By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in North Las Vegas, Nevada. He detained a suspicious male he believed needed medical attention, and there is back and forth at the office about whether that was lawful. Is community caretaking a basis to seize a person?
Can a person be seized under community caretaking?
Can a person be seized under community caretaking? My name is Anthony Bandiero, bringing a roadside chat.
All right, so this question comes from an officer out of, actually North Las Vegas, Nevada. The question is, can a person be detained or seized under community caretaking? The officer says my belief is that they can, and there is a case in Nevada that talks about community caretaking.
He says, recently had an encounter with a suspicious male that I thought was in need of medical assistance, so I detained him. There’s some back and forth at the office about whether or not this was lawful or not. So is this a Fourth Amendment issue? The officer’s contention is that if the person is generally detained for a perceived potential medical issue the person is having, then they can in fact be detained lawfully under the community caretaking doctrine.
All right, let me go through this. I kind of yes and no.
What is community caretaking?
So number one, what is community caretaking? Community caretaking is a doctrine that allows police officers to make an intrusion on a person’s liberty when there is a perceived need of medical distress and so forth.
I like to call this the firefighter rule. These are things that police officers do because the community expects that police officers help the community, help citizens with issues that they’re perceived as having.
All right, we get this doctrine from Cady versus Dombrowski. So basically the idea, what happened in Cady, was police officers looked for a firearm in an impounded vehicle. The gun was not anything illegal, it wasn’t a violation of any crime. This was in the 1960s. The idea was, look, we don’t want this firearm to be in this car at an impound lot, it can get into the wrong hands. So while the cops were looking for that firearm, they found evidence of a murder. The defendant here said, hey, timeout, that gun is not evidence of a crime, so why are you even in my vehicle? And the Supreme Court said, for a lack of a better term, we’re going to call this community caretaking.
Does community caretaking apply to homes?
Fast forward to today. We know another thing, that community caretaking does not apply to homes. Instead it’s the emergency aid exception. We know that doctrine from Caniglia versus Strom.
And the reason why community caretaking really doesn’t apply to homes, it’s because it doesn’t have the level of exigency needed to justify an intrusion into a person’s home, their castle, the most protected area of the Fourth Amendment.
So community caretaking is really applicable to pedestrians and people driving cars or inside cars. Not homes.
What are you looking for to justify the stop?
All right, the next thing I want to talk to you about is, can a person be detained under community caretaking? Well, yes, in a sense. Because if no seizure ever occurred, or search ever occurred, on the community caretaking, then it would not even implicate the Fourth Amendment. Clearly if we’re having this discussion there is some kind of search or seizure and the Fourth Amendment is involved. These are not quote unquote consensual encounters.
So what are we looking for here? We’re looking for reasons to believe that the person needs or wants your assistance.
Think about some cases. Think about a little lady in a high crime area, and the cop is stationary, just looking for crime and so forth, and the cop sees her, let’s say 11 o’clock at night, go past by, and then come around again and run the block, and again. And then we see the driver looking around, and maybe sees the cop, maybe doesn’t see the cop, but looking around as if she’s lost. The officer then lights her up, stops her and says, man, you look lost to me, this is a high crime area, can I help you?
That is community caretaking. Was the driver seized temporarily? Of course. The cherries and the berries, how did we get the person stopped? But did we have a reason to believe that the person needs or wants your help?
Look, but Anthony, let’s say that the driver saw the cop and made no effort to make contact. That’s one factor. People may not necessarily believe that they want to go bother the cop, quote unquote. But that’s what we’re talking about.
And so what happens in these cases is the stop is under community caretaking, and then we see criminal activity. DUI, gun, we find drugs, that type of stuff.
All right, so do you have a reason to believe that this person wants or needs your help? If you do, then that should be a good community caretaking case.
And these are not, we don’t want to use community caretaking as a substitute for criminal investigations. We want to be on the up and up on this. That’s another thing I want to let you know, that the vast majority of courts look for good faith here.
What if the person says leave me alone?
Finally, what happens when the person gets stopped or detained temporarily? Let’s say this pedestrian that appears to need some medical attention, and the pedestrian says, look, I’m okay, yeah I got medical issues or whatever, I want to be left alone. Can the cop continue to detain that person or seize them, whatever you want to call it?
The answer is no, unless that person falls within the involuntary commitment statute. So in order to involuntarily commit somebody against their will, you’re going to have to articulate exigency, that this person if left alone would die or get hurt or hurt somebody else. That level of exigency. In Nevada we call that a Legal 2000.
So if you don’t have that type of urgency, then the person has a right to be left alone, even if it’d be wise to go get medical attention. There are a lot of people in this world that need medical attention but refuse to get it, and you cannot do anything about it. We’re talking about a very small subset of those people that you think need your help.
What is the better approach on a welfare contact?
So I hope this explains it. The better approach, if you’re in these situations, is to try to engage the person consensually, especially if they’re a pedestrian. Sir, ma’am, hey, I see you don’t look well. Or I see you’re confused, or you seem like you’re lost. That type of stuff, and you go from there. That’s the best way.
But with people driving, normally you’re going to have to pull them over to find out if they’re having some kind of issue.
The short version
- Community caretaking is a doctrine that allows an intrusion on a person’s liberty when there is a perceived need of medical distress. I like to call this the firefighter rule.
- We get this doctrine from Cady versus Dombrowski, a firearm in an impounded vehicle in the 1960s.
- Community caretaking does not apply to homes. That’s the emergency aid exception, from Caniglia versus Strom.
- It does not have the level of exigency needed to justify an intrusion into a person’s castle.
- So it is really applicable to pedestrians and people driving cars or inside cars.
- Can a person be detained under it? Yes, in a sense. We’re looking for reasons to believe the person needs or wants your assistance.
- We don’t want to use community caretaking as a substitute for criminal investigations. The vast majority of courts look for good faith here.
- If the person says leave me alone, the answer is no, unless they fall within the involuntary commitment statute. In Nevada we call that a Legal 2000.
- The person has a right to be left alone even if it’d be wise to go get medical attention.
- The better approach with pedestrians is to engage consensually first.
All right, hope it helps. Keep the questions coming. Like and subscribe to the channel. I hope that this video has helped you get it right every single time.
Related from Blue to Gold
- Major Case!!! Caniglia v. Strom, Community Caretaking and Red Flag Laws
- Can Police Help EMS Force an Overly Intoxicated Person to the ER?
- Entering a Home to Seize a Person For a Mental Evaluation
This article is an edited transcript of Roadside Chat Ep. #332. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
