The Ruling Against A Cop Accused Of A Horrific Body Cavity Search Is A Rare Victory For Police Accountability

By MARK JOSEPH STERN

Qualified immu­ni­ty is a plague on the crim­i­nal jus­tice sys­tem, a made-up rule that allows count­less gov­ern­ment offi­cials to vio­late Americans’ con­sti­tu­tion­al rights with impuni­ty. On Tuesday, how­ev­er, the 6th U.S. Circuit Court of Appeals issued a rare deci­sion deny­ing qual­i­fied immu­ni­ty to a law enforce­ment offi­cer who alleged­ly engaged in hor­rif­ic mis­con­duct that, in oth­er con­texts, might con­sti­tute sex­u­al assault. The case high­lights just how appalling an official’s malfea­sance must be for his vic­tim to receive a sem­blance of jus­tice in court. The ghast­ly chain of events in Campbell v. Mackwere set off when Kevin Campbell, a black man, drove past Daniel Mack, a white police offi­cer in Allen Park, Michigan. Campbell was dri­ving his wife’s new mini­van, which had a tem­po­rary license plate clear­ly dis­played on the back win­dow in com­pli­ance with the law. But Mack pulled him over, osten­si­bly for dri­ving with­out a license plate. Campbell revealed that he did not have a driver’s license, but hand­ed Mack his state ID card, as well as the new vehicle’s paper­work. Mack ordered him out of the car.

As soon as Campbell exit­ed the car, Mack hand­cuffed and frisked him, then put him in the back of his cruis­er. Campbell com­plained that the hand­cuffs hurt his wrists; in response, the offi­cer alleged­ly tight­ened them and said, “that’s the loos­est they’re going to get.” He also accused Campbell of steal­ing the mini­van. Mack put his police dog direct­ly into Campbell’s car, then searched it him­self — all with­out any appar­ent prob­a­ble cause.
The offi­cer then took Campbell to the police sta­tion, where he uncuffed him. Campbell not­ed that the hand­cuffs were too tight and showed Mack the bruis­es they had left. Mack told him that “hand­cuffs leave marks on every­body.” (Campbell lat­er received treat­ment for his dam­aged wrists at a hos­pi­tal.) Mack then said he believed Campbell was hid­ing drugs and need­ed to per­form a strip search, though he did not attempt to obtain a war­rant. The offi­cer put Campbell in a cage and told him to take off his pants.

Campbell object­ed, but Mack alleged­ly direct­ed him to “get naked” and “drop his draws,” telling him: “You’re in a hold­ing facil­i­ty. You’re get­ting naked.” Asserting that he detect­ed “a nar­cot­ic odor,” Mack told Campbell: “We’re get­ting down to the nit­ty-grit­ty.” Campbell said that was “not pos­si­ble” because he did not do drugs, but Mack insist­ed that he was hid­ing nar­cotics, declar­ing: “Your pants are unzipped. I’m gonna find it one way or anoth­er, all right. So we can do this the easy way or the hard way. What do you got in your draw­ers?” (Campbell denies that his pants were unzipped.)
Mack then pulled down Campbell’s pants and under­wear, bent down, and exam­ined Campbell’s gen­i­tals. Campbell repeat­ed­ly asked the offi­cer to stop and told him, “Nah, you can’t do that, man,” but Mack respond­ed, “Yes, I can, yes, I can,” and esca­lat­ed the search. Mack alleged­ly felt under­neath Campbell’s gen­i­tals, telling anoth­er offi­cer he had drugs “tucked under­neath his balls” or “tucked in his fuck­ing ass crack.” Campbell claims that Mack also “grabbed” and “pulled” his tes­ti­cles and “stuck his fin­ger inside of my anus.” Eventually, the offi­cer gave up and told Campbell: “You can keep it,” refer­ring to these puta­tive drugs. No nar­cotics were ever found.

Mack con­tests Campbell’s ver­sion of the events, con­tend­ing that, among oth­er things, he nev­er insert­ed his fin­ger into Campbell’s anus. A cam­era cap­tured the inci­dent, but the video qual­i­ty is poor, and the offi­cers posi­tioned them­selves in a way that blocked a clear image of the search. The video does, how­ev­er, show Campbell say­ing, “Why are you putting your fin­ger in my [anus]?” and the offi­cer respond­ing at one point, “Because you have it tucked in your [body].”At this stage, though, the fac­tu­al dis­pute doesn’t much mat­ter. Campbell sim­ply wants the case to go to tri­al so he can prove his claims to a jury. He is suing Mack for vio­lat­ing his First and Fourth Amendment rights, accus­ing him of retal­i­at­ing against his pro­tect­ed speech and per­form­ing an unrea­son­able search and seizure. But Mack raised qual­i­fied immu­ni­ty, argu­ing that his actions, as alleged by Campbell, did not vio­late any “clear­ly estab­lished” con­sti­tu­tion­al right. If Mack had received qual­i­fied immu­ni­ty, Campbell’s case would nev­er go to tri­al; it would be dis­missed, because Mack would be shield­ed from lia­bil­i­ty.

But in an opin­ion by Judge Eric Clay, the 6th Circuit refused to grant Mack qual­i­fied immu­ni­ty. It is clear­ly estab­lished, Clay wrote, that an offi­cer “needs either prob­a­ble cause or rea­son­able sus­pi­cion to con­duct a traf­fic stop.” Mack had nei­ther. It is also clear­ly estab­lished that an offi­cer may not retal­i­ate when a sus­pect con­tests “his or her alleged­ly unlaw­ful treat­ment.” The First Amendment pro­tects a suspect’s right to com­plain. Yet Mack did just that, alleged­ly tight­en­ing Campbell’s hand­cuffs and per­form­ing the body cav­i­ty search in an increas­ing­ly “aggres­sive, intim­i­dat­ing, and hos­tile man­ner” because Campbell protest­ed. Under well-estab­lished 6th Circuit prece­dent, Mack’s actions, as recount­ed by Campbell, were obvi­ous­ly unlaw­ful, so Mack must fight them at tri­al, and can­not hide behind qual­i­fied immu­ni­ty.

This out­come is encour­ag­ing, though it’s unfor­tu­nate that the court issued the deci­sion “unpub­lished,” mean­ing it will not serve as prece­dent in future cas­es. (Appeals courts can decide to keep their rul­ings unpub­lished, a con­tro­ver­sial but com­mon prac­tice.) The rul­ing is also a reminder of the vagaries of qual­i­fied immu­ni­ty: In the hands of a dif­fer­ent court, it eas­i­ly could’ve gone the oth­er way. Judges have grant­ed qual­i­fied immu­ni­ty to one offi­cer who shot an inno­cent man in his own home, anoth­er who let a police dog maul a home­less per­son, and even a social work­er who strip-searched and pho­tographed a 4‑year-old girl with­out con­sent or a war­rant. The doc­trine has been invoked over and over again to insu­late police from con­se­quences when they shoot civil­ians. Justice Sonia Sotomayor has decried the Supreme Court’s “sanc­tion­ing” of this “ ‘shoot first, think lat­er’ approach to polic­ing.”

In recent years, a cross-ide­o­log­i­cal coali­tion of advo­cates — includ­ing the American Civil Liberties Union, the Cato Institute, Alliance Defending Freedom, Americans for Prosperity, the Institute for Justice, and Public Justice — have urged the Supreme Court to scale back or end qual­i­fied immu­ni­ty. They argue that qual­i­fied immu­ni­ty is itself unlaw­ful, or at least extend­ed far beyond what the law per­mits. It is, after all, a judge-made rule, unteth­ered from any statute or con­sti­tu­tion­al com­mand.
The Supreme Court has not yet agreed to recon­sid­er its jurispru­dence in this area. And until it does, only cas­es as egre­gious as Campbell’s — where the officer’s alleged actions would, in any oth­er con­text, con­sti­tute crim­i­nal sex­u­al assaultmight defeat qual­i­fied immu­ni­ty. Courts, mean­while, can almost always pre­tend that an officer’s abus­es don’t run afoul of “clear­ly estab­lished” law; con­sid­er a recent deci­sion from the 9th U.S. Circuit Court of Appeals hold­ing that the police did not vio­late clear­ly estab­lished law when they stole mon­ey from sus­pects. Until SCOTUS shrinks the scope of qual­i­fied immu­ni­ty, rul­ings like Campbell v. Mack will remain the excep­tion to the rule. 

This sto­ry first appeared @
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