Appeals Court Bizarrely Redacts Qualified Immunity Decision To Hide How Compliant The Plaintiff Was

This is truly strange. The DC Circuit Court of Appeals somehow decided it was a good idea to redact its decision finding (partially) in favor of a person whose rights were violated by DC Metro police officers. What could have been a straightforward recognition that cops exceeded their boundaries was, at least temporarily, presented misleadingly, thanks to the government's desire to hide this information.

And it was the government. Although I haven't been able to locate a motion to seal, the only parties that could have been interested in hiding evidence of the plaintiff's compliance with police officers would have been the parties being sued. Short Circuit was the first to highlight the redactions, and the first to post the unredacted version when it went live.

As has been noted by many, but most notably by Fifth Circuit Appeals Court judge Don Willett, qualified immunity is a rigged game the government almost always wins. Burying narrative that indicates the plaintiff did not deserve the treatment they were subjected to by armed government employees does nothing more than allow the government to present its narrative without fear of being contradicted.

Here's the background on the lawsuit. Xingru Lin, a bus ticketing agent in DC, attempted to prevent Yokasty Rodriguez from sneaking onto a bus bound for New York. Lin ordered Rodriguez off the bus and attempted to photograph her. A scuffle ensued, instigated by Rodriguez. However, it was Rodriguez who decided to get police involved, falsely claiming Lin had assaulted her.

DC Metro Police arrived. Lin, already at a disadvantage due to her native language (Mandarin), attempted to speak to the Metro PD's translators. While she was on the phone with the PD's translators, officers grabbed Lin, pressed her against the wall, and then forced her to the floor and handcuffed her."

A short while after this, officers viewed security camera footage and determined Rodriguez has instigated the fight. They removed Lin's cuffs and discussed how this altercation should be handled. They determined that Rodriguez should be arrested for attempting to board the bus and assaulting Lin. Then, one officer decided Lin should be booked as well, if not just for assault (in an altercation she did not instigate) but for resisting arrest by being allegedly less than compliant with the handcuffing while she was still seeking help from a PD interpreter. In the end, Lin was booked on both charges, prompting this lawsuit.

The lower court sided with the police officers and the city, saying there was enough probable cause to support the arrest even the arresting officer's supervisor felt was unwarranted. The case bumped up to the DC Appeals Court, which reversed some of the lower court's decision. And that's good, because it means Lin can continue her civil rights lawsuit.

But it's the manner in which the court did it that's extremely concerning. Its initial release of its decision [PDF] was heavily redacted. And what those black bars hid was everything the Appeals Court had observed that indicated Lin, despite her language barrier and failed attempt to secure the help of a translator, cooperated fully with police officers.

It wasn't until a few days later that the court released an unredacted version. The redactions the Appeals Court decided to include in its initial release are extremely disturbing. What's excised from the first release is extremely telling.

The first extended redaction appears on the fourth page of the decision. It truncates the narrative into incomprehensibility, allowing the reader to draw incorrect conclusions about the interaction between Lin and Metro PD officer Corey Vullo.

Here's what's revealed by the unredacted version [PDF], with redacted phrases in bold.

When Officer Vullo approached the office, Lin immediately opened the door for him. Lin Opening Br. 4. While holding a cellphone to her ear, she nodded her head, gesturing for him to come in. Lin Opening Br. 4. Although Lin communicated that she was on the phone with the police, Officer Vullo demanded that she hang up. Lin Opening Br. 4.

With this information redacted, the reader is left to imagine how Lin initially responded to Officer Vullo's presence. They are also led to imagine Lin may have been speaking to anyone other than the PD itself, perhaps explaining Vullo's demand she terminate the call.

The redactions continue on the next page and they are even more extensive. Once again, the original redactions are in bold text.

As Lin was indicating to Officer Vullo that she could only speak Mandarin, Officer Johnson entered the travel agency and promptly ordered Lin: Turn around, turn around, you understand turn around don't you?" Lin did not understand. Officer Johnson moved her to a chair by twisting her arm behind her back, forcing her to sit down. Once on the chair, she sat calmly while Officers Johnson and Vullo held her arms. Lin's colleague, who was also in the room, attempted to explain that Lin had actually been trying to call the police for help, but Officer Johnson shouted him down.

The two officers then yanked Lin out of the chair and pushed her against the wall. Security footage shows that Lin stood motionless as the two officers held her. At this point, two more officers, Officers Albert Salleh and John Merzig, entered the travel agency and immediately joined in restraining Lin.

The next page is about fifty percent redaction bars. Again, the only content removed is evidence on the record showing Lin's compliance, which includes statements made by the government in its own filings.

Officer Vullo then talked to Rodriguez, who was still standing outside. Rodriguez stated that she was just gonna go say bye" to her boyfriend when Lin told her she ha[d] to go." Rodriguez claimed that she tried to reassure Lin that she was not getting on the bus, but that Lin shouted at her to get out right now." Rodriguez then made an illustrative pulling motion with her hand. According to Rodriguez, Lin then exclaimed that she would call the police and scratched her face.

While Officer Vullo spoke with Rodriguez, Officer Merzig viewed the travel agency's outdoor and indoor security footage in a back room. Lin's colleague helped Officer Merzig play the security footage and provided his perspective on the evening's events.

The security cameras showed at least three different angles on the bus. When Officer Merzig observed footage of Rodriguez sneaking onto the bus, he reacted with, Hmm. Yeah, no. I just, I just saw her go on." As the officer continued watching the recordings, Lin's colleague explained that the physical altercation between the two women happened after the bus left. He then enthusiastically gestured at the footage and emphasized that it was Rodriguez who had attacked Lin, not the other way around. Officer Merzig agreed that the security video footage demonstrated that, contrary to Rodriguez's story, the assault occurred after the bus had departed, and Rodriguez was the aggressor."

So, pretty much anything that didn't support Officer Vullo's decision to charge Lin with assault and resisting arrest was (initially) omitted. That this was done in hopes of protecting PD officers (but especially Officer Vullo) is made clear by the next set of redactions.

Officer Merzig brought Officer Vullo back to view the footage. After seeing the videos, Officer Vullo agreed with Officer Merzig that they would have to cut Lin loose. Officer Zhang Deposition Tr. 225:14-225:19 (Jan. 17, 2019), J.A. 1521; D.C. Ex. 2 at 18:39-18:41. Officer Merzig replied, Yeah, oh yeah, I mean, that's my opinion." Ex. 2 at 18:41-18:44. They determined that Rodriguez should be arrested for
unauthorized entry of a motor vehicle and assault. The officers then removed Lin's handcuffs.

The police investigation shifted to determining if Lin should be arrested for assaulting a police officer on the theory that she resisted arrest when they tried to handcuff her. Officer Vullo told the supervising officer on scene, Sergeant Christopher Ritchie, that Lin had pulled and yanked when they tried to arrest her. Sergeant Ritchie then questioned the other officers on the scene about the handcuffing. Gov't Br. 5. Officer Johnson reported: She wasn't flailing at us, she was just not allowing us to handcuff her." Gov't Br. 6. Sergeant Ritchie asked, So she was actively resisting you?" Officer Johnson replied: Passively, yeah." Gov't Br. 6; D.C. Ex. 4 at 20:04- 20:06. Officer Merzig interjected, She was pulling away." Gov't Br. 6; D.C. Ex. 4 at 20:07-20:08. Subsequently, Sergeant Ritchie reviewed the footage from both the incident with Rodriguez and the handcuffing.

The redactions here are key. First, it infers (by omission) that Officer Vullo had not seen the security camera footage that other officers agreed cleared Lin of assault charges. It also memory-holes Vullo's admission that Lin would need to be cut loose." It also eliminates evidence of Lin's resistance, which was passive at best - again, according to officers' own (redacted) statements.

I don't know what the government argued that persuaded the court to release an opinion containing one-sided redactions. But no matter what it argued, the Appeals Court should have told it to GTFO. The end result is a blow to the court's credibility and sends the unfortunate message that this court is willing, however temporarily, to obscure evidence of government wrongdoing.