Police, The Fourth Amendment, Qualified Immunity

Magistrate Judge William G. Hussman delivers a treasure trove of quotable quotes

leave a comment »

Case: Becker v. City of Evansville, Dist. Court, SD Indiana 2015

What happened: Police released a dog on a suspect who was not fleeing or hiding. Dog bit the arrestee up pretty good before its handler called the dog off.

Decision: No qi for the police man with the bitey dog.

Quotes: I love some of the sensible and plainspoken quotes in Magistrate Judge Hussman’s opinion.

[T]he Supreme Court has demanded that reviewing courts allow “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.” . . . But this important consideration does not give officers a free pass in every arrest. As the Ninth Circuit has noted, not all situations evolve rapidly or require split-second judgment. . . . And, as the Seventh Circuit has explained, even a rapidly evolving situation cannot justify a use of force that is objectively unreasonable.

Other courts have taken an opposite approach, essentially licensing officers to presume suspects are armed until they can confirm they are unarmed. In [one case], for example, the court found that the absence of any indication that the plaintiff was unarmed supported the reasonableness of the officers’ decision to unleash a police dog. . . . “A responding police officer,” the court explained, is “entitled to err on the side of caution when faced with an uncertain or threatening situation,” and under the Plaintiff’s version of the facts, the police officers had limited information about the nature of the Plaintiff and crime when responding to the scene and were entitled to err on the side of caution that the Plaintiff might be armed and dangerous And, in [another case], the Seventh Circuit found that an officer’s decision to shoot at a suspect was supported in part by the fact that he had been told the suspect “had a history of violence” and “was known to both carry and sell weapons.” . . .

With no precedent binding the Court on this issue, I embrace the Ninth Circuit’s approach in [yet another case, one less deferential to police use of force]. An officer should be able to articulate a rational basis for believing that a suspect is armed before inflicting violence commensurate with that belief. If officers may treat all suspects as armed until they confirm otherwise, the Fourth Amendment’s protection against excessive force is no protection at all. This approach does not reflect indifference toward officers’ safety. Rather, it acknowledges that the [Supreme Court’s] Graham analysis defers only to reasonable safety concerns.

Some courts, however, have found officers reasonable in perceiving immediate safety threats even after their suspects have indicated their surrender. . . . [T]he court in [one case] found that officers are not always required to accept verbal surrenders. . . . The suspect, the court explained, “could have quickly changed his mind and the officer was not required to take his apparent surrender at face value.” Id. “Not all surrenders,” it continued, “are genuine.. . .” . . .

I find myself unpersuaded by the suggestion that officers always may ignore pleas of surrender. This Court is bound by Cyrus’s admonition that officers must adjust their force as safety threats wane, . . . and I cannot give that admonition effect without requiring officers to honor pleas of surrender. In [cases] where a suspect continues to resist arrest after pleading to surrender, a continued use of force may be reasonable. . . . Absent specific cause for skepticism, however, a plea of surrender should affect the reasonableness determination.

Where the parties dispute whether a warning [of the impending release of a K9] is issued, the court should resolve that dispute in the plaintiff’s favor for summary judgment purposes. A plaintiff who maintains he heard no warning cannot reasonably be asked “to `prove a negative’ by showing that no warning was given.” Grady v. Becker, 907 F. Supp. 2d 975, 982 (D. Minn. 2012).

Written by Burgers Allday

February 1, 2015 at 6:07 pm

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: