Wake Forest Law Review
13Feb

Take Names, Ask Questions…Never? Reviewing the Fifth Circuit’s Troubling Decision in Villarreal v. City of Laredo

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By Michael VerMeulen

In a legal battle between qualified immunity and freedom of the press, which one will come out on top? In the eyes of the Fifth Circuit, the First Amendment bows down to qualified immunity for police officers. [1]

This fight has come to the legal forefront in Villarreal v. City of Laredo.[2] The case concerns independent Facebook-based investigator Priscilla Villarreal who is infamous amongst police officers in the City of Laredo, Texas for filming crime scenes and covering police misconduct.[3] In an apparent act of retaliation, the Laredo Police Department arrested and detained Villarreal for violating Texas Penal Code § 39.06(c), under which a person may not inquire about non-public information that a public official has access to by means of their employment if the person has an intent to “benefit” from the information.[4] The Department based its arrest on Villarreal’s procurement of a deceased Border Patrol officer’s name prior to the Department’s public disclosure of this information. [5] Six months after Villarreal obtained the officer’s name, the Department charged her with the Penal Code violation.[6]

After Villarreal’s release on bail, prosecutors dropped the charges following her successful habeas corpus petition.[7] Subsequently, Villarreal sued the City of Laredo, its police department, and numerous officers in federal district court for unlawful interference with her constitutional rights, most notably her “First Amendment rights as a citizen journalist.”[8]

The district court granted summary judgment to the defendants, and Villarreal appealed its decision to the Fifth Circuit. [9] There, a three-judge panel ruled 2-1 in Villarreal’s favor and held that detaining a journalist for simply asking a question was an “obvious violation of the Constitution.”[10] Citing the Supreme Court’s landmark 1971 decision in New York Times Co. v. United States, Judge Ho’s majority opinion rightfully pondered: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?”[11] Nevertheless, the Fifth Circuit decided to convene and rehear the case en banc. [12]  And on January 23, 2024, the Court issued a 9-7 decision in favor of the defendants,[13] and four separate judges issued dissenting opinions. [14]

The Fifth Circuit reasoned that the facts of Villarreal’s case did not meet the standard for bypassing police officers’ qualified immunity for work-related behavior, as Villarreal’s asserted constitutional rights had not been “clearly established” at the time of the alleged violation.[15] There is a logic to the majority’s reasoning. Quoting the Supreme Court’s 2018 decision in Kisela v. Hughes, the court stated that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”[16] To that end, the Texas Penal Code § 39.06(c) had not yet been ruled unconstitutional, and no case has previously held “that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”[17]

However, the Supreme Court’s reasoning in Kisela explicitly referred to officer immunity concerning potential Fourth Amendment violations–an area of the law “where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”[18]

In contrast to situations involving excessive force, police officers interacting with reporters do not have to apply complex legal doctrines to specific, split-second situations. [19]  Rather, officers know that it is a “fundamental personal right” shared by every American.[20] Further, the Laredo officers in this case could not have believed in good faith that have Villarreal’s questions were “sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.[21] Indeed, no Texas jury had ever returned a guilty verdict for a 39.06(c), and the Laredo Police Department had never even charged a person with an offense under the statute despite having likely been asked questions about confidential matters countless times by journalists.[22]

Under the new standard set by the Fifth Circuit, police officers may arrest any journalist who asks a question about information that is not publicly available. [23] While journalists will almost never by found guilty of investigative crimes, the police can be harass them and take their liberties taken away without having to worry about any potential civil liability. [24]

In his dissenting opinion in Villarreal, Judge Willett stated in frank terms that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.”[25] In his own dissent, Judge Graves criticized the Court’s opinion for the legal implications it may have on journalism as “the majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.”[26] Graves also noted his concern over the potential chilling effects stemming from the court’s decision, as “it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.”[27]

Villarreal has already expressed her desire to appeal the case to the Supreme Court[28], which will hopefully grant certiorari to clear up the extent to which qualified immunity overrules First Amendment violations. In the meantime, though, journalists will have to work with uncertainty as to whether they are entitled to their constitutional rights. With the possibility of a legal remedy removed, Texas journalists can only hope that they do not ask the wrong question to the wrong police officer.

[1] See Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024

[2] Id.

[3]Roxanna Asgarian, Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest, The Texas Tribune (Jan. 6, 2023, 5:00 AM), https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.

[4] Tex. Penal Code Ann. § 39.06 (West); see also Id. § 1.07(a)(7) (“’Benefit’ means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.”)

[5] Asgarian, supra note 3.

[6] Id.

[7] Villarreal, supra note 1.

[8] Villarreal v. City of Laredo, Texas, No. 5:19-CV-48, 2020 WL 13517246 (S.D. Tex. May 8, 2020), aff’d in part, rev’d in part and remanded, 17 F.4th 532 (5th Cir. 2021), withdrawn and superseded by 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024), and aff’d in part, rev’d in part and remanded, 44 F.4th 363 (5th Cir. 2022), and reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)).

[9] Villarreal v. City of Laredo, Texas, 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[10] Id.

[11] 44 F.4th 363, 371 (citing New York Times Co. v. U.S., 403 U.S. 713 (1971)).

[12] Villarreal v. City of Laredo, Texas, 52 F.4th 265 (5th Cir. 2022).

[13] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[14] Grayson Clary, In Texas, a disastrous ruling for jounralists’ rights, Reporters Committee (Jan. 29, 2024), https://www.rcfp.org/fifth-circuit-qualified-immunity/.

[15] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021))

[16] Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curium).

[17] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)

[18] Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) .

[19] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting).

[20] Branzburg v. Hayes, 408 U.S. 665 (1972).

[21] Brinegar v. United States, 338 U.S. 160, 175 (1949).

[22] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Higginson, J., dissenting).

[23] Billy Binion, This Court Case Could Make It a Crime to Be a Journalist in Texas, Reason (Nov. 4, 2022, 10:03 AM), https://reason.com/2022/11/04/this-court-case-could-make-it-a-crime-to-be-a-journalist-in-texas/.  

[24] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting)

[25] Id. (Willett, J., dissenting).

[26] Id. (Graves, J., dissenting).

[27] Id.

[28] Lagordiloca News LaredoTx, Facebook (Jan. 27, 2024, 4:14PM),

 

 

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14Oct

Constitutional Cussing

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By: Joseph C. Johnson

On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1]  Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2]  Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3]  However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4]  On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment.  So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?

In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5]  There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6]  He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7]  In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8]  The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9]  This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]

To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11]  Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12]  Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13]  Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14]  This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15]  The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16]  This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17]  The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18] 

The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19]  On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20]  As such, a rule regarding public displays of expletives is further illuminated.  So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.

[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).

[2] Id. at *4, *19–21.

[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).

[4] Id. at 26.

[5] Id. at 19–21.

[6] Id. at 16.

[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).

[8] Id. at 20.

[9] Id. at 26. 

[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM),  https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.

[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).

[12] Id. at *2.  See Fla. Stat. § 847.011.

[13] Webb v. English, 2021 U.S. Dist.  LEXIS 181927, at *3.

[14] Id. at *4.

[15] Id. at *14–21.

[16] Id. at *18.

[17] Id. at *19–22.

[18] Id. at *18–26.

[19] Id. at *26.

[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).

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22Mar

Weekly Roundup: 3/18-3/22

Categories: 4th Cir. Blog Weekly Roundup
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By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.

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21Mar

Fourth Circuit Limits Qualified Immunity in Sexually Intrusive Searches

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By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

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21Oct

Weekly Roundup – 10/14-10/21

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American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.

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16Feb

Fourth Circuit Reaffirms Principle That A Police Chief With Reasonable Belief That Detectives Are Acting Within Scope of Employment Is Entitled To Qualified Immunity from First Amendment Retaliation Claims

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By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

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15Feb

Qualified Immunity Defense Shocks Plaintiff Who Alleges Use of Excessive Force

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hospital

By Taylor Anderson

On January 11, 2016, the Fourth Circuit issued its published opinion regarding the civil case Estate of Ronald Armstrong v. Village of Pinehurst. The estate of Ronald H. Armstrong (“Appellant”), appealed the district court’s order granting summary judgment to various appellees, including the Village of Pinehurst, North Carolina (“Pinehurst”), Lieutenant Jerry McDonald (“Lieutenant McDonald”), Sergeant Tina Sheppard (“Sergeant Sheppard”), and Officer Arthur Gatling, Jr. (“Officer Gatling”). The Fourth Circuit affirmed the grant of summary judgment in appellees’ favor, holding that the appellees were entitled to qualified immunity in this case.

Police Intervene After Ronald H. Armstrong’s Hospital Incident

On April 23, 2011, Ronald H. Armstrong (“Armstrong”), who suffered from bipolar and paranoid schizophrenia, had been off of his prescribed medication for five days and was acting strange. His sister, Jinia Armstrong Lopez (“Lopez”) convinced Armstrong to accompany her to Moor Regional Hospital (“Hospital”) in Pinehurst, North Carolina. Armstrong willingly went to the Hospital and checked in, but during the course of evaluation, Armstrong became frightened and fled the emergency department. The examining doctor determined Armstrong to be a danger to himself and issued involuntary commitment papers to compel Armstrong’s return.

Lieutenant McDonald, Sergeant Sheppard, and Officer Gatling (collectively, “Appellees”) responded to this dispatch. When the Appellees arrived at Armstrong’s location, they engaged in conversation with Armstrong because the commitment order had not yet been finalized. As soon as the Appellees learned that the commitment papers were complete, they surrounded and advanced toward Armstrong. Armstrong reacted by sitting down and wrapping himself around a post that was supporting a nearby stop sign. The Appellees struggled to remove Armstrong from the post.

After about thirty seconds or so after struggling to remove Armstrong from the post, Appellees tasered Armstrong five separate times over a period of approximately two minutes. Shortly after the tasing ceased, Appellees removed Armstrong from the post and laid him facedown on the ground. During the struggle, Armstrong complained that he was being choked; however, no witness saw the police apply any chokeholds. Because of Armstrong’s continued resistance, Appellees handcuffed Armstrong and shackled Armstrong’s legs too. Appellees stood up to collect themselves and left Armstrong facedown in the grass. When the Appellees flipped Armstrong over, they saw that Armstrong’s skin had turned a bluish color and he did not appear to be breathing. Two of the Appellees administered CPR and the other radioed dispatch to send Emergency Medical Services. Armstrong was pronounced dead shortly after arriving to the hospital.

Based on the foregoing event, Appellant filed a complaint, suing each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that Appellees used excessive force. The district court granted summary judgment to Appellees, reasoning that “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.” Appellant filed a timely notice of appeal.

Appellant Established the Violation of a Constitutional Right

The Fourth Circuit began its “qualified immunity analysis” by pointing out that this analysis involves two inquires: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. Appellant’s case would survive summary judgment only if the Fourth Circuit answered both questions in the affirmative.

Turning to the first inquiry, the Fourth Circuit held that the Appellees conduct violated Armstrong’s Fourth Amendment right. Using the “objective reasonableness” standard as well as the factors enunciated in Graham v. Connor, the Fourth Circuit held that the level of force Appellees chose to use was not objectively reasonable because Appellees were merely confronted with a situation involving a few exigencies that justified only a limited degree of force. Tasing Armstrong exceeded this permissible, limited degree of force. The Fourth Circuit stated, “[i]mmediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.” For this reason, Appellees were not entitled to summary judgment on the question of whether they violated the Constitution because, viewing the record in the light more favorable to Appellant, Appellees used excessive force in violation of the Fourth Amendment. Therefore, the Fourth Circuit answered the first question of its “qualified immunity analysis” in the affirmative.

Appellees Entitled to Qualified Immunity

Turning to the second inquiry, the Fourth Circuit held that Armstrong’s specific Fourth Amendment right was not “clearly established” at the time of Appellees’ alleged violation. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity; therefore, the Fourth Circuit nevertheless affirmed the district court’s grant of summary judgment to Appellees.

Using Fourth Circuit precedent, the court stated that qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate “clearly established” statutory or constitutional rights within the knowledge of a reasonable person. The inquiry into whether a constitutional right is “clearly established” required that the Fourth Circuit first define the precise right into which it was inquiring. After defining that right, the court had to determine whether that right was clearly established at the time Appellees acted. A right satisfies this standard when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Therefore, if the constitutional right was “clearly established” at the time Appellees acted, Appellees were not entitled to qualified immunity.

The Fourth Circuit had no trouble in defining the precise right into which it was inquiring. The constitutional right in this case was Armstrong’s right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure.

However, once the Fourth Circuit turned to the second question as to whether this constitutional right not to be tased was “clearly established,” it held that the defined constitutional right was not so settled at the time that Appellees acted such that every reasonable official would have understood that tasing Armstrong was unconstitutional. The Fourth Circuit looked to tasing cases from other circuits when discussing how the law—in relation to tasing and excessive force—was unsettled at the time Appellees tased Armstrong; thus, not every reasonable official would have understood tasing was unconstitutional in this situation. For this reason, the Fourth Circuit concluded that Armstrong’s right not to be tased while offering stationary and non-violent resistant to a lawful seizure was not “clearly established” on the date he was seized. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity.

Judgment Affirmed

The Fourth Circuit held that Appellees used unconstitutionally excessive force when seizing Armstrong, but the Fourth Circuit, nevertheless, agreed with the district court that Appellees were entitled to qualified immunity. For this reason, the Fourth Circuit affirmed the district court’s order granting Appellees’ motion for summary judgment.

One judge concurred in part as to the majority’s analysis of the Appellees’ qualified immunity defense; however, this judge wrote a concurring opinion to express his concern over the majority’s discussion on the merits of the excessive force claim. This judge felt as though the excessive force discussion was unnecessary and unwise.

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24Sep

Fourth Circuit Affirms Denial of Correction Officers’ Motion for Summary Judgment in Excessive Force Case

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By Whitney Pakalka

On May 19, 2015, The Fourth Circuit issued a published opinion in the civil case of Ussery v. Mansfield, 786 F.3d 332. Sammy Ussery filed suit under 42 U.S.C. § 1983 alleging that officers at the North Carolina penal institution where he was incarcerated caused him serious injuries by their use of excessive force. The Fourth Circuit affirmed the district court’s denial of the officers’ motion for summary judgment.

  Ussery Claimed Correctional Officers Used Excessive Force

Sammy Ussery was an inmate at a correctional facility where he was forcibly extracted from his cell by correctional officers on July 9, 2008. Sergeant David Mansfield ordered Ussery to exit his cell so that it could be searched, but Ussery refused because officers repeatedly searched his cell in previous days without discovering any contraband. Sgt. Mansfield then gathered an extraction team of officers, including Officers James Dunlow and Timothy Ruffin, named defendants.

Although prison policy mandates that extractions be videotaped, Sgt. Mansfield stood in front of the video camera during most of the extraction, obstructing the view of Userry’s cell. What can be seen on the video, however, comports with some of Ussery’s account that the officers “beat him repeatedly in the head and face with batons, punches and kicks” and that Sgt. Mansfield “kicked and stomped” on him. Ussery was eventually handcuffed and carried out of his cell, and he was later taken to the hospital for emergency treatment of his injuries.

Several months later, the State Bureau of Investigation conducted an inquiry at the request of the state Department of Corrections to determine whether excessive force was used. However, because the video of Userry’s cell was obstructed by Sgt. Mansfield, the SBI was not able to reach a definitive conclusion.

The District Court Denied One of Defendants’ Motion for Summary Judgment

Ussery filed an action pro se under 42 U.S.C. § 1983 alleging that the officers violated the Eighth Amendment by use of excessive force and for failure-to-protect. Ussery contended that as a result of the force used, he suffered hearing loss, neck pain, loss of vision in one eye, and other injuries that caused him ongoing “physical and emotional pain and suffering, and disability.”

The officers denied punching or kicking Ussery, and argued that he only incurred de minimis injuries. The officers submitted an affidavit of a doctor employed by the Division of Prisons who said that Ussery only had minor injuries with no lasting effects. The doctor based his medical opinion on prison records without examining Ussery. The officers requested summary judgment based on an entitlement to qualified immunity. The district court granted the motion as to the failure-to-protect claim, but denied the motion as to the excessive force claim.

Qualified Immunity from Civil Damages for Excessive Use of Force

In cases where excessive force is claimed, the Fourth Circuit previously applied the standard from Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). The court in Norman held that a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis, unles he can show that the use of force was “repugnant to the conscience of mankind.” However, Norman was abrogated by the Supreme Court in Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010), holding that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”

The Fourth Circuit still applies the standard set out in Norman for cases where the alleged use of excessive force occurred before Wilkins was decided. Thus, because the extraction occurred in 2008, Ussery will have to establish (1) that he sustained more than de minimis injuries, or (2) that the use of force was “of a sort repugnant to the conscience of mankind and thus expressly outside the de minimis force exception.” Norman, 25 F.3d at 1263, n.4.

Jurisdiction for an Appeal from Denial of a Claim of Qualified Immunity

When a district court denies a claim of qualified immunity, it is an appealable final decision under 28 U.S.C. § 1291, “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court further explained that where a district court denies summary judgment to a defendant seeking qualified immunity entirely on the basis of evidentiary sufficiency, no basis for an interlocutory appeal exists. Johnson v. Jones, 515 U.S. 394 (1995).

The district court, in its denial of summary judgment, found that a question of fact existed not only in regard to the extent of Ussery’s injuries, but also as to whether the circumstances were sufficient to show force “repugnant to the conscience of mankind,” thus satisfying the standard in Norman. Because the denial of summary judgment was based on the sufficiency of the evidence, the Fourth Circuit found that it was not permitted to review the lower court’s assessment of the factual evidence.

However, the Fourth Circuit inferred that the district court concluded that Ussery could establish a violation of law under Norman. Finding that this was a “purely legal conclusion,” the Court went on to consider whether the district court properly denied Defendant’s motion for summary judgment.

The officers argued that Ussery only suffered de minimis injuries and could not satisfy the Norman standard. The Fourth Circuit disagreed noting that whether a plaintiff’s injuries satisfy the standard depends on the facts of the case. The Court noted that the injuries Ussery claims may have long-term effects and were arguably more severe than injuries previously held to be sufficient for an excessive force claim. Additionally, the Department of Corrections conducted its own investigation, suggesting that the force used could have resulted in sufficiently serious injuries to meet the standard of Norman.

The Fourth Circuit Affirmed the District Court’s Judgment

Interpreting the facts in the light most favorable to Ussery, the Fourth Circuit affirmed the district court’s denial of Defendants’ motion for summary judgment requested on the basis of qualified immunity.

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24Sep

Exonerated Man’s Suit Can Proceed Against Officers and Department

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By Andrew Kilpinen

In a split decision featuring three separate opinions, the 4th Circuit affirmed in part and vacated in part the district courts dismissal in Owens v. Baltimore City State’s Attorneys.

 Owens Challenges Statute of Limitations, Sovereign Immunity, Qualified Immunity, and Failure to State a Claim

The Court reviewed four issues de novo: (1) Is Owens’s claim time barred, (2) is the Baltimore City State’s Attorney’s office an entity capable of suit, (3) are Officers Pelligrini, Dunnigan, and Landsman protected by qualified immunity, and (4) does Owens’s complaint contain sufficient factual content to survive a motion to dismiss on the claim that the BCPD followed a custom, policy, or practice by which local officials violated Owens’s constitutional rights?

 Owens Was Convicted of Rape and Murder

The present controversy grew out of the investigation, trial, and conviction of James Owens for the rape and murder of Colleen Williar on August 2, 1987. The State’s key witness, James Thompson, changed his testimony five times during the investigation and trial. Central to Owens’s appeal was withholding of the multiple variations of Thompson’s testimony from defense counsel.

The jury convicted Owens of burglary and felony murder. In 2006, DNA evidence showed that Owens’s DNA did not match the blood and semen evidence at the crime scene. On June 4, 2007, Owens was granted a new trial. On October 15, 2008 the State’s Attorney entered a nolle prosequi, dropping the charges against him. Owens was subsequently from prison released after twenty years of incarceration.

 Statute of Limitations Began to Run After the Nolle Prosequi and Owens’s Claim is Therefore Not Time Barred

First, the Court held that Owens’s claim is not time barred because the statute of limitations began to run when the State issued the nolle prosequi, not when the State granted Owens’s a new trial. Since § 1983 does not provide a statute of limitations, the Court must look to the common-law tort most analogous to Owens’s claim. Here, the Court identified malicious prosecution as the common-law tort most analogous to Owens’s §1983 claims. Generally, the statute of limitation clock begins to run as soon as the plaintiff knows or has reason to know of his injury. However, sometimes, as is the case in malicious prosecutions, the common law provides a “distinctive rule” for determining the start date of the limitations period. Thus, the Court held that the statute of limitations began to run on Owens’s claim after the nolle prosequi, not at the start of the new trial.

 Baltimore City State’s Attorney’s Office Is Not an Entity Capable of Being Sued

Second, the Court held that the Baltimore City State’s Attorney’s Office is not an entity capable of being sued because the office does not have a legal identity. To be suable, an office or agency must be granted a legal identity through statutory or constitutional authority. Owens argued that the Maryland General Assembly granted such legal identity when it named Title 15 of the Maryland Code of Criminal Procedure “Office of the State’s Attorney.” The Court rejected this argument stating that the title refers to a position held by an individual and not a suable office.

 Officers Are Not Protected by Qualified Immunity

The Court rejected the officer’s defense of qualified immunity. The Court had little difficulty concluding that Owens’s allegations state a plausible § 1983 claim because the information withheld by the officers would have supported his theory that Thompson committed the rape and murder; commenting that at the very least it would have discredited Thompson’s testimony. The Court cites the fact that the officers were seasoned veterans who called the ASA moments after receiving Thompson’s final story to support the conclusion that they withheld the four previous versions intentionally and maliciously. The Court points to precedent in Barbee, Sutton, and Boone in holding that the officers should have known that not disclosing material exculpatory evidence was a violation of Owens’s constitutional rights in 1988.

 Owens’s Complaint Survived Motion to Dismiss

Finally, the Court held that the factual allegations in Owens’s complaint, including reported and unreported cases of officers withholding information from the period of time before and during his trial, contained sufficient factual content to allege that the BCPD maintained a custom, policy, or practice allowing the withholding of material exculpatory evidence. The Court found the allegations that BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice. The Court held that Owens’s complaint survived the BCPD’s 12(b)(6) motion to dismiss.

 4th Circuit Affirmed in Part and Vacated in Part

Owens will have yet another day in court to prove his § 1983 claims against the BCPD, and the individual officers, but not the State Attorney’s Office. The case was remanded to the district court for further proceedings.

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