Unbeknownst to many, if you’re a federal agency, you have regulations. And if you have regulations, you need people with guns to enforce them. NASA is not special. They have their enforcers too. The difference may be that the kind of law enforcers who go to war for NASA lack the enemies who engender the fear and fury of regular folks, so they feel a bit lonely, unappreciated, less than respected.
But when an enemy of the state appears, giving them reason to flex their law enforcement muscle, they seize the opportunity with gusto. Norman Conley saw his opening and he went for it.
Joann Davis, and her late husband Robert, worked together at North American Rockwell, which had a contract with the National Aeronautics and Space Administration (“NASA”) in connection with the nation’s space program. By all accounts, Robert was a brilliant engineer, and he ultimately became a manager of North American Rockwell’s Apollo project. While working on the space program, he received many items of memorabilia, including two lucite paperweights. One contained a rice-grain-sized fragment of lunar material, or “moon rock;” the other contained a small piece of the Apollo 11 heat shield. According to unverified family lore, the paperweights were given to Robert by Neil Armstrong in recognition of Robert’s service to NASA.
A heartwarming tale of hard work, brilliance, contribution to the space program and the appreciation of an astronaut. Except Conley’s heart was cold.
After her husband died, 74-year-old Davis needed money to pay for her son’s medical expenses, and decided to sell the paperweights. In the process, she called NASA, and the Inspector General, knowing that it was against the law to possess lunar material, put Conley on the job. He could have knocked on her door, asked her to hand over the paperweight, and been done with it, but that would have been too easy. He wanted to play cop.
Based on these phone calls, Conley obtained a warrant to search Davis and seize the moon rock paperweight. In his affidavit supporting the warrant, Conley stated that he believed Davis was “in possession of contraband, evidence of the crime, fruits, and instrumentalities of the crime concerning a violation of [18 U.S.C. § 641].”
To execute the warrant, “Jeff” made arrangements with Davis to meet around noon on May 19, 2011, at a Denny’s Restaurant located in Lake Elsinore, California. Davis believed the purpose of this meeting was to finalize the sale of the paperweights. In fact, it was a government sting operation to seize the moon rock paperweight.
Conley sure put one over on this elderly criminal mastermind. She never saw it coming. And just to make sure she wouldn’t get away, and wouldn’t threaten his life by running him over with her walker or beating him senseless with her cane,* there were three armed federal agents and three more Riverside County Sheriff’s officers hidden from view, ready to spring at the first sign of a threat.
After they nabbed her, and overcame her 70-year-old second husband by twisting his arm behind his back, they took her out to the Denny’s parking lot to interrogate her.
Davis claims that she told officers twice during the escort that she needed to use the restroom, but that they did not answer and continued walking her toward an SUV where Conley was waiting. Davis subsequently urinated in her clothing. Although their accounts differ in some respects, Conley and Davis agree that he knew she was wearing urine soaked pants as he interrogated her in the restaurant parking.
An old lady had to pee? Or was that just an excuse to leap through the Denny’s bathroom window and make her getaway. Maybe she had a jet waiting to take her to some tropical island without extradition? That would have made Conley look, well, kinda foolish. He couldn’t let that happen.
Conley then proceeded to question Davis for one-and-a-half to two hours, during which time Davis remained standing in the same place. Davis was never handcuffed that day. Nonetheless, while Conley questioned her, another officer wearing a flack jacket stood behind her and pushed her each time she shifted her weight or stepped backwards.
Cutting to the chase, the United States Attorney declined prosecution, because unlike Conley, he didn’t have shit for brains and used his time to prosecute actual criminals. Davis sued under Bivens and Conley, ever staunch in his duty to enforce the law by making old ladies stand in their urine-soaked knickers while they undergo a two-hour interrogation about a paperweight, sought qualified immunity. The 9th Circuit was unimpressed.
Because the moon rock paperweight had been seized and both Davis and Cilley had already been searched for other weapons and contraband, Conley had no law enforcement interest in detaining Davis for two hours while she stood wearing urine-soaked pants in a restaurant’s parking lot during the lunch rush. This is precisely the type of “unusual case” involving “special circumstances” that leads us to conclude that a detention is unreasonable. See Foxworth, 31 F.3d at 876 (quoting Summers, 452 U.S. at 705 n.21). Conley’s detention of Davis, an elderly woman, was unreasonably prolonged and unnecessarily degrading.
What’s unfortunate is that the court wasn’t constrained to engage in any serious analysis of qualified immunity to reach its “unusual case” exception. Had this not been an elderly woman, but rather a young man, would this have been less absurd and outrageous? Well, yes, as the court was typically reluctant to reach any conclusion that might constrain a real cop from doing the same thing involving a real perp.
For instance, search related detentions that are “unnecessarily painful [or] degrading” and “lengthy detentions of the elderly, or of children, or of individuals suffering from a serious illness or disability raise additional concerns.” Foxworth, 31 F.3d at 876. Thus, a “seizure must be ‘carefully tailored’ to the law enforcement interests that . . . justify detention while a search warrant is being executed.” Meredith v. Erath, 342 F.3d 1057, 1062 (9th Cir. 2003) (citing Summers, 452 U.S. at 699–705).
There is nothing facially wrong with noting that there are people who have obvious issues, whose status should inform any agent not to behave like a total callous ass. Silly, non-violent offense. Old lady. Special concerns. One can’t divorce the propriety of the conduct from the facts and circumstances surrounding it, and Conley’s actions in this case were so ridiculously unjustified and degrading as to cross any reasonable line.
Had this been a 40-year-old male trying to sell his moon-rock paperweight, would this have been a perfectly reasonable exercise of the police power, entitling Conley to hide behind qualified immunity? After all, the circuit wouldn’t want the NASA cop not to have his big moment, to be too fearful of repercussions when capturing such a heinous criminal.
*There is no information to suggest that Davis used either a walker or a cane, but since she was 74, I’m indulging in a little hyperbole to note what an unmitigated coward Conley was.