By JOSEPH G. LARIOSA

(Journal Group Link International)

C HICAGO, Illinois (JGLi) – An arresting officer cannot be cloaked with “qualified immunity” and should instead stand trial if his arrest is based on “reasonable suspicion, mere suspicion or even strong reason to suspect” but not on “probable cause.”

This is one of the arguments raised by prominent Filipino-American lawyer Rodel E. Rodis in filing a petition for certiorari before the United States Supreme Court to vacate the ruling of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, California, early this year, vesting two San Francisco police officers who arrested him with “qualified immunity” because his arrest for alleged possession of phony $100 bill “was not clearly established as unlawful.”

In a twenty-page petition filed by his counsel, Lawrence W. Fasano, Jr., Rodis cited a previous ruling of the Supreme Court that “[r]easonable suspicion is a less-demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less-reliable than that required to show probable cause.”

In seeking to set aside the Appeals Court panel’s ruling for qualified immunity, Rodis said the panel “focused on the first half of the Hunter’s standard and completely ignored the second half.”

The panel earlier cited Hunter v. Bryant case (502 U.S. 224, 229 (1991), saying that “the qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” The panel concluded that “although the arrest was unfortunate, it cannot be said that the officers’ belief that (Rodis’) $100 bill was fake was plainly incompetent,” which was the “first half of the Hunter test.”

Rodis said the panel completely ignored the second half (“those who knowingly violate the law”) that supports his contention that “Sgt. Jeff Barry knowingly violated the law with the assistance of his subordinates.” He  cited Saucier v. Katz (522 U.S. 194, 201 (2001), which was not overruled by Pearson v. Callahan (Jan. 21, 2009) that was the basis of the panel’s ruling, where public officials have “entitlements not to stand trial or face the other burdens of litigation.”

Rodis argued that his $100 bill did not “look odd,” adding that even one of his arresting officers, James Nguyen, “thought all along that the bill looked genuine.”

By focusing solely on the “plainly incompetent” test in Hunter and ignoring the clause “those who knowingly violate the law,” the panel neglected to address a critical point of the lawsuit, Rodis argued.

Rodis is not only asserting that the conduct of the arresting officers had no legal basis, he is also “contending that the officers, led by Sgt. Barry, knowingly committed an impermissible, illegal act to humiliate him and get back at him for, among others, his “dislike of cops.”

Police Officer Had Ax to Grind?

R odis “repeatedly and unambiguously asserted in his pleadings that Sgt. Barry had an ax to grind with him because of an earlier incident in which they had a confrontational-and-heated argument.

 
“Thus, why Sgt. Barry made a radio call for a backup squad car when he and his partner could have easily accosted Petitioner (Rodis), who was not trying to flee, not causing a breach of the peace, not suspected of a violent crime, and not reported to be in possession of any weapon;

“Why he (Barry) did not want his name to appear on the police report; why he did not approach the suspect; why he did not make any investigation whatsoever, no matter how perfunctory; why he falsely told Officer (Michelle) Liddicoet that Petitioner “dislikes cops”;

“Why he caused Petitioner to be immediately handcuffed at the store, in the car and at the holding station, and denied the ability to make a phone call; why he testified in his deposition that he was certain the bill was counterfeit even though he was 10-50 feet away  – these are some of the many questions that have to be answered because they are all very much relevant to the issue of whether Sgt. Barry knowingly violated the law.

“At trial, Sgt. Barry may contest these allegations with his evidence, but in determining whether qualified immunity should apply, the Saucier mandate is for the panel to have viewed these facts in the light most favorable to Petitioner.  Because the panel did not do so, it committed reversible error.”

Judge Maxine M. Chesney of the US District Court for the Northern District of California initially rejected the claim of “qualified immunity" by the police officers.

But the officers filed in 2007 an “interlocutory appeal," which was affirmed by the Ninth Circuit.

The officers, then, filed a petition for a writ of certiorari before the US Supreme Court, which granted the officers’ petition and vacated the Ninth Circuit’s decision and remanded for further consideration in light of a new case, Pearson v. Callahan (Jan. 21, 2009). The Ninth Circuit reversed itself.

Rodis was arrested for possession of an alleged fake $100-bill that turned out to be genuine in a drugstore near his office in San Francisco on Feb. 17, 2003. (lariosa_jos@sbcglobal.net) # # #