Limiting Police Power
Updated: Oct 23
Looking at the D.C. Escape Statute (D.C. Code § 22-2601(a)(2)) and the recent court decision in Davis v. United States, it is interesting to see whether fleeing from an attempted arrest violates the escape statute. The escape statute prohibits escaping from the “lawful custody” of a police officer. Throughout history, police have had a lot of power and discretion within a meaning of a term in a statute. Did Officer McHugh have sufficient physical control over Davis for him to be “in custody” at the time of his purported “escape”? Was this an arrest or a detention? Although we are dealing with inquiries about legislative intent, Fourth Amendment law has evolved and distinguishes between a detention and an arrest, and Fifth Amendment jurisprudence differentiates between a custody and a seizure. Overall, it’s interesting to see how courts have limited police power within a meaning of a statute, and the Court in Davis v. United States is a recent example of this limitation.
Mack v. United States followed the physical restraint principle for determining when a person is in custody expressed in cases from Arizona, Texas, and Virginia. “Lawful custody” within the meaning of the escape statute is not satisfied merely when officers tell a suspect he is under arrest or seize him for investigative purposes. There needs to be a completed arrest. In Mack, an officer grabbed Mack and picked him up and threw him to the ground, then proceeded to place him under arrest. The Texas court in Medford v. State made clear that “for purposes of the escape statute, an arrest is complete when a person’s liberty of movement is successfully restricted or restrained, whether this is achieved by an officer’s physical force or the suspect’s submission to the offer’s authority.” The officer touched Medford’s arm and was about to handcuff him when Medford broke free. The Arizona court in State v. Cole illustrated the restraint does not have to be entirely successful for the suspect to be “in custody." Cole was verbally informed that he was under arrest, but he escaped from actual restrain by using physical force against the officers. The Virginia court in Cavell v. Commonwealth held that Cavell did not escape when the officer told him not to run because he was under arrest and when the officer was not close enough to grab him before he ran. All of these cases show the reality that an escape could never occur if the physical restraint applied by an officer were completely effected.
On August 10, 2017, Judge Fisher declined to extend the holding in Mack to an escape from physical restraint while attempting to make a lawful arrest. In Davis, Officers spotted Carlos Davis urinating in public. The officers approached and told him to put his hands on the railing. One officer grabbed Carlos’ belt and pants and told him to put his hands behind his back. Carlos did not comply. Instead, he shoved the officer and ran off. Carlos was charged with escape, a crime that he did not commit. At no point were the officers able to restrain Carlos to the extent that the officers did in Mack.
Even though Judge Fisher limited the concept of “custody” within the meaning of the escape statute, he might have encouraged officers to take “sufficient physical control” in a more violent and controlling way in future encounters with citizens to satisfy the concept of “custody." Limiting police power can encourage police to abuse their power, but giving police more power can encourage police to still abuse their power.
On the other hand, does this encourage officers to take less “sufficient physical control?" It could be too much for officers to take “sufficient physical control” because they are lazy or out of shape. If an officer who is in their fifties, is overweight, has some health issues, and runs slow comes into contact with a suspect that is young, healthy, and a good runner, how will the court handle the situation that the officer physically could not take “sufficient physical control”? Is it the officer’s fault for not trying? Or is it the person who hired the officer and has put the unsuitable officer on the street?
Courts decide the legal problem of policing with much discretion. Constitutional law does not address the distributional impacts of law enforcement activities. It is hard for courts to adequately assess and predict law enforcement conduct. To discourage officers from taking advantage of satisfying the concept of “custody," courts should provide a list of what are those “limits” and provide effective incentives for officers not to exceed those “limits." It would indicate conditions under which the police can, rather than may, harm individual liberty interests for the greater good. Courts would need to ensure the quality of our life is not impoverished but rather improved by police activities.