An Alabama lawyer has been on a litigation roller coaster over how far police officers can stray from the Constitution before they are subject to lawsuits, a key legal issue emerging from recent demonstrations against systemic racism.

Richard Riley lost last month before the U.S. Court of Appeals for the Eleventh Circuit, which said qualified immunity was appropriate for officers who told a handcuffed man they would "f*** [him] over" if he didn't participate in a dangerous scheme to catch a suspect.

Then on Monday, Riley won a separate case before the Eleventh Circuit, which decided Birmingham, Alabama, officers accused of lying about why they shot a suspect weren't entitled to qualified immunity in the freed suspect's lawsuit.

Riley, a lawyer with the Birmingham personal injury firm Marsh Rickard Bryan, said the standards for qualified immunity are very difficult to apply fairly, ending with "a lot of inconsistent results."

In 20 years of practice, Riley said he's been on both sides of qualified immunity cases, and when he reads the appellate decisions, he usually thinks, "That was probably the right result."

When people claim unconstitutional mistreatment by the police, officers get immunity from lawsuits unless the law was so clearly established that, according to several cases, "every objectively reasonable official standing in the defendant's place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.'"

"It's a bad way of doing it," Riley said.

'Over' or 'Up'?

He launched an impassioned effort to get the full Eleventh Circuit to rehear the case he lost. Riley opened his petition by noting "the country is embroiled in a great public debate on whether Black Americans suffer disproportionate scrutiny, harm, and abuse by police officers, or in short, whether Black Lives Matter."

Police stopped Riley's client, Trinell King, a Black man driving a car without license plates. The situation grew dangerous when a friend he was driving fled the scene carrying a gun. King was handcuffed, placed in a police car and tried to help the officers find the passenger.

After searching for at least an hour, the officers came back to King, who was still restrained in the police car. The officers told King: "You don't want to help us out, we're going to throw—we're going to hit you with this charge, you gonna start f**king us over, we'll f**k over you. I don't know where you get your car back. You have to cooperate and help us catch him," according to the summary in the opinion.

King pretended he had been released from custody, agreed to contact the passenger and drove back to pick him up. Police tried to apprehend the passenger, resulting in a shootout in which King was shot five times. He sued the police, claiming he was forced into involuntary servitude, barred by the Thirteenth Amendment and stripped of due process rights protected by the Fourteenth Amendment.

Writing for a unanimous panel, Senior District Judge Roger Vinson, visiting from the U.S. District Court for the Northern District of Florida, parsed the officers' language to conclude they hadn't threatened King physically. Senior Judge Ed Carnes joined the decision, and Circuit Judge Robin Rosenbaum wrote a paragraph to say she concurred in the judgment.

"If the officers had told King 'help us, or we're going to f**k you up' (or something like that) then King would have a more compelling argument," Vinson wrote. "But that isn't what he said they said. …  Thus, when the 'if you f**k over us, we'll f**k over you' language is viewed in the context that King himself provides, it is clear the officers were warning him that if he did something that they perceived as bad to them first (i.e., not participate in the ruse), then they would respond in kind and do something bad to him, specifically by charging him and towing his girlfriend's car for an indefinite duration."

In his petition for rehearing, Riley, joined by Rip Andrews from his firm and Alan Lasseter form the Lasseter Law Firm, slammed the panel's interpretation of the police remarks.

"There is no difference between 'we're going to fuck you up' and 'we're going to fuck you over,' and both are threatening words to use against a young man who had helped them for two hours," the petition said.

"Most jurors, especially Black and other Americans of color, would conclude the officers were making a threat of violence, solely by using these words. Moreover, federal judges are not equipped to determine from a cold transcript whether a threat has been made. And federal judges are not experts on how police officers talk to Black Americans and vice-versa, or the methods of discourse used in the streets."

The ruling "gives bad officers in Alabama, Georgia, and Florida cover to do this again. If they say the right words, and they will be immune. If telling a citizen they will "fuck them over" is not coercion, no citizen, Black, White, or otherwise, will be safe," the lawyers argued.

Terry Sides of Birmingham's Hale Sides and Timothy Donahue, who represent the officers, told the Daily Report they cannot file a response to a rehearing unless required by the court, which has not done so.

"Like all cases, this case should be decided on the facts and the law, nothing else and certainly not decided on outside and irrelevant matters and events like those which plaintiff uses to try to support his petition," the lawyers said in a statement. "Both the district and appellate courts correctly ruled in favor of the police officers based on the undisputed facts of this case and the applicable law. Plaintiff's petition offers nothing which changes that."

Nora Ahmed, a lawyer with Justice Lab, a new American Civil Liberties Union project focused on police violence, said the case addresses an issue her project is targeting: "Who is an objectively reasonable officer?"

"The challenge for courts—in the midst of this national reckoning against racial injustice and police violence—is to decide whether officers should be held to an outdated standard of reasonableness," she wrote. "In the wake of our country's—and the world's—outcry against racism, is it honestly plausible that the objective officer is ignorant of his/her/their unconscious biases and the disparate impact those biases have on marginalized groups? I think not.  It's not only time to reimagine policing, it's time to reimagine outdated jurisprudence that fails to take into account the successes of the movement for Black lives."

Video and Circuit Split

The second case involves Aubrey Williams, who was shot twice by an officer as he and a partner arrested Williams and a friend as they walked away from a gas station after getting early-morning snacks. Both Williams and his friend were carrying guns "for protection," they said, according to the decision, but Williams did not have a license to carry a concealed weapon.

Chief Judge William Pryor, joined by Judge Britt Grant and visiting Senior District Judge John Antoon II of the Middle District of Florida, recited the facts in the light most favorable to Williams as required at this stage of the case.

After Officer Daniel Aguirre ordered Williams to lie down, "Williams complied by placing his hands and knees on the ground as he faced down. Williams also tried to tell Aguirre that he had a weapon, but Aguirre did not appear to hear him. As Williams lowered himself to the ground, he dropped the bag, which caused his gun to slide out of the bag and underneath him. After Williams got on his hands and knees, Aguirre approached him. Williams turned on his side to tell Aguirre that his gun was underneath him. But as Williams was turning, Aguirre jumped back, fired his gun twice, and shot Williams. Aguirre then kicked Williams's gun away and handcuffed him."

A police dashboard camera captured some of the events, and Pryor noted, "Nothing we viewed in that video conflicts with Williams's account."

However, Aguirre and his partner claimed Williams pointed his gun at each of them, which led Aguirre to shoot Williams and resulted in Williams being charged with attempted murder. After two months in the hospital and 16 months in jail, Williams was released when a news outlet published the video and the Jefferson County district attorney dismissed the charges.

Williams sued the officers for malicious prosecution based on their statements supporting the attempted murder charge under the Fourth Amendment. U.S. Magistrate Judge James Ott in Birmingham denied the officers' bid for qualified immunity, and the officers appealed to the Eleventh Circuit.

"The record supports an inference that someone is lying," Pryor wrote, concluding, "A reasonable jury could find that the officers' accusations that Williams pointed a gun at them were intentionally false, and if we delete those false accusations from the warrant applications, no facts remain to support probable cause for attempted murder."

"Because Williams has established a genuine dispute over whether the officers violated his clearly established rights under the Fourth Amendment, the officers are not entitled to qualified immunity at this stage of the suit," he wrote.

The panel also rejected the officers' argument that they couldn't be blamed for malicious prosecution because Williams committed a misdemeanor by carrying a concealed weapon without a permit.

Circuits are split on this question, Pryor noted, adding that the Eleventh Circuit's take was "unresolved."

But after diving into hundreds of years of common law, Pryor wrote, "The any-crime rule does not apply to claims of malicious prosecution under the Fourth Amendment. Centuries of common-law doctrine urge a charge-specific approach, and bedrock Fourth Amendment principles support applying that approach in the context of the charges that justified a defendant's seizure."

A team of lawyers from Burr & Forman who represented the Birmingham officers did not respond to a request for comment by deadline.

Riley, working with firm leader David Marsh and again with Andrews and Lasseter, said the circuit split could conceivably lead to a U.S. Supreme Court appeal. But he said, "I think they'd follow Judge Pryor's analysis."