Does the 11th Circuit have a much lower Bar?

Democracy Dies when Eyes of the Public are Closed
Onree Norris was 78 years old when a swarm of police officers raided his Georgia home without warning in 2018, bombarding the place with two flash-bang grenades, careening through the door with a battering ram and placing Norris under arrest.

 

He was later released when cops with the Henry County Sheriff's Office Special Response Team and the Flint Circuit Drug Task Force realized their suspect actually lived next door.

"Something went off like a bomb in my house," Norris told local news in September of 2020.

The botched raid set off a legal odyssey that reached its denouement last month when a federal court confirmed that the cop at the center of the operation was entitled to qualified immunity. Norris will thus be barred from suing for the violation of his civil rights.

The legal doctrine of qualified immunity prohibits people from bringing civil suits against government officials if there is no court precedent explicitly deeming the misconduct in question unconstitutional. Qualified immunity has protected a cop who killed a man who had been sleeping in his car, four cops who assaulted a man they'd pulled over for broken tail lights and two cops who allegedly stole $225,000 while executing a search warrant, all because of the exact ways in which those situations played out hadn't been addressed in prior court rulings.

When his case was first heard by the U.S. Court for the Northern District of Georgia, Atlanta Division, Norris conceded that such a precedent doesn't exist for the bulk of the officers involved. But he pointed to two cases—Maryland v. Garrison and Hartsfield v. Lemacks—that should have informed Captain David Cody, who spearheaded the raid, that it was unconstitutional to barge into someone's home without a warrant, destroy their property and arrest an innocent person.

The lower court awarded Cody qualified immunity. Norris appealed.

"We must determine whether Capt. Cody's actions during the raid—not commanding his team to stop heading towards Norris's home and then following his team into Norris's home—violated the law clearly established" in prior court precedents, wrote a unanimous panel for the U.S. Court of Appeals for the 11th Circuit. They concluded that Cody's failures did not violate clearly established law.

The Court's ruling is a crash course in the lopsided logic behind qualified immunity, which requires that the facts of any given case be reflected almost identically in a previous case should a victim of government abuse want the privilege of bringing their suit before a jury.

Norris furnished two precedents for consideration, both of which pertained to police executing searches on the wrong residences. But in the 11th Circuit's reading, the facts strayed too far.

"Simply put, this case was not a situation envisioned by Garrison where Capt. Cody failed to engage 'in reasonable efforts to avoid error' or a situation like in Hartsfield where the officer did 'nothing' to avoid the mistake," wrote the panel. "Rather, Capt. Cody and the other officers involved carefully planned a high-risk raid at what was thought to be a dangerous target house but made a mistake when faced with an unexpected circumstance—the residence not matching the description given."

That "carefully planned" raid went awry when officers went to the correct address—which housed a suspected drug dealer, courtesy of a confidential informant—and it looked a bit different than expected. "When they arrived at the residence, it did not match the description from the Task Force briefing because the house had been abandoned and looked like a 'storage out-building rather than a habitable residence, as the briefing explained," the panel noted. "This mismatch led members of the Response Team to conclude that the house next door, Norris's house, must be the actual target residence."

Norris's house, which was yellow, also did not match the target residence, which was described in briefing materials as "off-white." That didn't deter the officers. Agent Jermaine Hicks of the Flint Circuit Drug Task Force testified that while he told officers the search warrant had detailed information on the house, "he did not recall anyone reviewing [it] at the briefing nor any Response Team agent reviewing the warrant before the briefing." For his part, Cody said he checked for a signature, verified it permitted no-knock entry and confirmed the address, but declined to read it "all the way through."

Thanks to Cody's apparently unique style of carelessness, Norris will be unable to bring his case before a jury to ask for damages. Surmounting qualified immunity wouldn't have given him a settlement; it would merely give him the right to argue his case in civil court.

Perhaps most outrageously, Norris provided the court with another precedent—Treat v. Lowe—that ruled similar conduct unconstitutional. But the 11th Circuit denied that the 2016 case had any bearing because the Court opted to leave it "unpublished." In other words, Cody could not have known his behavior was wrong because the decision was not contained in a physical book of case law—even though it is publicly available online. Somewhat maddeningly, the 11th Circuit also declined to publish their opinion in Norris.

Qualified immunity has been a lightning rod in the political sphere over the last year as Congress continues to hash out how it should be reformed, if at all. The 11th Circuit provides a good case that it should be. In describing the nature of their approach to qualified immunity, the judges note that it only protects "all but the plainly incompetent or those who knowingly violate the law." They drove home their point by citing Corbitt v. Vickers, a decision that gave qualified immunity to a cop who shot a 10-year-old boy while aiming at the family's non-threatening dog.

One might argue that is plainly incompetent. The 11th Circuit apparently has a much lower bar.


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