Officers denied immunity 

May - 06

Officers denied immunity 

Two Roanoke police officers can’t hide behind their badges if they violated the constitutional rights of a Roanoke lawyer by jailing him after he repeatedly told them to leave his property, the 4th Circuit Court of Appeals has affirmed.

A three-judge panel asserted in an 18-page opinion that “police do not have a right to arrest citizens for refusing to consent to an illegal search” and that the officers were not protected under “qualified immunity.” That defense protects public officials from civil damages if their behavior doesn’t clearly break the law or violate an individual’s constitutional rights.

The decision comes at a time when federal courts across the nation are grappling with the balance between protecting a citizen’s Fourth Amendment right to protection from unreasonable searches and seizures and law enforcement efforts to apprehend criminals.

Officers M.L Pendleton and M.G. Vinyard were sued by Jonathan Rogers in 1999 for unspecified damages as a result of the incident. The case made it to the 4th Circuit in Richmond, Va., after the officers appealed a ruling by U.S. District Court Judge Irene M. Keeley. When the officers tried to get dismissed from the case, Keeley ruled that the officers were not protected by qualified immunity. The panel upheld Keeley’s decision, and the civil case is still slated to be tried in federal court.

“Crediting Rogers’ version of disputed factual issues, as we must, it appears that this may not be a case in which police officers acting in good faith made a ‘bad guess’ in a confusing area of the law, but instead, may be a case in which police officers, angered by a homeowner’s correct statement of his legal rights and refusal to permit a search which was clearly illegal absent his consent, arrested a homeowner in a fit of pique,” wrote U.S. Circuit Court Judge Karen J. Williams in the opinion published Friday.

Rogers, who was hosting a party for his college-bound daughter in August 1997 when the incident occur red, hailed the decision as a victory for privacy from what he called the most conservative circuit in the United States.

“They drew a very strong line on home-ownership, and the right to be free of governmental control in the guise of police officers,” said Rogers, who is represented in the case by Randy Cargill and Jimmy Turk. He pointed out that the judges could have merely affirmed Keeley’s ruling instead of issuing an opinion.

Tod Burke, an associate professor of criminal justice at Radford University and a former police officer, said qualified immunity exists “so police officers shouldn’t always have to be checking to see whether there’s a judge looking over their shoulder.”

But he added that the judges clearly believed the officers strayed outside constitutional boundaries in ruling that the qualified immunity defense did not apply in this case.

“We can play within those rights, but not beyond,” Burke said.

Jim Guynn, who is representing the officers, could not be reached for comment Saturday.

The officers have argued that only “reasonable suspicion,” and not “probable cause,” was necessary to search Rogers’ property. The officers testified that suspicion existed because of the noise and because they thought there might be underage drinking, the opinion said.

Pendleton testified that Rogers was “irreverent and intoxicated,” according to the opinion. Rogers asked Pendleton whether he had a search warrant or probable cause to search his property and Pendleton replied that he did not need a warrant because Rogers was drinking in public.

Rogers has said there was no underage drinking and that he was not drunk.

After Rogers repeatedly asked the officers to leave, he was arrested for public drunkenness and obstruction of justice. He was handcuffed and taken to Roanoke City Jail, where he remained for two hours.

A week later, acting Roanoke City Police Chief Jake Viar wrote a letter to Rogers, stating that the officers’ actions would be “nightmares in the memories of retiring police officials and causation factors of heart attacks” for current members of the force. Charges against Rogers were dropped.

Police spokeswoman Shelly Alley, when asked to comment on the opinion, said that the incident had occurred before both she and Chief Joe Gaskins were working for the Police Department. She did confirm that both Pendleton and Vinyard were still members of the force.

The men were not disciplined in connection with the case, as far as Rogers knows. Pendleton has been accused of using excessive force on at least one other occasion.

The case will remain in federal court in Roanoke.