Friday, March 5, 2021

Bad Terry stop overcomes qualified immunity

When the plaintiff in this case exited the Palisades Mall with his family in November 2015, police officers frisked him, touching his body, including his private parts. This all happened in the parking lot in front of his family. The officers found nothing on this guy. They said they frisked him because one of the officers "believed there might be a judicially issued warrant for plaintiff's arrest." There was no warrant. Plaintiff has a case, the Court of Appeals says, because the officers violated clearly-established law.

The case is Vasquez v. Maloney, issued on February 4. In 1968, the Supreme Court said the police cannot frisk someone on the street without a warrant unless they have reasonable suspicion to believe that criminal  activity is afoot. That case was Terry v. Ohio, so we call them "Terry stops." The reasonable suspicion standard is lenient and is lower than the probable cause standard. Still, officers cannot speculate or guess that someone needs a Terry stop. Instead, the police need specific and articulable facts to show that someone was involved in a crime or wanted in connection with a crime.

The Terry precedent is clearly established law for qualified immunity purposes. That means the officers cannot invoke immunity on the basis that the law was too fuzzy in 2015 for them to know they were violating the Fourth Amendment in frisking the plaintiff on the basis of speculation that there might be criminal activity with this guy.

Qualified immunity cannot attach unless the law was clearly established. We look to Supreme Court and Second Circuit cases to determine what is clearly established. Most immunity cases rely on Second Circuit cases in proving the law was clearly established. But the Second Circuit (Nardini, Park and Cabranes) relies solely on Terry in finding the officers violated clearly established law. We don't see that very often, but the Court of Appeals makes it clear that, based on plaintiff's version of events (this case is at the summary judgment stage), this was an obvious Terry v. Ohio violation.

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