The hearing was the latest development in a legal battle that dates back more than two years. In the initial complaint, filed on July 7, 2011, Edward "Blue John" Chevallier contended Hand had violated his rights under the 4th and 14th amendments when he arrested him the previous August, following an argument between Chevallier and a tenant at his Berryville trailer park.
Specifically, Chevallier accused Hand of lacking probable cause and using excessive force during his arrest.
Consideration of the force claim was stalled last summer, after Hand asked the court to decide the question of probable cause without going to a jury trial. In making the request, Hand cited state immunity laws meant to protect officers from unwarranted litigation.
U.S. District Judge P.K. Holmes denied Hand's motion on Aug. 6, ruling he had not had probable cause to arrest Chevallier and, thus, should not be immune. One week later, Hand appealed that decision to the U.S. Eighth Circuit Court of Appeals
At last week's hearing, in St. Louis, attorneys for Chevallier and Hand argued the appeal before Judges Diana Murphy, Lavenski Smith, and Raymond Gruender.
In a brief filed on Halloween, and again during last week's arguments, Hand's attorney, Jason Owens, asked the judges to reverse Holmes' decision -- calling his analysis "fatally flawed."
The problem, Owens argued, was that Holmes had applied too rigorous a standard. While the judge considered whether Hand had probable cause to arrest Chevallier, Owens maintained he should have, instead, considered whether he had "arguable" probable cause -- a less rigorous threshold.
"The Supreme Court has been clear," Owens said, "that in the hazy, unclear areas between legal and illegal, constitutional and unconstitutional, officers are essentially given the benefit of a doubt ... This (case presents) exactly the kind of arrest, exactly the kind of facts, that qualified immunity was intended to protect officers against."
Part of the problem, Owens said, was that Holmes had applied a "novel and impossible standard" that would require an officer to actually witness a misdemeanor being committed in order to make an arrest. This standard, he said, was far from clearly established by law and, thus, should be discarded.
Chevallier's attorneys had cited this "in the presence" standard in their original complaint, relying on the more than century-old case of Bad Elk v. United States. That case was based on Common, rather than Constitutional, law and had never been tested by the U.S. Supreme Court.
Given these facts, Holmes disregarded the case in his ruling, although Owens maintained the judge had still applied the standard in his own analysis, by considering only those facts "personally observed" by Hand.
Chevallier's attorney, Jo Alison Helms, disputed this last week. She also acknowledged the weakness of the in-the-presence standard, though not conceding the argument entirely, and agreed that the lower court had erred in not applying the arguable probable cause standard. However, even using this less rigorous standard, Helms maintained that Hand did not have cause to arrest Chevallier.
Owens, however, argued the judge had ignored critical pieces of evidence -- such as Chevallier's history of conflict with the alleged victim and Chevallier's own admission that he had disregarded previous officers' orders to stay away from the tenant's property -- that would have supported Hand's claim of probable cause.
He concluded, "I think it's improper for the court to employ the wrong standard, ignore key facts, and ultimately find that 'it strikes the court' -- with 20/20 hindsight -- that this was maybe not the most prudent arrest."
The judges have not yet issued a ruling in the appeal, and sources close to the case say it will likely be several months before they do so. Only once the motion for summary judgement is decided can the remaining claims be considered.