Appeals Court Reminds Deputies That Standing By While Rights Are Violated Is No Better Than Violating Them Yourself

Legal Issues

from the i-guess-the-thug-life-chose-them dept

Sometimes it’s the things you don’t do that can hurt you. The Sixth Circuit Court of Appeals has handed out a reminder to law enforcement officers that standing around while rights are violated can leave you just as liable as if you’d violated those rights yourself.

The allegations behind the lawsuit and this rare denial of qualified immunity are horrifying. Being jailed is never pleasant, but the deputies involved in this case went out of their way to ensure this booking was particularly degrading. Keep in mind this was nothing more than an arrest for drunk driving. From the decision [PDF]:

Fazica had been wearing the jumpsuit that she had been issued at the Bloomfield Township jail with the arms tied around her waist and no underpants. She also wore a bra and shirt. Id. at 43, 46 (Page ID #181, 184). Once the officers brought her into the room, they placed her face down on her stomach in a prone position on the floor, still wearing the spit hood. Id. at 47 (Page ID #185). She was “freaking out” and asking “what are you guys doing,” but she was not physically resisting. Id. at 45–46 (Page ID #183–84). One officer “pushed her face down” and an officer “said everyone gets stripped search [sic], just shut up.” Id. at 45 (Page ID #183). Fazica does not recall how the officers got her shirt off. An officer ripped her pants off from behind—literally tearing them apart. Id. at 46 (Page ID #184). One officer then “had [her] butt cheeks spread apart and there was [sic] hands like he was feeling for something.” Id. He placed his hands on her genitals. Id. at 71 (Page ID #209). Another officer put his hands up the front of Fazica’s bra and felt her nipples; Fazica felt his hands shaking as he did it. The officer who felt Fazica’s breasts “asked what the clips were, and the gentleman behind [her] said they were the clips to [her] bra, don’t worry about it.” Id. at 47 (Page ID #185). The same officer who had his hand on her breasts called her a bitch and one officer “kind of slap punched [her] when [she] was in the strip search room because he was mad because [she] was hysterical.” Id. at 48, 52 (Page ID #186, 190). The officers did not remove her bra. Id. at 47 (Page ID #185). She could not hear any female staff in the room and believes that no other females were present during the strip search. Id. Fazica knew that the officers who were strip searching her and who were present in the room were male because of their voices and their hands. Id. at 48 (Page ID #186).

After this sexual assault by jailers — which is apparently part of the “normal” booking process (according to the deputies’ testimony) — officers took her to a cell. The plaintiff, Renee Fazica, was wearing nothing more than her bra and the spit hood the jailers has placed on her.

The booking report does not contain any of these details. As the court notes, the narrative in the booking report wasn’t written until nearly a month after Fazica was jailed. The official version of the arrest cleans everything up for public consumption. The only benefit it provided was giving Fazica the names of the jailers she couldn’t see.

Booking received a call that Bloomfield Township was bringing in a new arrest, Inmate Fazica . . . and that she is intoxicated, yelling and spitting. . . . Sgt. Nicotri was notified. Supervisor Jordan was lead taser, Dep. Tucker was lead, Dep. Cordova and [Rodriguez] were wings and Supervisor Fletcher was four man [sic]. . . . Inmate Fazica was yelling as the door to the patrol car was opened. Dep. Tucker gained control of Inmate Fazica and with the assistance of Dep. Cordova and myself she was removed from the car. Dep. Tucker gained control of her head, Dep. Cordova and [Rodriguez] took control of her arms. A spit hood was then placed over her head. A pat down was then conducted for the safety and security of the Main Jail. Inmate Fazica was then escorted to the Annex and taken into Cell 1E-4. Inmate was told to lay down on the floor and she complied. Inmate was then searched. The handcuffs were then removed. Inmate Fazica was ordered to stay on the floor until the cell door was closed. All team members then left the cell without further incident. Nurse Thorpe then medically cleared inmate Fazica of any injuries. Event entered into IMACS.

When sued for a variety of rights violations, all officers involved claimed to have no memory of the incident. No one remembered assaulting a female arrestee, much less participating in the extremely mild version of events recorded a month after Fazica was booked.

The lower court denied qualified immunity to four of the named officers because there was still an open question as to which officers were involved. Since Fazica’s view was obstructed by the spit hood, she understandably was unable to specifically allege which officer performed which violation.

The officers appealed, arguing that because Fazica couldn’t see who did what, all officers should be granted immunity. The court disagrees.

Defendants argue that because Fazica cannot clearly attribute particular uses of force to particular Defendants, she cannot prove that any particular Defendant’s conduct violated her constitutional rights. Def. Br. at 19–20. For example, they argue that she cannot prove whether it was Defendant Officer Fletcher, Cordova, Tucker, or Jordan who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc., and that therefore she must lose at summary judgment. We reject Defendants’ argument and conclude that a reasonable jury could find that each of the named Defendants violated Fazica’s clearly established constitutional rights either by directly using excessive force against her or by observing others doing so and failing to act.

That point is settled case law, as the court explains. Rights are not just violated by actions. They are also violated by inaction. Government employees who stand idly by as rights are violated can be held accountable for not intervening. Whether directly participating or not, all government employees are supposed to help safeguard Constitutional rights. That means stepping up when someone else crosses the line, not just hanging back and hoping the eventual plaintiff doesn’t name you as a defendant.

In this case, the misapplication (whether deliberate or not) of the spit hood prevented Fazica from identifying the officers involved in the strip search/sexual assault. The defendants argued precedential cases involved intentional efforts made by officers to obscure their identities. Wrong again, says the court:

Defendants argue that the only reason that the court might deny qualified immunity in a case in which the plaintiff is not able conclusively to identify which officer committed which potentially unconstitutional act is “to avoid rewarding defendants who intentionally conceal their identities.” Def. Br. at 11. Certainly, disincentivizing officers from obscuring their identities so that they may use excessive force without consequences is a valid concern. See Burley I, 729 F.3d at 622. However, it is not the only concern. Plaintiffs who are unable to pinpoint precisely which named defendant did what, even where the defendants did not intentionally conceal their identities, still have an interest in the vindication of their constitutional rights. Section 1983 claims do not only incentivize officers’ good behavior; they also compensate and achieve justice for victims.

More explicitly:

[T]he obviousness of some of the acts Fazica recounts support the conclusion that the Defendants noticed the conduct and failed to intervene to stop it. Fazica stated that her pants were physically torn off her body before her genitals and breasts were groped, and the officers testified that strip searches do not usually involve physical contact with the inmate’s body. A jury could reasonably conclude that when an officer commits such acts, his colleagues are likely to notice.

This doesn’t mean Fazica has won or is likely to when her case returns to the lower court. What it does mean is the accused officers won’t be shielded from this lawsuit and will have to actually defend themselves against her allegations. Most importantly, it’s reiterated and on the record that standing by while rights are violated is no better than violating rights yourself.

Filed Under: 6th circuit, bloomfield township, carlos cordova, josh tucker, mark fletcher, qualified immunity, renee fazica, zachary jordan