Police seem to be increasingly using the tactic of shooting at moving vehicles to stop them. Usually the police officer is out of his vehicle and claims he was afraid that he was going to be hit by the car, so the shooting is necessary to stop the car to prevent the car from hitting him. On police blogs, this tactic of shooting at cars finds much favor, and they love to characterize cars as “3000 lb missiles.” In some cases (for example, the Chance Oxner and Billy Shane Harrison shooting of Jonathan Ayers), the officer even seems to put himself in the path of the car on purpose.
With the rise in these types of car shootings, civil cases are beginning to pop up. The latest one is LATITS v. Phillips, Court of Appeals, 6th Circuit 2014. In this case, the car was allegedly backing up, and “arcing away” from the defendant police officer (City of Ferndale Officer Lowell Phillips). Sensibly, the court refused to find qi (qualified immunity) for Officer Phillips on a motion to dismiss the complaint. A car backing up from a dead stop is not a “missile,” and the opinion effectively recognizes that.
However, the Latits opinion, and others in car-shooting cases, haven’t yet articulated the obvious thing that needs to be said. So I will now say to the police officers of America:
Shooting at a car is not a reliable way to stop a car. If a car is coming at you, focus on getting out of the way. That is the best way to “make it home for dinner.” If the driver means to hit you, then shooting at the driver will make him more determined to run you down. If the driver isn’t trying to hit you, but you are in the car’s path, then shooting is not only likely to be ineffective, but also a crime and a Constitutional violation.
Police allowed to place “moderately intoxicated” (0.082 BAC) into detox under community caretaking doctrine
Case: Meehan v. Thompson, Court of Appeals, 8th Circuit 2014
What happened: Plaintiff (with 0.082 BAC) was a passenger in a car driven by a drunk driver. She wanted to be allowed to wait for a ride home (about a mile away), but the police wanted to impound the vehicle and take her to a detox facility. The police let her wait about four minutes, but her ride took about eight minutes to get there because plaintiff’s husband had to find a sober person to drive. Accordingly, plaintiff spent the rest of the night and part of the next day in a detox facility. Police claimed that their authority to force the woman into detox came from the community caretaking doctrine.
Decision: Law does not clearly state whether a “moderately intoxicated person” alone at night is enough of a risk to themselves and/or others such that the community caretaking exception to 4A applies. Therefore, the police got qi — case dismissed.
Criticism: Plaintiff was not behaving badly, and 0.082 BAC does not seem that much (so long as a person is not driving and/or behaving badly). I think (and this is speculation) that the policeman wanted to punish the woman for something (maybe a rude tone, maybe letting her friend drive drunk). While the policeman’s subjective intentions usually don’t matter in 4A cases, I think that they should matter under the community caretaking. Accordingly, I think plaintiff here should have gotten a trial on the issue of whether the arresting policeman was truly concerned with plaintiff’s well-being, rather than trying to punish plaintiff.
Further criticism update: When invoking the community caretaking exception there is generally no crime, which means that there are generally not suppression remedy cases available to develop community caretaking 4A law. As such, I don’t think it makes any sense to say “the law is not clearly established,” as the court did in this case. We, as a society, need courts to make 4A holdings in community caretaking cases so that the contours of community caretaking law can become clearer over time.
Still further criticism update: For whatever reason, the opinion never addresses the possibility that the police simply could have taken the woman home — her home was much closer than the detox facility. I think this choice by the police is what most clearly shows their intent to punish.
As an avid reader of police4aqi (that is police 4th Amendment, qualified immunity) cases, I have come to the conclusion that most of them go on for too long. Below is a typical police 4aqi case with an atypical opinion — atypical because it is so concise and readable. The quote below is almost the entire opinion . . . seems correct in its legal holdings, too. As Tim and Eric used to say, great job!!!
Case: Hale v. Ashley, Dist. Court, ND Ohio 2014
DONALD C. NUGENT, District Judge.
This matter is before the Court on the Motion to Dismiss (Docket #6) filed by Defendant, Ohio State Highway Patrol Trooper Allen Marcum. Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Defendant Trooper Marcum moves the Court for an order dismissing all claims against him.
Facts as alleged in the Complaint
Plaintiffs originally filed this Complaint in the Lorain County Court of Common Pleas, Case No. 14 CV 182738, against Defendants, City of Elyria Police Officers Ashley, Darmstadt, Jama, Lessner, Orsik, and Straub; City of Elyria Police Sergeant Frank; and, Ohio State Highway Patrol Trooper Allen Marcum. On March 24, 2014, the Elyria Defendants removed the case to this Court. The Complaint includes claims against all Defendants for Assault and Battery; Willful, Wanton, Reckless and Negligent Conduct; False Arrest/False Imprisonment under Section 1983 and Ohio law; Excessive Force under Section 1983; and, Loss of Consortium.
Plaintiffs allege that Defendants used excessive force against Plaintiff, Bobby Hale, a 68 year-old man, when they responded to a call at the home of Plaintiffs’ son, Tony, who was reportedly in the midst of a suicide attempt. (Complaint at Paragraph 18.) As alleged in the Complaint, after a period inside the home with Bobby Hale and various officers, Tony exited the home and was tased by Defendant Trooper Marcum. (Complaint at Paragraphs 21-26.) Bobby Hale mistakenly thought Tony was shot and became distraught, at which time Plaintiffs allege Defendant Trooper Marcum and/or another Defendant Officer pulled a gun and aimed it at Bobby Hale. (Complaint at Paragraph 27.) Plaintiffs allege that Bobby Hale stepped back, then followed the Officers’ orders to stop. (Complaint at Paragraph 28.) Plaintiffs allege that the Officers proceeded to use excessive force against Bobby Hale, throwing him into a picnic table and then onto the ground, yanking him back onto the picnic table, twisting him around and slamming him back into the ground. (Complaint at Paragraph 29.) Plaintiffs state that Bobby Hale’s arm was so badly injured that he was unable to comply with Officers’ orders to give them his arm for cuffing, at which time Plaintiffs allege Defendants punched, kicked, verbally assaulted and shoved him into the car four times, all with excessive force. (Complaint at Paragraphs 30-32.)
Plaintiffs state Bobby Hale’s cries for medical attention were initially ignored but he was later transported by ambulance to the emergency room. (Complaint at Paragraph 33.) Plaintiffs allege Bobby Hale suffered numerous injuries and underwent surgery the night of the incident to address a dislocated elbow. (Complaint at Paragraph 34.) Bobby Hale was arrested and charged that same evening by the City of Elyria with Obstructing Official Business pursuant to Ohio Rev. Code § 2921.31 and Resisting Arrest pursuant to Ohio Rev. Code § 2921.33. (Complaint at Paragraph 35.) The next day Bobby Hale was also charged with two counts of Intimidation pursuant to Ohio Rev. Code § 2921.03. (Id.) On November 14, 2013, during pretrial proceedings, the charges of Intimidation and Resisting Arrest were dismissed. (Complaint at Paragraph 36.) Bobby Hale entered a plea of no contest to a charge of Disorderly Conduct. (Complaint at Paragraph 37.)
Plaintiffs state Bobby Hale has ongoing medical problems resulting from the incident; that he has required ongoing physical therapy and orthopedic treatment; and, that his wife, Plaintiff Rita Hale, has suffered a loss of consortium. (Complaint at Paragraphs 38-40.)
On March 31, 2014, Defendant Trooper Marcum filed his Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6), asking the Court to dismiss all claims against him. (Docket #6.) On May 14, 2013, Plaintiffs filed their Brief in Opposition. (Docket #12.) Plaintiffs concede that all claims against Defendant Trooper Marcum in his official capacity should be dismissed and that all State law claims against Defendant Trooper Marcum in his individual capacity should be dismissed. However, Plaintiffs ask the Court to deny Defendant Trooper Marcum’s Motion to Dismiss in regard to the Section 1983 excessive force claim against him in his individual capacity. Further, Plaintiffs argue that Defendants failed to move for dismissal of their Third Claim for Relief — False Arrest/Imprisonment pursuant to 42 U.S.C. § 1983 and, therefore, that said claim survives.
On May 28, 2014, Defendant Trooper Marcum filed his Reply Brief in Support of his Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). (Docket #13.) Defendant Trooper Marcum claims that Plaintiffs fail to properly state a claim of excessive force by failing to specify what violations of the Fourth or Fourteenth Amendment they allege were committed by Defendant Trooper Marcum and, that even if the allegations were sufficient, that Defendant Trooper Marcum is entitled to qualified immunity. Further, Defendants assert that there is no allegation that Defendant Trooper Marcum arrested Bobby Hale; that no Constitutional claim for “false imprisonment” exists under Section 1983; and, therefore, that their failure to address Plaintiffs’ Section 1983 claim for false arrest/false imprisonment is inconsequential and said claim should be dismissed.
. . .
I. Conceded Claims.
Plaintiffs concede that all claims against Defendant Trooper Marcum in his official capacity should be dismissed, as well as all State law claims against Defendant Trooper Marcum in his individual capacity. Accordingly, Plaintiffs’ First, Second and Fifth Claims for Relief are dismissed as to Defendant Trooper Marcum, as conceded by Plaintiffs. Plaintiffs’ claims under Ohio law for false arrest and false imprisonment, part of Plaintiffs’ Third Claim for Relief are also dismissed, as conceded by Plaintiffs.
II. False Arrest/False Imprisonment under 42 U.S.C. § 1983.
In their Third Claim for Relief, Plaintiffs allege Defendants intentionally and unlawfully detained and arrested Plaintiff Bobby Hale without lawful privilege, against his consent, and without probable cause, thereby depriving him of his rights secured by the Fourth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.
A Section 1983 claim based on theories of false arrest and false imprisonment arises under the Fourth Amendment and turns on the question of probable cause. Gorcaj v. Medulla, 51 Fed. Appx. 158, 159 (6th Cir. 2002). In this case, Plaintiff Bobby Hale ultimately entered a plea of no contest to the disorderly conduct charge. (Complaint at Paragraph 37.) This precludes a § 1983 claim for false arrest or false imprisonment. Mason v. Holmes, 2014 U.S. Dist. LEXIS 22862, 2014 WL 696418 (N.D. Ohio Feb. 24, 2014). Accordingly, Defendant Trooper Marcum is entitled to dismissal of Plaintiffs’ Third Claim for Relief for False Arrest/False Imprisonment under Federal Law.
III. Fourth Claim for Relief — Excessive Force, 42 U.S.C. § 1983.
Defendant Trooper Marcum argues that the language of the Complaint leaves him unable to determine what constitutional violation he allegedly committed. However, the Complaint clearly sets forth the acts and events giving rise to the Complaint and Plaintiffs attribute the alleged conduct, at least at this stage of litigation, to the “officers” or “Defendants.” Allegations that multiple Defendants participated in the same conduct are plausible. While further discovery may clarify what took place and whether or not Defendant Trooper Marcum participated, Plaintiffs’ claims are sufficient to withstand Defendant Trooper Marcum’s Motion to Dismiss. The Court is not persuaded that Defendant Trooper Marcum’s distinct State Trooper uniform requires Plaintiffs to separate him from the collective “officers” or “Defendants” within the Complaint.
Likewise, without additional discovery, Defendant’s argument that Plaintiff is entitled to qualified immunity is premature. Defendant Trooper Marcum argues that Plaintiffs have failed to allege facts that would show, even if taken as true, that Defendant Trooper Marcum violated Bobby Hale’s Constitutional rights and that a reasonable officer in Defendant Trooper Marcum’s position would have believed his conduct to be unconstitutional. Saucier v. Katz, 533 U.S. 194, 201 (2001). In order to determine whether Defendant Trooper Marcum is entitled to qualified immunity, discovery is necessary to clarify the events giving rise to Plaintiffs’ Complaint, including Bobby Hale’s actions at the time, and the role of any individual officer or Defendant in the conduct alleged. Accordingly, Defendant Trooper Marcum is not entitled to dismissal of Plaintiffs’ Section 1983 claim brought against him in his individual capacity for use of excessive force.
. . .
On the afternoon of March 29, 2011, Officer Seiser was driving his private automobile between Tilden Career Community Academy High School in Chicago’s Canaryville neighborhood to the nearby intersection of 50th Street and Union Avenue, where Seiser was assigned to stand post until 4:00 p.m. as part of the City’s Operation Safe Schools program. Seiser was on duty and in uniform as a police officer.
Seiser was making an effort to consume extra water as part of a weight-loss program. Toward that end, he had a large bottle of water with him in the car and in fact was drinking from it while en route to his assigned post. In retrospect, his choice of bottle was not the most prudent: the bottle was a 1.75-liter T.G.I. Friday’s Mudslide bottle which, when sold, had contained an alcoholic beverage and which still bore a label that read, “The liquor is in it.”
Officer Seiser loses his civil suit against the police for breathalazying him and arresting him.
SEISER v. City of Chicago, Court of Appeals, 7th Circuit 2014
My informal review of cases, over the past couple of years in doing this blog, leads me to think that they do. More specifically, I think plaintiffs, over, say, 70 years old tend to win cases that younger plaintiffs would not tend to win (that is, generally, to defeat summary judgement (sj) on qualified immunity (qi) in favor of the police). I can’t prove this. I don’t think it is any sort of huge problem, but I do think it is interesting, so I decided to link a couple recent cases where my gut tells me that younger plaintiffs probably would have lost:
LOVI v. Village of Arlington Heights, Dist. Court, ND Illinois 2014 (In therapy, senior makes a statement that is arguably a “threat” and police respond by arguably going overboard with aggressive “community caretaking”).
Martinez v. Mares, Dist. Court, D. New Mexico 2014 (Innocent senior, caught in some suspicious circumstances, disobeys police officer (!!!), but still might have had the right not to be cuffed and frisked by police during his Terry stop).
Please don’t take this post the wrong way — in so far as I am in a position to adjudge, I think the senior plaintiffs deserved to win their respective cases here. Again, I just feel that a couple of, say, 35 year old, plaintiffs in similar circumstances would not have survived sj.