One unfortunate, but repeated, fact pattern that comes up in civil cases is one where: (i) police officer(s) ambush a driver in a running car with gun(s) drawn; (ii) the driver doesn’t realize it is police, gets scared, and tries to drive away; and (iii) the officer(s) open fire on the vehicle, often shooting the driver and/or passengers in the vehicle.
I think that this is an unreasonable police practice, and that it is countenanced by the courts in civil cases far too often.
Against that backdrop, here are the fact allegations in a new case:
Stauffer alleges that on March 11, 2011, he and Thomas were parked in his car when the police officers, while in plainclothes and an unmarked car, pulled alongside him for no reason. See Compl. (doc. 1) at ¶¶ 8-12. The police officers exited their car and did not identify themselves. Id. ¶ 13. Stauffer feared he was being carjacked and turned on his car engine and lights. Id. ¶¶ 14-15. The police officers surrounded the car, drawing their guns. Id. ¶ 16. Stauffer put the car in drive, but did not attempt to run the police officers over and none of the officers were injured. Id. ¶¶ 17, 22-23. The police officers, however, “unloaded their firearms” into Stauffer’s car. Id. ¶ 18. Stauffer was shot multiple times in his head and now suffers permanent physical injuries, including blindness and cranial damage. Id. ¶ 20. Thomas was shot in his thigh. Id. ¶ 21.
And here is Magistrate Judge Rice’s awful analysis about what is reasonable in this situation:
As Stauffer concedes, the police officers fired their guns only after they had surrounded Stauffer’s car and Stauffer put the car in drive, i.e., when Stauffer placed them at risk of death or serious bodily injury. See Compl. ¶¶ 16-18. Even if Stauffer did not know that the men approaching him were police officers, his conduct posed a serious risk of danger to the officers, requiring them to act quickly to protect themselves. Similarly, although none of the police officers were seriously injured, the officers could not have known that they would be so fortunate at the time of the incident. See Graham, 490 U.S. at 396 (reasonableness inquiry cannot be based on 20/20 vision of hindsight). It also was reasonable for the officers to continue to fire at Stauffer until they were sure they were safely out of harm’s way. See Plumhoff, 134 S. Ct. at 2022.
Criticism: The above analysis focuses too much about what happened after the police officers allegedly put the plaintiffs in an impossible possible, and not enough on the decision of the police officers to cause the driver to fear that he was being carjacked by robbers.
Case: Carpenter v. Seagroves, Dist. Court, North Carolina 2015
Rule 4(e) of the Federal Rules of Civil Procedure provides that “an individual … may be served in a judicial district of the United States” by “following the state law for serving a summons in an action,” personally delivering a copy of the summons and complaint to the individual, leaving a copy at the individual’s “dwelling or usual place of abode,” or delivering a copy to an agent authorized to receive service of process. Fed. R. Civ. P. 4(e). In North Carolina, service can be done by any of the methods provided for in Rule 4(e). N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(a)-(b). Also, a plaintiff may deliver the documents to a defendant’s place of employment. Edwards v. Peirce, No. 5:13-CT-3184-FL, 2014 WL 4384039, at *3 (E.D.N.C. Sept. 3, 2014); Moore v. Cox, 341 F. Supp. 2d 570, 573 (M.D.N.C. 2004); Waller v. Butkovich, 584 F. Supp. 909, 926 (M.D.N.C. 1984).
In this case, the record reflects that service was purportedly effected on July 11, 2014 on Officer Seagroves by a U.S. Marshal directed to “David Seagroves” at “City of Wilson Police Department, 120 N. Goldsboro St., Wilson, NC 27894.” See Executed Summons [DE-8] at 1-2. Because a plaintiff may deliver the documents to a defendant’s place of employment, and there is no claim that the City of Wilson Police Department was not Officer Seagroves’ employer, the court finds that the process was not deficient.
As you may know, or be able to guess, there are a lot of civil suits by prisoners against guards. These civil suits often allege brutal and/or grossly unfair treatment by guards. This blog doesn’t cover those cases very much — while I am confident that some prisoners suffered terrible abuse, I am equally confident that some prisoners make stuff up or exaggerate. The sad situation with America’s overcrowded prisons is outside the scope of this blog.
That said, I will make a three part policy prescription: (i) full camera coverage in prisons so that bad treatment like beatings and rapes are always recorded; (ii) for litigation purposes, prisoners get relatively hassle-free access to footage in which they appear; and (iii) if video footage of the prisoner cannot be found then there shall be no witness testimony on behalf of the prison as far as what occurred during the missing footage.
Here is a kind of typical prisoner case where my policy prescription would have helped:
SENALAN v. Curran, Dist. Court, ND Illinois 2015
Case: Becker v. City of Evansville, Dist. Court, SD Indiana 2015
What happened: Police released a dog on a suspect who was not fleeing or hiding. Dog bit the arrestee up pretty good before its handler called the dog off.
Decision: No qi for the police man with the bitey dog.
Quotes: I love some of the sensible and plainspoken quotes in Magistrate Judge Hussman’s opinion.
[T]he Supreme Court has demanded that reviewing courts allow “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.” . . . But this important consideration does not give officers a free pass in every arrest. As the Ninth Circuit has noted, not all situations evolve rapidly or require split-second judgment. . . . And, as the Seventh Circuit has explained, even a rapidly evolving situation cannot justify a use of force that is objectively unreasonable.
Other courts have taken an opposite approach, essentially licensing officers to presume suspects are armed until they can confirm they are unarmed. In [one case], for example, the court found that the absence of any indication that the plaintiff was unarmed supported the reasonableness of the officers’ decision to unleash a police dog. . . . “A responding police officer,” the court explained, is “entitled to err on the side of caution when faced with an uncertain or threatening situation,” and under the Plaintiff’s version of the facts, the police officers had limited information about the nature of the Plaintiff and crime when responding to the scene and were entitled to err on the side of caution that the Plaintiff might be armed and dangerous And, in [another case], the Seventh Circuit found that an officer’s decision to shoot at a suspect was supported in part by the fact that he had been told the suspect “had a history of violence” and “was known to both carry and sell weapons.” . . .
With no precedent binding the Court on this issue, I embrace the Ninth Circuit’s approach in [yet another case, one less deferential to police use of force]. An officer should be able to articulate a rational basis for believing that a suspect is armed before inflicting violence commensurate with that belief. If officers may treat all suspects as armed until they confirm otherwise, the Fourth Amendment’s protection against excessive force is no protection at all. This approach does not reflect indifference toward officers’ safety. Rather, it acknowledges that the [Supreme Court’s] Graham analysis defers only to reasonable safety concerns.
Some courts, however, have found officers reasonable in perceiving immediate safety threats even after their suspects have indicated their surrender. . . . [T]he court in [one case] found that officers are not always required to accept verbal surrenders. . . . The suspect, the court explained, “could have quickly changed his mind and the officer was not required to take his apparent surrender at face value.” Id. “Not all surrenders,” it continued, “are genuine.. . .” . . .
I find myself unpersuaded by the suggestion that officers always may ignore pleas of surrender. This Court is bound by Cyrus’s admonition that officers must adjust their force as safety threats wane, . . . and I cannot give that admonition effect without requiring officers to honor pleas of surrender. In [cases] where a suspect continues to resist arrest after pleading to surrender, a continued use of force may be reasonable. . . . Absent specific cause for skepticism, however, a plea of surrender should affect the reasonableness determination.
Where the parties dispute whether a warning [of the impending release of a K9] is issued, the court should resolve that dispute in the plaintiff’s favor for summary judgment purposes. A plaintiff who maintains he heard no warning cannot reasonably be asked “to `prove a negative’ by showing that no warning was given.” Grady v. Becker, 907 F. Supp. 2d 975, 982 (D. Minn. 2012).
QI for the police in tasering Plaintiff Vicki Alday because it is not clearly established law in Georgia that tasering a non-compliant, but non-violent, subject is a violation of 4A.
Comment: No relation to yours truly.
Since the controversial use of grand juries in the Michael Brown and Eric Garner police-involved-homicides last year, I have become more interested in the interaction between grand jury proceedings and later civil rights claims against the police.
Case: OGBONNAYA v. City of Mesa, Dist. Court, D. Arizona 2015
Comment: In reference to the Darren Wilson grand juries, some law enforcement supporters claimed that criminal suspects are always allowed to testify at their grand jury proceedings if they want to. I pretty much knew that that is not true in all jurisdictions, and I suspect it is not true in most jurisdictions. This case shows that suspects are not always allowed to testify at their grand jury proceedings. Plaintiff wanted to testify before his grand jury, but was refused. Plaintiff was indicted by the grand jury and became a criminal defendant, who was subsequently found not guilty on all counts after a criminal trial and then sued police for an overly aggressive criminal investigation against him. Thankfully, the court did not let the police use the grand jury indictment as irrebuttable evidence that probable cause existed for plaintiff’s arrest.