from the being-an-asshole:-almost-always-a-rights-violation dept
You can be a law enforcement officer without being a complete asshole. I know it rarely seems to be the case, but it’s completely possible to command respect while still treating others with respect. And while assholery tends to go hand-in-hand with enforcing the law far too often, the end result of being vindictive and rude is almost always a handful of violated rights.
And that’s where qualified immunity comes into play. The Supreme Court created this doctrine under the theory that it would protect officers from the unintended consequences of split-second decisions made during tense, fast-moving situations they occasionally find themselves in.
That was the intent. But this immunity has been invoked to shield officers from the consequences of actions provoked neither by immediate danger nor time constraints. Instead, it’s something officers assume is more likely than not to excuse them from lawsuits, even when courts find they’ve violated rights. The officers are free to go, so long as they violated rights in a way that hasn’t been foreclosed by precedent.
Sometimes though, the roll of dice goes the plaintiff’s way. That’s the case here in a decision [PDF] handed down by the Sixth Circuit Court of Appeals.
It all started innocently enough. On June 5, 2014, 67-year-old Christopher Murphy sat in an Elmira, New York bus terminal, waiting for the bus taking him to his medical appointments. He boarded the bus and, shortly thereafter, police officers arrived and took him off the bus. They arrested him on a bench warrant for misdemeanor offenses related to the city’s property maintenance codes.
So far, so innocuous. Misdemeanor offenses. Code enforcement. Bench warrant. All of this should have been settled quickly, quietly, and without a strip search. Instead, officers handcuffed Murphy to a waist chain and sat him down in City Hall to wait to see a judge. The judge arrived and Murphy’s bail was set at $750. Murphy only had $400 on him, so the judge remanded him to the Elmira PD officers until he made bail or until his next hearing, which was nearly two hours later.
He was fingerprinted, photographed, and processed. Five minutes after that, his girlfriend showed up with the bail money. The officers told her Murphy was now in the custody of the Sheriff’s Department and she would need to post bail at the county jail.
Once at the county jail, Murphy was fingerprinted yet again by Glenn Gunderman, a jail employee from the Sheriff’s Department. Here’s what Gunderman told Murphy initially:
As Murphy was being fingerprinted, Gunderman said to him “[y]our bail’s sitting out there and we’re going to cut you loose” or “[w]e’ve got to cut you loose.” Gunderman also said that
Camilli [Murphy’s girlfriend] — who was attempting to post Murphy’s bail and secure his release — was “making a real fuss, making a real commotion” about the delay. Murphy’s impression was that he would be released “immediately.”
That didn’t happen. Instead, lots of other stuff did, most of it at the hands (and I mean that literally) of Admissions Officer William Washburn.
After about an hour, and about an hour before Murphy was due back in court, the Booking and Admissions Officer — defendant-appellee William Washburn — removed him from the cell. Washburn brought Murphy to a small room and conducted a visual body cavity search, requiring Murphy to disrobe, lift his scrotum, and spread his buttocks.Washburn did not touch Murphy during the search, which lasted around ten minutes.
After the search was completed, Washburn escorted Murphy out of the search room. Washburn gestured to other officers with his thumb and forefinger, which Murphy understood as mockingly connoting that he had a small penis. Murphy was then brought back to the holding cell.
On top of this insult, Washburn added more constitutional injury.
At least two or three times, in the presence of other deputies, Gunderman said “[t]his guy’s bail’s out there. We’ve got to cut him loose.”
Washburn responded: “No. We’re not done with him yet. He’s not going anywhere. He’s going to sit in my jail for a while.” Washburn made comments to this effect both before and after the strip search.
Murphy was held for two hours, and for at least an hour after he had made bail. On top of that, there was the strip search, which was neither supported by jail policy or the Constitution itself. Jail policy said strip searches were only justified if there was reasonable suspicion a detainee might be hiding contraband. Murphy was arrested on a bench warrant for city code violations while waiting for a bus, hardly the sort of thing that suggests the (perhaps hidden) presence of contraband.
According to policy, all strip searches were recorded on a “Strip Search Justification Sheet.” But the sheet Washburn presented to the court showed nothing more than “Per Post 1” in the space reserved for “explanation of the grounds or reasons for conducting the search.” The rest of the form was blank.
Washburn’s testimony — which came in the form of a sworn affidavit (he did not actually testify in court) — didn’t clear anything up. Instead, it was vague, recursive, and written in the exonerative tense.
According to Washburn, the notation “per Post 1” on the Justification Sheet meant that some supervisory officer — he did not identify whom — had authorized the search. Washburn contended that the strip search “was necessarily based on reasonable suspicion” because the Policy required it to be; moreover, Washburn averred, neither he nor any other officer “directed to perform the search would have had the discretion to disobey the order.” On this basis, Washburn argued, even assuming “for purposes of this motion only” that he had conducted the search, he “would have lacked discretion as to whether or not to perform” it because it “would have occurred solely based upon a direct order from a superior pursuant to Chemung County Jail policy.”
Huh. The search was justified because jail policy required it to be justified. Settle down there, Perry Mason.
Somehow, the lower court was fine with all of this. The Sixth Circuit, however, not so much.
At no point in this litigation have defendants purported to identify a legitimate penological purpose for the strip search. Furthermore, there was evidence that Washburn’s actions were motivated by malice. He mocked Murphy about the size of his penis. And when another officer noted that Murphy’s bail was “out there” and they needed “to cut him loose,” Washburn responded in a manner that could be understood to exhibit malice by saying that Murphy would not be going anywhere and was going to sit in “my” jail “for a while.” On these facts, a reasonable jury could readily conclude that Washburn was acting not to further legitimate penological concerns but purely out of vindictiveness.
On top of that, Washburn just simply isn’t a credible witness.
First, the record is muddled as to whether Washburn was in fact following the directions of a superior officer. Washburn denies conducting the strip search and argues only hypothetically that if he did, he would have been following orders. […] Washburn does not state that any order was actually given, and no evidence has been provided as to the identity of any officer who might have given an order for the search.
Moreover, Washburn’s self-serving testimony that the entry “per Post 1” on the Justification Sheet meant that a superior officer had ordered the search was not necessarily believable. Second, on this record, a reasonable jury could find that Washburn was responsible, in whole or in part, for the decision to strip search Murphy. The Justification Sheet, which was supposed to set forth the reason for the search and identify the officer who authorized it, does not provide any reason for the search, does not reveal who (if anyone) authorized the search, and provides no detail about how the search was authorized other than the cryptic designation “per Post 1.” Doc.
Contrary to Washburn’s assertion that he did not conduct the search, the Justification Sheet identifies him as the “Search Officer.” […] The absence of reasonable suspicion for the search, Washburn’s failure to properly document the search or indicate which superior officer approved it, the crude gesture he made after the search, and his comments about Murphy sitting in “my” jail “for a while” despite bail having been posted are all circumstances from which a reasonable jury could infer that Washburn was acting of his own volition and not pursuant to the orders of a superior.
The same can be said for the two-hour delay, which was largely exacerbated by Washburn’s apparently animus towards Murphy.
Again, construing the record in Murphy’s favor, Gunderman cautioned Washburn two or three times that Murphy’s bail was “out there” and that he had to be released. Yet, Washburn ignored Gunderman and deliberately kept Murphy in “my” jail “for a while.” Moreover, Washburn subjected Murphy to a strip search gratuitously, without reasonable suspicion, in contravention of the Policy. Washburn’s words and his crude gesture suggest that his actions were not merely negligent but, instead, that he was actively hostile.
And that means these are constitutional violations outside the protection of qualified immunity. Even if they might seem small compared to other rights violations we’ve covered, they’re still violations and they never needed to happen. Instead of being able to smugly walk away from the complaints of a person he vindictively humiliated, Washburn will have to return to court to explain himself to a jury.