REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 102. STEVENS, J., filed an opinion concurring in the judgment, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 104.
Carter G. Phillips argued the cause for petitioners. With him on the briefs were Joseph R. Guerra and David H. Hirsch.
Kannon K. Shanmugam argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.
Respondent Iris Mena was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were lead members of a police detachment executing a search warrant of these premises. She sued the officers under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’ questioning of Mena about her immigration status during the detention constituted an independent Fourth Amendment violation. Mena v. Simi Valley, 332 F.3d 1255 (CA9 2003). We hold that Mena’s detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers, 452 U.S. 692 (1981), and that the officers’ questioning during that detention did not violate her Fourth Amendment rights.
Based on information gleaned from the investigation of a gang-related, driveby shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang — the West Side Locos — lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search.
At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs.
Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Mena’s status as a permanent resident was confirmed by her papers.
In her § 1983 suit against the officers she alleged that she was detained “for an unreasonable time and in an unreasonable manner” in violation of the Fourth Amendment. App. 19. In addition, she claimed that the warrant and its execution were overbroad, that the officers failed to comply with the “knock and announce” rule, and that the officers had needlessly destroyed property during the search. The officers moved for summary judgment, asserting that they were entitled to qualified immunity, but the District Court denied their motion. The Court of Appeals affirmed that denial, except for Mena’s claim that the warrant was overbroad; on this claim the Court of Appeals held that the officers were entitled to qualified immunity. Mena v. Simi Valley, 226 F. 3d 1031 (CA9 2000). After a trial, a jury, pursuant to a special verdict form, found that Officers Muehler and Brill violated Mena’s Fourth Amendment right to be free from unreasonable seizures by detaining her both with force greater than that which was reasonable and for a longer period than that which was reasonable. The jury awarded Mena $10,000 in actual damages and $20,000 in punitive damages against each petitioner for a total of $60,000.
The Court of Appeals affirmed the judgment on two grounds. 332 F. 3d 1255 (CA9 2003). Reviewing the denial of qualified immunity de novo, id., at 1261, n. 2, it first held that the officers’ detention of Mena violated the Fourth Amendment because it was objectively unreasonable to confine her in the converted garage and keep her in handcuffs during the search, id., at 1263-1264. In the Court of Appeals’ view, the officers should have released Mena as soon as it became clear that she posed no immediate threat. Id., at 1263. The court additionally held that the questioning of Mena about her immigration status constituted an independent Fourth Amendment violation. Id., at 1264-1266. The Court of Appeals went on to hold that those rights were clearly established at the time of Mena’s questioning, and thus the officers were not entitled to qualified immunity. Id., at 1266-1267. We granted certiorari, 542 U.S. 903 (2004), and now vacate and remand.
In Michigan v. Summers, 452 U.S. 692 (1981), we held that officers executing a search warrant for contraband have the authority “to detain the occupants of the premises while a proper search is conducted.” Id., at 705. Such detentions are appropriate, we explained, because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. Id., at 701-705. We made clear that the detention of an occupant is “surely less intrusive than the search itself,” and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. Id., at 701. Against this incremental intrusion, we posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.” Id., at 702-703.
Mena’s detention was, under Summers, plainly permissible. An officer’s authority to detain incident to a search is categorical; it does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” Id., at 705, n. 19. Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.
Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”). Indeed, Summers itself stressed that the risk of harm to officers and occupants is minimized “if the officers routinely exercise unquestioned command of the situation.” 452 U.S., at 703.
The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusion. See Graham, supra, at 396-397. The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage. The detention was thus more intrusive than that which we upheld in Summers. See 452 U.S., at 701-702 (concluding that the additional intrusion in the form of a detention was less than that of the warrant-sanctioned search); Maryland v. Wilson, 519 U.S. 408, 413-414 (1997) (concluding that the additional intrusion from ordering passengers out of a car, which was already stopped, was minimal).
But this was no ordinary search. The governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Cf. Summers, supra, at 702-703 (recognizing the execution of a warrant to search for drugs “may give rise to sudden violence or frantic efforts to conceal or destroy evidence”). Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable. Cf. Maryland v. Wilson, supra, at 414 (noting that “danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car”).
Mena argues that, even if the use of handcuffs to detain her in the garage was reasonable as an initial matter, the duration of the use of handcuffs made the detention unreasonable. The duration of a detention can, of course, affect the balance of interests under Graham. However, the 2- to 3-hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests. As we have noted, this case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons. We conclude that the detention of Mena in handcuffs during the search was reasonable.
The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. 332 F.3d, at 1264-1266. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991); see also INS v. Delgado, 466 U.S. 210, 212 (1984). “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” Bostick, supra, at 434-435 (citations omitted). As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.
Our recent opinion in Illinois v. Caballes, 543 U.S. 405 (2005), is instructive. There, we held that a dog sniff performed during a traffic stop does not violate the Fourth Amendment. We noted that a lawful seizure “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission,” but accepted the state court’s determination that the duration of the stop was not extended by the dog sniff. Id., at 407. Because we held that a dog sniff was not a search subject to the Fourth Amendment, we rejected the notion that “the shift in purpose” “from a lawful traffic stop into a drug investigation” was unlawful because it “was not supported by any reasonable suspicion.” Id., at 408. Likewise here, the initial Summers detention was lawful; the Court of Appeals did not find that the questioning extended the time Mena was detained. Thus no additional Fourth Amendment justification for inquiring about Mena’s immigration status was required.
In summary, the officers’ detention of Mena in handcuffs during the execution of the search warrant was reasonable and did not violate the Fourth Amendment. Additionally, the officers’ questioning of Mena did not constitute an independent Fourth Amendment violation. Mena has advanced in this Court, as she did before the Court of Appeals, an alternative argument for affirming the judgment below. She asserts that her detention extended beyond the time the police completed the tasks incident to the search. Because the Court of Appeals did not address this contention, we too decline to address it. See Pierce County v. Guillen, 537 U.S. 129, 148, n. 10 (2003); National Collegiate Athletic Assn. v. Smith, 525 U.S. 459, 469-470 (1999).
I concur in the judgment and in the opinion of the Court. It does seem important to add this brief statement to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged.
The safety of the officers and the efficacy of the search are matters of first concern, but so too is it a matter of first concern that excessive force is not used on the persons detained, especially when these persons, though lawfully detained under Michigan v. Summers, 452 U.S. 692 (1981), are not themselves suspected of any involvement in criminal activity. The use of handcuffs is the use of force, and such force must be objectively reasonable under the circumstances, Graham v. Connor, 490 U.S. 386 (1989).
The reasonableness calculation under Graham is in part a function of the expected and actual duration of the search. If the search extends to the point when the handcuffs can cause real pain or serious discomfort, provision must be made to alter the conditions of detention at least long enough to attend to the needs of the detainee. This is so even if there is no question that the initial handcuffing was objectively reasonable. The restraint should also be removed if, at any point during the search, it would be readily apparent to any objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search. The time spent in the search here, some two to three hours, certainly approaches, and may well exceed, the time beyond which a detainee’s Fourth Amendment interests require revisiting the necessity of handcuffing in order to ensure the restraint, even if permissible as an initial matter, has not become excessive.
That said, under these circumstances I do not think handcuffing the detainees for the duration of the search was objectively unreasonable. As I understand the record, during much of this search 2 armed officers were available to watch over the 4 unarmed detainees, while the other 16 officers on the scene conducted an extensive search of a suspected gang safe house. Even if we accept as true — as we must — the factual assertions that these detainees posed no readily apparent danger and that keeping them handcuffed deviated from standard police procedure, it does not follow that the handcuffs were unreasonable. Where the detainees outnumber those supervising them, and this situation could not be remedied without diverting officers from an extensive, complex, and time-consuming search, the continued use of handcuffs after the initial sweep may be justified, subject to adjustments or temporary release under supervision to avoid pain or excessive physical discomfort. Because on this record it does not appear the restraints were excessive, I join the opinion of the Court.
The jury in this case found that the two petitioners violated Iris Mena’s Fourth Amendment right to be free from unreasonable seizure by detaining her with greater force and for a longer period of time than was reasonable under the circumstances. In their post-trial motion in the District Court, petitioners advanced three legal arguments: (1) They were entitled to qualified immunity because the unconstitutionality of their conduct was not clearly established; (2) the judge’s instruction to the jury was erroneous; and (3) the evidence was not sufficient to support the jury’s award of punitive damages. The trial judge’s thoughtful explanation of his reasons for denying the motion does not address either of the issues the Court discusses today.
In its opinion affirming the judgment, the Court of Appeals made two mistakes. First, as the Court explains, ante, at 100-101, it erroneously held that the immigration officers’ questioning of Mena about her immigration status was an independent violation of the Fourth Amendment. Second, instead of merely deciding whether there was sufficient evidence in the record to support the jury’s verdict, the Court of Appeals appears to have ruled as a matter of law that the officers should have released her from the handcuffs sooner than they did. I agree that it is appropriate to remand the case to enable the Court of Appeals to consider whether the evidence supports Mena’s contention that she was held longer than the search actually lasted. In doing so, the Court of Appeals must of course accord appropriate deference to the jury’s reasonable factual findings, while applying the correct legal standard. See Ornelas v. United States, 517 U.S. 690, 699 (1996).
In my judgment, however, the Court’s discussion of the amount of force used to detain Mena pursuant to Michigan v. Summers, 452 U.S. 692 (1981), is analytically unsound. Although the Court correctly purports to apply the “objective reasonableness” test announced in Graham v. Connor, 490 U.S. 386 (1989), it misapplies that test. Given the facts of this case — and the presumption that a reviewing court must draw all reasonable inferences in favor of supporting the verdict — I think it clear that the jury could properly have found that this 5-foot-2-inch young lady posed no threat to the officers at the scene, and that they used excessive force in keeping her in handcuffs for up to three hours. Although Summers authorizes the detention of any individual who is present when a valid search warrant is being executed, that case does not give officers carte blanche to keep individuals who pose no threat in handcuffs throughout a search, no matter how long it may last. On remand, I would therefore instruct the Court of Appeals to consider whether the evidence supports Mena’s contention that the petitioners used excessive force in detaining her when it considers the length of the Summers detention.
As the Court notes, the warrant in this case authorized the police to enter the Mena home to search for a gun belonging to Raymond Romero that may have been used in a gang, related driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from the Mena family. The house, described as a “`poor house,'” was home to several unrelated individuals who rented from the Menas. Brief for Petitioners 4. Each resident had his or her own bedroom, which could be locked with a padlock on the outside, and each had access to the living room and kitchen. In addition, several individuals lived in trailers in the back yard and also had access to the common spaces in the Mena home. Id., at 5.
In addition to Romero, police had reason to believe that at least one other West Side Locos gang member had lived at the residence, although Romero’s brother told police that the individual had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had been at the same residence a few months earlier on an unrelated domestic violence call, but did not see any other individuals they believed to be gang members inside the home on that occasion.
In light of the fact that the police believed that Romero possessed a gun and that there might be other gang members at the residence, petitioner Muehler decided to use a Special Weapons and Tactics (SWAT) team to execute the warrant. As described in the majority opinion, eight members of the SWAT team forcefully entered the home at 7 a.m. In fact, Mena was the only occupant of the house, and she was asleep in her bedroom. The police woke her up at gunpoint, and immediately handcuffed her. At the same time, officers served another search warrant at the home of Romero’s mother, where Romero was known to stay several nights each week. In part because Romero’s mother had previously cooperated with police officers, they did not use a SWAT team to serve that warrant. Romero was found at his mother’s house; after being cited for possession of a small amount of marijuana, he was released.
Meanwhile, after the SWAT team secured the Mena residence and gave the “all clear,” police officers transferred Mena and three other individuals (who had been in trailers in the back yard) to a converted garage. To get to the garage, Mena, who was still in her bedclothes, was forced to walk barefoot through the pouring rain. The officers kept her and the other three individuals in the garage for up to three hours while they searched the home. Although she requested them to remove the handcuffs, they refused to do so. For the duration of the search, two officers guarded Mena and the other three detainees. A .22-caliber handgun, ammunition, and gang-related paraphernalia were found in Romero’s bedroom, and other gang-related paraphernalia was found in the living room. Officers found nothing of significance in Mena’s bedroom. Id., at 6-9.
In analyzing the quantum of force used to effectuate the Summers detention, the Court rightly employs the “objective reasonableness” test of Graham. Under Graham, the trier of fact must balance “`the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” 490 U.S., at 396. The District Court correctly instructed the jury to take into consideration such factors as “`the severity of the suspected crime, whether the person being detained is the subject of the investigation, whether such person poses an immediate threat to the security of the police or others or to the ability of the police to conduct the search, and whether such person is actively resisting arrest or attempting to flee.'” See n. 2, supra. The District Court also correctly instructed the jury to consider whether the detention was prolonged and whether Mena was detained in handcuffs after the search had ended. Ibid. Many of these factors are taken from Graham itself, and the jury instruction reflects an entirely reasonable construction of the objective reasonableness test in the Summers context.
Considering those factors, it is clear that the SWAT team’s initial actions were reasonable. When officers undertake a dangerous assignment to execute a warrant to search property that is presumably occupied by violence-prone gang members, it may well be appropriate to use both overwhelming force and surprise in order to secure the premises as promptly as possible. In this case the decision to use a SWAT team of eight heavily armed officers and to execute the warrant at 7 a.m. gave the officers maximum protection against the anticipated risk. As it turned out, there was only one person in the house — Mena — and she was sound asleep. Nevertheless, “[t]he `reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S., at 396. At the time they first encountered Mena, the officers had no way of knowing her relation to Romero, whether she was affiliated with the West Side Locos, or whether she had any weapons on her person. Further, the officers needed to use overwhelming force to immediately take command of the situation; by handcuffing Mena they could more quickly secure her room and join the other officers. It would be unreasonable to expect officers, who are entering what they believe to be a high risk situation, to spend the time necessary to determine whether Mena was a threat before they handcuffed her. To the extent that the Court of Appeals relied on the initial actions of the SWAT team to find that there was sufficient evidence to support the jury’s verdict, it was in error.
Whether the well-founded fears that justified the extraordinary entry into the house should also justify a prolonged interruption of the morning routine of a presumptively innocent person, however, is a separate question and one that depends on the specific facts of the case. This is true with respect both to how the handcuffs were used, and to the totality of the circumstances surrounding the detention, including whether Mena was detained in handcuffs after the search had concluded. With regard to the handcuffs, police may use them in different ways. Here, the cuffs kept Mena’s arms behind her for two to three hours. She testified that they were “`real uncomfortable'” and that she had asked the officers to remove them, but that they had refused. App. 105. Moreover, she was continuously guarded by two police officers who obviously made flight virtually impossible even if the cuffs had been removed.
A jury could reasonably have found a number of facts supporting a conclusion that the prolonged handcuffing was unreasonable. No contraband was found in Mena’s room or on her person. There were no indications suggesting she was or ever had been a gang member, which was consistent with the fact that during the police officers’ last visit to the home, no gang members were present. She fully cooperated with the officers and the INS agent, answering all their questions. She was unarmed, and given her small size, was clearly no match for either of the two armed officers who were guarding her. In sum, there was no evidence that Mena posed any threat to the officers or anyone else.
The jury may also have been skeptical of testimony that the officers in fact feared for their safety given that the actual suspect of the shooting had been found at the other location and promptly released. Additionally, while the officers testified that as a general matter they would not release an individual from handcuffs while searching a residence, the SWAT team’s tactical plan for this particular search arguably called for them to do just that, since it directed that “[a]ny subjects encountered will be handcuffed and detained until they can be patted down, their location noted, [field identified], and released by Officer Muehler or Officer R. Brill.” 2 Record 53. The tactical plan suggests that they can, and often do, release individuals who are not related to the search. The SWAT team leader testified that handcuffs are not always required when executing a search.
In short, under the factors listed in Graham and those validly presented to the jury in the jury instructions, a jury could have reasonably found from the evidence that there was no apparent need to handcuff Mena for the entire duration of the search and that she was detained for an unreasonably prolonged period. She posed no threat whatsoever to the officers at the scene. She was not suspected of any crime and was not a person targeted by the search warrant. She had no reason to flee the scene and gave no indication that she desired to do so. Viewing the facts in the light most favorable to the jury’s verdict, as we are required to do, there is certainly no obvious factual basis for rejecting the jury’s verdict that the officers acted unreasonably, and no obvious basis for rejecting the conclusion that, on these facts, the quantum of force used was unreasonable as a matter of law.
Police officers’ legitimate concern for their own safety is always a factor that should weigh heavily in balancing the relevant Graham factors. But, as Officer Brill admitted at trial, if that justification were always sufficient, it would authorize the handcuffing of every occupant of the premises for the duration of every Summers detention. Nothing in either the Summers or the Graham opinion provides any support for such a result. Rather, the decision of what force to use must be made on a case-by-case basis. There is evidence in this record that may well support the conclusion that it was unreasonable to handcuff Mena throughout the search. On remand, therefore, I would instruct the Ninth Circuit to consider that evidence, as well as the possibility that Mena was detained after the search was completed, when deciding whether the evidence in the record is sufficient to support the jury’s verdict.
[*] Richard Ruda and James I. Crowley filed a brief for the National League of Cities et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark D. Rosenbaum, Ahilan T. Arulanantham, Steven R. Shapiro, Lucas Guttentag, and Lee Gelernt; and for the National Association of Criminal Defense Lawyers by Henk Brands and Pamela Harris.
Briefs of amici curiae were filed for the National Latino Officers Association et al. by Baher Azmy, Lawrence S. Lustberg, and Jonathan L. Hafetz; and for the Police Officers Research Association of California Legal Defense Fund et al. by Michael J. Hansen.
 In determining whether a Fourth Amendment violation occurred we draw all reasonable factual inferences in favor of the jury verdict, but as we made clear in Ornelas v. United States, 517 U.S. 690, 697-699 (1996), we do not defer to the jury’s legal conclusion that those facts violate the Constitution.
 In finding the officers should have released Mena from the handcuffs, the Court of Appeals improperly relied upon the fact that the warrant did not include Mena as a suspect. See Mena v. Simi Valley, 332 F.3d 1255, 1263, n. 5 (CA9 2003). The warrant was concerned not with individuals but with locations and property. In particular, the warrant in this case authorized the search of 1363 Patricia Avenue and its surrounding grounds for, among other things, deadly weapons and evidence of street gang membership. In this respect, the warrant here resembles that at issue in Michigan v. Summers, 452 U.S. 692 (1981), which allowed the search of a residence for drugs without mentioning any individual, including the owner of the home whom police ultimately arrested. See People v. Summers, 407 Mich. 432, 440-443, 286 N.W.2d 226, 226-227 (1979), rev’d, Michigan v. Summers, supra. Summers makes clear that when a neutral magistrate has determined police have probable cause to believe contraband exists, “[t]he connection of an occupant to [a] home” alone “justifies a detention of that occupant.” 452 U.S., at 703-704.
 The Court of Appeals’ reliance on United States v. Brignoni-Ponce, 422 U.S. 873 (1975), is misplaced. Brignoni-Ponce held that stops by roving patrols near the border “may be justified on facts that do not amount to the probable cause require[ment] for an arrest.” Id., at 880. We considered only whether the patrols had the “authority to stop automobiles in areas near the Mexican border,” id., at 874 (emphasis added), and expressed no opinion as to the appropriateness of questioning when an individual was already seized. See United States v. Martinez-Fuerte, 428 U.S. 543, 556-562 (1976). We certainly did not, as the Court of Appeals suggested, create a “requirement of particularized reasonable suspicion for purposes of inquiry into citizenship status.” 332 F.3d, at 1267.
 The Court of Appeals’ conclusion that the officers were not entitled to qualified immunity was not challenged in the petition for certiorari and is therefore waived. See Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646 (1992).
“`Generally, a police officer carrying out a search authorized by a warrant may detain occupants of the residence during the search, so long as the detention is reasonable.
“`In determining the reasonableness of a detention conducted in connection with a search, you may look to all the circumstances, including the severity of the suspected crime, whether the person being detained is the subject of the investigation, whether such person poses an immediate threat to the security of the police or others or to the ability of the police to conduct the search, and whether such person is actively resisting arrest or attempting to flee. A detention may be unreasonable if it is unnecessarily painful, degrading, prolonged or if it involves an undue invasion of privacy. A police officer is required to release an individual detained in connection with a lawful search as soon as the officers’ right to conduct the search ends or the search itself is concluded, whichever is sooner.'” Mena v. Simi Valley, 332 F.3d 1255, 1267-1268 (CA9 2003) (alterations omitted; one paragraph break added).
 While I agree with the Court’s discussion of this issue, I note that the issue was not properly presented to the Ninth Circuit because it was not raised by either petitioners or respondent.
 The other individuals were a 55-year-old Latina female, a 40-year-old Latino male who was removed from the scene by the Immigration and Naturalization Service (INS), and a white male who appears to be in his early 30’s and who was cited for possession of a small amount of marijuana.
 One of the justifications for our decision in Michigan v. Summers, 452 U.S. 692 (1981), was the fact that the occupants may be willing to “open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.” Id., at 703. Mena, however, was never asked to assist the officers, although she testified that she was willing to do so. See 3 Tr. 42 (June 14, 2001). Instead, officers broke the locks on several cabinets and dressers to which Mena possessed the keys.
 For instance, a suspect may be handcuffed to a fixed object, to a custodian, or her hands may simply be linked to one another. The cuffs may join the wrists either in the front or the back of the torso. They can be so tight that they are painful, particularly when applied for prolonged periods. While they restrict movement, they do not necessarily preclude flight if the prisoner is not kept under constant surveillance.


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Beus, Gilbert & Morrill, P.L.L.C.
¶ In 1995, the Arizona legislature enacted a law which provided that a court order dividing a marital estate serves to rescind any revocable disposition or appointment of property made by a divorced person to that person's former spouse. Ariz. Rev. Stat. Ann. ("A.R.S.") section 14-2804 (1995). This appeal asks us to decide the effect of this statute upon the distribution of life-insurance proceeds to a former spouse, the named beneficiary of an insurance contract entered before the statute was passed. The trial court declared that the statute served to deprive the former spouse of the proceeds. For the reasons which follow, we affirm that judgment.
¶ Koerner submitted a claim to Equitable for the proceeds of the policy. While her claim was pending, an attorney representing Dobert's mother wrote to a representative of Equitable notifying the company that Dobert and Koerner had divorced and that the divorce served to invalidate the designation of Koerner as the beneficiary in favor of Dobert's estate, of which the minor child of Koerner and Dobert, Scott, was the heir. Equitable requested that the lawyer provide it with a citation to the relevant Arizona authority. When it did not receive that information, Equitable, on November 29, 1995, issued a check to Koerner in the amount of $252,517.12.
¶ At a hearing on February 29, 1996, to appoint a conservator for Scott, Koerner acknowledged that she had received approximately $250,000 in life-insurance benefits. Koerner also testified that she had established a trust for Scott and that she was the trustee. The trial court appointed Koerner the personal representative for the estate and the conservator for Scott. However, in a minute entry dated April 17, 1996, the court advised the parties that it had discovered that $158,000 was missing from the account. It concluded that Scott's interests were not being adequately represented by Koerner or her attorney, and it appointed another attorney to represent the child in future proceedings. Soon thereafter, the court ordered that Koerner be removed as the estate's personal representative and that Fiduciary Services be appointed as the successor.
¶ On August 23, 1996, the trial court granted Equitable's motion to intervene and deposit in a restricted account an amount which reflected the difference between the amount of insurance proceeds paid to Koerner and the balance that remained on deposit. The parties filed a joint motion for declaratory judgment, seeking the court's ruling as to the entitlement to the insurance proceeds. In a thorough and well-reasoned analysis, the court concluded that Dobert's estate (Scott) is the legal beneficiary of Dobert's life-insurance policy.
¶ When the material facts are undisputed, as these are, we determine whether the trial court correctly applied the substantive law to those facts. Brink Elec. Constr. Co. v. Arizona Dept. of Revenue, 184 Ariz. 354, 358, 909 P.2d 421, 425 (App. 1995). Questions of law decided by the trial court are reviewed de novo. Id.
3. Whether Equitable received "proper or effective" notice of the statutory revocation of Koerner's status as the beneficiary.
¶ Scott responds with a challenge to Koerner's and Equitable's standing, which issue we address first.
¶ Koerner and Equitable assert that to apply A.R.S. section 14-2804 to this case is an unconstitutional impairment of their contract. Scott answers that neither Koerner nor Equitable has standing to raise this issue because neither can claim any loss.
¶ Both the Arizona and United States Constitutions guarantee that there shall be no law impairing the obligation of contracts. Ariz. Const. art. II, sec. 25; U.S. Const. art. I, sec. 10, cl. 1. Thus, the threshold issue in a Contracts Clause analysis is "whether the change in state law has 'operated as a substantial impairment of a contractual relationship.'" General Motors Corp. v. Romein, 503 U.S. 181, 186 (1992) (quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978)). See also McClead v. Pima County, 174 Ariz. 348, 359, 849 P.2d 1378, 1389 (App. 1992). To have standing to raise the question, all that is necessary is that the party making the assertion "be confronted with some 'threatened or actual injury' from the operation of the statute." Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App. 1992) (quoting State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978), cert. denied, 441 U.S. 949 (1979)).
¶ Scott argues that Koerner can claim no injury because she was not a party to the insurance contract and because she had no vested interest in the policy proceeds when A.R.S. section 14-2804 was enacted. We agree that Koerner was not a party to the contract and that she is in no position to argue that Dobert as a contracting party has been constitutionally harmed. See Herrera, 121 Ariz. at 15, 588 P.2d at 308 ("In order to possess standing to assert a constitutional challenge, an individual must himself have suffered some threatened or actual injury ...") (citation omitted). We also agree that Koerner can claim no loss of a vested interest in the policy proceeds because no such interest existed either during the marriage or at the time of divorce. See Doss v. Kalas, 94 Ariz. 247, 251, 383 P.2d 169, 172 (1963) ("The beneficiary, during the life of the insured, has no vested right which the law protects ... ."); McClain v. Beder, 25 Ariz. App. 231, 232, 542 P.2d 424, 425 (1975) ("[I]f the insured does not change the beneficiary prior to his death, the proceeds of the policy vest in the beneficiary at the time of his death.").
¶ Koerner has an interest in the beneficiary designation nevertheless. When the statute became effective to revoke Dobert's designation of his former wife as the beneficiary of his life-insurance policy, Koerner lost an expectancy interest in the insurance proceeds that was conditioned on factors outside her control. Cf. Matter of Estate of Schock, 132 Ariz. 524, 526, 647 P.2d 655, 657 (App. 1982) (holding that an inter vivos gift of land by a testator to a devisee created a rebuttable presumption that the gift was a satisfaction of devise; presumption did not create a "vested property right" but rather "at most creates a mere contingency or expectation"). See also Day v. Clark, 36 Ariz. 353, 357-58, 285 P. 682, 683-84 (1930) (holding that former wife entitled to challenge her disqualification from receiving benefits pursuant to life-insurance-beneficiary designation since question may be raised by "any interested party"). Because, as Koerner claims, the statute affects her expectancy interest in the insurance proceeds, she has standing to challenge it.
¶ Scott claims that Equitable lacks standing because it has suffered no impairment of its rights and obligations under the insurance contract. However, while the company does lack standing to assert a constitutional injury to Dobert's rights, underlying Equitable's position is an argument that the statute operates to change its obligation to pay the policy proceeds to the beneficiary designated in the contract and that this change presents the potential for it to have to pay proceeds to Scott after already having paid proceeds to Koerner.
¶ We agree with Equitable that the statute serves to change the identity of the beneficiary to whom it must pay the policy proceeds and that this change raises the specter of loss to Equitable in the form of an obligation in excess of the face value of the policy. Insofar as Equitable may be liable for the proceeds that it cannot recover from Koerner, it has made the requisite showing of an actual or threatened injury necessary to establish its standing to challenge the constitutionality of the statute. See Church, 173 Ariz. at 349, 842 P.2d at 1362.
(a) Disposition or appointment of property made by a divorced person to that person's former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced person's former spouse.
¶ Equitable contends that it is unclear whether section 14-2804(A) applies to an insurance contract. We disagree.
¶ The statute in question bears a substantial resemblance to section 2-804 of the Uniform Probate Code. See Unif. Probate Code § 2-804, 8 U.L.A. 212 (Supp. 1997). When a statute is based on a uniform act, we assume that the legislature "intended to adopt the construction placed on the act by its drafters." State v. Sanchez, 174 Ariz. 44, 47, 846 P.2d 857, 860 (App. 1993). Thus, commentary to such a uniform act is "highly persuasive unless erroneous or contrary to settled policy in this state." Id. The drafters' comment to section 2-804 states that the section covers "life-insurance ... and other revocable dispositions to the former spouse that the divorced individual established before the divorce." 8 U.L.A. at 214. Nothing establishes that the drafters' construction is either erroneous or contrary to settled policy in Arizona. The statute applies to insurance contracts.
¶ A statute is presumed to be constitutional, and we will not declare it unconstitutional unless we are convinced that the act conflicts with the federal or state constitution. Stirewalt v. P.P.G. Indus., 138 Ariz. 257, 259, 674 P.2d 320, 322 (App. 1983). Koerner and Equitable bear the burden of overcoming that presumption and demonstrating that the statute is unconstitutional. State v. Cameron, 185 Ariz. 467, 469, 916 P.2d 1183, 1185 (App. 1996). Constitutional claims decided by the trial court are reviewed de novo. Little v. All Phoenix S. Community Mental Health Ctr., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App. 1995).
¶ Koerner and Equitable claim that the revocation provision of A.R.S. section 14-2804(A) unconstitutionally impairs their rights and obligations when applied retroactively to a life-insurance contract that was executed before the effective date of the statute. As was said above, the threshold issue is "whether the change in state law has operated as a substantial impairment of a contractual relationship." General Motors, 503 U.S. at 186.
¶ Koerner fails at this step because she was not a party to the insurance contract; the contract was between Dobert and Equitable. Any contingent benefit that might have flowed to Koerner was by virtue of Equitable's obligation to Dobert to pay at the time of his death a given amount of money to the beneficiary he designated. Dobert retained the right to change the beneficiary designation at any time; thus Koerner's interest was only contingent. The vesting in Koerner of any right to receive the insurance proceeds could not occur unless she survived her former husband and remained the beneficiary named in the contract, both by operation of law and by Dobert's choice. See McClain, 25 Ariz. App. at 232, 542 P.2d at 425. The fact that Koerner was not a party to the insurance contract, coupled with the absence of any vested right or obligation owed her, compels the conclusion that Koerner does not have a "contractual relationship" upon which to base her constitutional claim.
¶ Even if a contractual relationship were said to exist between Equitable and Koerner because of her contingent interest in the insurance proceeds before divorce, nevertheless, A.R.S. section 14-2804(A) did not effect a substantial impairment to that relationship. Consideration of the reasonable expectations of the complaining party to the contract plays an important role in determining the substantiality of the contractual impairment. Energy Reserves Group v. Kansas Power and Light Co., 459 U.S. 400, 416 (1983) (reasonable expectations of complaining party not impaired by statute and thus statute did not unconstitutionally violate Contracts Clause, despite fact that parties' obligations had been altered). Because, in this case, in the dissolution decree, upon the agreement of the parties, the trial court awarded the insurance policy to Dobert, Koerner lacks any reasonable basis for expecting that her beneficiary status would continue. Thus, her interest in remaining the designated beneficiary was not substantially impaired by the revocation provision of A.R.S. section 14-2804(A) such as would offend the Arizona or United States Constitutions.
¶ Koerner claims by reference to Equitable's opening brief that A.R.S. section 14-2804 operates to deny her equal protection of the law.See footnote 4 She states that the statute singles her out as a former spouse of an insurance policyholder and unconstitutionally treats her disparately from the rest of society in violation of Ariz. Const., art. II, sec. 13. We find no such infirmity.
The statutes anticipate that, upon undergoing a fundamental change in family composition such as ... divorce ... [the insured] would most likely intend to provide for their new family members, and/or revoke prior provisions made for their ex-spouses. The statutes also anticipate that [the insured] will often fail to so provide and revoke, not out of conscious intent, but simply from a lack of attentiveness. By automatically revoking prior beneficiary-designations upon a change in family composition, and by substituting statutory beneficiaries in their place, [the statutes] are designed to protect [the insured] from such inattentiveness.
Coughlin v. Board of Administration, 152 Cal.App.3d 70, 73 (1984).
¶ We agree with the California court's view, adding that, under Arizona's law, there is no statutory beneficiary substituted. The statute at issue in this case does not foreclose any choice by the insured to designate the former spouse as the beneficiary after their divorce. The law, therefore, presents a rational means of achieving the social goal of implementing an insured spouse's probable intention in the wake of a divorce.
F. Any payor ... is not liable for making a payment or transferring an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce ... or for taking any other action in good faith reliance on the validity of the governing instrument, before the payor ... receives written notice of the divorce ... . Any payor ... is liable for a payment made or any other action taken after the payor ... receives written notice of a claimed forfeiture or revocation under this section.
¶ Equitable argues that it received inadequate notice of the revocation of Koerner's designation as beneficiary. The trial court concluded that any deviation from the technical notice requirements of A.R.S. section 14-2804(G) did not result in prejudice to Equitable in light of the undisputed fact that Equitable received actual notice of the divorce and the claimed revocation.
Under applicable Arizona law, the effect of the divorce is to invalidate Jacqueline as the beneficiary of the [life-insurance] policy. Accordingly, it is my belief that the beneficiary of the policy is now Scott Richard Dobert (born 06/06/90), the surviving son and heir at-law of Mr. Dobert.
The purpose of this letter is to alert The Equitable that only a duly Court appointed, qualified and acting Conservator for Scott Richard Dobert is eligible to apply for death benefits under the ... policy.
¶ The attorney sent the letter by regular mail and via facsimile to an Equitable office in Illinois. There is no question that it was received because the letter was forwarded to Equitable's New Jersey office and reviewed by its legal department. Equitable then responded by letter to the attorney, requesting a citation to the "applicable Arizona law." After apparently receiving no response, Equitable without further question distributed the money to Koerner.
¶ As an initial matter, we find spurious Equitable's claim that notice to it was inadequate because the attorney failed to provide it with a specific citation to A.R.S. section 14-2804. The statute does not include such a requirement, nor will we add one.
¶ Equitable received "written notice" of the claimed revocation when it received the letter. Equitable did not, however, receive its notice by certified mail or by civil summons, and it did not receive its notice at its main office. We agree with the trial court, however, that these deviations did not relieve Equitable of its obligation.
¶ This court has articulated the general rule that "one having actual notice is not prejudiced by and may not complain of the failure to receive statutory notice." Matter of Estate of Ivester, 168 Ariz. 323, 327, 812 P.2d 1141, 1145 (App. 1991). Should the person bearing the obligation of providing notice fail to follow the statutory requirements, that person bears the risk that notice may not be received. In this case, however, before it distributed the proceeds of Dobert's policy, Equitable had written notice of the divorce and that, under Arizona law, Koerner was no longer the beneficiary of the policy. Indeed, Equitable had its legal department review the letter, presumably to determine whether there was any merit to this claim. We agree with the trial court that ["t]here is no evidence ... to show that The Equitable's conduct or handling of this matter would have been any different if it had received the [decree of dissolution] and [the attorney's letter] by certified mail as opposed to first class mail."
¶ We also note that A.R.S. section 14-2804(F) requires that any action taken by the payor be "in good faith reliance on the validity of the governing instrument." It is difficult to understand how Equitable could have acted in good-faith reliance on the validity of the beneficiary designation after having received written notice of its revocation.
¶ Equitable was not prejudiced by receiving notice by first class mail at an office that was not its main office. Its actual notice of the divorce and revocation satisfied the substantive requirements of A.R.S. sections 14-2804(F) and (G).
¶ The judgment is affirmed.
Footnote: 1 Koerner later was indicted for the murder of Dobert.
Footnote: 2 Indeed, this is a particularly odd argument given that the attorney for Dobert's mother advised Equitable before its payment of more than $250,000 to Koerner that Arizona law was such as to revoke her son's designation of Koerner as the beneficiary of his life-insurance policy. It is no response that the attorney failed to give the company's legal department a specific citation.
Footnote: 3 Both Equitable and Koerner rely heavily on Whirlpool Corp. v. Ritter, 929 F.2d 1318 (8th Cir. 1991), for the proposition that retroactive application of A.R.S. section 14-2804(A) unconstitutionally violates the Contracts Clause. The statute in Whirlpool was substantially similar to section 14-2804(A), and the court concluded that the statute unconstitutionally impaired the deceased's right to name his beneficiary under the life-insurance contract. Even if we agreed with the Eighth Circuit, a decision we need not make (although we observe in passing that, after the divorce, Dobert still could have named anyone he chose, including Koerner, as his beneficiary), as stated earlier, neither Koerner nor Equitable has standing to challenge the constitutionality of a retroactive application of section 14-2804(A) as it applies to Dobert's rights or obligations. Whirlpool is inapplicable.
Footnote: 4 Equitable claims that it has standing to challenge the constitutionality of A.R.S. section 14-2804 on equal-protection grounds because it has suffered a pecuniary loss. Although we agree that this argument is persuasive for establishing standing for the Contracts Clause challenge, we find the argument unavailing in terms of establishing standing to challenge the statute on equal protection grounds.

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text:
HOGAN v. JACOBSON May 23, 2016 No. 15–5572.
WILSON v. GORDON May 23, 2016 No. 14–6191.
McKAY v. FEDERSPIEL May 20, 2016 No. 15–1548.
CRAIG v. BRIDGES BROS TRUCKING LLC May 19, 2016 No. 15–3396.
STEIN 15 5903 15 5905 v. REGIONS MORGAN KEEGAN SELECT HIGH INCOME FUND INC May 19, 2016 Nos. 15–5903, 15–5905.
SMITH v. CITY OF WYOMING May 18, 2016 No. 15–3336.
TREE OF LIFE CHRISTIAN SCHOOLS v. CITY OF UPPER ARLINGTON May 18, 2016 No. 14–3469.
UNITED STATES v. CHURCH May 17, 2016 No. 15–5362.
UNITED STATES v. MOHAMMED ALI May 17, 2016 No. 15–6003.
MONTGOMERY v. KRAFT FOODS GLOBAL INC May 16, 2016 No. 15–1283.
UNITED STATES v. BARNES May 16, 2016 No. 15–5237.
BRUMLEY v. ALBERT BRUMLEY SONS INC May 16, 2016 No. 15–5429.
GASCHO v. GLOBAL FITNESS HOLDINGS LLC 14 3761 14 3798 May 13, 2016 Nos. 14–3761, 14–3798.
UNITED STATES v. PAWLAK May 13, 2016 No. 15–3566.
GRAVES v. MAHONING COUNTY May 12, 2016 No. 15–3175.
HILL v. SNYDER May 11, 2016 Nos. 13–2661, 13–2705.
KOPROWSKI v. BAKER May 11, 2016 No. 14–5451.
SIDING AND INSULATION CO v. ALCO VENDING INC May 9, 2016 No. 15–3551.
EDWARDS v. CSX TRANSPORTATION INC May 6, 2016 No. 15–5385.
UNITED STATES v. DUBRULE 14 6290 14 6376 May 6, 2016 Nos. 14–6290, 14–6376.
UNITED STATES TENNESSEE VALLEY AUTHORITY v. 72 ACRES OF LAND IN TENNESSEE May 5, 2016 No. 15–5530.
ROGERS v. INTERNAL REVENUE SERVICE May 4, 2016 No. 15–3409.
UNITED STATES v. MULLET 15 3212 15 3231 15 3232 15 3237 15 3246 15 3247 15 3249 May 4, 2016 Nos. 15–3212, 15–3231, 15–3232, 15–3237, 15–3246, 15–3247, 15–3249, 15–3250, 15–3267, 15–3268, 15–3269, 15–3270, 15–3273, 15–3275, 15–3277.

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TRINITY REALTY I, LLC vs. CHAZUMBA, LLC.
The plaintiff, Trinity Realty I, LLC (Trinity), appeals from a declaratory judgment, issued by a judge of the Superior Court after a bench trial, determining that Trinity's commercial tenant, Chazumba, LLC (Chazumba), validly exercised an option, contained in the lease, permitting it to extend the lease term for an additional five years. At issue is the effect of language in the option provision requiring that Chazumba "not be in default in the performance, fulfillment or observance of any of the terms or provisions of this lease" as of the date of exercise. See generally Derman Rug Co. v. Ruderman, 4 Mass. App. Ct. 437 , 441 (1976) (lease may contain express conditions precedent to exercise of right of renewal or extension).
that any instance of noncompliance with lease covenants, regardless of its significance or magnitude, deprived Chazumba of the right to exercise the option.
Like the trial judge, we reject Trinity's position. We recognize that Massachusetts takes a "strict" view of options, and that a tenant's noncompliance with lease terms may result in its losing the privilege of exercising an option even if the same noncompliance would not warrant forfeiture of the existing tenancy. See Pear v. Davenport, 67 Mass. App. Ct. 239 , 243-245 (2006) (chronic late payment of rent waived for purposes of termination, but not for purposes of option to purchase). That is not to say, however, that any departure whatsoever from lease requirements, no matter how minor and immaterial to the lessor, may be relied upon as a default that defeats the tenant's exercise of an option.
Although the judge viewed the case as one involving inconsequential and immaterial breaches, her subsidiary findings also may be understood as supporting the conclusion that Chazumba was in substantial compliance with the lease terms. Viewed in that way, Chazumba's performance was adequate to maintain its right to exercise the option -- not as a matter of equity, but as a matter of law. As stated in a case by the New York Appellate Division, "[t]he substantial compliance rule, as it applies to the performance of a condition precedent to the renewal [or, as in this case, the extension] of a lease, is a legal rule. While it may be founded in part upon equitable principles, it is not a rule of equity which relieves nonperformance, but a rule of law which holds that substantial compliance with the covenant is adequate performance so as to maintain the covenantor's rights under the agreement." Vanguard Diversified, Inc. v. Review Co., 35 A.D.2d 102, 106 (N.Y. 1970). See Waldbaum, Inc. v. Fifth Ave. of Long Island Realty Assocs., 85 N.Y.2d 600, 607-608 (1995).
the settlement would constitute a material default of the lease, we agree with the judge that Chazumba was not in breach, because its delayed completion of the ventilation system modifications was excused. The judge found that Chazumba had obtained the grease guard and vent stack extension within the requisite time frame for their installation and made diligent, good faith efforts to obtain all additional information requested by Trinity as a condition of approving the installation, but that it could not go ahead with the installation without Trinity's permission, which was not forthcoming until after the agreed-upon deadline. Where Trinity's withholding of consent delayed Chazumba's completion of the project, Trinity cannot avoid Chazumba's exercise of the option on the ground that the work was not finished on time. Cf. Lobosco v. Donovan, 30 Mass. App. Ct. 53 , 56 (1991).
James Gray Wagner for the plaintiff.
Sanford F. Remz for the defendant.
[Note 1] Chazumba, which operated a Mexican restaurant, was allowing its sister company (another Trinity tenant, which operated a different restaurant in the same building) to make modest use of basement storage and utility space rented to Chazumba without Trinity's permission, notwithstanding a lease provision stating that the basement storage space was to be used only for storage of items intended for use by Chazumba's restaurant. At the time it sent its notice of exercise of option, on March 31, 2008, Chazumba also was in arrears in transmitting gross sales reports, required by another lease provision to be delivered to Trinity on a monthly basis. As the judge noted, these reports were used by Trinity to keep track of its tenants' financial condition, but not to compute rent. In any event, Trinity was aware that Chazumba was a successful operation that always paid its rent on time. On April 20, 2008, when reminded that its reports were overdue, Chazumba provided them the same day.
[Note 2] The judge also ruled, in the alternative, that the option must be read as qualified by the notice and cure provisions contained in the lease termination provision. Because we decide the case on other grounds, we do not consider whether she was correct in this regard.
[Note 3] Indeed, it could not do so, because it has not provided us with a transcript of the trial.
[Note 4] Examples given by the trial judge were the failure to clean one of the restaurant's windows, the improper disposal of a piece of litter, or an imperfectly sealed container of food stored in Chazumba's basement storage area. We contrast these examples with defaults of a significant nature that go to the heart of the parties' agreement, such as the repeated failure to pay rent on time, see Pear v. Davenport, 67 Mass. App. Ct. at 241, or the failure to exercise the option in the manner prescribed in the lease. See, e.g., Westinghouse Bdcst. Co. v. New England Patriots Football Club, Inc., 10 Mass. App. Ct. 70 , 73 (1980) ("cases and authorities which suggest vigorous compliance with the requirements of option conditions . . . tend to deal with flaws in the exercise of an option").

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ESCHBACK, COFFEY, and KANNE, Circuit Judges.
After a jury trial, Kurt Moore was convicted of possession with the intent to distribute cocaine and cocaine base, 21 U.S.C. § 841(a) (l), and carrying a firearm during and in relation to the commission of a drug trafficking crime, 18 U.S.C. § 924(c). Moore argues on appeal that the prosecutor made improper remarks during his closing argument, which constituted plain error and deprived Moore of his right to a fair trial. Specifically, Moore argues that the prosecutor misstated the law, improperly commented regarding the burden of proof, and improperly commented on the credibility of Moore and the government witnesses. Because the prosecutor's comments did not deprive Moore of a fair trial, we affirm Moore's conviction.
On September 14, 1996, Officers Krider and Trythall observed Moore driving 56 miles per hour in a 50-mile-per-hour speed zone. When the officers, each in his own marked car, attempted to stop Moore, Moore turned into an apartment complex and attempted to outrun the police cars. Moore then jumped out of the car and a foot chase ensued. Officer Trythall testified that as Moore exited the car, Moore reached under the seat and grabbed a yellow and black plastic bag. Officer Trythall lost sight of Moore for several seconds as Moore turned the comer of an apartment building. When Officer Trythall saw Moore again, he was no longer carrying the bag. Officer Krider testified that he did not see Moore grab anything as he left the car, nor did he see Moore carrying a bag as he was pursuing him.
Moore eventually was apprehended by two law enforcement officers who had responded to Officer Trythall's call for back-up. Moore informed the officers that he was in possession of a gun. The officers also found in Moore's possession $2,196.00 in United States currency and a digital pager. Upon conducting a search of the vehicle Moore was driving, the officers also recovered two cellular phones.
After Moore was in custody, Officer Trythall retraced the route of the foot chase and discovered a yellow and black plastic bag in the bushes next to the apartment building where he initially lost sight of Moore during the foot chase. Officer Trythall opened the bag and saw a store receipt from a "Man Alive" clothing store and smaller bags of what he believed to be cocaine and cocaine base. Later testing revealed that the smaller bags contained a total of approximately 614 grams of cocaine and approximately 65 grams of crack cocaine. The store receipt in the bag was dated September 13, 1996 and reflected the purchase of a multi-colored Karl Kani shirt, size 2XL. At the time of his arrest, Moore was wearing a multi-colored Karl Kani shirt, size 2XL, and the former assistant manager of the store which issued the receipt identified Moore as the person who had purchased the Karl Kani shirt.
Moore's testimony at trial conflicted with some of the testimony of the government witnesses. Moore testified that at the time the police attempted to pull him over, he was on his way to pay a $2,200 overdue cellular phone bill in his former girlfriend's name. He was taking the two deactivated cellular phones with him in an attempt to obtain a credit on the bill. Moore testified that he never possessed the yellow and black plastic bag or any drugs. Moore admitted he wore a multi-colored Karl Kani shirt, size 2XL, at the time of his arrest, but he denied purchasing the shirt from the Man Alive store. Instead, Moore alleged he bought the shirt from his friend's sister, who had purchased it from a T.J. Maxx store. Moore also explained that he panicked when he saw the police because he thought his driver's license was suspended and because he was carrying a gun Moore also was afraid the police would seize his cash and he would be unable to pay the phone bill because he claims that the police previously had seized cash from him without justification. As he was running, Moore calmed down and decided to surrender.
During closing argument, the prosecutor made several remarks which Moore now claims were improper and warrant the reversal of his conviction. Because Moore did not object to the prosecutor's remarks at trial, we review the remarks for plain error affecting substantial rights. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Laurenzana, 113 F.3d 689, 695 (7th Cir.), cert. denied, 118 S. Ct. 240 (1997). In analyzing Moore's claim, we first consider whether the comments were improper and then evaluate the comments to determine whether they deprived Moore of a fair trial. Laurenzna, 113 F.3d at 695.
I don't think there is any question that the story that he told you is not accurate. I don't even think it's truthful. And I think that you as a jury, and you as individuals, not only based upon your common sense but upon your everyday experiences, are going to have to make a determination in this case as to who is telling the truth and who is lying And I think that that's fairly clear and straightforward here because you would have to disbelieve every single witness that the Government presented to you, and believe every single thing that the defendant testified to in order for you to find that the Government has not met its burden in this case. And I don't think that's the facts, and I don't think you're going to see them as the facts.
Moore claims that this statement distorted the burden of proof by improperly implying that the jury had to find that the government witnesses were lying in order to find Moore not guilty.
Both parties compare the prosecutor's statements to statements found in be improper in United States v. Vargas, 583 F 2d 380 (7th Cir. 1978) and United States v. Phillips, 527 F.2d 1021 (7th Cir. 1975). In Vargas, the prosecutor told the jury that either they had to conclude that all of the government witnesses were lying in order to find the defendant not guilty, or they could find the defendant guilty. Vargas, 583 F.2d at 387. This court found that the prosecutor misstated the law and that telling the jurors that they had to chose between the stories was error. Id. Similarly, in Phillips, the prosecutor misstated the law by leading the jury to believe it had to find that the prosecutor and the government witness conspired to violate the defendant's civil rights in order to find the defendant not guilty. Phillips, 527 F.2d at 1023.
This court has recently held that similar comments were proper where the prosecutor did not misstate the law. See United States v. Marshall, 75 F.3d 1097, 1108 (7th Cir. 1996); United States v. Hernandez, 865 F.2d 925, 929 (7th Cir. 1989). It is proper for a prosecutor to tell the jury to find the defendant not guilty if they believe the government witness lying. Hernandez, 865 F.2d at 929. However, the prosecutor may not state that this is the only way to find the defendant not guilty. Id.
The comments to which Moore objects, when viewed in isolation, misstate the law. The prosecutor specifically stated that in order for the jury to find that the government had not met its burden, they would have to disbelieve every single government witness and believe every single thing to which Moore testified Even if the jury believed the government witnesses and disbelieved Moore, the jury could have found that the government failed to produce sufficient evidence to prove Moore guilty beyond a reasonable doubt. See Vargas, 583 F.2d at 387.
Moore also argues that the prosecutor improperly vouched for the credibility of the government's witnesses by specifically referencing the testimony of the witnesses and stating that these witnesses had no motivation to lie. A prosecutor may remark on the witnesses' credibility "as long as the comment reflects reasonable inferences from the evidence adduced at trial," but a prosecutor may not give a personal opinion regarding the credibility of the witnesses. United States v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997) (quoting United States v. Goodapple, 958 F.2d 1402, 1409-10 (7th Cir. 1992)). Where a defendant's version of the facts conflicts with that of the government witnesses', a prosecutor may argue that the jury should believe the government witness and not the defendant. United States v. Catalfo, 64 F.3d 1070, 1080 (7th Cir. 1995), cert. denied, 116 S. Ct. 1683 (1996).
Here, the prosecutor's comments constituted improper vouching for the credibility of the government witnesses. See United States v. Swiatek, 819 F.2d 721, 731 (7th Cir. 1987). The prosecutor's comments regarding the witnesses' motivation could not be reasonably inferred from the evidence.
The prosecutor's remarks, however, did not deprive Moore of a fair trial or result in a miscarriage of justice. Laurenzana, 113 F.3d at 695. " [I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned.... The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Morgan, 113 F3d at 89 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)) (internal quotations omitted). To determine whether Moore's conviction was a denial of due process, we consider the following criteria: 1) the nature and seriousness of the statements; 2) whether the statements were invited by impermissible conduct of defense counsel; 3) whether the district court instructed the jury to disregard the statements; 4) whether the defense was able to counter the improper statements through rebuttal; and 5) the weight of the evidence against the defendant. Morgan, 113 F.3d at 90 (citations omitted).
The defendant was not required to produce or do anything in this case because the burden is on the Government and remains on the Government throughout this case. And we think we've not only overcome that burden, we think we've established by this evidence and the testimony and the exhibits you've got far beyond a reasonable doubt that he committed the crimes that he's charged with.
The government argues that its statements were invited by Moore's testimony in which he stated that the testimony of the police officers was inaccurate. Moore argues, on the other hand, that his only statement regarding the accuracy of the officers' testimony concerned the officers' mistake regarding the location of the foot chase. Because Moore did not challenge the credibility of the government witnesses further, the prosecutor's remarks on the credibility of all of the government witnesses went too far and were not invited by Moore's testimony. The prosecutor "went beyond 'right [ing] the scale." ' Morgan, 113 F.3d at 90 (quoting United States v. Young, 470 U.S. 1, 13 (1985)).
However, in the jury instructions, the district court directed the jury to disregard the closing arguments "to the extent they are not supported by the evidence." This court ordinarily presumes that any error is corrected by the district court's instruction that the attorneys' statements should be disregarded to the extent they are not supported by the evidence. Catalfo, 64 F.3d at 1081; see also Morgan, 113 F.3d at 91.
Moreover, Moore also had the opportunity to counter the prosecutor's remarks but failed to do so. The prosecutor made the challenged statements during its initial closing argument. Not only did Moore fail to object to the prosecutor's remarks, but Moore also failed to respond to the remarks in his own closing statement.
Finally, the weight of the evidence is against Moore. Even if the jury did not believe all of Officer Trythall's testimony, the circumstantial evidence in this case is compelling. Morgan, 113 F.3d at 91. Moore fled from the police when they attempted to pull him over for a traffic violation. Moore was convicted of possessing drugs in a bag containing a store receipt for the same shirt he was wearing when he was arrested, and Moore was identified by the store employee as the person who had purchased the shirt. Officer Trythall testified that he found the bag behind the apartment where Moore's former girlfriend lived, and there is evidence in the record that Moore tried to get her attention when he was led to the police car. Finally, a police officer, who was in the police car with Moore after he was apprehended, testified that Moore uttered an expletive and appeared dejected when he heard the bag had been found.
Based on our evaluation of the relevant criteria, we find Moore's conviction was not a denial of due process. The prosecutor's comments did not render the trial unfair and there is no constitutional error. United States v. Whitaker, 127 F.3d 595, 606 (7th Cir. 1997). We therefore AFFIRM Moore's conviction.


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Is there a duty to reconsider a report after its subject claims it is false?
A recent trial court decision from New York addresses a question about which I have long held a tentative opinion, albeit without having known of any direct precedent to back up my view: When speaker states facts in an online publication that are not subject to defamation liability when made (because the speaker lacked sufficient reason to suspect falsity to meet standards of negligence or actual malice), but after publication the person criticized tells the speaker that the accusations are false, can the speaker be held liable for failure to remove or retract the critical speech? It has long been my assumption that such a duty to retract is fundamentally at odds with the single publication rule, under which the act of defamation is complete at the time of first publication, and with the rule that the speaker’s mens rea is judged at that time of first publication (so, for example, evidence of truth that is obtained after publication cannot be used to support summary judgment on lack of actual malice).
The issue comes up for lawyers who represent or advise consumers who criticize businesses or political figures but then face a demand for removal, when the consumer receives an ultimatum saying that the alternative to removal is a motion for a preliminary injunction compelling removal. Should the client be advised to take down the allegedly defamatory matter while counsel evaluates the case (my general inclination is to say no, and that’s what I advise in my CLE course about online free speech litigation). But an 2011 blog post by Eugene Volokh takes the position, based on an excerpt from the Restatement of Torts as well as a handful of decisions, that such a duty exists. I have been dubious, but Professor Volokh has a habit of being right in this area of the law.
That issue was presented by a decision late last month in Rainbow v. WPIX, 2018 WL 5255253. A public school parent had complained about a teacher who was allegedly bullying the parent’s child: the parent identified the teacher as being “Starlight Rainbow,” and a local TV station, WPIX, carried a story about the controversy. Its report followed the parent’s lead in identifying the alleged bully, but the identification was mistaken: the alleged bully was named Cynthia Rainbow. When Starlight Rainbow, the name of a teacher at an entirely different school, learned about the false report, she asked the TV station to take the story off its web site. When it ignored her request, she sued for defamation. The station immediately removed the challenged report.
In granting summary judgment against Rainbow’s claim based on the original publication, the court applied the New York rule that a publication about a person who is not a public figure but on an issue of public concern can be held the basis for liability only if the speaker acted with “gross irresponsibility,” that is, without considering the standards for information gathering and dissemination that are observed by responsible parties. The court decided, not unreasonably as I see it, that the TV station was entitled to take at face value a statement by a parent that identified the teacher thought to be responsible for mistreating her child, and that the station’s unsuccessful efforts to get comment from the school system about the report were sufficient.
The court then turned to Rainbow’s claim that the TV station was liable for having failed to retract or remove the report after she had informed the station of the identification error. The court looked to an earlier New York trial court decision, Rodriguez v. Daily News, 2014 WL 12580400, also involving mistaken identification, where the newspaper (as well as WPIX!) had identified the wrong person as having been accused of sexual assault based on a mistake by the New York Police Department, and failed to remove the report for several months after the error was called to their attention. The court did not analyze the issue of removal or retraction, but simply said that it had been given no judicial authority for the proposition that a duty to remove or retract exists. Although Rodriguez as affirmed on appeal (142 A.D. 1062), the removal issue was not addressed in the appellate opinion. Rainbow also cited a few decisions from other jurisdictions where courts had observed that the plaintiffs in those cases had presented no authority supporting a claim for damages based on a failure to remove after a claim of falsity had been made. The only appellate decision, from the D.C. Circuit, was not quite on point: it appears to have held only that a failure to retract or correct was not evidence of actual malice in the original publication. But a few federal district court decisions have rejected claims based squarely on a duty to remove, largely relying on the supposed lack of authority supporting the existence of such a duty, but without a careful analysis of the policies at issue.
But if Professor Volokh’s 2011 blog post is correct, these other decisions were wrong in reporting that no authority supports a duty to correct. Looking closely, though, my take is that the supposed authority is overstated. The authority discussed most extensively in the blog post is a segment of the Restatement of Torts (section 577(2)) taking the position: “One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.” The hypothetical addresses graffiti about a woman on the wall of the men’s bathroom, and says that the property owner can be held liable for failure to wash the scribbles off once he learns that they are there.
But there are a few problems here. First of all, the Restatement addresses who is liable for the publication, NOT whether that liability turns on when the host learns of falsity after the graffiti is posted, and not, even, what the mental state is required or standard of care imposed on the property owner about the falsity of the comment. Perhaps it is an implicit assumption of the bathroom-wall hypothetical is that an original publisher could also be held liable for a failure to remove. but the Restatement does not address that proposition (and the original publisher, and guy who wrote the graffiti, presumably knows that at best he is spreading rumors or at worst is writing maliciously to get back at someone who has spurned him). And in the online context, the entire discussion has an air of unreality considering that, pursuant to section 230 of the Communications Decency Act, the host for online defamation is not liable for communications submitted by a third party.
Professor Volokh also cited a South Carolina district court decision, Taub v. McClatchy Newspapers, 504 F.Supp.2d 74 (2007), as supporting liability for failure to remove, but that decision rested on the assumption that South Carolina does not follow the single publication rule, but rather uses the “continuing publication rule” under which a new act of defamation occurs each time the web site is accessed. He also cited a Georgia state court appellate decision, Jones v. Albany Herald Pub. Co., 658 SE 2d 876 (2008), but that case was one in which the court considered not a tort duty to remove but rather whether failure to remove showed actual malice. Thus, neither stands for the proposition that there is a duty to remove a publication that was published without actual malice, after it is proved to be false.
Professor Volokh then concludes by saying, “I know of no case that has rejected it as to Web sites.” So we have both sides saying what the rule is based on the assumption that there is no authority to the contrary.
However, having looked at the arguments made by Professor Volokh and the cases that he cites, and at the cases cited by the court decisions on which the Rainbow decision relied, I think the latter are closer to being correct about the absence of contrary authority.
As I see it, the First Amendment does not speak directly to this issue. (When I reached out to WPIX’s counsel, he suggested that the rule against liability for failure to remove might be demanded by Miami Herald v. Tornillo, 418 U.S. 241 (1974), but I see an enforceable statutory duty to publish a reply regardless of whether there was anything actionable in the original story as being distinct from whether a publisher can be held liable in damages for failing to publish a deserved retraction of a previous article that contained false allegations).
Consequently, this is a matter of state policy. In that regard, although the single publication rule has its origins in statute of limitations concerns, the general rule against holding a speaker potentially liable every time someone else sees the speech seems inconsistent with the proposition that the standard of care exercised by the speaker is subject to reconsideration each time the speech is viewed anew. Indeed, the Taub decision treated the issues as being related, as did the Ninth Circuit in refusing to allow a claim on the theory that failure to retract constitutes a republication. Roberts v. McAfee, 660 F.3d 1156 (2011). I would also be concerned about the significant burdens imposed on the press (and on other speakers) if they were held subject to a claim for damages for failure to reinvestigate a story every time someone objects to it after publication. Still, you would think that a responsible TV station would be quick to correct the record. When I was growing up in New York, WPIX was considered to have a sensationalistic and indeed unreliable news operation akin to the National Enquirer, and perhaps not much has changed.
Still, this issue bears watching – I understand from counsel for Rainbow that she plan to pursue an appeal.
Consumers are facing unfair advantages by media and courts when defending or filing claims as plaintiffs or attempting to obtain some form of justice. When evidence is hidden, overlooked, ignored, and neglected by courts the only option is to publish facts and evidence for the world to view. More and more unfair court ruling are destroying consumers in favor of corrupt and or bought/paid in full courts. The only way to help level the playing field is to expose the corruption of hiding evidence which helps defendants prove their cases, albeit without a fair ruling.
Far too often defendants are treated with disdain, harsh, unfair and unjust rulings to stop them from winning or proving their cases. Exposing some of the difficulties through online reporting allows consumers to at least present the truth to the public and the world. America has become a very unjust and uncivilized country when attempting to obtain justice against corporations or very powerful oppositions is nearly impossible due to corruption and misuse of the law.
Citizens have lost their rights and the Rules, Statutes, and Constitution no longer apply to MOST ordinary Americans. It is just a matter of time before our entire system will collapse under corruption. Most consumers or citizens don't engage in reading the terrible opinions/Rulings coming from not only state courts, but Federal Courts and the Supreme Court.
Justice is now further away from reality than ever in our history and in time will reveal the facts and truth about our unconstitutional court system. Most attorneys who oppose the corruption find themselves either threatened by their state bar, law schools, and perhaps find themselves literally disbarred. Unfortunately, this is where our nation is now and there will probably be no going back.
"SO CALLED Defamation" is the expression of a population that has no alternatives to seeking justice in America except using online media to communicate to the world. We will more than likely disintegrate into a far worse system of injustice and inequity. Most corporations or Public officials claim of Defamation is actually some decent citizens claim of unfairness and injustice.

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