Qualified immunity denied in Vermont health-case protest case

This case arises from a non-violent protest in Vermont, where plaintiff, who had linked her arms with her compatriots, was forcibly removed from the statehouse during a mass protest in favor of universal healthcare. While the forced removal caused plaintiff to suffer physical injuries, the trial court granted the arresting officer qualified immunity. The Court of Appeals reverses and finds the jury could find the defendant violated clearly-established law under the Fourth Amendment.

The case is Linton v. Zorn, issued on April 24. The opinion provides a minute-by-minute account of plaintiff's arrest, thanks to video footage. The opinion says the officers used "pain compliance" methods to force plaintiff's removal from the statehouse after she said she was already in pain and unable to comply with their directive to leave.

The Court of Appeals (Sack and Perez) finds that, if the jury accepts plaintiff's version of events, clearly-established case law had placed the officer on notice that he was violating the Fourth Amendment. That case was Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004), where the Court of Appeals said anti-abortion protesters who had employed passive resistance techniques to impede their arrest (going limp, etc.) could sue the police for the use of excessive force. While Amnesty America was not a qualified immunity case, it was a Fourth Amendment case, and that is enough to put the officers on notice that such actions may violate clearly-established law. Other cases hold that the use of gratuitous force may also violate the Fourth Amendment. In sum: "we conclude that Amnesty America did clearly establish that the gratuitous use of pain compliance, techniques -- such as a rear-wristlock -- on a protester who is passively resisting arrest constitutes excessive force and is therefore violative of that arrestee's Fourth Amendment rights."

When you frame the qualified immunity issue that way, it supports plaintiff's case and mandates reversal of summary judgment  The Second Circuit holds that her case is close enough to Amnesty America that the officers were on notice that that they could be violating established legal principles, as defined through Second Circuit case law. While the Court thinks the jury would find that plaintiffs was resisting arrest and would not leave the statehouse willingly, the Court also finds the jury could find the use of force was excessive in forcing her removal. Since resisting arrest does not invite the use of excessive force, only some necessary force, the jury must decide if defendant used excessive force. The Court recognizes the jury could go either way on this issue.

Judge Cabranes dissents, noting that the trial judge had changed his mind during the case on whether Amnesty America created the clearly-established right recognized by the majority. If judges cannot agree on what is a clearly-established right, then police officers cannot be expected to, either. Nor does Judge Cabranes think that Amnesty America is close enough to this case as to disentitle the officer to qualified immunity. This judge also finds, upon reviewing the video, that this "was a routine arrest and removal" without any "specter of disproportionality," as plaintiff was "adamantly refusing to leave and resisting arrest -- at one point  nearly striking [defendant] in the face." Defendant "had limited options at his disposal to safely navigate the situation." 

The dissent suggests the Second Circuit  is not entirely faithful to Supreme Court authority of qualified immunity: "there is growing daylight between our Circuit's holdings on qualified immunity and the clear teachings of the Supreme Court." The reason for this may be that qualified immunity is difficult to define and its application turns on the unique facts of each case. This immunity has bedeviled judges and lawyers for years. There is in fact strong language in the Supreme Court that this immunity is quite forgiving for defendants, and that the plaintiff needs a damned strong case to overcome the qualified immunity defense. My guess is that Judge Cabranes's language, and his observation that the Second Circuit is straying from Supreme Court authority on this issue, will invite an en banc petition in the Court of Appeals and a certiorari petition in the Supreme Court if that effort fails.