A civil rights case over a raid on a Florida barbershop has settled for $125,000, leaving unresolved a federal appeals question about whether law enforcement officers can be liable for constitutional violations committed by other officers. The issue was important enough that the full U.S. Court of Appeals for the Eleventh Circuit heard en banc arguments in the case in February, but it promptly ordered the case to mediation.
The case stemmed from an August 2010 raid on a barbershop by Orange County, Fla., sheriff’s officers and representatives of the state Department of Business and Professional Regulation. Two days before the raid, state inspectors had walked through the barbershop and found no violations, according to a decision by a three-judge Eleventh Circuit panel.
But the inspectors came back with officers from the sheriff’s office, some of whom wore masks and bulletproof vests and had their guns drawn. The officers ordered all customers, including children getting back-to-school cuts, to exit the shop and announced the store was “closed down indefinitely.” Two barbers were handcuffed, as was the shop’s owner, and another barber was told to “sit down and shut up.”
After searching the premises, officers and inspectors found no regulatory or criminal violations, released the three men from their handcuffs, and the shop reopened.
The three barbers and shop owners sued various officers involved in the raid, including two Orange County officers, Corporal Keith Vidler and Deputy Travis Leslie, whose claim of qualified immunity was the subject of an appeal to the Eleventh Circuit. Under the doctrine of qualified immunity, government officials are not subject to suit for an alleged constitutional violation if they were not clearly put on notice that their actions would violate the law.
A district court judge denied immunity, and an Eleventh Circuit panel affirmed by a 2-1 vote. Joined by Judge Charles Wilson, Judge Robin Rosenbaum described the raid as “a scene right out of a Hollywood movie.”
Noting the Eleventh Circuit had declared unconstitutional similar raids, including one involving the same sheriff’s office, Rosenbaum said the 2010 raid bore “no resemblance to a routine inspection for barbering licenses” and involved an unjustified measure of force. She said Vidler in particular was primarily responsible for the planning and organization of the raid, and Leslie had placed the barbershop owner in handcuffs and helped execute the search of the shop.
In a partial dissent, Judge William Pryor Jr. took issue only with the majority’s conclusion that Leslie had violated the clearly established constitutional rights of the three barbers who had rented space at the shop. He said the barbers could not “piggyback” on the violation of the shop owner’s rights and that they had not proven that Leslie personally violated their constitutional rights.
After the defense filed an en banc petition, the court granted en banc review solely on the issue of Leslie’s liability as to the three barber plaintiffs. Before the en banc court, the plaintiffs argued that Leslie had personally violated their rights in participating in the “show of force” that unconstitutionally detained them at the outset. Moreover, the barbers argued, Leslie also could be liable because he was an integral participant in a raid that resulted in foreseeable constitutional violations by other officers.
The week after en banc arguments in the case, the judges referred the case to the court’s mediation center, saying, “part or all of the case likely can and probably should be settled.” The court gave a deadline for scheduling a mediation and indicated it would not decide the case until it heard from the mediator.
The case was mediated in April before Caleb Davies, the circuit mediator, according to Michael Kimberly of Mayer Brown’s Washington’s office, who argued the case en banc for the plaintiffs. Kimberly and Bruce Bogan of Hilyard Bogan & Palmer in Orlando, who argued the appeal for the defense, both said the settlement, for $125,000, resolved the case as to all of the defendants. Kimberly said the settlement included any liability for attorney fees.
Earlier this month, the parties jointly moved to dismiss the appeal in light of the successful mediation. The appeals court granted the motion on May 8, noting the three-judge panel opinion remained vacated per the decision to grant en banc review.
Bogan declined to comment on the case further.
Kimberly said Leslie’s individual liability, which was at issue in the en banc case, had a larger significance. “I think the broader question and what at least Judge Pryor would say is unresolved … is whether someone who participates in a team effort, if you will, can be held liable for constitutional violations committed by other members of the group,” said Kimberly.
“You can imagine other cases in which this becomes the linchpin question [as to] whether a case can go forward or not,” he added.
Kimberly, who represented the plaintiffs along with Mayer Brown colleagues and Orlando attorneys Shayan Modarres and Natalie Jackson, said “it’s impossible to tell” what prompted the judges to send the case to mediation. But he said he thought he could have counted on at least six judges out of the 11 judges hearing the case who were going to rule his way and guessed that other judges who didn’t want that outcome may have wanted to give the defense a chance to resolve the matter short of such a ruling. He said several federal circuits had sided with his position on officer liability for constitutional violations committed by colleagues—and there was a 1995 Eleventh Circuit decision on his side, too—and he was aware of none that had gone the other way.
Kimberly said “the growing public displeasure with overaggressive police actions” gave the plaintiffs leverage in their negotiations, calling the settlement a “great outcome for the clients.”
The case was Berry v. Leslie, No. 13-14092.
Read more: http://www.dailyreportonline.com/id=1202727223277/Barbershop-Raid-Case-Settles-After-Full-Appeals-Court-Orders-Mediation#ixzz3fE7BIwRk
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