Probation is often a punishment reserved for those who would otherwise be in jail, such as those who have committed felonies or misdemeanors. In Georgia, drivers who are put on probation can also find themselves in jail when accused of not paying off their speeding tickets. Recently, in Washington v. Rivera, the Eleventh Circuit held that a probation officer was entitled to qualified immunity from a lawsuit alleging that she wrongfully arrested Akeem Washington for failure to pay a traffic fine that he had, in fact, already paid. Unacknowledged in the Eleventh Circuit opinion is Georgia’s highly suspect practice of putting drivers, who have committed no other infraction other than a minor driving violation like rolling through a stop sign, on probation as part of a “payment plan” for traffic tickets.
Washington filed suit in Georgia State Court of Bulloch County against probation officer Shannon Rivera and her secretary, Tina Ellis, alleging the following facts: In August 2011, a Georgia state court imposed a speeding ticket fine of $895 dollars and put Washington on probation until he paid the fine. Upon Washington’s payment of the fine, the court clerk was to call the probation officer, Shannon Rivera, who was present at the court hearing, so that she could release him from probation. After Washington left the courtroom, he promptly withdrew money from an ATM and paid off the fine. The court clerk accordingly gave Washington a receipt and called the probation office and notified Rivera’s secretary that Washington had paid the fine. However, it seems that Rivera was not notified of the payment.
Nevertheless, in February of 2012, Rivera sought and obtained an arrest warrant for Washington indicating that he had failed to pay the fine. Washington was arrested in September 2012. After determining that Washington had in fact paid off the fine, he was released. As a consequence of the arrest, Washington was fired from his job with the Georgia Department of Corrections.
Based on these facts, Washington pursued two causes of action: the tort of unlawful arrest under Georgia law, and a 42 U.S.C. §1983 claim for unreasonable seizure and arrest in violation of the Fourth Amendment. The defendants removed the case to federal court in the Southern District of Georgia and filed a motion for judgement on the pleadings. The District Court held that Rivera was not entitled to quasi-judicial immunity, qualified immunity, or immunity under the Georgia Tort Claims Act (GTCA) and denied Rivera’s motion. On the issue of qualified immunity, the district court reasoned that Rivera did not meet the qualified immunity standard for unlawful arrest. The standard asks whether “a reasonably well-trained officer in [the defendant’s position would have known that [her] affidavit failed to establish probable cause [for the arrest].” In this case, the district court reasoned that a “reasonable jury could determine that Defendant Rivera’s inaction was objectively unreasonable.” It explained that this was a case “where no investigation was performed at all,” and not merely that “investigation into probable cause was less than perfect.” Therefore, the court concluded that such “turning of [a] blind eye . . . if true may be so reckless as to deprive Defendant Rivera of the qualified immunity defense.”
The Eleventh Circuit affirmed in part and reversed in part. Judge Anderson penned the opinion, agreeing that Rivera was not entitled to quasi-judicial immunity or immunity under the GTCA. Rivera was not entitled to quasi-judicial immunity because she is not “intimately associated with the judicial phase of the criminal process” the way that a judge or prosecutor is. Rivera, a probation officer, is akin to a police officer, who is not protected by quasi-judicial immunity when applying for arrest warrants according to the Supreme Court in Malley v. Briggs. Rivera was not entitled to immunity under the Georgia Tort Claims Act, which immunizes only “state officer[s] or employee[s],” because Rivera is an officer of Bryan County. Rivera was not acting on behalf of the state when she arrested Washington, but was rather acting on behalf of the county.
However, the Eleventh Circuit disagreed with the district court on the issue of qualified immunity. The test for qualified immunity is: (1) whether the defendant violated a constitutional right and (2) whether the right was “clearly established” at the time of the violation. The right violated in this case was the requirement that officers conduct a reasonable investigation to establish probable cause before arrest. The Eleventh Circuit held that Officer Rivera’s conduct was not sufficiently egregious to meet the high bar for withdrawing qualified immunity. The court reasoned that Rivera was reasonably operating on the piece of evidence that she did have: “that when Washington paid his fine, Rivera was supposed to be notified. The fact that she was not notified reasonably led her to believe that Washington had not paid his fine.” The court distinguished past cases by showing that in those cases the officer already possessed information that cast significant doubt on whether an arrestee was guilty. In contrast, Rivera’s conduct here involved “a reasonable mistake.”
Such a mistake seems less reasonable when one examines the seed that began this lawsuit. Two points should stand out. A Georgia state court imposed an $895 fine for speeding and imposed probation on Washington until he paid off the fine. Probation is an intense community supervision program usually imposed as an alternative to jail time for felonies and misdemeanors. Washington was subject to probation because Georgia “treats minor traffic offenses as misdemeanors.” This means that drivers “can be sentenced to probation or jail for, say, driving too slowly in the left lane or driving with a dirty license plate. Many Georgians also are on court-ordered probation because they can’t afford to pay court fees and fines.” Policies like these contribute to the fact that, as of 2017, one in sixteen Georgian adults are on probation or parole. This is the highest rate in the country. Out of 514,000 probation cases in Georgia in 2013, 300,000 were misdemeanor cases. Probation often requires weekly check-ins at probation offices, and can involve GPS ankle monitoring, alcohol and drug testing, and high monthly fees — typically $35 a month — to fund all of this monitoring. It is easy to see how probation could exponentially increase the cost of a fine that someone is already finding difficult to pay.
Not only does this seem like an excessive punishment for traffic offenses, but it also disproportionally affects the poor because “in practice, much of misdemeanor probation is just a prolonged, expensive payment plan for people who can’t afford fines.” In one Georgia County, the chief judge of the Recorders Court estimated that “[a]bout 60 to 70 percent of the probation cases that come from [her court] . . . are simply payment plans.” This is a payment plan that leads to frequent incarceration in what has become a “debtor’s prison.” Even though the U.S. Supreme Court held almost thirty years ago in Bearden v. Georgia that it is unconstitutional to send someone to jail for failure to pay fines, it is up to judges to distinguish between who is too poor to pay and who isn’t.
Against this background, the probation officer’s decision to whisk Washington out of his home and job without any investigation as to whether he had paid his traffic ticket stands out as unreasonable (as well as displaying a striking lack of concern). The means – jail time – used to secure the ends – extracting traffic ticket payments – is so excessive that it calls for some investigation. When such a severe punishment is, for the most part, meted out to a population whose poverty requires them to enroll in these probationary “payment plans,” it is unreasonable for officers to seek arrest warrants without some investigation into probable cause.
This was surely a close case even on qualified immunity standards, as evidence by the district court’s opinion that Rivera was not entitled to qualified immunity. The Eleventh Circuit should have considered the contextual background of the case when making the final judgment call as to whether Rivera acted as any “reasonable well-trained officer” would act in the same situation. Unfortunately, it seems as if the plaintiff’s brief did not sufficiently highlight this context for the court. The result is that the Eleventh Circuit’s low standard for what qualifies as a “reasonable mistake” perpetuates the worst aspects of Georgia’s probation-as-payment plan system for those who do not have the means to pay their tickets off in court.