A police officer was also a preacher. After a marijuana arrest, he elected to baptize the offender in an Ohio lake. He called Goforth, another officer, to attend, and that officer video recorded it. Later, the offender sued for a First and Fourth Amendment violation. Goforth gets qualified immunity for not intervening. White v. Goforth, 2023 U.S. App. LEXIS 12379 (6th Cir. May 18, 2023):*
On a winter night in 2019, Hamilton County Sheriff’s Deputy Jacob Goforth received an unusual phone call from fellow on-duty officer, Daniel Wilkey. Wilkey, whom Goforth knew to be a preacher outside of work, asked Goforth to witness a baptism at a nearby lake. Although surprised, Goforth agreed, assuming that Wilkey was baptizing someone he knew from church. He wasn’t. Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation. Wilkey proceeded to baptize Riley, while Goforth filmed on his cellphone. Critically, however, Goforth never learned of Wilkey’s improper quid pro quo. Riley sued Goforth under 42 U.S.C. § 1983, claiming that he was liable for failing to intervene in Wilkey’s violation of her First and Fourth Amendment rights. The district court denied Goforth qualified immunity as to those claims. We REVERSE.
. . .
Riley does not contend that Goforth personally violated her constitutional rights. Instead, she seeks to hold Goforth liable for failing to intervene in two alleged constitutional violations committed by Wilkey—an unlawful seizure in violation of the Fourth Amendment and a coerced baptism in violation of the First Amendment’s Establishment Clause. Successful failure-to-intervene claims are rare and largely limited to one context—the use of excessive force. In that context, “a police officer who fails to act to prevent the use of excessive force may be held liable when (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). The Supreme Court has not extended failure-to-intervene liability beyond those borders. At the time of the incident, our court had found officers liable for failing to intervene in an unlawful arrest in one published case. See Bunkley v. City of Detroit, 902 F.3d 552, 566 (6th Cir. 2018); see also Jacobs v. Village of Ottawa Hills, 5 F. App’x 390, 395 (6th Cir. 2001). And we know of no case from this or any other circuit that has held an officer liable for failing to intervene in an Establishment Clause violation. From the start, then, Riley’s claims against Goforth are on shaky ground because, for a right to be clearly established, the “legal principle must have a sufficiently clear foundation in then-existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). And the plaintiff usually must produce a case illustrating that legal principle at work in a closely analogous factual setting, so that every reasonable officer would have fair warning that his conduct was unlawful. See Arrington-Bey, 858 F.3d at 992-93. Riley’s claims fail because she cannot do so.
Fourth Amendment. Take first Riley’s claim that Goforth failed to intervene in Wilkey’s unlawful seizure of her. Goforth would be liable for failure to intervene only if he (1) “observe[d] or ha[d] reason to know that” Riley was being unlawfully seized and (2) “had a realistic opportunity to intervene to prevent the harm from occurring.” Bunkley, 902 F.3d at 565-66 (citation omitted). The critical question in this case is what Goforth had reason to know.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)