Tenth Circuit Pahls v. Thomas 11-2055

Decision here.

   Lots of fine points up for discussion in this decision, but I'll try to gloss over all of that and sum up the underlying pattern.  In 2007, President Bush was visiting the mayor of... a suburb of Albuquerque.  During his visit, security was a joint effort between state and federal officials (the local sheriff's department and the Secret Service, respectively).  There wasn't really any unified chain of command for the event, each agency acted more or less independently from the other with a common purpose.

   Signals got crossed, and each agency applied their own policies to the security problems in front of them.  The end result was that a group of Bush supporters was allowed to watch the presidential motorcade from private property directly across the street, while a group of anti-Bush protesters was required to stand 50 yards away behind a barricade and a wall of mounted officers.

   Yeah, obviously not good.  And unsurprisingly, the protesters sued.  They filed 1983 and Bivens actions against the cops that were running the show from each agency (a Bivens action is a lot like a 1983 action.  The big differences are that Bivens actions are directed against Federal officials while 1983 actions are directed against state officials, and Bivens comes from a court decision while 1983 is from a federal statute).  The officers all moved for dismissal of the claims against them based on qualified immunity.  The district court denied, and this appeal followed.

   As we know, in order to overcome qualified immunity, a plaintiff has to show that 1- the officer he is suing violated a constitutional right, and 2- that right was clearly established at the time.  It can be a little more nuanced than that, though.  Specifically, it isn't enough to merely show that the plaintiff's right was violated, the plaintiff has to show that the officer he is suing violated that right.

   Regarding First Amendment claims, treating people differently based on the content of their speech is serious bad juju.  But in order to show a violation of thier First Amendment rights, the plaintiff has to present evidence that they were treated differently specifically because of their message, not just that they happened to be treated differently and also happened to have a different message than someone else.  In other words, it isn't enough to show that Bush detractors were treated differently than Bush supporters; the plaintiffs have to prove that they were treated differently because the police intended to treat Bush detractors differently than Bush supporters.  And not just "the police" in general, but the specific officers being sued.

   That's an important point that this decision makes very, very clear: just because the police in general might be fucking up, or "Officer A" might be fucking up, doesn't mean that "Officer B" who is acting appropriately and in good faith loses qualified immunity.  

   But I digress.  The facts here couldn't show that any of the individual cops being sued actually intended to treat the protesters differently than the supporters.  Even though the outcome was actually disparate treatment, everyone was acting in line with their own procedures and it just didn't work out all that well.  But we aren't individually liable for what the great collective mass of law enforcement does.  Since the individual officers being sued couldn't be shown to have violated the plaintiff's rights, the decision of the lower court was reversed.  Qualified immunity was granted.