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Opponents of Judge William H. Pryor Jr.’s nomination to the 11th U.S. Circuit Court of Appeals cited so many problems with the positions he took as Alabama attorney general that a case involving similar issues was bound to come before the court. Now it has. The 11th Circuit agreed March 31 to rehear a case in which a three-judge panel last year sided with a Georgia police officer accused of conducting a humiliating and unconstitutional strip-search of two motorists. At issue will be qualified immunity — the legal protection government officials get when they violate the Constitution but judges decide the law was not clearly established enough at the time of the incident for the officials to have been forewarned about it. This time all 12 judges will weigh in, including Pryor, who as Alabama AG argued forcefully for qualified immunity in a case that dealt with similar issues. In that 2002 case, the U.S. Supreme Court reversed an 11th Circuit decision granting qualified immunity to three Alabama prison guards accused of leaving a prisoner chained to a hitching post in the sun for seven hours. In Hope v. Pelzer, 536 U.S. 730, a 6-3 high court majority held that “obvious cruelty” such as the hitching post did not need — as the 11th Circuit had ruled — to be barred specifically for officers to have fair warning that the practice was unconstitutional. Representing the guards, then-Alabama AG Pryor issued a statement quoting Justice Clarence Thomas’ dissent. It complained the majority had imposed “its own subjective views on appropriate methods of prison discipline. “Qualified immunity jurisprudence has been turned on its head,” Thomas, and Pryor, added. PRYOR’S OPPORTUNITY Now that Pryor is an 11th Circuit judge until the end of 2005, unless the Senate confirms his nomination before his recent recess appointment expires, he has an opportunity to turn qualified immunity back the way he wanted it — presumably within the confines of Hope v. Pelzer. To be sure, Pryor was — as he repeatedly said during his unsuccessful confirmation fight last year — a lawyer arguing on behalf of his client when he supported the guards in Hope v. Pelzer. So what Pryor or the other 11 members of the court will do is anyone’s guess. No clues were available from the court’s March 31 announcement, which said only that a majority of the 12 judges in active service had voted for hearing the case before the full court. Lawyers have not received a briefing schedule, an oral argument date or notice of the issues the judges want to examine. But it’s likely Hope v. Pelzer will not be far from anyone’s mind. “ Hope v. Pelzer should control,” said Dovre C. “Chris” Jensen Jr. He and Clark E. “Buddy” Gulley represent Peter Evans and Detree Jordan, the motorists at issue in the en banc case. In their request for a rehearing, Jensen and Gulley reminded the judges that the Supreme Court in Hope had admonished the 11th Circuit for “a rigid, over reliance on factual similarity” between previous cases that found law enforcement methods unconstitutional and the case at hand. MOTORISTS STRIP-SEARCHED Evans v. Zebulon started the evening of Jan. 22, 1999, when Evans and Jordan, students at Georgia Southern University, were driving from Atlanta to school in Statesboro. Having missed the exit for Interstate 75, the two were crossing through the middle of the state toward Macon when they were stopped for speeding in Zebulon. Evans and Jordan claim Zebulon officer Denis Stephens brought them into the station and proceeded to strip-search them, jab their bare buttocks with a flashlight or a baton and joke that the two would be raped in prison. “You better get used to this,” Evans testified Stephens said during the search, “this is how it is in the big house … “ Evans and Jordan sued Stephens and other city officials for violating their Fourth Amendment rights against unreasonable searches, and U.S. District Judge Jack T. Camp ruled that Stephens was not entitled to qualified immunity. On appeal to the 11th Circuit, Judges R. Lanier Anderson III and Stanley F. Birch Jr. and visiting Senior Judge Robert B. Propst of the U.S. District Court for the Northern District of Alabama agreed that the strip-search was unconstitutional because the officer did not have a reasonable suspicion the men were hiding drugs or weapons on their bodies. But Anderson and Birch, the author of the original Hope v. Pelzer ruling that sided with the prison guards, said Stephens was entitled to qualified immunity because the law at the time “was not clearly established” that such a search violated the Fourth Amendment. “We readily conclude that there are no materially similar precedents that provided Stephens fair warning of the unconstitutionality of his conduct,” Anderson wrote for the pair. Propst dissented, arguing that the searches were so “egregiously abusive” that a reasonable officer would know they were unconstitutional. Evans v. Zebulon, No. 02-16424 (11th Cir. Nov. 18, 2003). Stephens’ lawyer, Thomas M. Mitchell, could not be reached to discuss the en banc review decision. But after the panel decision was announced last year, he 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 neither poked them with an object nor made comments about prison rape. Mitchell also praised the 11th Circuit for considering that officers’ decisions often are made in seconds as they pursue or try to subdue a suspect. In writing the opinion granting Stephens qualified immunity, Anderson had suggested that one of the motorist’s actions — turning to face Stephens when told to lower his pants — could have been seen as “active resistance to the search” to justify the officer’s pushing the man against the wall and applying a chokehold.

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