Police, The Fourth Amendment, Qualified Immunity

PETRO v. TOWN OF WEST WARWICK, C.A. No. 09-213 S (D. Rhode Island, September 7, 2012)

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Lot of great stuff in this long opinion. Recommended reading. In a nutshell, two policemen approached a large man smoking in a parking lot for questioning. The policemen did not have reasonable suspicion, but ordered him to stop walking away and made an attempt to physically stop him from walking away. because of this, the police officers beat the large man up and he ended up dying of a heart attack a short time later while in custody. When the large man had the heart attack, the policemen did not make particularly vigorous or urgent efforts to get medical treatment to save the guy’s life, so he died and his survivors sued. The linked opinion dresses down, but good, the two policemen (West Warwick Officers Sean Lukowicz and Patrick Kelley).

Excerpt on one’s right to walk away from policemen:

It may be true that most adults would stop and talk to police officers when approached, but it is firmly established that a person has the right to walk away from police questioning. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Bostick, 501 U.S. 429, 437 (1991) (recognizing that a suspect’s refusal to submit to police questioning, without more, is not sufficient to furnish grounds for reasonable suspicion). If the right to walk away is to mean anything, it must mean that a person may walk away from law enforcement officers when the officers have initiated verbal contact and otherwise lack reasonable suspicion or probable cause to detain him or her, and that walking away cannot alone support a finding of reasonable suspicion. See United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997) (“People do not have to voluntarily give up their privacy or freedom of movement, on pain of justifying forcible deprivations of those same liberties if they refuse.”); see also United States v. Beauchamp, 659 F.3d 560, 570-71 (6th Cir. 2011) (“The fifth fact — hurriedly walking away from an officer without making eye contact — similarly does not rise to the level of independent suspicion. . . . In those cases in which we have found that walking away from police does contribute to reasonable suspicion, specific facts have shown that the defendant’s behavior was otherwise suspicious.”). Walking away from police questioning, of course, must be distinguished from evading the police; as the First Circuit has explained, “unprovoked running upon noticing the police” constitutes flight, which is “the consummate act of evasion,” Wright, 582 F.3d at 210 . . ., and may “permit a rational inference of guilt.” United States v. Harris, 660 F.3d 47, 52 (1st Cir. 2011). But the cases highlighting evasive behavior in the reasonable-suspicion analysis generally concern suspects who “slouch, crouch” or who engage in “other arguably evasive movement” that, combined “with other factors particular to the defendant,” amount to reasonable suspicion. Woodrum, 202 F.3d at 7.

Here, Jackson was not evasive, and the articulable and particularized facts were not sufficient to amount to reasonable suspicion when the officers first approached him. Jackson did not bolt or flee from the scene; he communicated to the officers clearly and directly that he did not wish to speak with them by stating “You’re not the boss of me;” he made no furtive movements; and there was no testimony suggesting that he appeared nervous or apprehensive. In sum, prior to the flail, all of the typical indicia of suspicious behavior were missing. Though Jackson did ignore commands to remove his hand from his pocket, in the whole, Jackson defiantly, but directly, exercised his right to walk away from the officers; he did not objectively appear elusive or evasive.

Moreover, while the officers’ subjective thoughts are not dispositive in this objective inquiry, it is telling that both Chief Silva and Officer Lukowicz testified during their respective depositions that there was no reasonable basis to suspect that Jackson had committed, was committing, or was about to commit the crime of vandalism or any other crime, when the officers first approached Jackson.

Even adding the “flail” to the mix, there was no reasonable suspicion to detain Jackson. When Kelley reached out to grab Jackson, he defensively flailed at the officers in a clear attempt to intercept Kelley’s unlawful seizure. Particularized suspicion did not attach here as Jackson clearly expressed his desire to decline to respond to police questioning and reacted by flailing or swatting his arm to prevent the officer from effecting what clearly would have been an illegal contact with his person. Cf. 4 Wayne R. LaFave, Search and Seizure § 9.5(f), at 531 (4th ed. 2004) (stating that, though police pursuit prior to seizure “is not subject to Fourth Amendment limits . . . [s]urely it does not follow that such provocative activity [by the police] may be deemed to provide the reasonable suspicion police will need once they catch up with the suspect and take control of him”).

On the policemen’s lack of urgency in trying to rescue plaintiff after his heart attack:

Defendants argue that the officers did not exhibit deliberate indifference because they called rescue and that there is no constitutional mandate to perform CPR on an injured detainee. See Rich v. City of Mayfield Heights, 955 F.2d 1092, 1098 (6th Cir. 1992) (holding that, under the specific facts of that case, calling rescue was sufficient to defeat any claim of deliberate indifference and officer had no duty to perform CPR on detainee). The Court rejects that general principle and holds that a call to rescue by a CPR-trained police officer does not per se defeat a claim of deliberate indifference.
. . .
This is the sort of case in which the line between gross negligence and deliberate indifference is clarified — the officers’ actions amount to “near recklessness” and “shockingly unjustified and unreasonable action,” see Leite v. City of Providence, 463 F.Supp. 585, 591 (D.R.I. 1978), but the reality of their deliberative thought process, as reflected by their actions, is simply that they were not thinking and not acting. They were young, inexperienced police officers (Thornton was more experienced, but new to his leadership role) who completely failed to draw the inferences and conclusions that are painfully obvious in hindsight. The evidence suggests that the officers believed that rescue was on its way and that rescue would be coming the short distance from the fire station next door. There is no evidence to suggest that they knew that, by not acting, they would cause Jackson substantial harm or death.

The bottom line is that, with respect to deliberate indifference, the objective prong readily could be satisfied (see generally infra Part II.E), but the subjective prong — the requirement that Defendants acted with a sufficiently culpable state of mind — has not been met. The Court readily concedes that this is a close call and that a reasonable person could conclude that Defendants acted with intent to harm Jackson. On balance, however, the Court believes that Defendants’ actions (and inactions) here were more likely the result of inexperience, lack of training, insensitivity, and perhaps ignorance, but not abject malice. If there is to be a distinction in the law between grossly negligent behavior and deliberate indifference, then it must be in what was at the root of the behavior. And here, the Court finds Defendants were many things, but not evil. So while the fact that these officers may not have intended affirmatively to harm Jackson does not excuse their behavior, it does deflect Plaintiff’s deliberate indifference allegations.

Written by Burgers Allday

September 11, 2012 at 3:46 pm

Posted in Uncategorized

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