IE 11 is not supported. For an optimal experience visit our site on another browser.

Detain, not arrest: Why that distinction is key in charges against Texas officer

Analysis: Texas police officer Shaun Lucas was arrested and charged with murder Monday night in the fatal shooting of Jonathan Price.

Texas police officer Shaun Lucas was arrested and charged with murder Monday night in the fatal shooting of Jonathan Price, with the Texas Rangers releasing a statement saying they concluded that Lucas’ actions were not objectively reasonable.

The Rangers’ statement doesn’t say too much, but much can be divined from what it does say.

First: Note that the statement says Lucas responded to a “possible” fight, and that Price was “reportedly” involved with the disturbance. This implies that police did not observe Price actually fighting, or even involved in the disturbance.

Next, Lucas attempted to “detain” Price. This word, “detain,” may end up being the most important word in the statement. Lucas initially sought to detain, and not arrest Price. There’s a very big difference between detaining and arresting someone.

There are only three possible kinds of interactions Lucas, as an officer, could have with Price, as a member of the public: (1) consensual encounter; (2) investigatory detention; and (3) arrest.

Most people do not realize that when an officer initiates contact in a “consensual encounter,” the person can terminate the contact and just walk away. It doesn’t feel like they are “consenting” to a conversation — they naturally think they are being detained. Officers know this and don’t have to volunteer that a person is free to terminate the conversation. The fact that the person complied with the request does not render the encounter nonconsensual.

On the other end of the police encounter continuum is the “arrest.” For a warrantless arrest, the officer must have probable cause to believe that the person is, has been, or soon will be engaged in criminal activity. The Rangers’ statement does not say Lucas initially sought to arrest Price; it says he sought to “detain” him.

A detention is the middle category of police-people contacts, but it resides much closer to a consensual encounter — so much so, that the line between the two is often blurred. When an uniformed, armed officer is asking a bunch of questions, it sure feels like detention, but constitutionally, it might just be a consensual encounter. For detention, however, the detaining officer just needs reasonable suspicion — not probable cause — that the person is, has been, or soon will be engaged in criminal activity. According to the 1968 Supreme Court ruling in Terry v. Ohio, if the officer can articulate some facts showing criminal activity, he can briefly stop a suspicious person in order to determine identity, or even just to maintain the status quo momentarily, while obtaining more information.

If the Rangers say Lucas sought to detain Price, it suggests he didn’t have enough evidence to arrest him. But the Rangers also suggest Lucas had enough information — whatever that information was — that he could temporarily keep Price in one place and investigate further.

If so, constitutionally at least, Price was not “free to leave” or walk away. The Rangers say Price “resisted in a non-threatening posture and began walking away.” The Rangers appear to be justifying the initial detention, and suggesting that Price was resisting detention — not resisting arrest.

If Price was validly detained, the police are permitted to use some physical force to detain. But in the very next sentence, the Rangers don’t appear to support Lucas’ methods of detention: “Officer Lucas deployed his TASER, followed by discharging his service weapon striking Price.”

While officers are permitted to detain someone using physical force, that force must be reasonable. As described by the Rangers, the apparently immediate escalation from a show of authority to deadly force, for just an investigatory detention, was not legally justified.