The Right to be Left Alone By Andrew Mishlove on September 08, 2011

The concept of “community caretaker” exists to protect people who need police assistance. It can, however, be misused, a become a dramatic danger to our right to simply be left alone.

We are working on a case now, where our client had pulled over to the side of the road. It was a two-lane highway with a gravel shoulder, and a 35 mph speed limit. The client was only there for a moment. He was safely and lawfully parked. He did nothing unusual: no hazard lights, no sudden movements…nothing. He was not suspected of any wrongdoing. A policeman “lit him up.”

In other words, he was seized or detained. The officer stated that he did it, even though he knew that he had no reasonable suspicion that our client had done anything wrong, in order to investigate whether he needed assistance. This is called the “community caretaker” power of the police; and, it is legitimate, if and only if the police have a reason to believe the subject actually needs assistance. That, of course, was missing in this case.

In a dramatic expansion of police power – and a dramatic infringement on our right to be left alone, the trial court ruled in favor of the state. We have appealed the case to the Wisconsin Court of Appeals. If need be, we will take it all the way to the United States Supreme Court.

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