Joann Davis of Lake Elsinore, Calif., in 2011. (Sarah Burge/The Press-Enterprise via AP)
Agents of the U.S. government are entitled to immunity from lawsuits for what they do in the line of duty, as long as they do it right, in accord with the Constitution.
But what one NASA investigator did to Joann Davis, a financially distressed widow of an engineer on the Apollo program who was trying to raise a little money, was too much for a federal court of appeals to stomach. And on Thursday, the judges let her suit against him go forward.
Here’s what happened, as described in an opinion issued by a panel of the U.S. Court of Appeals for the Ninth Circuit in Pasadena.
Robert Davis was, by all accounts, a brilliant engineer, employed by North American Rockwell as manager of NASA’s Apollo 11 program.
When he left, he took with him two mementos: One “contained a rice-grain-sized fragment of lunar material, or ‘moonrock;’ the other contained a small piece of the Apollo 11 heat shield.”
According to “family lore,” Neil Armstrong gave the paperweights to Davis in recognition of his service to NASA.
Robert Davis died in 1986. His widow, Joann, who later remarried, fell on hard times in 2011. Her son had become ill, requiring over 20 surgeries. Her youngest daughter died, and she found herself raising several grandchildren in her 70s.
In need of money, she thought of selling the paperweights, only to find that auction houses were uninterested.
She then contacted NASA for help in finding a buyer for what she described as “2 rare Apollo 11 space artifacts.”
Her innocent email inquiry produced a wholly unanticipated result when it arrived in the NASA bureaucracy. It wound up not in the hands of some kindly space veteran but in the office of NASA’s Inspector General at the Kennedy Space Center in Florida.
There, an agent smelled a crime. Perhaps, he thought, she was trying to unload purloined government property, a crime.
http://www.washingtonpost.com/video/c/embed/d0089cd2-213a-11e7-bb59-a74ccaf1d02fThe U.S. Court of Appeals for the Ninth Circuit in Pasadena allowed a suit against a NASA investigator to go forward. The NASA investigator conducted a “sting” operation against a 74-year-old widow of a Apollo engineer, who was attempting to sell moonrock and a piece of the Apollo 11 heat shield. (United States Court of Appeals for the Ninth Circuit)
The IG’s office launched an investigation, getting a “confidential source” to call Davis pretending to be a broker. He called himself “Jeff.”
Jeff pretended to have previously worked at NASA and promised to help her sell the paperweights.
The two exchanged seven phone calls, during which Davis expressed concern that NASA would confiscate the paperweights unless she could prove they were a gift. She explained, according to court documents, that she wanted “to do things legally” because she was “just not an illegal person.”
Jeff said he was a legal person too, but reminded her that the sale of a moon rock “can’t be done publicly.”
After the phone calls, Norman Conley, a criminal investigator in the IG’s office, obtained a warrant stating that Davis was “in possession of contraband.”
They then planned a sting operation on the 74-year-old woman.
Jeff arranged to meet with Davis on May 19, 2011, at a Denny’s Restaurant in Lake Elsinore, Calif., for purposes, she was led to believe, of finalizing the sale of the paperweights.
Davis went with her second husband, Paul Cilley.
Greeting Davis, who is 4-foot-11, were three armed federal agents, with three Riverside County Sheriff’s officials present but not visible, apparently as backup.
The court opinion described what happened next:
Davis placed the paperweights on the table. Jeff said he thought the heat shield was worth about $2,000. Shortly thereafter, Conley announced himself as a “special agent,” and another officer’s hand reached over Davis, grabbed her hand, and took the moon rock paperweight. Simultaneously, a different officer grabbed Cilley by the back of the neck and restrained him by holding his arm behind his back in a bent-over position. Then, an officer grabbed Davis by the arm, pulling her from the booth. At this time, Davis claims that she felt like she was beginning to lose control of her bladder. One of the officers took her purse … Four officers escorted them to the restaurant parking lot for questioning after patting them down to ensure that neither was armed.
She kept telling the officers she needed to use the bathroom. Undeterred, they continued walking her to the parking lot for interrogation, however, the court said. She then “urinated in her clothing.”
She was soaked in urine, visibly, the court said. Still, they continued interrogating her in the restaurant parking lot for between an hour and a half and two hours. They read her Miranda rights, ultimately allowed her to leave and referred the case to the U.S. attorney in Orlando.
There never was a crime, of course. She didn’t steal the artifacts. Ultimately, the investigation was closed when the prosecutor in Orlando declined to bring a case.
In 2013, Davis and Cilley sued the government and Conley, seeking damages for a violation of their constitutional rights. Conley claimed “qualified immunity” from the suit, legally available to federal agents unless they violate “clearly established” constitutional rights, in this case, Davis’s Fourth Amendment right against unreasonable search and seizure. A district court rejected the claim and he appealed.
A very small piece of moon rock taken from Davis during a sting operation. (U.S. District Court for the Central District of California via AP)
On Thursday, the appeals court ruled against him. He might be entitled to qualified immunity, had his actions been reasonable, wrote Chief Judge Sidney Thomas for the panel. But they weren’t.
“Conley knew that Davis was a slight, elderly woman … less than five feet tall,” Thomas wrote. He knew she lost control of her bladder and “was wearing visibly wet pants.” He knew she was unarmed and he knew she had “not concealed possession of the paperweights, but rather had reached out to NASA for help in selling” them. And he knew from the phone conversations that she wanted to sell the paperweights “in a legal manner.”
“Despite all of this knowledge, Conley did not inform Davis that her possession of the paperweights was illegal or ask her to surrender them to NASA. Instead, he organized a sting operation involving six armed officers to forcibly seize a lucite paperweight containing a moon rock the size of a rice grain from an elderly grandmother.
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,” the court wrote.
The detention was “unreasonable … unreasonably prolonged and unnecessarily degrading.”
The future of Davis’s suit is uncertain. A federal court found against her in her separate suit against the government itself, according to the San Francisco Chronicle,
John Rubiner, an attorney for Conley, told 5KPIX
in San Francisco that he was examining the ruling and had not decided what to do next. He said that a trial court considering her case against the government determined that Conley had asked Davis if she wished to use the bathroom to clean up and whether she wanted to speak with him at her home, but she declined.
According to the San Francisco Chronicle
, the trial court dismissed the suit against the government on the grounds that Davis had given “free and voluntary” consent to the agent’s questioning in the parking lot and was not in custody while being questioned.
Davis’s lawyer, Peter Schlueter, told the Chronicle his client can sue for an abusive interrogation even if she was not in formal custody, however.
http://www.washingtonpost.com/video/c/embed/b84b9cd6-2138-11e7-bb59-a74ccaf1d02f Highlights from the Apollo 11 mission on July 21, 1969. (NASA