Merchant v. Bauer, No. 11-1392

Decided: April 26, 2012

Robert Bauer appealed the District Court’s denial of qualified immunity in a suit against him alleging Fourth Amendment deprivation of rights.  Bauer, a police officer in Fairfax County, Virginia, arrested Dr. Rose Merchant for illegally impersonating a police officer.  In February 2008, leading up to the arrest, the Virginia State Police received a 911 call reporting the license plate number of a Mercedes-Benz with flashing blue grill lights that had allegedly forced a motorist off the road.  Bauer traced the plate to Merchant in Maryland, and discovered that she lived with her new husband, Clark, who was a convicted felon.  Bauer asked them to bring the Mercedes to Virginia for inspection, falsely representing that the complainant had reported contact damage to his vehicle in order to convince Merchant and her husband to come to Fairfax County, where they met at a 7-Eleven convenience store.  After obtaining Merchant’s consent to search the Mercedes, Bauer found no blue lights or indicia of police customization, nor any evidence such equipment had ever been installed or removed.  During the lengthy encounter, Bauer noticed what he perceived to be a badge in Merchant’s jacket pocket, although she never presented it to Bauer nor did he ask to see it.  Merchant was at the time Deputy Director of the Prince George County Department of Corrections in Maryland, and at some point, she referred to the county-issued white Impala she typically drove as a “police car,” using air quotes.

Afterwards, upon reviewing video and audio recordings of the encounter, Bauer believed Merchant had violated the Virginia police impersonation statute.  He followed up with a call to a Division Chief of the Prince George’s County Department of Corrections, who informed him that some civilian employees of the county were authorized to carry badges.  Bauer then consulted a deputy Commonwealth’s Attorney who advised him that he “had a good case” for prosecuting Merchant for impersonating a police officer, leading power to obtain an arrest warrant against Merchant from a state magistrate. In a bench trial, the state court dismissed the charges against Merchant, observing that she had repeatedly identified her county position to Bauer but never indicated she was in law enforcement at any time.

Merchant then filed a claim against Bauer for deprivation of her Fourth Amendment right to freedom from seizure without probable cause.  The district court found that no prudent person in Officer Bauer’s position could conclude, even on the basis of a reasonable mistake in interpreting or applying the law, that probable cause existed to arrest Merchant for violating the impersonation statute.  The district court also recognized that a Bauer could assert qualified immunity as a defense at trial, acknowledging that a reasonable jury might accept his characterization of the events.

A denial of summary judgment based on qualified immunity is an appealable final decision under the collateral order doctrine.  An appeals court reviews de novo a district court’s denial of qualified immunity.  Pursuant to Saucier v. Katz, In order for a plaintiff’s claim to withstand the qualified immunity defense, two inquiries must be answered in their favor: whether a constitutional violation occurred and whether the right violated was clearly established.

The issue of whether Merchant’s arrest in Virginia for impersonating a police officer was reasonable or supported by probable cause is evaluated under an objective standard, based on what a prudent officer would have believed under the circumstances.  Probable cause for arrest exists if facts known to the officer would warrant the belief of a prudent person that the alleged offender had committed the crime.  The Fourth Circuit held that even at the outer reaches of the impersonation statute, there was a lack of probable cause to arrest Merchant.  Under the circumstances, a reasonable person would not conclude that Merchant was impersonating a law enforcement officer, especially given that the person she was speaking to was a police officer.  The Fourth Circuit has previously recognized that a prosecutor’s approval of a criminal charge does not mandate a grant of qualified immunity, but should be taken into account in assessing the reasonableness of the officer’s actions.  Bauer’s conversation with the state deputy attorney does not as a matter of law overcome the unreasonableness of the criminal charge and its lack of probable cause.  Concluding that no prudent person would have believed Merchant violated the impersonation statute, it follows that her arrest lacked probably cause and was unreasonable, resolving the first Saucier factor in her favor.

As to the second factor, whether the constitutional right was clearly established, the right to be free from unreasonable searches and seizures is well settled.  The court must assess the right in a more particularized sense by looking to the specific facts of the case.  It was clear at the time of Merchant’s arrest that police officers were not at liberty to arrest citizens for impersonating a police officer without any support or probable cause.  If a reasonable officer would not have believed the person had committed a crime, then the officer, whatever he did or did not believe, is acting contrary to clearly established law.  Since Bauer could not reasonably believed that the Fourth Amendment permitted an arrest when no aspect of the impersonation statute had been established, the second inquiry was also resolved in Merchant’s favor.  The Court of Appeals thus upheld the district court’s denial of qualified immunity as to Merchant’s claim.

Full Opinion

-Nora Bennani

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