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.
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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.