"On January 16, 2007, Jane Luckett called police and advised them that her daughter C.B. had failed to appear at a scheduled Marchman Act hearing. . . . Part V of the Act provides that parents can petition for involuntary treatment for their minor children who are determined by the trial court to be substance abusers. Luckett asked that her daughter be picked up pursuant to an ex parte order which she believed the trial court had issued. Officer Quigley was dispatched and drove his patrol car to Luckett's residence, arriving, apparently coincidentally, when C.B. was approaching the residence on foot. He made no attempt prior to approaching C.B. to verify Luckett's information that the trial court had issued an ex parte pick-up order.
Officer Quigley testified that he arrived in a marked police cruiser and that he was wearing his uniform. He approached C.B., told her why he was there, and 'attempted to detain her temporarily to investigate.' C.B. refused to stop or cooperate with Quigley, resulting in Quigley's attempt to 'physically detain' her, and he 'attempted to escort her peacefully back to my vehicle.... It uh, escalated to the point where I needed to basically use a physical restraint maneuver to gain control over her.' Quigley called for backup and Officer Robinson responded to his call. Robinson was able to handcuff C.B. and both officers escorted her to Robinson's vehicle. C.B. actively resisted throughout the process and the officers used significant measures, including leg restraints, to subdue her. While the officers were attempting to affix a seat belt to prevent C.B. from leaning forward, she spit on Officer Robinson several times. The spitting resulted in the conviction which is the subject of this appeal. Neither officer indicated they ever had an intention to arrest C.B. nor did they communicate to her that she was under arrest, although Officer Robinson stated that 'I transported her to the police department, decided to take her away from there.... [W]e just decided to take her to the station and put her in a holding cell.' "
Florida law provides that "[a] law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful." In other words, a police officer cannot use force against you unless he has legally detained you in the first place.
On appeal, C.B. argued that the two officers who detained her did not have the right to use force while doing so because their actions in restraining her were unlawful. Florida's Second District Court of Appeal agreed with her for the following reasons:
1. There is nothing stated in the Marchman Act to support the notion that failing to appear for a civil proceeding is a crime. If a judge had actually issued a pick-up order, as reported by C.B.'s mother, then Quigley may have been justified in arresting her on the basis of that order. However, Quigley made no effort, prior to making contact with C.B., to verify through police sources that such an order had actually been issued, and he stated that afterwards he was not able to confirm the issuance of such an order.
2. There were no exigent circumstances compelling an immediate apprehension of C.B. Officer Quigley could have taken sufficient time to confirm the existence of a pick-up order before making any contact with C.B. As it turned out, there was no pick-up order and therefore no justification for arresting C.B.
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