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Lawyers on both sides of a case examining a white police officer’s strip-search and taunting of two black motorists faced skeptical and occasionally heated questioning by judges of the 11th U.S. Circuit Court of Appeals on Tuesday. At one point, Judge Susan H. Black said the lawyer for the officer “doesn’t make any sense” when the lawyer argued that the officer’s exact words to the motorists were irrelevant. Later, Judge Stanley F. Birch Jr. grew increasingly irritated as the lawyer for the motorists sidestepped his demand for a “yes” or “no” answer as to whether any cases at the time of the 1999 incident put the officer on notice that his actions were unconstitutional. “Just tell me there are none if there are none,” Birch demanded. “I’m having a problem with you not answering the question.” The case dealt with claims by former Georgia Southern University students Peter Evans and Detree Jordan, who on a January evening in 1999 took a wrong turn on their drive from Atlanta to Statesboro. Cutting across middle Georgia on side roads, the pair was stopped for speeding in Zebulon by then-officer Denis Stephens. Stephens strip-searched them at the county jail, and — according to Evans and Jordan — jabbed their bare buttocks with a flashlight or baton and joked that the two would be raped in prison. “Ya’ll are going to get [raped],” Stephens said, according to Jordan’s testimony. “I am going to send y’all up the road for a long time, boy.” “Somebody is going to be [raping] you for the next 20 years,” Stephens said, according to Evans’ testimony. Other allegedly abusive language by Stephens included racial epithets. Stephens, who no longer works for the Zebulon police department, has denied making the comments and claimed the strip-search was merely to make sure neither Evans nor Jordan was carrying drugs or weapons. The two were released the next day, and Evans later pleaded guilty to reckless driving. IMMUNITY AT ISSUE Last year an 11th Circuit panel voted 3-0 that a jury could find that Stephens’ actions violated the Fourth Amendment’s guarantee against unreasonable searches. But the judges voted 2-1 that Stephens was nonetheless protected from Evans’ and Jordan’s civil rights suit because the law was not clearly established enough for him to know his conduct was out of bounds. Stephens’ “qualified immunity” from liability was a central issue on Tuesday before the court, which has wrestled since 2002 with a U.S. Supreme Court decision on the issue, Hope v. Pelzer, 536 U.S. 730. In Hope, the high court said the 11th Circuit should have found that “obvious cruelty” — in that case, Alabama prison guards accused of handcuffing a prisoner to a hitching post and leaving him in the hot sun for hours — did not need to be addressed specifically in previous decisions for officers to have fair warning that a practice was unconstitutional. The other issue was whether officers are justified to strip-search detainees in a jail only if the officers have “reasonable suspicion” that the detainees are carrying weapons or contraband on their bodies. When attorney Thomas M. Mitchell, representing Stephens, stood up before the court, Judge Rosemary Barkett interrupted. Ten circuit courts, she said, have found that strip-searches must be accompanied by reasonable suspicion of contraband. Mitchell replied that just because those circuits had said so “doesn’t make it correct.” “It certainly is persuasive,” shot back Barkett, who peppered Mitchell throughout his presentation with tough questions. ABUSIVE LANGUAGE ALLEGED Mitchell had particular trouble convincing some of the judges that only Stephens’ conduct — and not his allegedly abusive language — should be considered in deciding whether Stephens abused the motorists. Judges Black, Barkett, Stanley Marcus and William H. Pryor Jr. each pressed Mitchell to explain how what Stephens said to Evans and Jordan was irrelevant to his actions. “If you add together the words and the conduct,” asked Marcus, “was it not so far beyond the hazy border” between right and wrong? Mitchell responded again that what Stephens said should not be considered, but Chief Judge J.L. Edmondson cut him off. “I don’t know why you keep saying that,” said Edmondson, citing a case he said clearly undercut Mitchell’s argument. BIRCH: WHAT NOTICE DID COP HAVE While Mitchell seemed to be fighting an uphill battle with the judges on whether to disregard Stephens’ allegedly abusive language, Clark E. “Buddy” Gulley seemed to step on several legal landmines in his argument for Evans and Jordan. Gulley’s biggest problem came with Birch, who along with Judge R. Lanier Anderson III, formed the majority in last year’s panel decision that found Stephens was entitled to qualified immunity. What cases, Birch asked, clearly establish that Stephens’ conduct was unreasonable and put him on notice that he could be subject to a civil rights suit? Gulley started to cite the Hope case, which said the 11th Circuit should abandon its “rigid” requirement that civil rights plaintiffs prove that their cases were “materially similar” to previous cases. Birch interrupted that he wanted to hear what cases Gulley could cite from before the 1999 incident in Zebulon. “Is that a hard question?” Birch asked impatiently. “The Fourth Amendment prohibits unreasonable searches,” Gulley responded. “Everything about this search was unreasonable.” Birch demanded six more times that Gulley cite a court decision before Gulley cited Bell v. Wolfish, 441 U.S. 520, a 1979 case about prison strip-searches that both sides said supported their arguments. Later Gulley noted that Stephens had tried to plant a bag of marijuana in Jordan’s cell, only to be rebuked by a jailer who said Jordan couldn’t have possibly owned the bag because nothing was found in the strip-search. “So a strip-search was a good idea,” said Judge Edward E. Carnes, pointing out that the search helped Jordan prove he was innocent of Stephens’ drug accusation. Edmondson said he was concerned a ruling for the plaintiffs would mean all cases in which there was a strip-search accompanied by claims of racially discriminatory language would go to a jury. That was true, Gulley said, unless the court was going to say it was OK for officers to use a racial epithet or a vulgar term for anal rape to prisoners during a search. After more than 30 minutes in which the ugly terms were only described, Gulley uttered them specifically. Appearing undaunted by Gulley’s frank language in the courtroom, Edmondson said, “If you were talking to a jury, that would be impressive.” The case is Evans v. Stephens, No. 02-16424.

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