parents assumed management of the property and care of an elderly woman named Gladys Lance. In September 2005, Lance’s niece became concerned for her aunt’s well-being and how her finances were being handled.
The niece went to court and obtained an order appointing her Lance’s special guardian. The niece then went to the police, seeking their help in finding Lance. Del City police officer John Beech was assigned to find and pick up Lance.
On Sept. 13, 2005, Beech drove to Koch’s house to look into Lance’s whereabouts. When he approached the home, Koch told him to get off her property and to call her attorney. Beech told Koch that if she did not tell him where Lance was, then he would arrest her for obstruction.
Koch refused to answer. After a struggle, Beech arrested Koch for obstruction, assault and battery. In February 2006, a district attorney dropped the criminal charges against Koch.
In March 2007, Koch filed a lawsuit in Oklahoma state court against Del City and Beech. The defendants moved the case to federal court. Koch alleged in her lawsuit that Beech used excessive force in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. She did not allege a violation of her First Amendment free-speech rights.
In March 2010, a federal district court rejected Koch’s federal claims and granted Beech qualified immunity — a doctrine that gives government officials immunity from civil rights claims if they did not violate clearly established law.
Koch appealed to the 10th U.S. Circuit Court of Appeals, and a three-judge panel affirmed the district court in its Nov. 2 ruling in Koch v. City of Del City.
Much of the appeals panel’s discussion focused on the Fourth Amendment issues. But the court also addressed an important First Amendment question — whether an individual has a right not to speak to a police officer when being questioned.
The appeals panel noted that the encounter between Officer Beech and Koch was an investigative detention under Terry v. Ohio (1968) — a seminal U.S. Supreme Court Fourth Amendment case. “Having decided that the encounter at issue constituted a Terry stop, the question becomes whether, as a matter of law, an individual subject to a Terry stop has the right to refuse to answer an officer’s questions,” the 10th Circuit panel wrote.
The court reasoned that this question triggers not only the Fourth Amendment but also the First Amendment right of free speech. Even though Koch did not specifically allege a First Amendment violation in her lawsuit, she “sufficiently invoked” the free-speech issue by contending that her arrest was unlawful and not based on probable cause, the panel said.
The appeals court also pointed out that if Koch had a First Amendment right not to answer the questions, then she could not be convicted of obstruction. The panel said the First Amendment often can prohibit the government from compelling speech: “The First Amendment not only protects an individual’s right to speak, it also protects an individual’s right not to speak.”
The 10th Circuit panel, however, determined that Beech was entitled to qualified immunity on the First Amendment question because it was not clearly established whether an individual had such a right not to speak. The appeals panel wrote that it had “found no authority recognizing a First Amendment right to refuse to answer questions during a Terry stop” and that “several courts [had] declined to recognize a First Amendment right not to speak in analogous contexts.” Accordingly, the panel concluded that there was no clearly established First Amendment right not to speak to a police officer under such circumstances.