“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

 

Trump Eleventh Circuit judge Elizabeth Branch wrote a decision, joined by Trump appellate judge Kevin Newsom and a Trump district judge, that reversed a district court and ordered that a sheriff receive qualified immunity from a lawsuit against him by a property owner claiming due process violations that were at least in part to promote the sheriff’s personal interests. Branch accordingly ordered that summary judgment should be granted for the sheriff and the case against him should be dismissed in the July 2021 decision in Beverly Spencer v Sheriff Jonathan Benison.

Beverly Spencer sold part of property that he owns in Greene County, Alabama, along with a 25-foot easement, to a real estate corporation. As explained in the district court opinion in the case, the corporation then leased the property to another corporation that operated a bingo gambling facility on the property. Construction workers were hired to improve a roadway going through the easement, but Spencer maintained that part of the construction was improperly taking place outside the boundaries of the easement and on his property.

Spencer complained about the problem to the Greene County Sheriff’s office, headed by Sheriff Jonathan Benison. Spencer later learned and maintained that Benison had a “personal financial interest in the success” of the bingo parlor, because county rules, which Benison was involved in changing, provide that half of the facility’s $2500 licensing fee is paid to the sheriff’s office and the office also receives “$110 a month” from each electronic bingo hall.

In response to a trespassing complaint by Spencer in January, 2016, a deputy at the sheriff’s office suggested that the bulldozer working on the road should stop until the property dispute was resolved. This did not stop the construction, however, and Sheriff Benison came to the site in response to a complaint in February. He saw that Spencer and his family had placed cones and vehicles on their property to block the construction from further encroaching on it. Spencer contended that Benison went into the bingo hall to talk to people there before approaching Spencer and his family, and the sheriff then told Spencer he was concerned because Spencer was blocking the road. Spencer denied that claim, and his lawyers told Benison by phone that they were in the process of going to court to try to get an injunction against the property violations by the construction workers. Nevertheless, Benison immediately ordered Spencer to remove the cones and vehicles and threatened to charge him with disorderly conduct if he refused and with a felony if he “blocked the road.” Spencer complied and the construction workers completed the road, which Spencer contended in fact “encroached upon his property.”

Spencer sued Benison in federal court, and the case was assigned to Chief Judge L. Scott Coogler, who was nominated by President George W Bush. Among its other claims, the complaint contended that Benison was acting outside the proper scope of his authority and violated due process by requiring Spencer to “vacate his property and move his vehicles” without notice or an opportunity to be heard. Judge Coogler rejected Benison’s claim that he was entitled to qualified immunity on the due process claim, and Benison appealed to the Eleventh Circuit.

Branch’s opinion ruled that Judge Coogler was wrong to suggest that Benison was acting outside the scope of his discretionary authority when he ordered “the removal of a private landowner’s property, while it is on that landowner’s property, absent a court order.” According to Branch, Benison was seeking the removal “for the purposes of achieving public safety,” which was within his authority. In addition, Branch ruled that the order to remove the property was a “de minimis” deprivation of Spencer’s rights and “cannot support” his claims. Branch went on to rule that Benison was entitled to summary judgment on Spencer’s other claims as well.

But the court ignored important parts of Judge Coogler’s opinion and order. Coogler acknowledged that Benison claimed that he was acting to protect public safety. Based on all the “record evidence,” however, Coogler concluded that a “reasonable jury” could find that Benison was “not acting as a law enforcement officer,” but instead was seeking to intervene in a private dispute (perhaps in part for his own advantage), when he issued the order to Spencer. This included evidence that a state trooper at the scene told Spencer that sheriffs “should not insert themselves in boundary disputes” but should follow court orders and that the cones and vehicles on Spencer’s property were not preventing “ingress and egress” into the bingo parlor and Benison was not acting to protect public safety. In addition, although Branch did not cite any authority for her conclusion that the deprivation was “de minimis”, Coogler noted that Spencer had a “substantial property interest” in the use of his land and that the Supreme Court has specifically noted that courts “look not to the ‘weight’ but the nature of the interest” in determining whether due process applies. Branch’s opinion never responded to these findings by Coogler.

Fortunately, the grant of qualified immunity in this case did not excuse a police officer from accountability for causing serious bodily injury or death, as in many other cases. But it is also a matter of serious concern for such immunity to insulate police from accountability for what could be improper use of their authority for personal gain. Although Beverly Spencer will have no opportunity to pursue such accountability in his case as a result of Trump judges Branch and Newsom, it is important to our fight for our courts that the Senate confirm nominees to the federal courts who do appreciate the importance of ensuring accountability for police misconduct.