Evans v. City of Zebulon

PROPST, District Judge,

concurring in part and dissenting in part:

I respectfully dissent as to Part III. B. of the majority opinion. The majority concludes that a jury could find that “the searches were performed in an unreasonable and unconstitutional manner.” The majority further concludes, however, that Stephens is entitled to qualified immunity on the plaintiffs’ claims in that regard “because the law was not clearly established at the time that a search could not constitutionally be conducted in the manner alleged-” Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) established the law at least by general statements. The opinion stated: “Such an abuse [conducting a search in an abusive fashion] cannot be condoned. The searches must be conducted in a reasonable manner.” I submit that any reasonable and competent officer would know that the conduct as alleged here was mentally and physically abusive and unreasonable. While the decision to search may be subject to the defense of qualified immunity, it was part of a continuum of circumstances that further demonstrates the egregiously abusive and unreasonable manner of the search itself. The conduct, as alleged, was manifestly overreaching.

The following quotes from Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) are pertinent:

In assessing whether the Eighth Amendment violation here met the Harlow test, the Court of Appeals required that the facts of previous cases be “ ‘materially similar’ to Hope’s situation.” 240 F.3d at 981. This rigid gloss on the qualified immunity standard, though supported by Circuit precedent, is not consistent with our cases.

Id. at 739, 122 S.Ct. 2508 (footnote omitted).

... For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to *498say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Id.

The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity — he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous. This wanton treatment was not done of necessity, but as punishment for prior conduct. Even if there might once have been a question regarding the constitutionality of this practice, the Eleventh Circuit precedent of Gates and Ort, as well as the DOJ report condemning the practice, put a reasonable officer on notice that the use of the hitching post under the circumstances alleged by Hope was unlawful. The “fair and clear warning,” Lanier, 520 U.S. at 271, 117 S.Ct. 1219 that these cases provided was sufficient to preclude the defense of qualified immunity at the summary judgment stage.

Id. at 745-46, 122 S.Ct. 2508.

While Hope purports to rely, at least in part, on prior controlling Fifth Circuit cases, it also emphasizes the egregious nature of the alleged conduct.

Regardless of Hope, in Willingham v. Loughnan, 321 F.3d 1299, 1302 (11th Cir.2003) this court stated:

Decisions of this court before the Supreme Court’s Hope decision demonstrate that the law of the Circuit harmoniously complies with the Supreme Court’s reminder. We have repeatedly acknowledged the possibility that a general statement of the law might provide adequate notice of unlawfulness in the right circumstances. For example, before the Supreme Court’s decision in Hope, this court en banc specifically stated that “general statements of law” were capable of giving fair warning of unconstitutional official behavior:
We acknowledge that preexisting case law, tied to the precise facts, is not in every situation essential to establish clearly the law applying to the circumstances facing a public official so that a reasonable official would be put on fair and clear notice that specific conduct would be unlawful in the faced, specific circumstances. Some general statements of law are capable of giving fair and clear warning in some circumstances: the occasional “obvious clarity” cases per Lanier.
Marsh v. Butler County, Alabama, 268 F.3d 1014, 1031 n. 9 (11th Cir.2001) (internal citations omitted); see also, e.g., Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 825 n. 3 (11th Cir.1997) (en banc) (stating “general principles of [de-cisional] law can provide fair warning” if constitutional rule applies with “obvious clarity” to circumstances facing defendant); Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir.2002) (recognizing exception to requirement for factually similar cases where conduct so clearly unlawful that preexisting caselaw unnecessary); Rodriguez v. Farrell, 280 F.3d 1341, 1350 n. 18 (11th Cir.2002) (“We very occasionally encounter the exceptional case in which a defendant officer’s acts are so egregious that preexisting, fact-*499specific precedent was not necessary to give clear warning to every reasonable (by which we, in the qualified immunity context, always mean every objectively reasonable) officer that what the defendant officer was doing must be ‘unreasonable’ within the meaning of the Fourth Amendment.”); Skrtich v. Thornton, 280 F.3d 1295, 1304 n. 9 (11th Cir.2002) (“[S]ome conduct is so obviously contrary to constitutional norms that even in the absence of caselaw, the defense of qualified immunity does not apply.”); Brent v. Ashley, 247 F.3d 1294, 1303 n. 10 (11th Cir.2001) (noting general statements of law capable of giving fair warning to officials); Priester v. City of Riviera Beach, Florida, 208 F.3d 919, 926 (11th Cir.2000) (stating conduct which lies at core of Fourth Amendment prohibition makes unlawfulness readily apparent without preexisting caselaw; defense of qualified immunity not allowed); Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997) (same). It is not news to us that official conduct may be so egregious that further warning and notice beyond the general statement of law found in the Constitution or the statute or the caselaw is unnecessary; when we first decided this case, we did not believe that precedents with materially similar facts are always needed to overcome the defense of qualified immunity.

I submit, considering the totality of the circumstances and the general statements of law in Bell, that the alleged facts depict conduct so egregious as to foreclose the allowance of qualified immunity for the claims addressed in Part III. B.