By RICHARD WEATHERINGTON
Public officials are granted a vast amount of protection from civil liability when they are acting in their official capacity. So it is often very difficult for a pawnbroker who feels wronged by an officer’s action to get redress. But recently, when an officer sought immunity, things did not go very well for the officer.
In January 2011, a police officer in Georgia, whose first name was Kandy, was investigating several burglaries in the county. She was told that two high school students were involved. The students eventually confessed, stating that they sold some of the stolen items to a local pawnshop and some to the pawnbrokers at their home.
Relying on this information, Kandy informed the sheriff that she would seek a search warrant for the shop and the pawnbrokers’ home. Another officer gave Kandy a search warrant that had been used to search the same pawnshop. Using it as a template, Kandy prepared a sworn affidavit in support of a search warrant and presented this information to a local judge.
The affidavit in support of the search warrant and the search warrant, as given to the judge, included no information regarding the pawnbrokers’ home or the students’ statements concerning the sale of items at the brokers’ home. The judge who approved the original search warrant mentioned to Kandy that her investigation could lead her to search the pawnbrokers’ home and that she should talk to another officer who investigated a similar situation.
Kandy returned to the sheriff’s office with the search warrant, and she, the sheriff, and two other officers left in Kandy’s vehicle to execute the warrant. The sheriff read over the search warrant and noticed that it still contained the name of the officer who provided the warrant that was used as the template.
Kandy took the search warrant from the sheriff, went back to her office, deleted the other officer’s name, added her own name, and took the modified search warrant back to the judge for approval.
After receiving the judge’s signature on the amended search warrant, Kandy returned to her car where the other officers were waiting. The sheriff looked over the amended search warrant and noticed that the pawnbrokers’ home address was not included. He asked Kandy if she intended to also search the brokers’ home.
She said she was and that she would fix the warrant. All of the officers left the vehicle while Kandy corrected the warrant a second time.
Kandy returned to her office with another officer. That officer added the brokers’ home address to the warrant and printed the new page. Kandy removed and shredded the page from the first amended search warrant and attached the altered page with the pawnbrokers’ home address to the page with the judge’s signature.
The second amended search warrant was never presented to or approved by the judge. Although accounts of the amount of time it took Kandy to alter the search warrant differed, it took somewhere between 5 and 30 minutes. During this time, the sheriff was in his office.
Kandy then gathered the officers again and told them she had added the address to the search warrant. That group then executed the second amended search warrant, first searching the pawnshop and, then, several hours later, the pawnbrokers’ home.
The judge later learned that the officers had searched the brokers’ home. When the judge asked whether the officers had added anything to the search warrant, the sheriff replied that they had “added his address.” The judge informed them that there was no information in the affidavit or search warrant to permit the search of the residence and that everything seized pursuant to the second amended search warrant had to be returned.
The pawnbrokers then filed suit under U.S. Code Title 42 Section 1983 in the U.S. District Court for the Northern District of Georgia against the sheriff and Kandy, in their individual and official capacities, alleging that they violated the brokers’ Fourth and Fourteenth Amendment rights and the Georgia Constitution and conspired to interfere with their civil rights by illegally obtaining and executing a search warrant for the brokers’ home. The sheriff and his officer filed a motion for summary judgment on all claims, arguing that they should receive qualified immunity on the federal claims, official immunity on the state law claims, and that there was no evidence to support the conspiracy claims. The pawnbrokers in turn moved for a partial motion for summary judgment on Kandy’s liability under the federal claims.
The district court denied the motion for summary judgment by the sheriff and Kandy and granted the pawnbrokers’ motion. The sheriff and Kandy filed an appeal of the district court’s denial of qualified and official immunity to the U.S. Court of Appeals for the Eleventh Circuit and sought a review of the district court’s decision on the conspiracy claim by asserting pendent jurisdiction.
Pendent jurisdiction gives the federal court the ability to decide state law claims under certain circumstances. They also appealed the grant of partial summary judgment in which the district court found Kandy liable for violating the pawnbrokers’ Fourth Amendment rights.
Qualified immunity, said the Appeals Court, is an entitlement not to stand trial when the discretionary or elective conduct of a public official acting for the government does not violate clearly established statutory or constitutional rights.
A denial of qualified immunity on a motion for summary judgment is immediately appealable when it concerns solely the pure legal decision of (1) whether the implicated federal constitutional right was clearly established and (2) whether the alleged acts violated that law. The appeal must present a legal question concerning a clearly established federal right that can be decided apart from considering the sufficiency of the evidence.
Here, Kandy claimed that it was not clearly established constitutional law that, absent imperative circumstances, an officer must obtain a search warrant from a neutral and detached judicial officer to search a home. For that reason the Appeals Court said that it had jurisdiction to hear Kandy’s appeal.
However, in the sheriff’s case, he only contended that he did not personally participate in Kandy’s alleged unconstitutional conduct because he did not know that Kandy improperly changed the search warrant.
Because this argument required the Appeals Court to consider the sufficiency of the evidence only, and not whether the sheriff violated a clearly established federal right, the Appeals Court concluded that it did not have jurisdiction to hear the sheriff’s appeal and dismissed the interlocutory appeal seeking qualified immunity for the sheriff. An interlocutory appeal is an appeal made before the trial court’s final decision on the whole case.
An officer is not entitled to qualified immunity when, acting in a discretionary capacity, he or she violates clearly established constitutional or federal law. When Kandy executed the search warrant, said the Appeals Court, she was acting in her discretionary capacity as a law enforcement officer; therefore, the court’s analysis would focus on whether she violated clearly established law.
The court said it decides whether the alleged facts show a violation of clearly established law by “(1) defining the official’s conduct, based on the record and viewed most favorably to the non moving party, and (2) determining whether a reasonable public official could have believed that the questioned conduct was lawful under clearly established law.”
It is clearly established constitutional and federal law that a law enforcement officer may not search a home, absent imperative circumstances, unless the officer has a warrant that has been fully approved by a neutral and detached judicial officer.
The Appeals Court noted that Kandy used a forged search warrant to search the pawnbrokers’ home and that she did not attempt to justify her error by claiming an exception to the warrant requirement, nor could she.
Furthermore, her claim of ignorance of basic Fourth Amendment jurisprudence did not require the court to grant her qualified immunity. The qualified immunity analysis asks whether it would be clear to a reasonable officer that his or her conduct was unlawful in the situation that was confronted, not whether the officer subjectively believed his or her actions were lawful. Therefore, the Appeals Court affirmed the district court’s denial of qualified immunity to Kandy.
Next, the Appeals Court said it had jurisdiction to review an interlocutory appeal from the denial of official immunity under Georgia law. The court reviews the district court’s denial with a fresh look. Official immunity protects Georgia state officers and employees from liability.
However, the Georgia Constitution permits state officers and employees to be held liable for damages “if they act with actual malice or with actual intent to cause injury in the performance of their official functions.”
It was undisputed, said the court, that the sheriff and Kandy were performing their official duties when executing the search warrant. Thus, the pawnbrokers must show that the officers were acting with actual malice or intent to cause injury.
Georgia case law defines “actual malice” as “express malice,” which means a deliberate intention to do wrong, and does not include “implied malice,” which means the reckless disregard for the rights or safety of others. A deliberate intention to do wrong is “the intent to cause the harm suffered by the plaintiffs.”
Viewing the facts in the light most favorable to the pawnbrokers, the Appeals Court said it agreed with the district court that there were genuine issues of fact regarding whether Kandy acted with actual malice and whether the sheriff knew of her actions.
For example, Kandy knew that she needed to have the magistrate approve the name change, but then claimed that she did not know that she needed the magistrate’s approval to add an entirely new location to be searched.
In addition, there was contradictory testimony about whether the sheriff read the affidavit, which did not include any description of the brokers’ home, and about how much time it took Kandy to amend the warrant.
A claim under U.S. Code Section 1983 of Title 42 requires the pawnbrokers to first show that they had been “deprived of a right secured by the Constitution and the laws of the United States” and secondly, that the officers deprived them of this right acting under color of state law.
Kandy, noted the Appeals Court, was acting under the color of state law when she executed the invalid search warrant. Furthermore, by knowingly executing an invalid search warrant, she clearly deprived the brokers of their Fourth Amendment rights. Therefore, said the Appeals Court, it affirmed the district court’s grant of the pawnbrokers’ partial motion for summary judgment about Kandy’s liability on the federal claims.
In an unpublished opinion issued in July 2012, the Appeals Court affirmed the district court’s denial of qualified immunity for Kandy and official immunity for Kandy and the sheriff. It also affirmed the grant of the pawnbrokers’ partial motion for summary judgment regarding Kandy’s liability for the federal claims. Finally, it dismissed the interlocutory appeal seeking qualified immunity for the sheriff for lack of jurisdiction as well as the interlocutory appeal regarding the conspiracy claim.
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