In Florida, “I Eat Ass” And A Qualified Immunity Ethics Conundrum

i-eat-ass-mask-black

A policeman’s lot is not a happy one, and qualified immunity, the doctrine that exists to shield officers and other state officials from liability when they commit torts in the course of their duties, is under fire because of its role in blocking accountability for cops who engage in police brutality. But without qualified immunity, policing would become even more perilous than it already is.

Take the “I Eat Ass” controversy.

Please.

In Florida, jerk Dillon Shane Webb had a sticker on his vehicle that boasted “I Eat Ass.” (Some may disagree, but Ethics Alarms regards public display of that legend signature significance, as a non-jerk would never do it. Not even once). Columbia County Sheriff’s Deputy Travis English pulled Webb over in May of 2019 and demanded that he cover up the message. Webb refused, and he was subsequently arrested and jailed for “obscene writing on vehicles” and “resisting an officer without violence,” because he had refused to obscure the sticker. Reason, the libertarian cite that is usually more reasonable, wrote that Officer English “took exception” to “I Eat Ass.” No, the officer was under the impression that the display violated Fla. Stat. § 847.011(2), which prohibits “any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions.”

That law is unconstitutional. Eugene Volokh, famed professor of law at the University of California at Berkeley, has concluded “This entire provision is therefore unconstitutionally overbroad and thus invalid on its face, and thus can’t be applied even to possession of obscenity in public,” he says, but it is not a police officer’s job to decide that. Assuming, as he must, that the law is legitimate, English’s job as a law enforcement officer is to act when he believes the law is being violated.

The charges against Webb were dropped after the State Attorney’s Office concluded that Prof. Volokh was right, but Webb sued English for allegedly violating his right to free speech and for falsely arresting him. However, the U.S. District Court for the Middle District of Florida ruled yesterday that English was entitled to qualified immunity, using the standard that qualified immunity is appropriate when a specific violation of a citizens’ rights has not been explicitly ruled unconstitutional in a prior court decision. The logic for the standard is basic fairness, as in this case. An officer is bound by court decisions, but it is unfair to hold him responsible for making close calls or deciding that a law on the books shouldn’t be enforced.

Reason’s analysis lists a parade of horribles, past examples of outrageous conduct by police that escaped punitive consequences because of qualified immunity:

“Though it was supposed to shield government officials only from silly lawsuits, it has instead shielded them from ones with merit, including the more than two-dozen cops who blew up an innocent man’s home during a botched SWAT raid on the wrong residence, a cop who conducted an illegal search and ruined a man’s car in the process, cops who allegedly stole hundreds of thousands of dollars, and cops who arrested a man on bogus charges after attacking him outside his house.”

OK, but stopping and arresting a driver with “I Eat Ass” on his vehicle for all to see when a law appears to make that police action justifiable isn’t in the “horrible” category. Blame the law, but not English.

“While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker,” wrote Judge Marcia Morales Howard in Webb v. English, “albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated.”

Bingo. In this case, qualified immunity is fairly applied, though I admit that my bias against jerks who think it’s funny to inflict the eyes of others on the road with uncivil words and images might be influencing my judgment.

A tangential note: As Dr. Seuss said, “Oh, the places you’ll go” researching ethics posts. You would be amazed—and horrified—how many ways to display the charming announcement “I Eat Ass” are available for purchase on the web, not to be confused with ass-eater Dillon Webb. Stickers, window decals,T-shirts, masks, mugs, flags. All hilarious, of course.

Is this a great country, or what?

_____________________

Sources: Reason, ABA Journal

13 thoughts on “In Florida, “I Eat Ass” And A Qualified Immunity Ethics Conundrum

      • The legend lives on from the Chippewa on down
        Of the big lake they called Gitche Gumee
        The lake, it is said, never gives up her dead
        When the skies of November turn gloomy
        With a load of iron ore twenty-six thousand tons more
        Than the Edmund Fitzgerald weighed empty
        That good ship and true was a bone to be chewed
        When the gales of November came early
        ….

  1. I wonder if the dude in the photograph above was told, when he signed the agreement to be a model for a stock photography shoot, that it might just be possible he’d end up on the internet with a message suggesting a willingness to perform analingus photoshopped onto his face.

    “Hey, it’s an easy $200. What could go wrong?”

    • It applies to all public officials as far as I know, it is just most often used in the context of cops because they are the most likely to be making quick and consequential decisions that potentially interfere with the rights of people. Often this comes up in the context of university administrators as well just to name a single counterexample to cops.

      It is also important to note (often this is lost in the outrage) that it does not apply to criminal prosecutions, rather it is a civil law concept and often one is able to sue the employer of the police, but not the officers themselves. So the issue in a lot of cases is a lack of prosecution of police officers by DA’s and the like.

      As far as the house being blown up example, I believe that was a bit more complicated and had to do with other laws. IIRC it was related to standing against a state enacting police powers. It differs by state, but this is one of those nuanced areas of law that can be frustrating and prone to seemingly contradictory ethical stances especially in edge cases.

  2. In my state, an officer can lose qualified immunity protection if his actions violate established agency policy, even if they are pursuant to a law not yet “explicitly ruled unconstitutional.” Sometimes agency administrators spot these “unconstitutionally overbroad” laws when they are passed, and want to avoid having their officers embroiled in these issues. Some agencies have their own legal counsel to consult, or perhaps the state attorney general will be asked for an opinion on the law, and if legal opinion suggests that the law is unconstitutional the agency will often, by policy, defer enforcing it until a court rules. As I have also stated in previous posts regarding the issue, qualified immunity in my state only applies to the individual officer, and not the employing agency or the governmental body, so the agency and city/county/state can still be sued if a person suffers harm by an officer’s actions, even if qualified immunity applies. Also, qualified immunity does not protect an officer from internal disciplinary action, up to and including termination of employment, nor does it protect an officer from the consequences of committing criminal acts. I know of cases where an agency policy that was disobeyed by an officer caused the liability to be shifted entirely onto the officer. I am curious, reading the “parade of horrible ” as to the number of settlements and civil judgements against the agencies and governments involved in these incidents, regardless of the fact that the particular officers may have escaped civil suits. In over forty years in the biz, I don’t recall a single case in my region where no one (neither officer, agency, nor governmental body) was held liable for an egregious action by law enforcement.

  3. Ass – an animal of the horse family, which is typically smaller than a horse and has longer ears and a braying call.
    My immediate thoughts on seeing “I eat ass” is I wonder what does donkey meat tastes like. But then where you in America would say ‘ass’ we in New Zealand say ‘arse’.
    On reading many articles about qualified immunity I think how would any police officer think what they did was okay? Surely in these qualified immunity cases the officer should be required to use some common sense.

  4. Considering the level of homophobic and just generally delicate-minded guardians of public purity in this country, I am perhaps beating a dead ass here, but I have to commend Officer English from attempting to protect the life of citizen Jerk Webb. Such displays could have gotten the latter killed. Or at least his fender dented.

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