Court Grants Immunity To DA Who Shared Nude Photos From A Searched Phone With Local Law Enforcement

Legal Issues

from the being-awful-just-because-they-can dept

The phrase “no harm, no foul” doesn’t apply to law enforcement personnel, whether they’re patrol officers or the chief local prosecutor. Instead — thanks to the qualified immunity doctrine — the phrase is: “whatever amount of harm, no foul.”

As long as the harm isn’t something specifically covered by precedent, the general feeling of courts is that law enforcement shouldn’t be punished for rights violations they can plausibly (at least under precedent) claim they had no idea were rights violations, no matter how immediately egregious those rights violations were.

And so it is here, even if this case was last reviewed by the appeals court least likely to cut cops slack: the Ninth Circuit Court of Appeals.

Here’s the background of the case, which shows just how routinely awful law enforcement can be, especially when they know they’ll rarely be required to face a jury, much less face any internal discipline for abusing people’s trust, if not their constitutional rights.

An Oregon woman’s nude photos ended up the topic of conversation in her small town after a prosecutor looked through her sensitive cellphone data and told the county sheriff what he found despite no warrant, no consent and no suspicion that she had committed a crime.

[Sad trombone]:

But the district attorney involved won’t face legal consequences under a federal appeals court ruling released Monday.

Here’s more of the story, via Oregon Live’s reporting. The plaintiff, Haley Olson, ran a (legal) marijuana shop in Oregon. She was pulled over in Idaho (where recreation use/possession isn’t legal) and charged with possession. During the search of her vehicle, Idaho State troopers found a business card belonging to her boyfriend, Grant County (OR) deputy Tyler Smith.

Olson consented to a search of her cell phone. (Folks, please never do this.) The state police performed a forensic extraction of her phone’s contents. Shortly thereafter, state prosecutors dropped the charges against Olson.

But Idaho law enforcement still had a copy of Olson’s phone data. Suddenly, that was of some interest to her boyfriend’s employer, the Grant County sheriff’s department.

But Glenn Palmer, the Grant County sheriff at the time, had called the Idaho trooper who handled Olson’s case shortly after her arrest. Palmer had apparently heard about the arrest from another sheriff’s office employee and was “curious” about whether Olson’s phone might reveal misconduct on Smith’s part, the appellate court wrote.

Palmer learned during the conversation that the deputy’s card had been discovered in Olson’s car and asked the Idaho trooper to share the contents of Olson’s phone, but Idaho authorities rejected his request, according to the opinion.

That should have ended that. And I don’t really have an objection to a deputy’s employer wanting to see if their employee might be involved in things an officer shouldn’t be, even if that thing was only assisting with the sale of a now-legal drug.

But it didn’t end there. After being rejected by the Idaho State Police, Sheriff Palmer approached district attorney Jim Carpenter and encouraged him to obtain a copy of Olson’s phone contents and review them. Carpenter did. He sent an email to Idaho prosecutors requesting a copy and promising it was for “internal review only” and wouldn’t be shared with anyone outside of his office.

Of course, that’s not what happened.

Carpenter immediately violated his pledge to Idaho police and asked detectives from two outside agencies, the Oregon State Police and the Deschutes County Sheriff’s Office, to review the flash drive material, according to the appellate opinion.

Both agencies declined, because it wasn’t tied to a criminal investigation, the opinion said.

Carpenter reviewed the phone contents himself in April 2019, found nude photos of both Olson and Smith and contacted the sheriff to tell him that the phone showed evidence of an intimate relationship between Smith and Olson, the ruling said.

Carpenter also added that he had seen nothing that indicated anything improper was happening. Nonetheless, he seemed extremely insistent that the sheriff view the contents of the phone, referring not-all-that-cryptically to content “that couldn’t be unseen” once viewed. At some point, the sheriff finally gave in.

And then, according the lawsuit, he began handing this content out.

Olson said a Grant County deputy whom she didn’t know came into her marijuana store and told her that he had heard “there’s some pretty smokin’ pictures of you going around the sheriff’s office,” the appeals court wrote.

Another witness reported observing two sheriff’s employees looking at nude photos of Olson on a phone, according to the opinion.

Nothing’s going to happen to the DA, who — despite declaring there was nothing of (criminal) interest on Olson’s phone — felt compelled to share the stuff of (prurient) interest with the sheriff. And, apparently (or allegedly, if you prefer), the sheriff felt compelled to share that with his employees.

The end result is the dismissal of the prosecutor from this lawsuit, despite the Ninth Circuit making this statement early on in its decision [PDF]:

We have no difficulty concluding that Carpenter’s search was unreasonable.

Even before reaching the question about the unauthorized sharing of the unreasonably searched data, the court has already found the original search was unlawful. It goes on to dismantle the DA’s justifications for his search:

Compared to those weighty privacy interests, the two asserted government interests are unavailing. Palmer was “curious” about whether Olson’s phone might reveal misconduct on Smith’s part. Carpenter was interested in reviewing the phone for possible Brady material in cases where Smith might testify. Olson was arrested in Idaho for the possession of marijuana, which is not illegal in Oregon, and there was no reason for Palmer or Carpenter to suspect that Smith had taken part in criminal activity. Not surprisingly, Carpenter was never able to articulate which cases he was concerned that Smith would testify in, and for which any Brady material regarding this incident would be relevant. No precedent supports invoking a hypothetical Brady concern to overcome the warrant requirement.

Not obvious enough of a rights violation, says the Appeals Court.

Although we conclude that Carpenter’s warrantless search of Olson’s cell phone constituted a Fourth Amendment violation, the law was not clearly established at the time of the search.

The DA walks away from this lawsuit. As disappointing as that is, at least the Ninth Circuit goes where most appellate level courts won’t: it establishes precedent so the next fucker who tries this shit won’t get away with it.

Because it is important to lay down a marker for future cases, we heed the Court’s call in Pearson to develop constitutional precedent and conclude that Carpenter’s search infringed on Olson’s Fourth Amendment rights.

And that, as sad as it is to say, is way better than the nothing courts often content themselves with doing in cases dealing with obvious and egregious rights violations. So, of course, there’s a concurrence (this one written by Federalist Society member Judge Daniel Bress) that says he agrees the DA should get away with this but that the court went too far by establishing precedent:

I join only Parts I and II.B of the court’s opinion. Because Carpenter is entitled to qualified immunity based on the lack of clearly established law, it is not necessary to decide whether Carpenter violated the Fourth Amendment. There may be instances in which it is helpful to the development of the law to answer the underlying constitutional question even when the defendant prevails on qualified immunity grounds. But this is not such a case.

Of course “this is not such a case.” It would probably be difficult-to-impossible to find a case Trump appointee Judge Bress (he replaced Alex Kozinski) might find worthy of establishing precedent when it comes to law enforcement and civil rights violations. Maybe he’ll get to handle a J6 case (what’s left of them after Trump’s mass pardoning) that may force him to see rights-violating cops as being on the wrong side of the law. But today isn’t the day.

As it stands now, the DA gets to walk but DAs who follow in his footsteps won’t. That’s the only positive outcome of this decision — yet another one that lets cops and their accomplices know there’s almost nothing to fear when they get sued for violating rights.

Filed Under: glenn palmer, grant county sheriff's department, haley olson, jim carpenter, oregon, police misconduct, qualified immunity