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Declaring that “abuse cannot be condoned,” Atlanta’s federal appeals court has cleared the way for two black motorists to sue a white police officer who they say strip-searched them and poked their buttocks with a metal baton while peppering them with racial epithets and threats about prison rape. All 12 members of the 11th U.S. Circuit Court of Appeals held that Denis Stephens, a former police officer for the city of Zebulon, Ga., was not entitled to the legal protection from suits frequently given to law enforcement officers accused of civil rights violations. In a decision written by Chief Judge J.L. Edmondson, the 11th Circuit on Monday reiterated its position that officers get qualified immunity when their actions, while illegal, were not “so clearly established that every reasonable officer would have known” they were illegal. But Stephens’ actions in his stop of former Georgia Southern University students Peter Evans and Detree Jordan went “well beyond the ‘hazy border’ that sometimes separates lawful conduct from unlawful conduct,” wrote Edmondson. The case dealt with claims by Evans and Jordan that on a January evening in 1999 they took a wrong turn on their drive from Atlanta to Statesboro. Cutting across middle Georgia on secondary roads, the pair was stopped by Stephens for speeding in Zebulon. After searching their car, Stephens arrested Evans for refusing to take a breath alcohol test. Stephens took the pair to the Pike County jail, brought them into a back room and ordered them to remove their clothes, ostensibly to look for drugs. As he probed their buttocks with what has been described as a baton-like, “cold, black object,” Stephens said, “Ya’ll are going to get [raped]. … I am going to send y’all up the road for a long time, boy,” according to Jordan’s testimony. “Somebody is going to be [raping] you for the next 20 years,” Stephens said, according to Evans’ testimony. The two were released the next day, and Evans later pleaded guilty to reckless driving. “No objectively reasonable policeman,” Edmondson wrote, “could have believed that the degrading and forceful manner of this strip-search (especially in the light of the complete lack of circumstances that might have called for immediate action to conduct a search without the time for cool and calm thought about how to proceed) was ‘reasonable’ in the constitutional sense.” Clark E. Gulley, one of Evans and Jordan’s lawyers, said his clients were relieved by the decisions, which reversed a three-judge panel’s 2003 holding. “They’re looking forward to their day in court,” added Gulley, who is handling the case with Dovre C. Jensen Jr. The plaintiffs’ suit claims Stephens’ conduct violated their Fourth Amendment rights against unreasonable searches. Thomas M. Mitchell, who represents Stephens, said he was disappointed by the ruling and that he and law partner Richard A. Carothers were considering asking the U.S. Supreme Court to review the case. “They gave pretty short shrift” to Brosseau v. Haugen, 125 S.Ct. 596, a recent high court decision that granted qualified immunity to an officer, said Mitchell. He added that while Stephens has admitted strip-searching Evans and Jordan, he has denied verbally or physically abusing them. CLOSELY WATCHED CASE The case of Evans v. Stephens, No. 02-16424, had been closely watched for three reasons: the sensational accusations against Stephens, the case’s potential effect on strip-search policies in the 11th Circuit’s jurisdiction of Georgia, Florida and Alabama, and the case’s role in the political fight over Judge William H. Pryor Jr. Pryor is one of the seven federal appeals court nominees of President Bush whose confirmation votes have been blocked by Democratic-led filibusters in the U.S. Senate. Last year Bush placed Pryor directly on the bench during a Senate recess, but if he is not confirmed, Pryor will have to leave the court at the end of the year. Sen. Edward M. Kennedy, D-Mass., challenged the constitutionality of Bush’s move and asked the 11th Circuit to remove Pryor. After the 11th Circuit agreed to hold a full-court rehearing of Evans and Jordan’s case, their lawyers, Gulley and Jensen, joined Kennedy’s challenge of Pryor. Gulley and Jensen also said Pryor should not take part in the case because of personal bias he may hold in the case, which they argued turned on a U.S. Supreme Court decision that Pryor had lost while serving as Alabama attorney general. In that 2002 case, the 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, complaining, “Qualified immunity jurisprudence has been turned on its head.” Last October, in Evans v. Stephens, 387 F.3d 1220, the 11th Circuit voted 8-1 to reject the challenges to Pryor, calling the bias questions nearly frivolous. Gulley on Tuesday noted that Pryor voted in his clients’ favor. But Gulley justified his challenge of Pryor, arguing that his forceful defense of qualified immunity was a concern. “We as lawyers have to take every opportunity we can to get the best possible result for our clients,” said Gulley. To the surprise of Gulley and others, Monday’s decision in favor of Evans and Jordan did not mention Hope v. Pelzer. JUDGES REVERSED THEMSELVES There were other surprises. Judges R. Lanier Anderson III and Stanley F. Birch Jr. in 2003 had outvoted a visiting judge to hold that Stephens was entitled to qualified immunity. But in the decision on Monday, Anderson and Birch reversed themselves and voted in favor of Evans and Jordan. And to the relief of a lawyer for the American Civil Liberties Union, the court did not decide whether officers need to have a “reasonable suspicion” that they could find weapons or contraband before subjecting arrestees entering a jail to a strip-search. “They dodged the issue,” said Mark R. Brown, a law professor at Columbus, Ohio’s Capital University who authored the ACLU’s brief supporting Evans and Jordan. Brown said he had expected the court to remove the “reasonable suspicion” requirement cited by other courts around the country. That decision could have come had Evans and Jordan’s experience been a true test of jail procedures, but the court found that this was not the right case. “That’s exactly what we wanted them to do,” said Gulley, explaining that he wanted the court to avoid the larger question. Indeed, Judges Edward E. Carnes, Joel F. Dubina and Frank M. Hull made it clear that had the court viewed the case as a test on jail procedures, they were ready to say jailers do not need reasonable suspicion to conduct a strip-search. Citing increased security needs, Carnes wrote for the trio that “reasonable suspicion is not necessary for a strip-search of an arrestee.” Carnes added that Edmondson’s decision on behalf of the whole court noted informally that no court, from the Supreme Court on down, had imposed the reasonable suspicion requirement. Courts around the country, Carnes concluded, have been “misinterpreting” the high court’s 1979 ruling in Bell v. Wolfish, 441 U.S. 520, which has served as the basis for strip-search restrictions. Judge Rosemary Barkett disagreed with Carnes, arguing that Bell and decisions from as early as 1966 established that “the initiation of a strip-search without reasonable suspicion was unconstitutional.”

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