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Excessive Force during a Lawful Arrest: Five Cases

At the conclusion of a recent trial, the judge posed a question, “If I find that the defendants (two sheriff deputies) had probable cause to make an arrest of the plaintiff, could I still find that they used excessive force in doing so?”.

The answer:  Absolutely.  The Fourth Amendment protects against unreasonable searches and seizures, and although it is an important factor to consider, whether the police have probable cause to arrest someone is not the end of the inquiry.  In other words, just because police can lawfully arrest someone, it doesn’t mean that they can beat or otherwise abuse a suspect while doing so.  The law requires officers to act with restraint even in tense situations; when they cross the line, courts will hold them to account even in the face of post hoc rationalizations.

In researching the judge’s question, I came across five cases that illustrate the point.

1.   Deville v. Marcantel, 567 F.3d 156, 167-68 (5th Cir. 2009)

In Deville v. Marcantel, the Fifth Circuit found that defendant officers were not entitled to summary judgment because the level of force they allegedly exerted on the plaintiff was disproportionate to the need.  The plaintiff in Deville had been pulled over for a minor offense—exceeding the speed limit by 10 miles an hour—but refused to get out of the car when requested to do so by the officer.  The plaintiff’s granddaughter was in the car.  Another officer arrived on the scene and again requested that the plaintiff exit the car.  When she again refused, the second officer broke the driver’s side window (which the plaintiff had rolled up after speaking with the first officer), reached in, and forcibly removed the plaintiff from the car. The plaintiff sustained injuries during this encounter.  

Reviewing this circumstance, the Fifth Circuit noted, first, that the underlying justification for the arrest of plaintiff was a minor traffic offense.  Second, there was no indication that the plaintiff was a threat to the officers at the time force was exerted Although the officers claimed that the plaintiff could have used her car as a weapon or to flee, there was no indication that the plaintiff had made moves to do so when the second officer broke her window and seized her.  Thus, there were no exigent circumstances justifying the level of force used to secure the arrest.  Furthermore, the Court specifically noted that further verbal interactions with the plaintiff would have been the reasonable course for the defendant officers to take, given the lack of emergency circumstances.  See also Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) (finding officer’s use of beanbag shot against unarmed suspect excessive where there was no indication that officer considered less extreme tactics or issued verbal warning before firing).

2.   Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008)

In Richman v. Sheahan, the plaintiff’s estate sued after he died during the course of being removed from a court room.  The plaintiff, who was morbidly obese, had been ordered to leave by the judge.  When he refused, the judge pushed a panic button on his bench and deputies arrived.   The plaintiff, who was morbidly obese, was well known to the deputies because he had been to the courthouse before.   The deputies attempted to usher him out of the court room, but he refused to leave and instead started to cling to the podium.  The deputies then took him to the ground, where the plaintiff resisted by moving his arms and legs.  Deputies, some of them on the plaintiff’s back, continued to struggle with him until finally they put him in handcuffs.  The plaintiff yelled that he could not breath.  He then died.  

Considering these circumstances, the Seventh Circuit concluded that the deputies used excessive force in their interaction with the plaintiff.  The plaintiff was well known to the deputies and was unarmed.  Furthermore, there were no emergency circumstances requiring the deputies to take the plaintiff to the ground; court was over for the day, and so the plaintiff was not causing any disruption to proceedings.  Finally, the plaintiff’s obesity was obvious, and so the deputies should have known that taking him to the ground created a serious risk of positional asphyxia.  

3.   Bushell-McIntyre v. City of San Jose, 252 Fed. Appx. 810, 812 (9th Cir. 2007)

Similarly, in an unpublished opinion, the Ninth Circuit concluded that an officer used excessive force to arrest a plaintiff for a battery she committed against him.  In Bushell-McIntyre v. City of San Jose, the plaintiff admittedly committed a battery against an officer when she touched his badge.  252 Fed. Appx. 810, 812 (9th Cir. 2007). However, the plaintiff did not injure the officer in any way during the course of this battery.  After the battery, the defendant officer proceeded to apply a pain-compliance hold on the plaintiff, push her outside, and slam her into a car.  The Ninth Circuit held that these facts supported the conclusion that the officer used excessive force given testimony that the plaintiff was “calm, sober, and compliant” and that the battery on the officer caused no injury to him.  

4.  Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994)

In yet another excessive-force case, the Fourth Circuit held that an officer was not entitled to qualified immunity even where there were allegations that the plaintiff had resisted a lawful arrest.  In Rowland v. Perry, the Court considered a situation where a mildly retarded man, the plaintiff, had picked up a five dollar bill that a woman had dropped at a bus station.  An officer observed him pick up the bill and ordered that he return it to the woman.  The plaintiff had a brief conversation with the woman but then left the station without giving her the bill.  The officer followed the plaintiff and confronted him.  A struggle ensued, during which the plaintiff was taken to the ground and received injuries.  

Contending that he was entitled to qualified immunity, the defendant officer in Rowland urged the Court to look at the situation in a “segmented” fashion in which the officer’s escalating force corresponded to escalations by the plaintiff.  The Court refused to view the situation in such a way, noting that “[a]rtificial divisions in a sequence of events do not aid a court’s evaluation of objective reasonableness.” Instead, the Court considered the overall situation, including the seriousness of the alleged crime, whether the plaintiff presented an immediate threat to the officer, and whether he was actively resisting arrest or attempting to flee.  The Rowland court went on to hold that viewing the entire situation, it was impossible to escape the conclusion that the plaintiff had suffered a relatively serious injury over a very minor offense, picking up a lost five dollar bill.  Furthermore, there was no suggestion that the plaintiff was armed or otherwise a threat to the officer or anyone else at the time the officer decided to take him to the ground.   Given the minor nature of the crime and the fact that the plaintiff was not a genuine threat, the Court concluded that a jury could find that no reasonable officer would have thought that taking the plaintiff to the ground was justified under the circumstances.

5.   Burns v. City of Redwood City, 737 F. Supp. 2d 1047 (N.D. CA 2010)

Finally, in Burns v. City of Redwood City, a District Court denied summary judgment to officers who used excessive force to arrest a man who had battered one of them while in a state of confusion because of life-threatening hypoglycemia, or insulin shock.  In Burns, the plaintiff, a professional body builder, went into insulin shock at a movie theater.  He was wandering around outside when officers approached him.  He did not respond to the officers’ inquiries regarding whether anything was wrong with him.   Then, he either stumbled into or actively pushed one of the officers.   At this point, the officer pepper sprayed the plaintiff’s face.   A scuffle ensued, during which the plaintiff was taken to the ground and eventually put in handcuffs.  

Analyzing this situation, the District Court first noted that the intrusion onto the plaintiff’s liberty was not insubstantial:  He was pepper sprayed, taken to the ground, and placed into handcuffs after a struggle.  In contrast, the Court found that the underlying crimes the plaintiff allegedly committed—battery on an officer and public intoxication—were minor, especially considering that the officer suffered no injury from the alleged battery.  The Court further noted that the defendant officers had failed to give the plaintiff any verbal commands to submit to arrest before they employed force to subdue him.   It also rejected the officer’s contention that he felt threatened by the plaintiff after the battery, noting that there was no indication that the plaintiff was armed and “a simple statement by an officer that he fears for his safety or the safety of others .  . . is not enough . . . . [T]here must be objective factors to justify such a concern.”  Id. (quoting Deorle, 272 F.3d at 1281).  Considering the circumstances of the arrest in Burns, the District Court concluded that a jury could find that objective factors did not justify the officer’s alleged concerns.

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