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Judges on the 11th U.S. Circuit Court of Appeals continue to wrestle with how much leeway the law gives police officers. A panel last week voted 2-1 that a Miami police officer was entitled to legal protection for any constitutional violation she may have committed in arresting a television cameraman during the Elian Gonzalez controversy in 2000. The case was the third this year in which the court split over whether law enforcement officers accused of violating suspects’ rights were entitled to the protection, called qualified immunity. Last year, the U.S. Supreme Court said the 11th Circuit had granted the immunity right too easily. Curiously, in all three cases, the dissenter has been a senior judge visiting from another federal court. Senior judges, who are semiretired, routinely sit on courts around the country to help the federal judiciary move its caseload. In the Miami case, decided Nov. 26, Judges Stanley Marcus and Frank M. Hull said the officer, Jennifer Pastor, had done nothing wrong by arresting cameraman Albert Durruthy. Durruthy was videotaping unrest that occurred after government agents took 6-year-old Cuban refugee Elian from his uncle to his father. Since the cameraman was in the street, Marcus and Hull said Pastor had probable cause to arrest Durruthy for violating a Florida law prohibiting pedestrians from walking in a roadway where a sidewalk is provided. But Senior Judge Norman H. Stahl of the Boston-based 1st Circuit dissented. He argued that it was “patently obvious” from a videotape that “the sole reason for Pastor’s conduct was that she and the other officers wanted Durruthy to stop filming the arrest of an NBC cameraman.” Stahl pointed out that internal guidelines at the Miami police department barred “warrentless arrest of media personnel for non-felonious acts arising out of the pursuit of the news gathering function � .” HOLDING ON TO HOPE Like other dissenters in recent qualified immunity cases at the 11th Circuit, Stahl cited the 2002 case in which the Supreme Court criticized the 11th Circuit’s view of qualified immunity, Hope v. Pelzer. In that case, the high court said the 11th Circuit was wrong to give qualified immunity to Alabama prison guards who had handcuffed a prisoner to a hitching post for several hours as punishment for disruptive behavior. By a 6-3 vote, the justices held in Hope that “obvious cruelty” such as the hitching post did not need — as the 11th Circuit had ruled — to be identified specifically by earlier decisions for officers to have fair warning that the practice was unconstitutional. Stahl concluded in the Miami case that the 11th Circuit had set the bar too high for plaintiffs’ suing law enforcement officers. As a result, he predicted, “unconstitutional government action is more likely to go unchallenged and unchanged.” Marcus, writing for Hull and himself, dismissed Stahl’s comparison to Hope. He pointed out that Durruthy was arrested for being in the middle of a busy intersection, in violation of the law, as police “tried to keep the streets clear on a chaotic and riotous day.” That situation was not remotely like “the egregious conduct proscribed in Hope,” Marcus added in Durruthy v. Pastor. Marc A. Wites, who represented Durruthy, wrote in an e-mail that his client “is planning to move for rehearing en banc and/or to seek relief in the US Supreme Court.” Wites had no further comment. Ronald J. Cohen, Pastor’s lawyer, could not be reached to discuss the case. FINDING EQUILIBRIUM ON IMMUNITY Visiting judges certainly don’t always dissent from their hosts when sitting on the 11th Circuit — on qualified immunity cases or otherwise. Nor does the 11th Circuit grant qualified immunity in every case that comes before it. But Atlanta lawyer Craig T. Jones, who represented the winning side in Hope, said, “The 11th Circuit is the most conservative court in the country” on qualified immunity issues. Jones suggested that the 11th Circuit “hasn’t reached an equilibrium yet” in the pendulum shifting caused by the Hope decision. Buford lawyer Thomas M. Mitchell, who last month won qualified immunity for a police officer sued for strip-searching two men pulled over for speeding, said the 11th Circuit is “consistent with a high degree of protection for police officers.” Mitchell praised the court for being flexible in considering that officers’ decisions often are made in seconds as they pursue or try to subdue a suspect. Indeed, the panel deciding a case in which a sheriff’s deputy was sued for shooting a fleeing suspect in a high-speed car chase tried to sympathize with an officer’s predicament. “We are loath to second-guess the decisions made by police officers in the field,” wrote 11th Circuit Senior Judge Emmett Ripley Cox in August for Judge Edward E. Carnes and visiting 9th Circuit Senior Judge John T. Noonan Jr. “But we simply cannot conclude as a matter of law that a reasonable jury could not find that [the deputy's] actions were unreasonable” under the Supreme Court’s standards for using deadly force. Vaughan v. Cox. The panel’s decision against the deputy was a shocking reversal, however: In 2001 and this past January, Cox and Carnes had decided — over the dissents of Noonan — that the deputy was entitled to immunity. It is unclear what motivated Cox and Carnes to switch to the position of Noonan — who cited Hope in his January dissent. In the strip-search case decided last month, visiting Senior Judge Robert B. Propst of the U.S. District Court for the Northern District of Alabama also relied on Hope to make his point. Propst argued that Judges R. Lanier Anderson III and Stanley F. Birch Jr. were wrong to rule against two men stopped for speeding through Zebulon, Ga., 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. The officer denied doing anything beyond simply asking the men to pull down their underpants so he could check for drugs or weapons, Mitchell said. All three judges said the search, as alleged, was unconstitutionally unreasonable, but only Propst voted to deny the officer qualified immunity. Anderson and Birch said the officer was entitled to qualified immunity because the law at the time “was not clearly established” that such a search violated the Fourth Amendment’s guarantee against unreasonable searches. Propst said the searches were so “egregiously abusive” that a reasonable officer would know they were unconstitutional. Evans v. Zebulon.

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