Steven L. Day Esq.
“Objectively Reasonable” Standard in Police Misconduct Cases
Public officials will not be held personally liable so long as their actions are reasonable. Anderson v. Creighton, 483 U.S. 635, 646 (1987). In other words, the officers, in any case, will have immunity if their actions are deemed reasonable under the circumstances.
The immunity analysis is a two-pronged analysis: whether the officer violated a plaintiff’s constitutional right and, if yes, whether the constitutional right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001). The first step employs the Graham analysis:
[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, it’s proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S at 8–9, 105 S.Ct., at 1699–1700.
Graham v. Connor, 490 U.S. 386, 396 (1989) (Emphasis added).
The question in all Fourth Amendment cases is whether the force was “objectively reasonable” under the circumstances. Graham, 490 U.S. at 397. The Ninth Circuit has held that the “most important Graham factor is whether the suspect posed an immediate threat to the safety of the officers or others.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). Because the inquiry is inherently fact-specific, the “determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.” Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1205-06 (9th Cir. 2000), judgment vacated on other grounds, 534 U.S. 801 (2001); see also Torres V. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (summary judgment “in excessive force cases should be granted sparingly”); Liston v. County of Riverside, 120 F.3d 965, 976 n. 10 (9th Cir. 1997) (finding that excessive force is “ordinarily a question of fact for the jury”); Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular use of force was reasonable is rarely determinable as a matter of law.”).
The law is clearly established that a use of force constituted excessive force when dealing with a suspect who is compliant with officer commands, not resisting arrest, not attempting to flee or posing a threat to officers or others. An officer is entitled to qualified immunity if his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S.Ct. 548, 551 (2017). The law does not require a case directly on point but must be established through existing precedent placing “the statutory or constitutional question beyond debate.” Id. Before a court can impose liability on an officer, precedent must have been established as of the day of the incident. S.B. v. County of San Diego, ___ F.3d ___, 2017 WL 1959984 (9th Cir. 2017)
The test of reasonableness under the Fourth Amendment requires careful attention to the facts and circumstances of each particular case including not only the severity of the crime but whether the suspect poses an immediate threat to the safety of the officer or others and whether he was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. In the obvious case, the Graham excessive force factors themselves “can clearly establish the answer, even without a body of relevant case law.” Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012).
When a suspect is compliant, not resisting arrest, attempting to flee or posing a threat, the degree of force an officer can employ is significantly reduced. Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (Fourth Amendment violation when the defendant officer released his dog on a plaintiff burglary suspect discovered hiding in a canal who was compliant with the officer commands, did not attempt to flee or resist arrest and did not pose a threat); Cooper v. Brown, 844 F.3d 517, 522, 523 (2016) (Fourth Amendment violation when an officer allowed police dog to bite arrestee’s calf in spite of the arrestee being suspect of a serious offense but did not pose an immediate threat to the officer or others, was not actively resisting arrest or attempting to flee and the officer did not first attempt to negotiate); Bush v. Strain, 513 F.3d 492 (5th Cir. 2008) (officer was determined to have used unreasonable force when he clammed the suspect’s face into a vehicle when she was not actively resisting arrest or attempting to flee); Montoya v. City of Flandreau, 669 F.3d 867, 871 (8th Cir. 2012) (officer’s level of force determined to be unreasonable when he performed a leg sweep on a suspect who was not threatening anyone, was not actively resisting arrest and was not attempting to flee); Otiz ex rel. Ortiz v. Kazimer, 811 F.3d 848, 852, (6th Cir 2016) (an officer’s conduct was unreasonable when he slammed a non-violent and capitulating suspect against a vehicle); Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011) (intermediate force deemed unreasonable when officer pepper sprayed person stopped for seatbelt violation who posed no threat to the officer of the public safety); Blankenhorn v. City of Orange, 485 F.3 463 (9th Cir. 2007) (force considered excessive where officers tackled and punched trespass suspect who was not actively resisting arrest); Cepero v. Las Vegas Metropolitan Police Dept., 2012 WL 760643 (D. Nev. 2012) (repeatedly punching and kicking suspect who was not resisting arrest constituted excessive use of force); Miller v. Sanilac County, 606 F.3d 240, 252-54 (6th Cir. 2010) (officer slamming a non-violent and capitulating suspect against a vehicle crossed the line between reasonable and excessive force); and, Baker v. City of Hamilton, Ohio, 471 F.3d 601 (6th Cir. 2006) (force deemed to be excessive when officer struck suspect’s head after suspect raised his hands in surrender position showing he was unarmed, compliant and not significant threat to the safety of officer).
The Ninth Circuit in particular has made it clear that in a situation where an arrestee surrenders, any reasonable officer would know that a use of force constitutes excessive force. Lalonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000) (use of pepper spray okay to bring arrestee under control but not okay once arrestee surrenders and is rendered helpless); Drummond v. City of Anaheim, 343 F.3d 1052, 1059-60 (9th Cir. 2004) (crushing a suspect against the ground when the suspect was not resisting constituted excessive use of force). Even in those cases where the suspect passively resist arrest, a lessor degree of force is warranted when compared to those situations where a suspect is actively resisting arrest. Glee v. Washington County, 673 F.3d 864, 875 (9th Cir. 2011). “Force is excessive when it is greater than is reasonable under the circumstances.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002). When the circumstances show that there is no need for force, any force used is constitutionally unreasonable. Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001).
The Ninth Circuit in Mattos was concerned about over-applying qualified immunity in Fourth Amendment cases.
The Supreme Court has made “clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). We are particularly mindful of this principle in the context of Fourth Amendment cases, where the constitutional standard – reasonableness – is always a very fact-specific inquiry. If qualified immunity provided a shield in all novel factual circumstances, officers would rarely, if ever, be held accountable for their unreasonable violations of the Fourth Amendment. See Deorle, 272 F.3d at 1286 (“Otherwise, officer would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.”). That result would not properly balance the competing goals to “hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 129 S.Ct. at 815.
Mattos, 661 F.3d at 442.
In Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), the Ninth Circuit was considering whether, among other things, qualified immunity applied to the acts of officers who gang tackled the plaintiff after he allegedly resisted arrest.
In assessing the state of the law at the time of Blankenhorn’s arrest, we need look no further than Graham’s holding that force is only justified when there is a need for force. We concluded that this clear principle would have put a prudent officer on notice that gang-tackling without first attempting a less violent means of arresting a relatively calm trespass suspect – especially one who had been cooperative in the past and was at the moment not actively resisting arrest – was a violation of that person’s Fourth Amendment rights. This same principle would also adequately put a reasonable officer on notice that punching Blankenhorn to free his arms when, in fact, he was not manipulating his arms in an attempt to avoid being handcuffed, was also a Fourth Amendment violation.
Therefore, we conclude that the state of the law was “clearly established” at the time of Blankenhorn’s arrest and gave the arresting officers sufficiently fair notice that their conduct could have been unconstitutional.
Blankenhorn, 485 F.3d at 481 (Emphasis added). The Ninth Circuit concluded that the gang tackle and punches used while taking Blankenhorn into custody did not entitled the officers to qualified immunity. Id.
The Ninth Circuit in Deorle v. Rutherford, 272 F.3d `171 (9th Cir. 2001), involved officers firing a lead-filled “beanbag round” at Deorle who was an emotionally disturbed resident of Butte County, California, and who had been behaving erratically because of intoxication. Id. at 1276. Deorle was verbally abusive but physically compliant. Id. An officer testified that for thirty or forth minutes, he did not see Deorle touch, let alone attack anyone nor had anyone reported such action. Id. The officer ultimately shot Deorle as the suspect was approaching him with a can or bottle in his hand. The Ninth Circuit dealt with the qualified immunity issue.
Every police officer should know that it is objectively unreasonable to shoot – even with a lead shot wrapped in a cloth case – an unarmed many who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significantly degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals. Here, all those factors were present. Deorle had complied with the police officers’ instructions, had discarded his potential weapons whenever asked to do so, and had not assaulted anyone; in addition, a team of negotiators essential to resolving such situations was en route.
Id. at 1286.
Courts have approved both a takedown and the use of handcuffs where the officers reasonably feared for their safety. Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (arm-bar takedown) and United States v. Albert, 579 F.3d 1188, 1194 (10th Cir. 2009) (handcuffs). Officer Nutzman acknowledged his awareness of the law when he testified there is no reason to go hands-on with a suspect who is compliant and poses no risk to officers.
The Tenth Circuit in Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), addressed the qualified immunity issue in a case involving the front takedown of a suspect. Police responded to a “domestic dispute.” Police were taking statements in the front yard of a home when Plaintiff’s husband (Morris) arrived and got into a brief conversation with one of the parties (Bell). Morris began backing up toward the police officers with hands raised after Bell began approaching him. The officers threw Morris to the ground and handcuffed him. Id. at 1190. The court addressed two immunity issues: did the officers have probable cause to arrest and if the officer had probable cause, was excessive force used. Id. at 1191. Prior to addressing immunity as it applied to the excessive force claim, the court addressed the second Graham factor.
The second factor weighs heavily in Plaintiff’s favor. Morris posed little immediate threat to the safety of the officers or Bell. Admittedly, Morris “walk[ed] toward the group of officers and Bell,” which might present some threat. Furthermore, Morris was a large man and he asked Bell a potentially confrontational question: “Why was you talking to Mama that way?” But Morris carried no weapon, made no overt threats, and did not get within reach of Bell. . . . Furthermore, none of the officers gave Morris any warning to calm down. . . . At the time he was taken down, Morris was backing away from Bell in an apparent attempt to de-escalate the encounter. On these facts, Morris posed little threat to officer or bystander safety.
Morris, 672 F.3d at 1196 (emphasis added). The Tenth Circuit further brought up the fact that Morris was neither resisting arrest or fleeing. Id.
In analyzing the immunity issue, the Court discussed the issue of whether a right is clearly established in an excessive force claim.
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other court must have found the law to be as the plaintiff maintains.” Klen v. City of Loveland, Colo., 661 F.3d 498, 511 (10th Cir. 2011). Because the existence of excessive force is a fact-specific inquiry, however, “there will almost never be a previously published opinion involving exactly the same circumstances.” Casey, 509 F.3d at 1284. Thus, we have adopted a sliding scale: “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). In fact, we do not always require case law on point. “[W]hen an officer’s violation of the Fourth Amendment is particularly clear from Graham itself, we do not require a second decision with greater specificity to clearly establish the law.” Casey, 509 F.3d at 1284.
Morris, 672 F.3d at 1196, 1197.
The Tenth Circuit concluded that a constitutional right was clearly established if the force is clearly unjustified based on the Graham factors.
Here, as we discussed above, the first Graham factor only marginally supported using force against Morris, and the second two factors weighed heavily against it. So a reasonable officer would know based on his training that the force used was not justified.
Morris, 672 F.3d at 1198.
In summary, an officer’s conduct will be judged based upon clearly established precedent. Whether an officer’s conduct constitutes “objectively reasonable” conduct will be based upon case precedent.