Cops Lose Qualified Immunity After Arresting Man For A Snarky Facebook Comment

from the no-time-for-facts!-move-move-move! dept

Three cops have just had their qualified immunity stripped by an appeals court for turning an innocuous, snarky Facebook comment into an arrest. It wasn’t all the officers’ fault. A “helpful” citizen playing internet telephone forwarded the comment to someone who happened to be married to a police officer and everything went from bad to worse to unconstitutional from there.

Here’s how the whole thing started, as related by the Eighth Circuit Court of Appeals decision [PDF]:

On January 25, 2015, James Ross was a 20-year-old resident of Cape Girardeau, Missouri, and an active user of the social media website, Facebook. Facebook allows users to connect with each other by establishing “friend” relationships and posting items to a personal feed that can be viewed by the user’s friends. That evening, one of Ross’s Facebook friends posted an image (or meme) that showed a number of different firearms below the title “Why I need a gun.” Above each type of gun was an explanation of what the gun could be used for—e.g., above a shotgun: “This one for burglars & home invasions”; above a rifle with a scope: “This one for putting food on the table”; and above an assault rifle: “This one for self-defense against enemies foreign & domestic, for preservation of freedom & liberty, and to prevent government atrocities.” Ross interpreted this post as advocating against gun control measures. Ross, an advocate in favor of gun control measures, commented on the post: “Which one do I need to shoot up a kindergarten?” Ross then logged off Facebook and went to bed.

This post — along with Ross’ response — was deleted shortly thereafter by the original poster. But another user forwarded a screenshot of the post and comment to a cousin of the poster. The court notes “no annotation or additional commentary” accompanied the forwarded screenshot. The cousin receiving the screenshot was married to Officer Ryan Medlin of the Jackson Police Department.

Medlin then forwarded the screenshot to two other cops and they all decided to find Ross and arrest him when they started their next shift. This was handled as badly as possible by all three officers. Ross was approached at work by a plainclothes officer presenting himself as a customer. When he stepped out from behind the counter to speak to this person, he was arrested.

Ross attempted to explain himself but was instead read his Miranda rights and taken to the station. There, he wrote a statement explaining his snarky response to the Facebook post. This should have ended everything. Even the cops felt they had nothing to pin on Ross. Nevertheless…

According to Ross, several officers at the station told him they did not think the case was likely to go any further than the prosecuting attorney’s office. However, Ross was not allowed to leave. He was held at the Jackson Police Station until the next day, during which time he was served with a warrant for “Peace Disturbance.” The next day, he was transferred to the Cape Girardeau County Jail where he was held for another two to three days, until he bonded out by paying $1000 in cash. At some point during that period, Ross was formally charged with the class B misdemeanor of “Peace Disturbance” under Mo. Rev. Stat. § 574.010(1)(c) (2015).

This charge was dropped and Ross sued the officers. The district court granted the three officers qualified immunity, theorizing Ross’ right not to be arrested on bullshit charges following zero investigative effort prompted by a Facebook screenshot was not “clearly established.”

The Appeals Court disagrees

The officers were justified in their efforts to investigate Ross’s post. In current times and in light of current events, the statement demonstrated, at a minimum, questionable judgment. But the state statute at issue does not apply to any speech that is not a “true threat,” and—under Missouri precedent—a reasonable officer would have understood that.

[…]

[I]f any further investigation had led the officers to believe there was an immediate or imminent danger, they would have been justified in acting on that information. Here, however, no exigent circumstances prevented the officers from gathering additional information before making an arrest.

There was no reason to bypass this step just to effectuate an arrest of someone whose post didn’t fit the state law definition of a “true threat.” But that’s how these three do-gooders chose to handle it. Apparently, investigative efforts just gum up the wheels of justice.

In this case, even a “minimal further investigation” would have revealed that Ross’s post was not a true threat. See Pulaski, 306 F.3d at 623. The officers conducted no investigation into the context of the statement, Ross’s history of violence, or Ross’s political beliefs about gun ownership or gun control measures.

[…]

In sum, it is beyond debate that—had the officers engaged in minimal further investigation—the only reasonable conclusion was that Ross had not violated § 574.115.1(3).

This unconstitutional situation was further aggravated by the officers refusing to listen to anything Ross had to say until they had booked him and then deciding — after coming to the conclusion charges likely wouldn’t be pursued by the DA — to charge him anyway and keep him locked up until he made bail.

No one’s arguing law enforcement would have been wrong to engage in an investigation. What’s being stated here is exactly the opposite: that it’s wrong to arrest, book, and charge someone without engaging in any investigation at all in circumstances like these. And that was definitely clearly established long before these cops decided to get themselves sued.



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Comments on “Cops Lose Qualified Immunity After Arresting Man For A Snarky Facebook Comment”

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67 Comments
The Wanderersays:

Re:

Would you be so kind as to stop spamming that comment into (apparently) every single article which so much as mentions a subject which that poster might be expected to object to?

It doesn’t add anything to the discussion, and at best it’s an attempt to wind him up – and not even a particularly effective one, as he rarely if ever even responds to it, as far as I’ve seen.

Anonymoussays:

HA HA! Even PIRATES are stepping up to defend me!

Where will your cop-hating Cushing be, Masnick, when even your zombie accounts shun you? HA, I say! A pox on your attempts to challenge authority and copyright! You loopy loop person!

Dotcom, Voksi — soon the police will be coming for YOU, Masnick. And I’ll be laughing!

That One Guysays:

"We in the police don't make mistakes. EVER."

This unconstitutional situation was further aggravated by the officers refusing to listen to anything Ross had to say until they had booked him and then deciding — after coming to the conclusion charges likely wouldn’t be pursued by the DA — to charge him anyway and keep him locked up until he made bail.

So in short they jumped at the chance to make an arrest and look like Big Damn Heroes, and then after realizing that they had nothing rather than back down and admit to having screwed up they doubled-down and decided to punish him for their screw-up by charging him and keeping him in jail.

Medlin then forwarded the screenshot to two other cops and they all decided to find Ross and arrest him when they started their next shift.

I feel it’s also worth pointing out their timing, and what they did and more importantly didn’t do. They thought he was enough of a threat to arrest him, but not enough of a threat to get someone else to do it as soon as they were ‘alerted’. Oh no, clearly nothing else would do but to get together and do it themselves.

With their qualified immunity striped hopefully the victim can go after their personal bank-accounts. It won’t undo the damage that’s been done to him, but it would give them a reason to think about what they do before they do it in the future.

Edsays:

Re: "We in the police don't make mistakes. EVER."

One of the biggest problems is that when LEOs are held accountable (which is rare), it is the taxpayers who pay the price of the LEO’s actions. This needs to stop. Hold the LEOs personally responsible. Seize their pensions! Seize their homes! Take everything they have and maybe, just maybe, other LEOs will finally get the message that they, themselves, are NOT above the law. Until this happens, I stand by my belief that one should never, EVER, trust a LEO.

Oblatesays:

Re: "We in the police don't make mistakes. EVER."

I get the impression (i.e. not doing actual research, now that the precedent has been set) that the cops realized they screwed up and decided to (over) charge him with something so they could reduce it to a misdemeanor plea. I think a plea deal would have left him unable to proceed with a civil rights case.

PaulTsays:

Re:

“Just how does this fit into a technical paradigm?”

It’s literally in the headline of the article that you’re whining about. I mean, you can always tell when you guys can’t defend authoritarian tactics because you start complaining that articles don’t fit a version of the site that only exists in your head. But, even so, you usually make it past the headlines.

“being Techdirs ie bad teck things”

Maybe you’re just illiterate and that’s why you’re unable to read correctly.

JoeDetroitsays:

Re: Re:

I’ve rarely disagreed with TOG but…. “how low the police have fallen”? They’ve not fallen as the implies they used to be “better”. Everyone carrying around a video recorder all the time has only shined a much needed light on law enforcement. Where I grew up, police brutality was common & they would do it right in front of a crowd, with many other officers watching or even helping. They would dare you to try to do something to stop it. File a complaint would mean getting stopped & harassed by every cop in the precinct for weeks. & the complaint would go nowhere.

Just as with any profession, there is a bell shaped curve, the very good, the large portion of average, then the bad. Unfortunately this profession has very well armed individuals that have the power to ruin lives & take lives. The “bad cops” have been around for as long as there’s been law enforcement.

If anything, in my own opinion, the police are currently on a improvement swing rather than “falling”. They have to be. We are all watching. Maybe the cult of protection of their fellow officers will crack & they will start to police themselves.

Christensonsays:

Re: Re: Re: Police Improving?? Maybe....

But I have to admit, that, as with rape statistics, all the numbers I know of are nearly useless due to frequency of reporting problems and changes of atmosphere, as in #metoo. But there are some rays of hope:

Some datapoints “in the news”:
Minneapolis Chief of Police says he heard stuff he shouldn’t in the report on the ketamine to prisoners scandal.
Chicago PD signs another consent decree. (of course FOP thinks its a waste)
Miami PD arrests rookie deputy after she kicks pregnant woman in the stomach.
And in texas, two off-duty officers jump a guy leaving a bar. They are at least charged.
Philadelphia mayor terminates data sharing with ICE, which has been abusing it to terrorize immigrants.

That One Guysays:

Re: Re: Re:

‘How low the public perception has fallen’ work better?

Before it was ‘the word of a cop’ vs ‘the word of an accused criminal’ and people would always trust the former and see them as sterling examples of all that is good, with anyone who said different dismissed as clearly having nefarious/criminal motivations, vs now when it’s ‘the word of a cop’ vs ‘one or more videos showing a different thing altogether’ and everyone gets to see who’s telling the truth.

The cops, what elese

I’ve been to Federal Court, and won a out of court settlement in New Jersey.Compared to Ross’s ordeal, mine was a piece of cake.
It’s a 6 figure out of court settlement with the land shark Attorney.
No. things have not improve in a any real sense.The Bell Curve not withstanding, the Institutional AND SYSTEMIC CORRUPTION is still alive and well in Law Enforcement.
The Qualified Immunity thing is a Legal fiction with no real basis in Law. It is a creature created out of Mission Creep of The Supreme Court. It has it’s historical beginnings in the 17 and 1800’s Sovereign Immunity concept brought over from England’
The 5 or MAYBE 10% wins in Court against Cops is false bravado, the other 90% that never even get a chance to make it to trial pay the price. Not much as changed…

John Smithsays:

These are the same cops who used to say “it’s just the internet” until people started posting about them.

Same for the taxi drivers who used to laugh at their passengers who complained about the internet harming their livelihood but now protest uber and lyft.

Next up: the NFL, and the tv stations and newspapers who cov er them, wonders how its league went bankrupt when all the revenue they generated for Big Internet was used to start a new league (the IFL), revenue helpe dby all the free advertising given to them, in a classic case of feeding the beast.

Anonymoussays:

The victim (and he is a victim) can proceed with his lawsuit, but the outcome will likely be just a settlement: a simple cash payout from the taxpayers of Jackson to make him go away. The officers themselves will not suffer any consequences of note, certainly nothing that would prevent it from happening again or make up for the harassment and this guy’s time in custody.

The morons who post the kind of inane gun-lust crap that got this ball rolling will also continue failing to see the irony of their support for jackbooted law enforcement officers unconstitutionally terrorizing this victim at gunpoint over a Facebook post.

Meanwhile, if the victim stays around that area, he has to look over his shoulder for the rest of his life, because he can’t count on police protection from any other gun-lusting morons who decide to give him a hard time. I hope he uses the settlement money to move somewhere truly safe.

Anonymoussays:

Re:

The morons who post the kind of inane gun-lust crap that got this ball rolling will also continue failing to see the irony of their support for jackbooted law enforcement officers unconstitutionally terrorizing this victim at gunpoint over a Facebook post.

Which morons do you mean? The original poster of the base meme posted nothing legally actionable or even in particularly poor taste. Moreover, that person deleted the entire thread when Ross made his post, presumably because of the poor taste evidenced by Ross’s post. Nothing in the story indicates that the original poster has any particular love of the police, particularly the elaborate caption about "self-defense against enemies foreign & domestic, for preservation of freedom & liberty, and to prevent government atrocities." That reads to me more like an individualist, not a hard-liner who believes the government and the police can do no wrong.

The person who forwarded the screenshot is barely described at all, so it’s not fair to assume that person is pro-firearm. It might be fair to call that person a moron, though.

Meanwhile, if the victim stays around that area, he has to look over his shoulder for the rest of his life, because he can’t count on police protection from any other gun-lusting morons who decide to give him a hard time.

Do you think these things through before posting them?

  • Winning a suit against these officers doesn’t necessarily make the entire department permanently hostile to him. We are routinely told that bad officers are a tiny minority, and a good officer would be cheering him on in this suit. So if you believe that bad officers are as rare as the police claim, most cops will not hate him for this. Conversely, if you believe bad officers are common, they would probably give him a hard time for even filing the lawsuit, regardless of whether he won.
  • Legally, he can’t count on police protection even if he were the police’s favorite person in the county. They are not obligated to protect him, even if they know he’s in danger.
  • Practically, he can’t count on police protection even if the police like him: the police very often are not close enough to intervene in a surprise altercation. This is especially true if you want to theorize that the attack is a "gun-lusting moron" who comes up and shoots Ross with no warning.
Anonymoussays:

If we locked up every young adult who said something seriously stupid, we’d have to dedicate entire states to our overflowing jails.

There are 2.3 million people incarcerated in the USA. Were "prison" a state, it would be just above New Mexico in population (more than Wyoming + Vermont + DC). There are 14 states with fewer people.

Jeff Greensays:

Re:

I can see a genuine use and need for qualified immunity, what seems to me totally absurd is the presumptions US courts appear to base it on.
There are laws where the interpretation could conceivably be debated, in those cases a police officer should not be held personally responsible for making a reasonable interpretation of the law (that does not mean his employer should not be responsible!).
However courts should always assume that (save in dire emergency split-second cases) that police officers know the laws they are applying. If they don’t know the law what the fried-cucumber-sausages are they doing pretending to be officers of the law?
These people are PAID TO KNOW THE LAW! It should be assumed they do under almost all circumstances and if they know the law and break it that should not entitle them to nice treatment as police officers it should be a reason to treat them more harshly than a non-police officer would be treated in the same circumstances!

That One Guysays:

Re: Re: Re:

Never mind the fact that one rather necessitates the other, as without knowledge of the law a cop is left in the position of basing their actions on what they think the law is, with things like ‘qualified immunity’ and ‘good faith exceptions’ giving them both incredible wiggle room and a very real incentive to know as little about the law as possible.

Uriel-238says:

Low hanging fruit

I’d like to think this is a symptom that this indicates there’s too little crime for our precincts to justify their current size.

More likely, though, they’re terrified of real criminals doing real crimes that might be really armed, and are instead going for people who aren’t committing crimes but one can argue it looks criminal enough from a Jedi point of view. People who think they’re law-abiding aren’t armed to resist law enforcement.

It’s much the way the FBI doesn’t go after real terrorists with real bombs and real guns, but people they can trick in to behaving kinda-terroristy enough to entrap them and secure a conviction.

That Anonymous Cowardsays:

“not “clearly established.” “

Meet the replacement for “Good Faith” exceptions.
Because the arrestee was sodomized with a cattle prod, we keep the qualified immunity in place b/c there has been no case to clearly establish that sodomizing with a cattle prod is a violation of his rights.

That One Guysays:

Splitting hairs on the atomic level

Because the arrestee was sodomized with a cattle prod, we keep the qualified immunity in place b/c there has been no case to clearly establish that sodomizing with a cattle prod of this particular brand and model is a violation of his rights.

Given how generous some courts have been when it comes to qualified immunity and what police should and should not know I get the feeling that they’d absolutely split hairs fine enough that just because a ruling had been handed out before it still didn’t count because the details weren’t exactly the same(and besides, it’s completely unreasonable for police to keep on top of the various cases that might impact what they’re allowed to do).

That One Guysays:

Arrest, charge and jail first, investigate... eh, later... maybe

If that’s a quote by one of the police trying to defend what they did it’s extra funny considering what the court called them out on not doing.

In this case, even a ?minimal further investigation? would have revealed that Ross?s post was not a true threat. See Pulaski, 306 F.3d at 623. The officers conducted no investigation into the context of the statement, Ross?s history of violence, or Ross?s political beliefs about gun ownership or gun control measures.

[…]

In sum, it is beyond debate that?had the officers engaged in minimal further investigation?the only reasonable conclusion was that Ross had not violated ? 574.115.1(3).

Violatedsays:

No sympathy

I fully disagree with TD on this one when Ross was an idiot who should not have said what he did.

This is the same type of thing as telling people in an airport you have a bomb.It may be obvious it is only a bad joke but TSA will take the matter very seriously.

Again here is Ross in front of concerned parents asking what gun is best to use on young kids. In light of all the school shootings people would be concerned.

The Police have a duty to investigate where detaining Ross for questioning was correct. TD saying no investigation was done is rubbish when Ross being charged with Disturbing the Public Peace was both the correct solution and shows they did not believe Ross was a serious threat to little kiddies.

Now I don’t know why they later dropped their charge but Ross is still the social moron.

Uriel-238says:

The crime of being a social moron.

Even if being a social moron justified laws against it (which it doesn’t) there’s the matter of proportional response, something the Department of Justice gives zero fucks about.

As a reminder, the US is way over-concerned about rampage killings, and unconcerned about suicides, especially since rampage killings are essentially suicides with rage.

Ours is a society that gives zero fucks also about health and welfare of the marginalized. As such rampage killings are a mere hazard of the Randian Utopia we live in.

That One Guysays:

Re: No sympathy

The Police have a duty to investigate where detaining Ross for questioning was correct.

See my comment just a little bit above, in particular the excerpt from the court. The court pointed out that they didn’t perform any investigation, they merely arrested, charged him, and jailed him, almost certainly for CYOA reasons as they tried to find anything they could hit him with to avoid looking like chumps(at which they failed spectacularly).

If you want the police jumping on anything and everything, arresting people at the drop of a hat before doing any investigation prior to that step have fun watching those arrest numbers skyrocket and the police being too busy chasing hay to notice any needles in time.

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