Police, The Fourth Amendment, Qualified Immunity

Judge Joseph M. Hood makes bad decision in case regarding police announcement

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One pet peeve of mine is that police officers sometimes make insufficient efforts to identify themselves as police in a manner so that it is understood beyond all doubt that police are on the scene. Sometimes this happens when police officers approach people in their cars at night. Sometimes it is during a raid on a home. In these cases, people, regular citizens, who do not realize that it is a police officer approaching attempt to defend themselves and get shot, or arrested, for resisting police. Fortunately, this case that this blog post is about did not end in major tragedy. However, it is representative of courts who tacitly condone police sneaking up on people who should not, for safety reasons, be snuck up on.

Case: West v. City of Paris, Dist. Court, ED Kentucky 2015

What happened: There was an ongoing fight on a lawn. Plaintiff went out to break up the fight. Police were also called. Police turned off their flashing lights and sirens before they approached the scene of the fight (incredibly, police testified that they did this to avoid disturbing the neighbors). After exiting their vehicle(s), police testified that they ordered plaintiff, who was still trying to break up the fight, to disengage. Plaintiff claims he heard no warning. It is apparently undisputed that the police did not announce that they were police, even if they did give an order. One of the police officers grabbed plaintiff. Plaintiff resisted the grabbing, not realizing it was a police officer grabbing him, and managed to temporarily get the better of the police officer attacking him (Lieutenant Michael Dempsey from the Paris, KY Police Department). So, the police officers tasered and beat up plaintiff. Plaintiff eventually plead guilty to disorderly conduct (one of multiple charges the police brough against plaintiff).

Decision: Judge Josph M. Hood found that the police did not violate plaintiff’s 4A right against excessive force, stating “[i]t is irrelevant to the Court’s inquiry that West was engaged in breaking up a fight between King and Johnson or that he did not heed the officers’ order because he did not hear them.”

Criticism: Of course it is relevant that plaintiff did not hear the alleged order to disengage because that is evidence that such an order was never made, especially at the summary judgement stage where plaintiff’s version of the facts is taken as true. Furthermore, even if such an order was given, it appears undisputed that plaintiff had no way of knowing that it was a police officer issuing the order. In short, the police officers should have announced their presence much better (keeping their flashing lights on would have been an excellent start), and Judge Hood should know better than to indulge this kind of police behavior — for the safety of police officers if for no other reason.

Another criticism: Judge Hood’s opinion also appears to resolve several disputed facts in favor of the police, most notably the issue of whether Lieutenant Dempsey gave any orders prior to jumping plaintiff. There were also disputed facts concerning whether the police stopped punching and kicking plaintiff after he was tasered, realized it was police on the scene and had stopped resisting.

Written by Burgers Allday

January 29, 2015 at 7:03 pm

Posted in Uncategorized

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