Magistrate Judge Joseph C. Spero decides that it is okay for policeman to spit on innocent detainee
Case: BEDFORD v. CITY OF HAYWARD, Case No. 3:12-cv-00294-JCS (N.D. California, October 15, 2012)
Here, Plaintiff does not bring an “excessive force” claim in the traditional sense, but rather alleges that force inflicted upon him constituted an affront to his dignity. There was no allegation of a physical injury resulting from the tapping of the officer’s finger on Plaintiff’s face or the spray of the officer’s saliva, but Plaintiff does allege actions on part of the officer which were degrading and intrusions on Plaintiff’s personal dignity interests. There is some support for excessive force claims based on dignity interests where the conduct amounts to “unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy.” Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994) (finding excessive force where police officers, while executing a search warrant, took an unarmed, ill, and pantless man out of his bed, handcuffed him, and made him sit on the living room floor). However, even applying Foxworth, the Court can discern no “clearly established” right that the officers have violated here. There is no statute or case law which prohibits law enforcement from tapping someone on the head with their finger, or which instructs officers to stay far enough from a suspect’s face such that they do not spray saliva. Therefore, Defendants are entitled to qualified immunity as a matter of law on Plaintiff’s § 1983 claim for excessive force.
Question(s): How would this sort of claim ever become “clearly established”? The detainee was innocent so there was no suppression. What sort of case would Magistrate Judge Spero envision as possibly existing that could, in his view, establish that policemen are not allowed to spit in the faces of innocent detainees (who have no opportunity to conduct a suppression hering)?