Jillian L. Dinehart

The Sixth Circuit Court of Appeal found that an officer who ticketed a protestor for disorderly conduct, despite not personally witnessing the conduct, had qualified immunity against the plaintiff’s First Amendment retaliation claim.

Mr. Hall was at a protest that spanned across a public street. After multiple requests by police that the protestors disperse, Mr. Hall was tackled by an officer and sustained injury. That officer called for medical assistance, detained Mr. Hall and sat him on the curb with other protestors in zip ties. 

Officer Barr arrived after Mr. Hall had been detained and saw Mr. Hall sitting on the curb. Officer Barr was directed by his supervisor to write all detained persons tickets; however, by the time Officer Barr wrote Mr. Hall’s ticket, Mr. Hall was at the hospital. Officer Barr did not witness the “disorderly conduct” or speak to Mr. Hall. 

The plaintiff alleged Officer Barr wrote the citation out of speech-based retaliatory animus. The court held, after having dismissed the Monell claim, the fact that the officer was ordered to write the citation was critical to the determination of qualified immunity. The court referred to “two poles” that anchor the legal framework for qualified immunity in those instances in which officers defend themselves by referring to an order from a supervisor: 

“At one end is the understanding that an officer cannot benefit from qualified immunity’s shield simply by asserting that he was ‘following orders.’ At the other is the notion that qualified immunity may be warranted when reasonable officers could conclude that they have probable cause for their conduct based on plausible instructions from a supervisor when viewed objectively in light of their own knowledge of the surrounding facts and circumstances.”

Where the conduct is closer to the latter scenario—the officer was acting on plausible instructions from a supervisor was not undermined by circumstances known to the officer—qualified immunity is appropriate. 

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