Judge Jennifer Walker Elrod has good dissent in excessive force case
Case: POOLE v. CITY OF SHREVEPORT, No. 11-30158 (Fifth Circuit, August 16, 2012)
The majority opinion is correct that the videotape that captured most of the events relevant to this case “significantly aids our understanding” of them and that we must “view the facts in the light depicted by the videotape.” . . . Sincere respect for my able colleagues in the majority compelled me to review the videotape in this case yet again with a critical eye to those facts that the majority opinion impugns as false. Because the videotape evidence is so central to this case, I have included references to the precise times in the videotape that the different events occurred. To aid the reader in evaluating this evidence, the videotape is attached as an appendix to this dissenting opinion so that it can “speak for itself.” (publishing videotape of events relevant to an excessive use of force case and indicating that the majority was “happy to allow the videotape to speak for itself”).
The majority opinion’s disagreement about the videotape evidence only underscores why this case should go to a jury. Nowhere does the majority opinion indicate that Creighton would be entitled to qualified immunity under my understanding of the facts. Thus, at bottom, ours is a factual dispute, not a legal one, and thus a jury should resolve it.
Proceeding to the facts, Poole testified that he was driving down the interstate early in the morning when he looked in his rear-view mirror and noticed a pickup truck tailgating him. He tossed some water out his own truck’s window at the tailgating pickup. What Poole did not know was that Corporal Creighton, an off-duty police officer, was driving the tailgating [and unmarked] pickup. Creighton radioed for an on-duty officer to pull Poole over, and uniformed officer Sergeant John D. Stalnaker (“Stalnaker”) arrived shortly to stop Poole for “driving recklessly and carelessly.” Both Stalnaker and Creighton later testified that they only planned to give Poole a ticket.
Stalnaker and Creighton testified that they approached Poole’s truck once he pulled over. As Creighton approached, he pulled his shirt up to reveal the service weapon he was carrying. Once Poole was out of his truck, Creighton grabbed his arm and pulled him to the back of his truck to pat him down. After the pat down, Poole leaned against Creighton’s pickup. Creighton ordered Poole to get his “mother f- – -ing a- – off” his truck. He demanded “restitution” and told Poole that he knew where Poole lived; he would get “satisfaction”; and he would throw Poole’s “f- – -ing a- – in jail.” Stalnaker testified that because Poole smelled of alcohol and had admitted to consuming eight ounces of beer at some point earlier that morning, he was given a field sobriety test and passed. Other officers soon arrived on the scene to assist Stalnaker with paperwork. One of them asked what Poole had been pulled over for, to which Stalnaker responded, “[i]nsurance, improper lane use, littering, and general stupidity.”
Poole testified that Creighton “was very angry” because Poole had thrown water on his truck. In what Poole testified was an effort to calm Creighton down, he offered to wash and wax Creighton’s pickup and to allow Creighton to dump a nearby can of diesel fuel on his own truck. Those offers were declined, and according to Poole’s testimony, Creighton still appeared to be very angry. In what he described as an attempt to de-escalate the situation, Poole lifted his open hands into the air, palms facing out, and said that Creighton could hit him. Creighton queried whether Stalnaker had heard Poole’s invitation. Stalnaker would later testify that, up to this point, Poole had been completely “cooperative,” “calm,” and “cool” and that he intended to let Poole go after issuing him a ticket. Upon learning that Poole had offered to allow Creighton to strike him, however, Stalnaker immediately commanded Poole to turn around. . . . (five seconds after the “hit me” invitation). Creighton grabbed Poole’s arm, prompting Poole to back away and ask why he was being ordered to turn around. Creighton spun Poole around and began twisting his left arm while Stalnaker pinned Poole to his truck.
Poole began screaming seconds after Creighton began twisting his arm.
The videotape of these events shows that up to this point, neither officer had commanded Poole to give up his arm. Instead, such a command did not come until 8:10:22, ten seconds after Poole yelled to the officers, “[y]ou guys are breaking my arm.” . . . In the intervening ten seconds, Poole continued to scream. It turned out that Poole’s estimate of the severity of his own injury was conservative: not only was his arm broken, but his elbow was also dislocated. After six surgeries and years of time to heal, he still has trouble using his left arm and hand.
Only after Creighton had been twisting Poole’s arm for some time, and only after Poole screamed that the officers were breaking his arm, did one of the officers command Poole to give up his arm. . . . Stalnaker tased Poole, and Poole fell belly up on the back of his truck. Stalnaker tased him again, and Poole kicked and flailed in Creighton’s direction. The officers eventually lifted Poole by his center of mass off the truck’s gas tank and threw him to the ground. After handcuffing Poole’s broken arm to his non-broken one, the officers called an ambulance.
The dissent goes on to say that the water throwing and the 8 ounces of beer consumption were irrelevant and a jury could find a 4a violation plus no qi to save Shreveport Corporal J. Creighton.