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Officer Who Removed Grand Juror Has Qualified Immunity

By Robyn Hagan Cain on February 12, 2013 | Last updated on March 21, 2019

After a decade of litigation, Peter Atherton has finally lost his battle for a spot on a D.C. grand jury.

Atherton was sworn in as a District of Columbia Superior Court grand juror on April 9, 2001. The grand jury was scheduled to deliberate for 25 days, but Atherton was permanently removed from grand jury service on April 11, after an Assistant United States Attorney reported to the supervising AUSA, Daniel Zachem, that the jurors were complaining about Atherton.

After meeting with members of the grand jury, Zachem contacted the Director of Special Operations at the Superior Court, Roy Wynn, who directed him to juror officer Suzanne Bailey-Jones. Zachem discussed the matter with Bailey-Jones and then returned to the jury room, confiscated Atherton's notes, and directed him to report to the Juror Office. Bailey-Jones then summarily and permanently removed Atherton from the grand jury for being "disruptive."

Atherton was never given a written explanation for his removal from the grand jury, and he was not afforded a hearing before any court official or judge. He sued Bailey-Jones, Wynn, Zachem, and several other city and federal officials, as well as the District of Columbia and the Attorney General's Office, claiming that he was unlawfully removed from grand jury service because of his deliberative judgments and his Hispanic ethnicity.

The district court granted the defendants' motions to dismiss the complaint. The D.C. Circuit Court of Appeals revived Atherton's case against Bailey-Jones and Zachem for due process and equal protection violations two years later, finding that the officials who removed Atherton were not entitled to absolute immunity for their decision. Last week, however, the appellate court concluded that the officers were entitled to qualified immunity because Atherton did not have "a clearly-established constitutional entitlement to a more comprehensive termination process when he was excluded from jury service."

According to the appellate court, "clearly established" does not require a case directly on point, "but existing precedent must have placed the statutory or constitutional question beyond debate." To determine whether the state of the law was "beyond debate," the court looks to "cases from the Supreme Court and this court, as well as to cases from other courts exhibiting a consensus view -- if there is one." Whether a government official is entitled to qualified immunity "generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken."

Here, there was no case on point, and only one circuit opinion that was mildly analogous: U.S. v. Brown.

Atherton argued that Brown made it clear that "grand jurors cannot be dismissed unless and until a judge makes a finding of good cause shown, and implicitly, only after notice and opportunity to be heard." The D.C. Circuit assures Atherton that his interpretation is "untenable" and "beggars belief."

But at least now there's a case on point for future grand jury removals.

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