The Mendenhall Reasonable person standard of Arrest says a “person is "seized" within meaning of Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained; person is "seized" only if, in view of all of the circumstances surrounding the incident, reasonable person would have believed that he was not free to leave, and as long as person to whom questions are put remains free to disregard questions and walk away[..].”U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Mendenhall remains good law today.


Yet, I have observed a disturbing increase in police seizures of persons placing them in restraints and claiming that it is for their own or police safety. I am becoming convinced that police do this solely to impose their authority and intimidate those so seized.


Apparently there is nothing by way of a bright line that informs when an arrest is made or when some event involving physical restrictions on liberty are imposed by force upon a person. U.S. v. Gomez, 91 F.3d 156, (9th Cir. 1991)(unpublished).

The Gomez court cited to United States v. Alvarez, 899 F.2d 833, 838 (9th Cir.1990), cert. denied,498 U.S. 1024 (1991) for the safety issue. That court went on to describe various circumstances where no “arrest” had occurred yet considerable force was used to eliminate the liberty of various persons. “See, e.g., Allen, slip op. at 12069 (no arrest when detainee ordered out of car at gunpoint, handcuffed, frisked, and detained for 24 minutes before being released); Alvarez, 899 F.2d at 838 (no arrest when defendant ordered out of car at gunpoint); Parr, 843 F.2d at 1231 (placing defendant in patrol car does not constitute arrest); United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir.1983) (no arrest when suspect stopped at gunpoint, ordered to lie face down in a ditch, handcuffed, and frisked). In addition, the police may permissibly move a suspect during a Terry stop without converting it into an arrest. See Eberle v. City of Anaheim, 901 F.2d 814, 819 (9th Cir.1990).” (Gomez at 2).

I have reviewed a few hundred federal cases and find that the Mendenhall standard remains. Yet the police are placing people in restraints all over the country. Worse when people reasonably object they pile on and then charge the person with resisting.

So then I’m wondering what would result if the person being so seized simply informed police that he preferred to absent himself and leave them to their business~?

What if the police business is with that person~? They won’t let him go they want to cuff him isn’t that all that’s required under the Mendenhall standard~?

What about the car on the highway~? You can’t leave because pedestrians are not allowed. The police can’t let you walk off leaving the car unattended. Yet they want to place you in restraints. I see Mendenhall there all over it.

What say you?