Broadwater also alleges that the Commonwealth and the PSP [Pennsylvania State Police] “created a culture where [Fow] felt comfortable openly referring to Mr. Broadwater as a `retard’ and as `Mr. Crazy’ in official PSP communications . . . .” In light of these factual allegations, Broadwater adequately states a claim against the Commonwealth and the PSP under the ADA and § 504.
I thought I had blogged this case last fall, but I don’t see it. At any event, the issue is whether a loud argument (as opposed to anguished screaming or gunshots or bludgeoning sounds or etc.) is enough for police to enter a dwelling without a warrant. Many policeman seem to think that a loud argument is automatic exigency, no warrant required. However, as Storey v. Taylor shows, this is not true.
On September 7, 2007, the Los Lunas, New Mexico Police Department received an anonymous call reporting a loud argument at Storey’s address. The Department dispatched Officers Taylor and Garcia to investigate.
When Taylor and Garcia arrived at Storey’s residence, they heard no argument. They knocked on the front door and Storey answered. Taylor’s belt tape reveals the following exchange:
TAYLOR: Hi. Was there an argument here?
STOREY: My wife was, yeah.
TAYLOR: Your wife was?
TAYLOR: OK, that’s why we’re here. What’s going on? Is your wife here now?
TAYLOR: She’s not here now?
TAYLOR: OK. Did she [inaudible] with you or what went on?
STOREY: We had a little argument. I don’t know who called.
TAYLOR: OK, she didn’t call, your neighbor called.
TAYLOR: OK. You guys stand outside arguing and fussing …
STOREY: Listen, listen, it wasn’t outside.
TAYLOR: Well, here’s the deal. Your neighbors called, OK.
STOREY: I was not outside.
TAYLOR: Well, it doesn’t matter. If they hear you, it’s the same as you being outside. Alright? That’s how that works. OK? I’m sitting here. As long as you guys are safe and there’s only one of you home, that’s all we’re concerned about.
TAYLOR: There’s no one else in the house with you?
STOREY: My dogs.
TAYLOR: Your dogs are in the house with you? OK. Is your wife coming home later, what’s going on with [inaudible]
Taylor then asked Storey about the subject of his argument with his wife. When Storey refused to tell him, he ordered Storey to exit the house:
TAYLOR: Now, what started the argument? [inaudible]
STOREY: Do I have to tell you everything?
TAYLOR: Yes you do. You have to tell me what’s going to be safe.
STOREY: I do not have to tell you anything.
TAYLOR: Sir, step out of the house.
TAYLOR: Step out of the house.
STOREY: I’m not doing it.
TAYLOR: You’re going to step out of the house.
TAYLOR: Listen. You shall obey my command and step outside the house or you go to jail. Step outside.
STOREY: I am not doing that.
TAYLOR: Step out of the house.
STOREY: Why are you doing this?
TAYLOR: You are going to comply with a lawful order. You don’t want to deal with this, you can go to jail.
At this point, Taylor appears to have pulled Storey outside, handcuffed him, and placed him under arrest. After another exchange that is mostly inaudible on the belt tape, Taylor said:
TAYLOR: You’re going to jail because you refuse to comply because you’ve got a case of the attitude.
STOREY: I’ll lay down on the ground if you want me to.
TAYLOR: Nope. You want to be a smart alec and you want to think you’re going to tell me your rights? Here, let me tell you State of New Mexico. You’re required to obey me when I issue you a lawful order. So now you can go to jail. Take him to jail. Resist to obey, twenty-five hundred dollars.
Garcia transported Storey to the police department, where he was charged with resisting, evading, or obstructing an officer.
Decision: No qi for Sergeant Taylor (no first name given) of the Los Lunas, New Mexico Police Department. No exigency exception. No community caretaking exception. Policeman needed to stay out of plaintiff’s house, recent loud argument notwithstanding.
Comment: This case shows the ridiculousness of electroshocking a person (on stairs, no less!) to get the person to submit to treatment that will supposedly improve his well-being.
Case: LUCAS v. CITY OF VISALIA, No. 1:09-CV-1015 AWI JLT (E.D. California, May 8, 2013)
On May 1, 2008, Elise Monpere (“Monpere”), Lucas’s then girlfriend and now wife, called 911 for medical assistance for Lucas. Lucas, who had a history of seizures since childhood, appeared to be suffering from a seizure. From his past history, Lucas knew that he was not having a life threatening situation and did not need medical treatment.
Firefighters and ambulance personnel arrived at Lucas’s apartment, and Monpere let the firefighters and paramedics inside where they conferred with Monpere and Lucas. Lucas had drunk 4 to 7 beers earlier that evening and was intoxicated when the firefighters and paramedics arrived. Lucas repeatedly refused medical treatment and told the firefighters and paramedics that he did not want them there and that he did not call for their assistance. Although Lucas was not angry when the firefighters and paramedics arrived, the longer those personnel stayed, the angrier Lucas became. The firefighters and paramedics continued to stay in the residence because a medical call had been made and the personnel believed that they needed to assess whether Lucas was conscious and capable of making his own decisions. Lucas was using profanity and was adamant that the personnel needed to leave and that he did not want any help. The emergency personnel requested police assistance at Lucas’s residence.
Esparza and O’Rafferty were dispatched to the scene in response to the request for officer assistance from the firefighters and paramedics. That is, the officers were dispatched to assist with a “medical call.” The officers received information from dispatch that a 24 year old male was having seizures. The officers were also told by dispatch that Lucas was combative with the firefighters and paramedics.
O’Rafferty arrived at the scene first. As he approached the home, O’Rafferty could see medical personnel outside, huddled around the doorstep outside the home, and could see Lucas sitting on a staircase just inside the front door talking to medical personnel. A majority of the emergency personnel were outside the residence, and O’Rafferty could not remember whether any were still inside the house. The paramedics told O’Rafferty that Lucas had not injured anyone on the scene and that Lucas refused medical treatment. O’Rafferty observed Lucas in angry conversation with other paramedics, and heard Lucas say that he did not want any help. Paramedics told O’Rafferty that Lucas had hit a wall in the home, but O’Rafferty does not recall seeing that incident. O’Rafferty did not discuss any sort of plan with emergency personnel to address the situation, and he could not recall whether the emergency personnel explained that they were trying to assess whether Lucas needed care. Also, when O’Rafferty approached the doorway, he observed that Monpere was at the rear of the house away from where Lucas was sitting. O’Rafferty did not have an opportunity to speak to Monpere.
O’Rafferty entered Lucas’s home. O’Rafferty explained to Lucas that medical personnel were there to try and help and there was concern that Lucas was mentally altered and intoxicated. O’Rafferty observed signs of intoxication, including bloodshot watery eyes and thick speech. nLucas did not appear to be in grave physical danger to O’Rafferty. O’Rafferty understood clearly that Lucas did not want to be treated and that Lucas wanted everyone to leave. Lucas became more agitated and continued to insist that all personnel leave. Lucas had calmed down a bit.
Esparza then arrived, and Lucas became more agitated. Esparza could hear Lucas object to O’Rafferty being in the home, and could see both that Lucas was not in medical danger, and that Monpere was not physically harmed. Esparza did not see any emergency personnel inside the home, and it was her impression that all emergency personnel were outside. Esparza entered Lucas’s home. Lucas clearly told both Esparza and O’Rafferty that he refused medical treatment and requested that all personnel leave his home. Lucas cursed at the officers and emergency personnel. Lucas then turned and began to walk up the stairs and said that he was going to bed and that they all needed to leave. Esparza clearly heard Lucas say this. Lucas continued to curse as he went up the stairs.
Esparza and O’Rafferty were concerned for the safety of everyone in the residence, including Lucas and Monpere, and so followed Lucas up the stairs. Esparza was the first officer behind Lucas as they went up the stairs, and O’Rafferty followed behind Esparza. Lucas is 6′ 1″ and weighs 210 lbs., Esparza is 5′ 1″ and 115 lbs., and O’Rafferty is 6′ 6″ and 230 lbs. Lucas said nothing about getting a weapon and made no threats to the officers, and there had been no mention of weapons by Lucas or anyone on site. Lucas did not make any verbal threats or physically assault anyone in the residence. At no point during the incident did Lucas yell at Monpere. Further, Esparza testified that she believed that all emergency personnel were outside the residence, and she did not know where Monpere was. When Lucas reached the top of the stairs, he was turning around. Esparza believed that Lucas was adopting an aggressive stance when he turned around. Esparza has declared that, at the top of the stairs, Lucas turned around, yelled at the officers to leave, made eye contact with O’Rafferty, clenched his fist, looked at O’Rafferty again, and then lunged forward. Lucas testified that he was not aggressive towards the officers, and that he was tased as he was facing away from the officers and turning around. Esparza did not give Lucas a warning before deploying the taser. The taser darts struck Lucas in the stomach area (in the upper-stomach right of center area and the waist right of center area). The report from Esparza’s taser unit indicates that Esparza administered a cycle of 10 seconds, which means that Esparza held the trigger down for 10 seconds.
Lucas fell to the ground. Esparza told Lucas to roll onto his stomach and put his hands behind his back. Lucas’s body was somewhat tense and his upper body was flexed. In order to gain compliance, Esparza cycled the taser a second time. O’Rafferty has no recollection of Esparza giving Lucas a warning that she would use the taser a second time, but Esparza testified that a warning was given. Lucas complied with the directions to place his hands behind his back after Esparza cycled the taser a second time.
Decision: No qi on excessive force claim. Also, city defendant may be liable on claim that it failed to train its police officers about how to respond to medical calls.
Case: GARAY v. LIRIANO, Civil Action No. 11-1207 (JEB) (District of Columbia, May 3, 2013)
Defendants contend that the first factor — the gravity of the offense — supports the urgency of the officers’ response. . . . Arriving on the scene of the assault, they observed [a woman] bleeding profusely from the face and called an ambulance to respond. . . . In speaking with [woman] and [an] eyewitness . . ., the officers learned that [the woman] had been “jumped” by two ladies, who pushed her to the ground, kicking and punching her. . . . Officer Sarita believed that some type of object had been used in the assault due to the amount of blood he observed. . . . The officers were then led by [the eyewitness] to the apartment where the alleged assailants lived. . . .
Even accepting the officers’ account of the gravity of the injuries, the facts here essentially support a misdemeanor assault — conceivably, an assault with a dangerous weapon — and do not approach the level of violent crime that has justified exigency. . . .
The officers’ claim of exigency is further weakened by the second factor. While they concede that there was no reason to suspect that any type of firearm had been used in the assault, they argue that this factor nonetheless tips “slightly” in their favor because two of the officers believed that some type of object had been employed in the fight. . . . Even if they so believed, this “object” was not a knife or other inherently dangerous weapon. The courts that have justified warrantless entries based in part on this factor have focused on the heightened threat and risk that result from the presence of a weapon. . . . Here, exigency cannot be justified by the conceivable use of an unknown blunt object, which every dwelling is assuredly full of.
Case: TREMELLEN v. LEPORE, Civil Action No. RDB-12-02900 (D. Maryland, April 30, 2013)
On Sunday, December 11, 2011, at approximately 2 a.m., the plaintiff Tyler Tremellen (“Plaintiff” or “Tremellen”) and his friend Christopher A. Bowling (“Bowling”) left a restaurant in Towson, Maryland, and started walking toward a friend’s house on York Road. Compl. ¶ 8. While walking, Tremellen and Bowling began “playfully roughhousing for approximately five seconds in the crosswalk” at the intersection of York Road and Burke Avenue. Id. ¶ 9. The roughhousing did not interfere with traffic or disturb anyone, but it did catch the attention of Officer J.T. Lepore (“Officer Lepore”), who was traveling on York Road in a marked Baltimore County police vehicle. Id. ¶¶ 9-10. Upon seeing the vehicle’s headlights, Tremellen and Bowling “stopped their horseplay . . . and resumed walking south on York Road.” Id. ¶ 11. Officer Lepore stopped his vehicle, exited, and began speaking to Bowling. Id. ¶ 12. When Officer Lepore exited his car, Tremellen saw that the police vehicle’s lights had not been activated and continued walking south toward their destination. Id. ¶ 13. Tremellen asserts that he did not hear any request from Officer Lepore to stop. Id.
Bowling explained to Officer Lepore that he and Tremellen were good friends and “had just been horsing around and not fighting.” Id. ¶ 14. Bowling provided the officer with his identification and told him that they were both from Ocean City, Maryland and staying in Towson for the weekend. Id. Upon returning Bowling’s identification, Officer Lepore told him it was not safe to play in the street and stated, “tell your friend he is an asshole.” Id. ¶ 14. Bowling then walked to his friend’s house, where he believed Tremellen had already arrived. Id.
Due to his unfamiliarity with the area, Tremellen had continued walking down York Road and inadvertently passed the friend’s house. Id. ¶ 16. Eventually, Tremellen realized he had walked too far and started walking back toward the intersection of York Road and Burke Avenue. Id. ¶ 18. Officer Lepore, who had returned to his vehicle and was driving south on York Road, saw Tremellen and followed him to the intersection of York Road and Burke Avenue. Id. ¶¶ 20-21. Officer Lepore did not activate his emergency lights on the car or otherwise make Tremellen aware of his presence. Id. ¶ 22. Tremellen alleges that he did not see the officer’s vehicle. Id. ¶ 21.
Officer Lepore exited his car at the intersection and “charged at Plaintiff full speed from behind.” Id. ¶ 22. Officer Lepore then “grabbed Plaintiff’s arm using a martial arts maneuver while twisting it behind Plaintiff’s back, and violently drove Plaintiff to the ground using all of his body weight while restraining Plaintiff’s arm so that Plaintiff could not use his arms to break the fall.” Id. Tremellen fell to his knee, then his face, and was knocked unconscious. Id. ¶¶ 24-25. Tremellen fractured his right medial tibial plateau bone, broke three of his front teeth, and suffered several facial lacerations as a result of the impact. Id.