{"id":10671,"date":"2022-02-07T18:50:49","date_gmt":"2022-02-07T18:50:49","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/07\/court-grants-qualified-immunity-to-officer-who-told-couple-to-take-down-facebook-post-about-off-duty-cop-who-shot-their-dog\/"},"modified":"2022-02-07T18:50:49","modified_gmt":"2022-02-07T18:50:49","slug":"court-grants-qualified-immunity-to-officer-who-told-couple-to-take-down-facebook-post-about-off-duty-cop-who-shot-their-dog","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/07\/court-grants-qualified-immunity-to-officer-who-told-couple-to-take-down-facebook-post-about-off-duty-cop-who-shot-their-dog\/","title":{"rendered":"Court Grants Qualified Immunity To Officer Who Told Couple To Take Down Facebook Post About Off-Duty Cop Who Shot Their Dog"},"content":{"rendered":"

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from the unfortunate,-but-probably-correct<\/i> dept<\/h3>\n

\nThis case — sent to us by Eric Goldman<\/a> — touches on a lot of subject matter covered frequently at Techdirt: dead dogs<\/a>, police officers<\/a>, the First Amendment<\/a>, and qualified immunity<\/a>. Yet the narrative isn’t quite what’s expected given the elements. And the court’s conclusions, while disappointing, are likely the correct application of the law.\n<\/p>\n

\nHere’s the background to the case, as recounted in the federal court decision<\/a> [PDF]:\n<\/p>\n

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\nPlaintiffs John and Brittany Knudsen, a married couple, reside in Spring Hill, Kansas. Plaintiffs owned a Great Dane dog named Nala. On March 29, 2020, Nala got out of plaintiffs\u2019 house. Defendant Mark Cantrell and his wife, Jessica, were walking their dogs near plaintiffs\u2019 house and Nala approached them. Defendant Cantrell shot Nala with a firearm. Nala loped, grievously wounded, toward plaintiffs\u2019 property, and John Knudsen saw that Nala had sustained a gunshot wound. John Knudsen took Nala to the emergency veterinarian, where plaintiffs chose to have Nala humanely euthanized<\/em>.\n<\/p>\n<\/blockquote>\n

\nNot everyone walking their dog would carry a gun and\/or be willing to shoot another dog just because the dog approached them. There’s a reason Mark Cantrell might have deployed “shoot first” tactics: he was an Olathe, Kansas police officer.\n<\/p>\n

\nThe shooting was reported to the Spring Hill Police Department by the Knudsens. Officer Shaun Whitesell handled the call and took the Knudsens’ statements. The original report listed the Knudsens as the victim of a potential crime (the shooting of their dog) and Officer Cantrell (who was off-duty at the time) as the suspect. Later, Officer Whitesell “changed the report to reflect that Cantrell was the victim.”\n<\/p>\n

\nOver the next couple of weeks, the Knudsens tried to obtain copies of the reports and witness statements. The Spring Hill PD refused to hand them over. Officer Whitesell informed the couple that “Cantrell would likely not be charged.”\n<\/p>\n

\nThe Knudsens took their complaints to social media.\n<\/p>\n

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\nPlaintiffs posted information about the incident publicly on Facebook on April 15, 2020. \u201cThe Facebook post described the events[,] . . . identified Cantrell as the shooter, and identified that he was a police officer for the Olathe, Kansas Police Department[.]\u201d The Facebook post went viral.<\/em>\n<\/p>\n<\/blockquote>\n

\nSoon after this, Cantrell called the Spring Hill PD to complain about the post, stating that he had received a “threat from a person unrelated to the Plaintiffs.” This led to another set of unfortunate statements and events.\n<\/p>\n

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\nDefendant Whitesell responded to defendant Cantrell\u2019s call and met with defendant Cantrell and his wife. The Cantrells wanted plaintiffs charged. Whitesell told the Cantrells that plaintiffs \u201cwould be ticketed for harassment and\/or witness intimidation.\u201d Later, Whitesell visited plaintiffs\u2019 home and discussed the Facebook post with plaintiff Brittany Knudsen. Whitesell told Brittany Knudsen the post was \u201ccausing problems, and told her it should be taken down.\u201d<\/em>\n<\/p>\n<\/blockquote>\n

\nEvery action here was wrong. If threats had been made against Cantrell, the only criminal suspect would be the person making the threats. Officer Whitesell could have simply informed the Knudsens that their post had resulted in threats being made against Cantrell and allowed them to make a decision about taking the post down. What he shouldn’t have done is tell another officer he would attempt to issue a criminal citation and definitely should not have instructed the couple to take the post down.\n<\/p>\n

\nThat led to this lawsuit, which alleges First Amendment violations by Officer Whitesell and brings some state law claims (conversion, assault) against the off-duty officer who shot the couple’s dog. The court says it only has jurisdiction over the First Amendment allegations against Officer Whitesell.\n<\/p>\n

\nWhitesell argued he should be awarded qualified immunity because it was not clearly established that demanding someone take down a social media post violated rights. The court, after much discussion, agrees with Officer Whitesell.\n<\/p>\n

\nWhile it should be fairly obvious police interactions over social media posts contain a multitude of First Amendment implications, the speech targeted by Officer Whitesell’s actions did not actually target him<\/em>. It discussed the actions of another<\/em> police officer, one who was off-duty at the time he shot the Knudsens’ dog.\n<\/p>\n

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\n[P]laintiffs try to characterize their speech as criticism \u201cof both the City of Spring Hill as well as Defendant Cantrell, an officer for the Olathe, Kansas police department.\u201d Plaintiffs assert that \u201c[s]peech, challenge, and criticism directed at police is . . . [a] clearly established\u201d right. (citing Hill, 482 U.S. at 461). But this characterization doesn\u2019t match the circumstances of this case. Plaintiffs don\u2019t allege that they criticized the police in their Facebook post. Instead, plaintiffs\u2019 post criticized defendant Cantrell for off-duty actions unrelated to his employment with the Olathe Police Department. Critically, the post doesn\u2019t criticize the alleged retaliator: defendant Whitesell. […] Even if one construes plaintiffs\u2019 post as criticism of defendant Cantrell\u2019s actions as a police officer, the alleged retaliation is several degrees removed from that criticism.<\/em>\n<\/p>\n<\/blockquote>\n

\nThe court also notes that the Knudsens seemingly had no complaint about Officer Whitesell or the Spring Hill Police Department, directly quoting a statement made by the couple about their local PD:\n<\/p>\n

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\n\u201cResponding Spring Hill Officers and the entire Spring Hill PD have been nothing but amazing during this whole situation. They have been sympathetic to our loss, and have continually checked in on us to be sure we are holding up. This is how a police department should be, and I am proud to have these officers protecting our community. But unfortunately their hands are tied[.]\u201d<\/em>\n<\/p>\n<\/blockquote>\n

\nThat mismatch between public and private action means Officer Whitesell can’t be sued for handling this poorly.\n<\/p>\n

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\nHere, plaintiffs spoke about Cantrell in his capacity as a private citizen, then that speech resulted in a complaint by Cantrell, and then the Spring Hill police department dispatched defendant Whitesell to plaintiffs\u2019 home, where the alleged retaliation took place. Yet, plaintiffs rely on cases where the police retaliated against plaintiffs for speech directed at police officers. […] These cases don\u2019t match plaintiffs\u2019 allegations. Plaintiffs allege that their speech was directed at another police officer and defendant Whitesell responded to a complaint from<\/u> that police officer, not the speech itself.<\/em>\n<\/p>\n<\/blockquote>\n

\nThat’s the correct call in this case. Officer Whitesell probably shouldn’t have told the couple to take down the post, but he was responding to a reported threat allegedly related to the post, rather than discussing the contents of the post itself. Whether Officer Whitesell would have performed these actions in response to a reported threat from a regular resident (rather than another police officer) can be debated, but it likely can’t be proven one way or the other. And, in either case, it wouldn’t change the outcome of this case.\n<\/p>\n

\nThat just leaves the state law claims against the off-duty officer and I would imagine those are just as unlikely to succeed. It’s one thing when someone enters another person’s property and assaults their pet. It’s quite another when the pet is loose and is approaching someone in a public area like a sidewalk. Chances are, the state court will find no violation of law in Cantrell’s actions, even if they appear to be an overreaction to the perceived threat — which at this time was nothing more than an unchained dog (albeit a large one).\n<\/p>\n

\nThis sucks for the Knudsens but sometimes bad things happen and there’s no one that can be held legally responsible for an unfortunate series of events.\n<\/p>\n

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