Police, The Fourth Amendment, Qualified Immunity

How many seconds does one have to comply with a police order before one is obstructing?

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Preliminary note: This case has a ton of interesting stuff going on, and this blog entry barely scratches the surface, may oversimplify things a bit, etc. There are so many comments that I could make, but I will try to limit myself to two legal comments and a pull quote that I, Burgers, find interesting.

Case: OSBERRY v. Slusher, Court of Appeals, 6th Circuit 2018

What happened: Police ordered a pregnant woman to leave a driveway because it was allegedly too close to an “active crime scene.”* The woman explained that she was just there to pick up her niece and nephew. After she did not leave for eight seconds, police ordered her to show hands. At ten seconds, the police opened her vehicle door. At fourteen seconds they began using force on her person to pull her out of the car. Police ended up being pretty rough with the pregnant woman and tasering her in the stomach — although it is unclear exactly what degree of resistance (if any) once the police officer went hands on.** The woman was charged with several crimes, notably obstruction, but these charges were dismissed. The woman sued police for excessive force, unlawful arrest, failure to train and other related causes. The police moved to dismiss the civil complaint (that is, to end the case extremely early in the proceedings). The district court did not dismiss the complaint and the police appealed, leading to the instant 6th Circuit panel appellate court opinion.

Decision: No QI, which is to say no dismissal of the civil claims against the police yet, but police can try again at summary judgement, and, failing that, at a trial.

Interesting pull quote:

Here, according to [plaintiff], Chief Martin affirmatively taught the Officers to:
(1) yell out “stop resisting” and “stop obstructing” to imply that all defendants whom they are attacking or manhandling are resisting arrest and/or obstructing official business;
(2) include a resisting arrest charge in any criminal complaint against any citizen who is injured during an arrest or search; and
(3) overwhelm and intimidate suspects, regardless of the level of probable cause, and to over respond to and escalate casual interactions with citizens to allow officers to use excessive and abusive force.

First comment: This case poses a question that runs through many police / citizen interactions, which is: how many seconds does one get to comply with a police officer’s order before one is obstructing? I realize the answer may depend on the circumstances, but is there some period of seconds that a citizen should automatically get to process police orders, determine that the orders are in fact orders and not requests for consensual actions, and to then carry out the orders? Maybe this case will eventually lead to some standards for determining whether police have too quickly commenced an arrest for obstruction. In the circumstances of this case, it seems pretty clear to me that eight seconds to fourteen seconds was too short and that police should have, at least in twenty-twenty hindsight, given the woman double or triple that before starting an arrest for obstruction. Yes, one must follow lawful police orders, but one should also have the right to fairly assess the situation before beginning to comply — and these assessments take time, especially when police officers come up quickly out of nowhere. For example, even if the woman had decided to leave at the six second mark, she still would have had to take several seconds to make sure that the several approaching police officers would not get run over during her vehicle’s egress from the area before starting to move her vehicle. However, by eight seconds the police had cut off her window of opportunity to get going by ordering her to “show hands.”

Second comment: The court says that, under Ohio law, citizens cannot be arrested for resisting unlawful arrests. My understanding is that police can arrest for resisting even unlawful arrests in most states, but maybe Ohio is one of the handful of states that is different — and, if so, good for Ohio. In my opinion, resisting an unlawful arrest should be considered as a Constitutional right, even though the Supreme Court has held otherwise. In my opinion, allowing police to arrest for resisting an unlawful arrest leads to things like pregnant woman getting tasered in the stomach, and does not generally enhance public safety.


* A video showed that the place where the woman stopped her vehicle was not taped or barricaded off. Also, police have not said what the crime was, or how many feet the woman parked away from the alleged crime. So, I put tone quotes around “active crime scene.” Should lead to some interesting discovery, which plaintiff will get now that her case is proceeding beyond the pleading stage.

** Even though there is video, it doesn’t show the resistance because, by the time of the alleged resistance, the woman was swarmed by police officers (who presumably were then ignoring the “active crime scene”).

Written by Burgers Allday

September 18, 2018 at 7:07 pm

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Insurance indemnification for police officers’ civil rights violations

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One issue that people interested in QI and 4A law sometimes wonder about is whether insurance companies indemnify police departments and/or individual officers who violate civil rights and have a court award damages against them. At least in my case, I, Burgers, wonder whether even if the police do bad things, do they simply get reimbursed by insurance, thereby undercutting the deterrent effect of civil rights suits against the police. I have never seen a case dealing with this sort of thing until today . . .

St. Paul Fire and Marine Insurance Co. (“St. Paul Insurance”) appeals the district court’s grant of summary judgment to Matthew Livers and Nicholas Sampson. The court concluded that St. Paul Insurance had a duty under its coverage policy to indemnify David Kofoed for intentional acts Kofoed committed against Livers and Sampson during his employment as a law enforcement officer for Douglas County, Nebraska. St. Paul Insurance contends that its own policy—with some narrow exceptions, including for malicious prosecution—bars indemnification of intentional criminal acts. We agree with St. Paul Insurance that its policy expressly precludes indemnification of intentional criminal acts and that Kofoed’s act of evidence tampering does not fall within the malicious prosecution exception.

Case:  Sampson v. Lambert, Court of Appeals, 8th Circuit 2018

Comment:  This doesn’t seem like a surprising result — it seems kind of akin to how automobile insurance work.  I guess the only surprising thing to me is that these kinds of police insurance policy dispute cases don’t come up more often in written opinions (there may be many of these kind of cases that I never hear about because of settlements that occur before the summary judgement stage).

Written by Burgers Allday

September 16, 2018 at 3:21 pm

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26 August, 2018 11:05

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Written by Burgers Allday

August 26, 2018 at 10:35 am

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Gratuitous of infliction of pain without injury

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Excessive force claims based upon 4A generally require some kind of physical injury in order to give rise to a claim for compensation (generally under section 1983). However, what happens if a police officer gratuitously inflicts pain that does not result in injury? Is this police behavior consistent with the Constitution? Is this redressable through a civil claim against the police? Should it be?

While I believe that the police probably do inflict pain in a gratuitous manner sometimes, this is difficult to prove. Generally speaking, police officers are too savvy to admit when they are using force to cause pain (to the suspect or mental health crisis sufferer) rather than causing pain due to a safety concern. If police don’t come out and say that they used a technique just to cause pain, then it can be really hard to prove that, and it seems that courts may require injury precisely to avoid lots of cases about subjective intentions of police officers. However, what if a police officer did state that he was applying force for the purpose of causing pain (that is, pain not motivated by safety concerns or for the purpose of gaining compliance). That brings us to today’s case . . .

Case: Hansen v. APER, Court of Appeals, 6th Circuit 2018

What happened: Plaintiff alleged that when he complained about overly tight handcuffs hurting, the police officer replied that they are “supposed to hurt.” Plaintiff could not really show convincing evidence of a physical injury from the tight handcuffs (both sides submitted conflicting evidence on this point).

Decision: No QI for the officer, and presumably case goes to trial, because plaintiff showed at least some evidence of injury.

Comment: I agree with the result, but I wish the court had used this opportunity to explore the issue of gratuitous infliction of pain, and the larger issue of whether injury should still be required as an element of an excessive force claim in cases, like this one, where there is evidence of malice on the part of the police officer.

Written by Burgers Allday

August 25, 2018 at 8:05 am

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The Two Bite Rule For Tasers?

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In 2015, the Fifth Circuit decided a case where a man was acting strangely and would not obey instructions from the police to stop walking away. The police tasered the man and he sued for excessive force. The court held that there was qualified immunity for the police, and declined to decide whether the degree of force, under the circumstances, violated 4A.

A new 2018 Fifth Circuit case presents similar circumstances. The plaintiff in this case suffered serious injury because the taser strike caused him to fall and break his skull, causing a brain injury. In the new opinion, the Fifth Circuit decided that the previous case had precedentially decided that the law was not settled for these circumstances when the police tasered the new plaintiff (back in 2014). However, the new opinion gives summary judgement to the police on the basis of QI, it does say that this sort of taser use on non-combative, non-criminal “suspects” is a 4A excessive force type violation. So presumably, if police in the Fifth Circuit do this a third time after the date of the new Fifth Circuit opinion, then there will not be QI for the police in that sort of prospective future case. So, police effectively get two “bites” before trouble starts. Cf, https://www.law.cornell.edu/wex/one-bite_rule.

New case: Samples v. VADZEMNIEKS, Court of Appeals, 5th Circuit 2018

Written by Burgers Allday

August 23, 2018 at 5:47 pm

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Judge Dlott considers spoliation claim for bad dashcam video practices

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Now that video recordings are becoming much more common in Fourth Amendment based claims against the police, there do seem to be a fair number of cases where the video is hinky for one reason or another. This can be frustrating for plaintiffs when they believe that a decent video would help prove their claim that the Fourth Amendment was violated, or that qualified immunity (QI) should not apply. Today’s case is such a case.

A driver claims he was sober and merely driving a drunk friend home, but police say that he was drunk. There was some suggestion in the facts that the officer who pulled over the driver was over aggressive in arresting and charging in order to get overtime for going to court. Another officer responded to the scene, and this officer had an old fashioned VHS dashcam recorder. This video had an odd gap in the video and very faint sound, suggesting, but not proving, shenanigans. Furthermore, the tape had been stored in the home of the officer that had the dashcam, and was given to the arresting officer before it was given to a court.

Judge Dlott considered a spoliation claim (roughly speaking, a claim of evidence tampering), but decided not to decide upon whether spoliation occurred, leaving that question for the jury. What is exciting to me, Burgers, is that a remedy for spoliation in a civil case is that one can draw evidentiary inferences against the police officers — which is to say that one can disbelieve their testimony. I like this because I think courts and juries are generally overly indulgent with respect to veracity and accuracy of police officer testimony. I didn’t pull a pull quote because the facts are too complicated for a good pull quote. Do encourage engaged readers to read the full opinion . . .

Case: Gray v. Hatfield, Dist. Court, SD Ohio 2018

Written by Burgers Allday

August 16, 2018 at 3:18 am

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Judge Tunheim grants summary judgement of no QI

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Most of the Fourth Amendment qualified immunity (4AQI) opinions that come out either grant QI to the police on summary judgement (that is, prior to any trial), or deny summary judgement of QI to police. However, I don’t ever recall seeing a 4AQI case where summary judgement of no qi is granted in favor of the plaintiff . . . Today a case like that finally came up.

That previous paragraph may be a bit confusing, so let me explain a bit. If the police get QI on summary judgement, then the case is basically over and there is no trial. If the police are denied QI on summary judgement then the case is scheduled to proceed to trial, where the police can argue QI again and also argue that the facts of the case are not as plaintiff says they are — this is as close as the plaintiff usually comes to a “win” in the 4AQI published opinions. However, like the police defendants, plaintiff (that is, the regular citizen) can also move for summary judgement. If plaintiff wins that motion, it means that police are liable, and the only issue typically left for trial is the amount of damages. While an award of summary judgement in favor of plaintiff is theoretically possible, it doesn’t seem to happen a lot in 4AQI cases. Personally, I think that at least part of this tendency is the result of a systemic pro-police bias on the part of the judiciary, but, of course, that is debatable.

Anyway, today I finally came across a case where the plaintiff did get summary judgement that police were liable and that there was no QI. In brief, a police dog hunting for a burglar (or perhaps just a burglar’s sweatshirt) came across an innocent 52 year old woman who was taking out her trash, and bit her up for 30 seconds. Not only did police lose their motion for summary judgement on QI, but plaintiff won her summary judgement that QI was not possible here. I wonder whether the police will appeal this ruling, or just settle the case.

Case: Collins v. Schmidt, Dist. Court, Minnesota 2018

Written by Burgers Allday

August 15, 2018 at 4:19 am

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