Police, The Fourth Amendment, Qualified Immunity

Sometimes internal police job-related sanctions are enough

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On police blogs, one often hears the following type of argument: the police officer arguably did bad in this case (or on this video), but, if so, internal police job-related sanctions are sufficient to punish the officer and deter him and others similarly situated.

Most times when I see this line of argument, I think it is woefully: (i) inadequate; and/or (ii) misplaced. Also, the public generally is not entitled to know (or know in a timely fashion) that there was a job-related sanction, or what it was. Then there is also the problem of the sanction that police “make up to” the sanctioned officer in various behind-the-scenes ways — the quiet resignation and then rehiring on at a neighboring police department is one common example of a toothless police sanction.

To re-cap, I am not generally a fan of police sanctioning their own. I generally think police misconduct is a proper matter for the judicial branch to investigate, adjudge and (where appropriate) bring the punishment.

That said, here is a case where I think, policeman-style, that internal sanctions, and NO civil court case, would have been the better approach.

Case: DeRAY v. CITY OF COLORADO SPRINGS, Civil Action No. 11-cv-02639-MSK-CBS (D. Colorado, March 19, 2013)


Defendants Sandoval and Havenar are Colorado Springs Police Officers. On October 12, 2010, they contacted Ms. DeRay, attempting to locate her son, Mr. Winkler, in order to execute an arrest warrant. Ms. DeRay advised that Mr. Winkler might be found at an apartment complex on Vindicator Drive. She further advised the officers that Mr. Winkler suffered from a mood disorder, anxiety, and depression; that he had attempted suicide twice in the prior January; and that she had had a heated conversation with him a few days earlier in which “he told her that he hated her and that he wanted to kill himself.”

Officers Sandoval and Havenar went to the Vindicator Drive address and discovered Mr. Winkler outside, talking to another individual. At this juncture, the parties’ factual contentions differ.
According to the Defendants, Officer Sandoval approached Mr. Winkler, told him to place his hands behind his back, and attempted to place him in handcuffs. Before Officer Sandoval was able to place the second handcuff on Mr. Winkler, however, Mr. Winkler began to move forward towards an open field. Believing that Mr. Winkler was attempting to escape, Officer Sandoval performed a “armbar takedown” of Mr. Winkler. Officer Sandoval testified that “in the process [of the takedown] I believed he was going to resist,” and thus, attempted to perform “a knee strike towards his shoulder area.” The strike missed, but when Mr. Winkler went down to the ground, he did not resist and complied with Officer Sandoval’s instructions. Officer Sandoval states that he “controlled [Mr. Winkler’s] right arm by placing… my left knee in the small of his back and my right knee towards the shoulder blade area of his right shoulder.” Officer Havenar took control of Mr. Winkler’s right arm, and the officers completed the task of handcuffing Mr. Winker.

Ms. Deray relies entirely on the deposition testimony of Tyler Tubbs, the person to whom Mr. Winkler was talking when the officers arrived. She asserts that the officers grabbed Mr. Winkler and “slammed hi[s]” chest and face down onto the trunk of a car the men were standing near, then “kicked [him] in the back of his knee,” causing him to fall to the ground, and then “forcefully pushed … his head and face [onto] the ground.” Mr. Tubbs’ initial description of the events did not include descriptions of any other acts of physical force by the officers, but upon cross-examination at his deposition, he added that “I saw them kick him once or twice more when he was on the ground,” after Mr. Winkler had already been handcuffed.

What happened thereafter is undisputed. Officer Havenar walked Mr. Winkler over to the unmarked patrol car, placed him in the right front passenger seat, and seatbelted him. Officer Havenar took a seat in the left rear passenger seat, and Officer Sandoval drove the car towards the Colorado Springs Criminal Justice Center via Interstate 25. During the drive, Mr. Winkler began to cry and talk about the warrant against him. Officer Sandoval observed Mr. Winkler repeatedly bending forward at the waist, an action he believed was an attempt by Mr. Winkler to wipe his face or his nose on the computer installed on the dashboard of the vehicle. By the time the vehicle was on the Interstate, Mr. Winkler began talking about how “he doesn’t like his life, that he’s a loser,” that he wanted to die, and so on.

At some point, Officer Havenar observed Mr. Winkler fidgeting in his seat, behavior that Officer Havenar stated was common with individuals who were handcuffed behind their backs as they attempted to find a comfortable sitting position. Officer Havenar observed Mr. Winkler place his finger on the release button for his seat belt. Officer Havenar instructed him not to unbuckle the belt, but Mr. Winkler ignored the instruction, and, in a single movement, rotated his body so that his back (and his cuffed hands) faced the passenger’s side door. Within the span of a few seconds, the passenger’s side door opened and Mr. Winkler fell out, onto the highway. Officer Sandoval braked, bringing the car to a stop. Mr. Winkler got up from the pavement and began running westward, but was struck by an oncoming car and was killed.

Written by Burgers Allday

March 24, 2013 at 6:17 am

Posted in Uncategorized

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