Las Vegas POA

Officer Loses Cell Phone Claim To Qualified Immunity

Written on 02/02/2021
Will Aitchison

In the public discussion about the principle of “qualified immunity” virtually no mention is made of the fact that qualified immunity bars many lawsuits by public employees alleging constitutional violations by their employers. A recent case out of Ohio provides a good illustration of how qualified immunity works in an employment context.

The case involved Jeffrey Lazar, a Columbus police officer. His girlfriend was an officer in the same department. In November 2014, Lazar’s estranged wife confronted him at his girlfriend’s home. During the confrontation, Lazar’s wife obtained his personal cell phone and brought it to the internal affairs department of the Columbus Division of Police, alleging that Lazar and his girlfriend were engaging in sexual activity on duty.

An intake officer, Sergeant David Barrowman, downloaded the contents of the cell phone, including photos, text messages, its browser history, and call history. When the charges from the internal affairs investigation were ultimately “not sustained” Lazar sued the Department, alleging that the warrantless search of his phone violated his Fourth Amendment rights.

A federal appeals court upheld the dismissal of Lazar’s claims. The Court noted that “the doctrine of qualified immunity shields government officials from liability for civil damages unless: (1) the evidence, viewed in the light most favorable to the plaintiff, shows that the official violated a constitutional right; and (2) the right was clearly established at the time of the violation. A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.

“Lazar’s argument progresses from more general propositions to more specific ones to show that the law was clearly established that a complete search of his private cell phone without a warrant was prohibited by the Fourth Amendment. He states that the proper analysis of Lazar’s Fourth Amendment claim begins with first principles absent an applicable exception, warrantless searches of private property are unconstitutional without consent.

“He next argues that personal cell phones receive the maximum degree of protection that the Fourth Amendment can provide. Lazar then argues that the workplace-search exception to the warrant requirement is inapplicable because it permits only a search of those areas and items that are related to work and are generally within the employer’s control, which Lazar’s personal cell phone was not.

“He cites a Southern District of New York case in support of that reading, Port Auth. Police Benevolent Ass’n, Inc. v. Port Auth. of New York & New Jersey. Lazar also argues that even if the ‘workplace exception’ rule applied, it could not sustain the broad scope of the search – Barrowman’s downloading the entire contents of his personal cell phone.

“We may not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced. Rather, a right is clearly established only if there is binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly on point.

“Lazar fails to cite any directly on point precedent that stands for the proposition that a government official – when presented with evidence of an employee’s potential workplace misconduct – violates that employee’s Fourth Amendment rights by conducting a search of the employee’s personal cell phone for further evidence of the workplace misconduct.

“In short, Lazar’s theory does not meet the demanding standard of qualified immunity, which protects all but the plainly incompetent or those who knowingly violate the law.”

Lazar v. Knight, 2020 WL 7396255 (6th Cir. 2020).

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