People For the American Way

Biden Judges Refuse to Grant Immunity to Probation Officer who Punched a Pregnant Woman in the Stomach

Biden Judges Refuse to Grant Immunity to Probation Officer who Punched a Pregnant Woman in the Stomach

Judge Arianna Freeman, nominated by President Biden to the court of appeals for the Third Circuit, wrote a unanimous opinion upholding a district court that refused to grant qualified immunity from lawsuit to a probation officer who punched an innocent pregnant woman in the stomach.  Biden judge Tamika Montgomery-Reeves joined the opinion, which will allow the complaint against the officer to go forward.   The December 2023 decision was in Gross v Cairo.


What Happened in this Case?

 Shelly Gross received a call from a neighbor, who asked her to check on another neighbor’s welfare. Gross, who was visibly pregnant, walked to the house, knocked on the door, and encountered Peter Cairo, a county probation officer, who was conducting a home visit. According to the complaint she later filed, Cairo became “immediately rude and aggressive” and demanded to know what Gross wanted. When she explained and walked towards the doorway, Cairo “suddenly” and “violently” struck her in her stomach.

 Cairo’s blow “caused immediate pain and suffering” and caused Gross to go to an emergency room. Doctors diagnosed her with placental hemorrhaging, which required additional medical care during the remainder of her pregnancy.

 Gross filed a suit for damages against Cairo in federal court, contending that, among other things, he had violated her Fourth Amendment rights. Cairo tried to get the constitutional claim against him dismissed, asserting that he was on official business and should be protected by qualified immunity. The lower court rejected the claim and Cairo appealed to the Third Circuit.


How did Judges Freeman and Montgomery-Reeves  and the Third Circuit Rule and Why is it Important?

 In a unanimous ruling written by Judge Freeman and joined by Judge Montgomery-Reeves, the Third Circuit upheld the district court and held that Gross can go forward with her constitutional claim against Cairo.  Freeman explained that under past precedent, a “seizure” under the Fourth Amendment occurs when an officer “by means of physical force” has “restrained the liberty of a citizen,” which clearly occurred here. The action was unreasonable, she went on, since nothing in the complaint suggested that Gross  “was suspected of a serious crime, that she was attempting to evade Cairo, that she was armed, or that she posed a physical threat to Cairo or anyone else.”

 Freeman specifically rejected one argument allegedly justifying qualified immunity. Since no previous case had involved facts like these, Cairo maintained that Gross’ right to avoid such misbehavior by an officer was not “clearly established.” at the time of the incident. Freeman explained, however, that under past precedent, earlier cases need not “share the same or similar facts” in order for the right to be considered “clearly established,” so long as such cases are “factually analogous.” Prior to Cairo’s actions, she went on, it was “clearly established” that an “unarmed individual who is not suspected of a serios crime” like Gross “has the right not to be subjected to physical force.”  Based on the facts alleged, Judge Freeman concluded, “Cairo violated [Gross’] clearly established right to be free from such force,” and the case against him should go forward.

 The ruling by Judge Freeman and Judge Montgomery-Reeves  is obviously important to give Shelly Gross the opportunity to go forward with her case and get justice for Cairo’s misconduct.  In addition, it sets important precedent by making clear that victims of official misconduct need not find a prior case with the same or similar facts in order to demonstrate that the right at issue was clearly established. This is particularly so in the Third Circuit, which includes Pennsylvania, New Jersey, and Delaware. The decision is an important reminder of the significance of promptly confirming high-quality Biden nominees like Judge Freeman and Judge Montgomery-Reeves to our federal courts.