Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.

Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.

The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.

Here’s the Petition for Rehearing:

Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”

The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.