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

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


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  • icon
    That One Guy (profile), 19 Jun 2019 @ 8:18pm

    Not really helping there

    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.

    Amazing how often recording devices, both electronic and apparently even biological just seem to stop working any time a cop is around and something that might make them look bad is about to occur...

    Assuming the ability transfers to other fields it strikes me that police would make amazing spies, as they'd be utterly invisible to both cameras and guards, able to just walk right in to otherwise highly secure locations.

    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

    As defenses go that one strikes me as pretty damning. 'We're not saying it didn't happen, merely that because we blocked the victim's eyesight they can't positively say who did what, and as such none of them should be treated as guilty.' Glad the court shot that one down, not only for this case but because if that's all it took to avoid liability I imagine police would start finding all sorts of reasons to obstruct the vision of anyone they arrest, for purely coincidental and innocent reasons of course.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Many a Mickle makes a Muckle, 19 Jun 2019 @ 8:24pm

      Re: Not really helping there

      From https://torrentfreak.com/images/grandeadopt.pdf bottom of page 41:

      [footnote] 7 Willful blindness can also satisfy the requirement of actual knowledge. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) ("[P]ersons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts."); see also In re Aimster Copyright Litig., 334F.3d 643, 650 (7th Cir. 2003) ("Willful blindness is knowledge, in copyright law . . . as it is in the law generally.")

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2019 @ 7:22am

      Re: Not really helping there

      First Party Immunity for the corrupt leaders,
      Third Party Liability for everyone else.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jun 2019 @ 7:51pm

      Re: Not really helping there

      The real question is, how often is this happening to females that come in exactly the same way.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Many a Mickle makes a Muckle, 19 Jun 2019 @ 8:20pm

    NOR can corporations stand by pretending don't see infringement!

    Peace officers and corporations have agreed to DUTIES serving The Public. Common law# terms apply, not lawyerly foolishness that give them authority without responsibility, or to sheerly serve their own (financial) interests.

    By the way, Broward County Sheriff Israel's deputy who stood outside while kids were murdered so that a big body count could be run up is now also facing CRIMINAL charges for inaction.

    Just to nail down my usage in this instance: "common law" meaning that which authorizes the US gov't to exist at all, which preceded the Constitution, and which The Public retains in having right to revise Constitution and rid ourselves of officers who prove unfaithful to our principles. There is also a "common law" meaning usual assumptions / decisions by courts. But those cannot conflict: The Public always sets the terms.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Many a Mickle makes a Muckle, 19 Jun 2019 @ 8:23pm

      Re: NOR can corporations stand by pretending don't see infringem

      Dang. Ignore italics or bolding of last para: unexpected markdown effect of using pound sign... though it didn't the first one...

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 19 Jun 2019 @ 10:14pm

      The Public always sets the terms.

      Then how come you can’t force Techdirt to keep your comments unhidden? 😁

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2019 @ 9:56am

      Re: NOR can corporations stand by pretending don't see infringem

      The issue with copywrite is the inability for people to tell whether it's infringement and what counts as fair use or parody or any of the main reasons enforcement of copywrite may not be appropriate. This is a clear violation of rights that should not have happened, there is no question that the strip search she ALLEGES would be unconstitutional.

      However, the argument for whether it actually happened will occur in court, and it is good that qualified immunity does not apply to this as qualified immunity removes individuals ability to exercise their rights and privileges for being part of our society.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Jun 2019 @ 8:50pm

    Censorship test.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 19 Jun 2019 @ 9:27pm

      Re:

      Censored, thanks for playing.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Jun 2019 @ 9:54pm

        Re: Re:

        Not even that. They aren't being 'censored' when they have their comments flagged and hidden, they are simply being told 'you add nothing to the conversation' and a warning put up so that others can choose whether or not to read their tripe.

        They're no more being 'censored' than someone being asked to leave a club because they've been harassing other people there is being 'censored', and in fact they're not even facing that, as their comments are still available to read, they're just hidden, as though they've been asked to go to an out of the way area of a club where people can choose to go to or not.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2019 @ 9:32pm

      Re:

      Censorship test.

      You do realize that the button is labeled "Flag this comment as abusive/trolling/spam." Therefore, I will always click that button as your comments squarely fall into the "trolling/spam" categories.

      And besides, who is forcing you to be here? You can always just leave and never come back. Problem solved

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 19 Jun 2019 @ 11:57pm

      Re:

      You know what's funny about your "tests"? Since you're not actually being censored and you're just triggering a spam filter for reasons that have been explained to you many times, we all get ta good laugh. Not only at your original posts and your impotent whining about a working spam filter, we get to wonder as to how stupid/childish/insane someone has to be to think the original post had any value to begin with.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jun 2019 @ 8:19am

        Re: Re:

        Think of the children!
        They don't want to be associated with him.

        The insane also don't like being labeled and associated with him and most have found workable solutions so that they can try to integrate with society.

        Stupid ... okay. I got nothing. Stupid just is and there are no known treatments as yet outside of locking the basement door and cutting the internet cable.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Jun 2019 @ 9:27pm

    Too bad internet sites can't be held liable for standing down when their users are harassed or threatened.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2019 @ 9:40pm

      Re:

      Too bad internet sites can't be held liable for standing down when their users are harassed or threatened.

      How can you even think that you could consider yourself harassed or threatened?

      A) You don't have to be here. If you feel that way, then leave and don't come back, and guess what will happen, you won't feel harassed or threatened.

      B) You're fucking anonymous!!!! Nobody cares who you are, you are essentially a nobody. Why would anybody put forth any effort to harass or threaten you, it would be a complete waste of time.

      C) Didn't your mother teach you "sticks and stones may break my bones but words will never hurt me."? I mean holy shit, you can't handle the fact that people mock you here, you fucking snowflake!

      D) Maybe you should think really hard about why you are being ridiculed and mocked, and maybe, just maybe, you'll realize that it has everything to do with how you act here. You act like a childhood bully who tells everybody that your dad can beat up my dad, but when it comes down to proving that point, you run away pissing your pants and crying.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2019 @ 10:07pm

      Re:

      Whined the stalker landlord looking up the names of Masnick's wife and daughters after calling them pieces of shit.

      You're not fooling anyone, Jhon.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 19 Jun 2019 @ 10:27pm

        Re: Re:

        I'll call Masnick's trash whatever the fuck I want. Masnick listens to Ken White because he supports pirates.

        Article 13 was supposed to have lost, wasn't it? Don't think for a second that Paul Hansmeier is over. Once Section 230 is nuked I'm sending each and every one of your pirate asses to pound-me-in-the-ass-with-a-chainsaw prison.

        Report me if you want. I don't care!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jun 2019 @ 10:33pm

          Re: Bring it on motherfucker

          Just another day with another impotent threat from cryin Jhon. Your boy got what, 12 years in prison? His ass is gonna look like mince when he gets out.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jun 2019 @ 10:33pm

          Re: Re: Re:

          Apparently the Paul Hansmeier defense fund didn't go over as well as you hoped.

          Here, have a sad song played on the world's smallest violin, you old, impotent, IP address changing fuckwit.

          Oh, what the hell, I'm feeling generous. Article 13 vote for you too!

          reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 19 Jun 2019 @ 10:41pm

          If’n you got the guts to do something other than engage in playground-level shittalking, you sweet summer stillbirth, start by coming directly after me in the worst possible way.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jun 2019 @ 11:23pm

          Re: Just another old impotent fuckwit

          Whatcha gonna do boi? You’re gonna cry and throw a hissy and make some impotent threats and then run away like a bitch. That’s what you’re gonna do.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jun 2019 @ 8:35am

          Re: Re: Re:

          Too bad internet sites can't be held liable for standing down when their users are harassed or threatened.

          harasses and threatens users

          You're right, you should be blocked. Hell, you should have been blocked by a diaphragm, you impotent fuckwit waste of oxygen.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jun 2019 @ 12:32pm

          Re: Re: Re:

          Once Section 230 is nuked I'm sending each and every one of your pirate asses to pound-me-in-the-ass-with-a-chainsaw prison.

          Just bring it already, shit-for-brains. Some of us have been waiting for you to make good on your threats for years.

          reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 20 Jun 2019 @ 3:23pm

          Re: Re: Re:

          So...you support violent sodomizers... Seems you have an unhealthy anal fixation there bro.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2019 @ 10:30pm

      Re: be a real shame if we knew where you lived

      Since it’s you doing the threatening bro, I wonder why you’re mad.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2019 @ 1:50am

    If the deputies' logic held true...

    By the defence's rationale, the Central Park Five should never have been convicted, because each of the coerced confessions in that case claimed that they stood by and watched while the others raped the victim. I don't recall the court in 1990 deciding that since they couldn't prove who if any of them raped her, they couldn't prosecute any of them.

    Funny how their interpretation of how the rules should work is always different for cops...

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 20 Jun 2019 @ 4:58am

      Re: If the deputies' logic held true...

      Funny how their interpretation of how the rules should work is always different for cops...

      Wait, are you actually using the Central Park Five as an analogy to defend the cops in this case? You are really bad at analogies.

      reply to this | link to this | view in chronology ]

      • identicon
        TFG, 20 Jun 2019 @ 6:07am

        Re: Re: If the deputies' logic held true...

        No, Gary. That's not what I'm reading.

        He's using the court's decision to prosecute the Central Park Five (however correct or incorrect) as an example of why the deputies are just plain wrong in their attempt to get it tossed based on "well she couldn't say which of us did it..."

        Simplified: In CP5, confessions said "I didn't do it, but I watched while the others did" in all cases. So no one admitted to doing it. So they couldn't identify the exact one who did it, but convicted anyway.

        Deputies: "She can't identify who did what so we should all walk!" Precedent of CP5 says no.

        That's the point the AC is making.

        reply to this | link to this | view in chronology ]

      • identicon
        Peter, 20 Jun 2019 @ 6:15am

        Re: Re: If the deputies' logic held true...

        Wow. Way to deliberately misinterpret what he is saying. Good job /s

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jun 2019 @ 6:32am

        Re: Re: If the deputies' logic held true...

        I think they're using it as a way to undermine the defense's logic in the instant case...

        reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 20 Jun 2019 @ 11:55am

        Re: Re: If the deputies' logic held true...

        If his explanation required an explanation, I stand by my opinion that he wasn't making a great analogie.

        reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 20 Jun 2019 @ 5:18am

    It would be interesting to see in the lawsuit how security cameras saw this, assuming they don't accidentally lose the recordings. I believe that they have to keep copies to 90 days then archive them for another 10 years for most, if not all holding areas where prisoners are kept on their own accord. As far as the strip search, there are cameras, or should be, unless it was done in a hospital room or medical ward.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 20 Jun 2019 @ 5:25am

    out_of_the_blue and MyNameHere just can't stand it when due process is enforced.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2019 @ 6:11am

    Just as Bad

    "...standing around while rights are violated can leave you just as liable as if you'd violated those rights yourself."

    That is, almost always not at all, and it keeps you from pissing off your fellow gang members.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 20 Jun 2019 @ 6:52am

    The Good, The Bad, and how can we get over

    Is this a message to good cops who see bad cops doing things they shouldn't? If so, where is the protection for the good cop who will see repercussions from his/her fellow officers when they 'turn the bad cop' in?

    If we want to get rid of bad cops, one branch (at least) of the process is to have good cops stop the bad activity, and eventually get rid of the bad cops. To do so, the good cops need to feel that they will be supported in their actions, by management, by law, by the prosecutors, by the courts, and also in reality (something that will be difficult so long as the bad cops are around).

    Policing is a dangerous job. Not the most dangerous, but dangerous none the less. We see cops trying to create safe spaces for themselves (the right to go home for dinner, so shoot first ask questions later) which is not really in their job descriptions, so asking for safe spaces for good cops seems a bit odd. However, it also seems to be, to some extent, necessary because bad cops have no qualms about shooting innocent citizens. What qualms would they have over shooting good cops who turn them in?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2019 @ 7:31am

      Re: The Good, The Bad, and how can we get over

      The message is to stop them and turn them in and /not/ attempt willful ignorance. If they had recorded all of the details and reported them they would have some claims to protection even if they didn't take action when they should have in the moment.

      This is not that case. Instead they had memory issues and but this was the victim who brought it forward and not them.

      There is a case for more robust protection against retaliation for whistleblowers of bad cops but they never exposed anything - only started finger pointing when the conspiracy of silence failed them. They all belong in jail.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 20 Jun 2019 @ 8:13am

    I don't really know what this is about.

    This is the summary judgment stage. The question resolved here is whether the plaintiff's claims get thrown out without an actual trial without bothering to figure out more details. The only thing the defendants get to achieve in this stage is getting saved the bother of a day in court. It's not like any of them is called guilty of anything yet.

    So for this kind of accusation, a full trial, particularly when it is necessary to try sorting out who may be guilty of what, should be a no-brainer. Why is this even before an appeals court?

    reply to this | link to this | view in chronology ]


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