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The strip search of two motorists and the death of an unruly suspect hogtied by police tested this week how much legal protection Atlanta’s federal appeals court will give officers accused of violating the rights of people they’ve arrested. Critics have argued that the 11th U.S. Circuit Court of Appeals is too deferential to law enforcement when granting officers qualified immunity from suits. Judges grant qualified immunity when they hold that established law was too vague for officers to know their actions were unconstitutional. That’s what happened in 2001 when the 11th Circuit gave qualified immunity to Alabama prison guards who had handcuffed a man to a hitching post. But last year in Hope v. Pelzer, the U.S. Supreme Court held that “obvious cruelty” such as the hitching post did not need to be barred specifically — as the 11th Circuit had ruled — for officers to have fair warning that the practice was unconstitutional. In a decision this year, the 11th Circuit held that the hitching-post case “did not change the pre-existing law of the Eleventh Circuit much.” That statement was illustrated on Tuesday, when an 11th Circuit panel voted 2-1 against two men stopped for speeding through Zebulon, N.C., who claim an officer strip-searched them, jabbed their bare buttocks with a flashlight or baton and joked that the two would be raped in prison. All three judges agreed with the plaintiffs, Georgia Southern University students Peter Evans and Detree Jordan, that the 1999 strip search was unconstitutional because the officer did not have a reasonable suspicion the men were hiding drugs or weapons on their bodies. But Judges R. Lanier Anderson III and Stanley F. Birch Jr. said the officer was entitled to qualified immunity from a suit because the law at the time “was not clearly established” that such a search violated the Fourth Amendment’s guarantee against unreasonable searches. Citing the hitching-post case, the dissenter, visiting Judge Robert B. Propst of the Northern District of Alabama, said the searches were so “egregiously abusive” that a reasonable officer would know they were unconstitutional in Evans v. Zebulon. HOGTIED AFTER HIGH-SPEED CHASE On Wednesday, a separate panel of Birch, Chief Judge J.L. Edmondson and visiting 9th Circuit Senior Judge Joseph Jerome Farris heard arguments in another case that tested the limits of qualified immunity. In this case, Athens, Ga., police officers defended their 1997 apprehension of Eric William Irby after a high-speed chase through three counties. According to the lower court opinion, Irby struggled with the officers, who then handcuffed his wrists and ankles and sprayed his face with pepper spray. When he stopped resisting and possibly became unconscious, officers recuffed Irby’s hands behind his back, tied those cuffs to the ankle restraints and placed him on his stomach. Although an officer found Irby’s pulse, an ambulance was called, and Irby was pronounced dead at Athens Regional Medical Center. A medical examiner listed the cause of death as “Positional Asphyxiation (‘Hog Tie Restraint’).” When Irby’s mother sued the officers for violating her son’s civil rights, Judge Duross Fitzpatrick denied the officers’ request to be granted qualified immunity. He found that the officers had “a fair and clear warning that their treatment of Irby,” specifically the use of the hogtie restraint, “was unconstitutional” in Garrett v. Unified Government of Athens-Clarke County. At the beginning of oral argument on Wednesday, Edmondson — the judge who wrote in Willingham v. Loughnan this year that the hitching-post case did not change 11th Circuit law much — appeared to address critics of the circuit’s qualified immunity decisions. As soon as the officer’s lawyer mentioned Hope v. Pelzer, Edmondson interrupted and said “we all know” that a plaintiff did not have to have a qualified immunity case directly on point to previous cases for the law to be clearly established against the practice being challenged. “I want to make sure everybody heard me say that,” Edmondson added. As the argument went on, delving into the specifics of how Irby was tied, when he was pepper sprayed and what medical experts had to say about hogtying, Edmondson hinted why he would side with officers in qualified immunity cases. “The more we have to focus on a particular circumstance, the more nervous I get about taking qualified immunity from someone,” he told Eric K. Krasle, who represents Irby’s mother, Pamela Garrett. What rule, the judge pressed Krasle, did the officers violate where the law was so clearly established that “every reasonable officer in America” would know it? Using force on an unconscious suspect with a high predictability of death, Krasle said. “That’s a good answer,” Edmondson said, but he didn’t sound convinced. “There are people who die of heart attacks when they get handcuffed,” Edmondson added, but that does not mean handcuffing suspects is unconstitutional. For his part, Birch suggested a bad outcome for Andrew H. Marshall, who represented the officers and argued that Fitzpatrick’s decision was flawed. “We can affirm the judgment of the district court,” Birch said, “even if we don’t think his rationale is appropriate.” Marshall defended his clients, arguing that their actions were justifiable in the heat of the moment: “They had to make a split-second decision” as to how to subdue Irby. Buford lawyer Thomas M. Mitchell, who won the strip-search case on behalf of former Zebulon officer Denis Stephens, echoed Marshall’s arguments. “Being a police officer is hard enough” without having to second-guess decisions in dangerous situations, Mitchell said. He said he was pleased with the ruling, arguing that his client did not have the “fair warning” that the search of Evans and Jordan was unconstitutional. Mitchell pointed out that Stephens denied the plaintiffs’ account of the facts: He said he simply asked Evans and Jordan to pull down their underwear so he could check for drugs or weapons and that he never poked them with an object nor made any comments about prison rape. Laurel E. Henderson, who represented Zebulon Police Chief Robert Loomis, said that Loomis had told Stephens not to conduct strip searches prior to the 1999 incident. Loomis was not involved in the appeal because U.S. District Judge Jack T. Camp had granted him qualified immunity — but not Stephens, who appealed to the 11th Circuit. Mitchell said that Stephens thought he was told not to conduct roadside strip searches — looking into a suspect’s pants for contraband — but he was never told not to conduct searches in the station house, where Evans’ and Jordan’s searches took place. Stephens since has left the Zebulon police department, said Mitchell. Lawyers for Evans and Jordan-Clark E. “Buddy” Gulley and Dovre C. “Chris” Jensen Jr. issued a statement saying they were disappointed that two members of the panel did not follow the Supreme Court’s admonition in Hope v. Pelzer that the 11th Circuit broaden its qualified immunity analysis “in an egregious case like this.” The lawyers said they would appeal the decision to the full 11th Circuit.

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