|Chris Blevins, an Alabama thug with a badge|
The Alabama deputy-thugs who broke into our Birmingham home, beat me up inside my own house, doused me with pepper spray, and hauled me for a five-month imprisonment in the Shelby County Jail -- all over 100 percent civil issues, with no whiff of criminal allegations -- originally claimed in court documents they enjoyed state immunity to commit such acts. Even more outrageous, oily U.S. District Judge Virginia Emerson Hopkins agreed with them, dismissing excessive-force and related claims on immunity grounds.
But what happened when we pointed out in a Motion to Reconsider, and subsequent documents, that Alabama law holds one claiming state immunity must prove he was acting within "the line and scope of his employment." -- meaning no determination on such an issue can be made at the early dismissal stage, without discovery?
Well, the deputy-thugs, led by Chris Blevins and Jason Valenti (who threatened to break my arms, on my own driveway) apparently did not like that notion too much, so they decided to focus on some other form of "get out of jail free card" -- namely qualified immunity.
That does not work for them either, as we will show here in a moment, but let's consider this question first: What does it mean that the cops abandoned their state-immunity issue so quickly? We can think of two answers:
(1) They want to avoid discovery at all costs because it will reveal the extent of their thuggishness, and who ordered it;
(2) They essentially are admitting that they were not acting within the "line and scope of their employment." That suggests they were on a special assignment, to assault and arrest a troublesome blogger, that had nothing to do with their official duties as agents of the state.
We addressed the Blevins' defendants state-immunity claims in our reply brief (embedded at the end of this post, along with our appellants' brief):
The Blevins defendants’ state-immunity argument fails because they have not established that they were operating within the line and scope of their employment at the time of Roger Shuler’s arrest. The trial court erred regarding the burden of proving a defendant is entitled to state immunity. Judge Virginia Emerson Hopkins put the burden on the Shulers, writing: “Plaintiffs do not dispute that the defendants (Sheriff Curry, Deputy Sheriff Blevins, and Deputy Sheriff Valenti) were acting in the course and scope of their employment when the complained-of touching allegedly occurred.” The Alabama Supreme Court, however, has adopted a burden-shifting framework for establishing a right to immunity, per Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala., 2006): “A defendant initially bears the burden of demonstrating that he was acting in a function that would entitle him to immunity.” In this case, the defendants hold the burden of proving they were acting within the line and scope of their employment, and they have not come close to doing that, making dismissal on this issue improper.
Blevins’ immunity argument especially fails because Alabama law holds that no determination can be made on such an issue at the motion to dismiss stage, without discovery. From Ex parte Haralson, 853 So. 2d 928 (Ala.,2003): “The Court cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident, [the deputy] was acting within the line and scope of his employment, that [the deputy] is entitled to immunity.” No such evidence has been produced in the instant case, so the Shelby County sheriff officials are not entitled to a finding in their favor on immunity. At this early point in the proceedings, they definitely are not protected by any form of state immunity.
Our reply brief also showed the cops do not enjoy qualified immunity either:
Blevins’ qualified immunity argument fails per Ex parte Alabama Department of Youth Services, 880 So. 2d 393 (Ala. Supreme Court. 2003, which holds: “a State agent shall not be immune from civil liability in his or her personal capacity: (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.
The Shulers’ complaint is filled with allegations that deputies violated clear constitutional rights and did so “willfully, maliciously, fraudulently, in bad faith.” The deputies clearly acted outside the scope of their employment. Code of Alabama 36-22-3(4) states: “It shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes . . . . In the instant matter, there was not even a whiff of a criminal allegation against Roger Shuler. He was targeted because of a complaint that was 100 percent civil – a bogus defamation claim brought by defendants Rob Riley and Liberty Duke, and their various lawyers. Shuler was targeted because of a temporary restraining order and preliminary injunction that have been prohibited as unlawful prior restraints under more than 200 years of First Amendment law. (See Near v. Minnesota, 283 U.S. 697, 1931.) Nothing in Sec. 36-22-3(4) suggests it is within the deputies’ line and scope of employment to break into a citizen’s home, beat him up and douse him with pepper spray, and arrest him on a totally non-criminal matter – while never stating his purpose for being on the property (a violation of state law, under Code of Alabama 15-10-2) and never showing or stating that he possessed a warrant.
These issues become particularly profound when you consider that Americans enjoy a Fourth Amendment right to be free from unreasonable searches and seizures, especially inside their homes -- as the U.S. Supreme Court has made clear:
Speaking of warrants, the U.S. Supreme Court’s finding in Payton v. New York, 455 U.S. 537 (1980) “prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The deputies’ entry into the Shulers’ home was warrantless and nonconsensual and did not involve a criminal arrest, much less a felony arrest.” Bottom line: The Shelby County deputies violated at least two rulings of the nation’s highest court – rulings that invoked the First and Fourth Amendments – and the force used (for an unlawful arrest) was illegal, per Jackson v. Sauls, 206 F. 3d 1156 (11 th Cir., 2000). (". . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim.")
On the evening of Oct. 23, 2013, I had a constitutional right to pull our car into our garage without worrying that Chris Blevins (or any other thug with a badge) would enter, and after being told to get out, beat me up and arrest me over a matter that was not a felony and was not even criminal in the slightest.
This post has focused on the facts and law related to the Blevins defendants and shows they have no defense for their thuggish actions. But perhaps the most important point involves a real-world reality: The Blevins defendants cannot withstand discovery because it will show they were not acting in the "line and scope of their employment," and it will show who ordered them to arrest me for blogging.
(To be continued)