For at least the second time this week, an American police officer has been denied qualified immunity after a civilian alleged that their First and Fourth Amendment rights were violated.
Kevin Campbell, an African American man, alleged that Officer Daniel Mack violated his constitutional rights on June 7, 2016 by baselessly pulling him over and subjecting him to a shockingly invasive strip search and cavity search — only to find no drugs whatsoever. Campbell previously brought his claims before the U.S. District Court for the Eastern District of Michigan and the court determined that Mack was not entitled to qualified immunity.
As Law&Crime noted before, qualified immunity is a legal doctrine that shields government officials from civil liability for actions performed within their official capacity — unless those actions violate “clearly established” constitutional rights.
Mack’s attempted appeal of the district court’s decision was smacked down on Tuesday, with the appellate court affirming the lower court’s decision. The facts of the case, as they appear in the filing, are shocking.
The story goes that Campbell was driving his wife’s recently purchased minivan at the time he was pulled over in Allen Park, Mich. The vehicle had temporary plates on it, which the officer claimed was not visible. This was the supposed reason for the stop. When Campbell failed to produce a driver’s license, he was arrested for driving with a suspended license.
While Campbell was sitting in Mack’s cruiser, Mack conducted a warrantless search (police dog and all) of the minivan; he later subjected Campbell to a cavity search that is best described by the filing itself:
Mack, still standing behind Campbell, then pulled down Campbell’s pants and underwear again, bent down, and visually examined Campbell’s buttocks. Mack then stated, “You’ve got it f***ing tucked in your f***ing ass crack, that’s where you got it.” Mack pulled up Campbell’s pants, searched Campbell’s pant legs and ankle area, and, finding no contraband, stood up and told the second officer, “He’s got it tucked in his f***ing ass crack.” Campbell replied, “I ain’t got nothing tucked.”
A third officer came to the door of the booking area. Mack announced to the officer, “He’s got it tucked underneath his balls.” Campbell complained that Mack had “just got done looking under my balls” and did not uncover anything. Mack repeated that Campbell still had drugs “tucked underneath” his “balls” or his “ass.”
But wait — there’s more:
Mack believed that Campbell was hiding contraband and decided to perform a strip search. Mack did not obtain a warrant prior to strip-searching Campbell. Mack ordered Campbell to enter a cage in the booking area and remove his pants. Campbell entered the cage but objected to removing his pants. Mack ordered Campbell to “get naked” and “drop” his “drawers.” Campbell continued to protest and incredulously asked, “You want me to get naked?” Mack replied, “Yeah, you’re getting naked. You’re in holding facility. You’re getting naked.”
According to Campbell, Mack then inserted his finger into Campbell’s anus. Mack then pulled up Campbell’s pants, slapped Campbell twice on the chest, and told him “you can keep it,” ostensibly referring the drugs that Campbell had purportedly hidden inside his anus.
No drugs were found.
The U.S. Court of Appeals for the Sixth Circuit agreed on Tuesday that Mack was not entitled to qualified immunity. The court said, “[a]ssuming the veracity of Campbell’s facts, as the Court must at this stage, Mack lacked any objective basis for believing that Campbell had committed a civil offense.”
“Therefore, Mack did not have probable cause or reasonable suspicion to stop Campbell’s automobile,” the filing said. “Mack is not entitled to qualified immunity on Campbell’s Fourth Amendment claims. When the traffic stop occurred, it was clearly-established that an officer needs either probable cause or reasonable suspicion to conduct a traffic stop.”
Mack was also denied immunity from the claim of a First Amendment violation because of his alleged actions during the search. When Campbell questioned the methods of the search, Mack allegedly tightened the handcuffs. Government officials may not retaliate against protected speech.
The court said that because a “reasonable jury” could determined that Mack retaliated against Campbell’s protected speech, Mack would not be afforded immunity.
“Because a reasonable jury could find that Mack tightened Campbell’s handcuffs to the point of injury, subjected him to strip and/or body cavity searches, and conducted these searches in an overly aggressive manner in retaliation for Campbell’s protected conduct, and because Campbell’s First Amendment rights were clearly established, Mack is not entitled to qualified immunity on Campbell’s First Amendment retaliation claim,” the court said.
You can read the whole filing below.
[Image via WXYZ screengrab
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