Monday, February 9, 2015

Officer's use of force allegedly causes woman's miscarriage

In a recently filed complaint in federal court, a Georgia woman claims an officer with her local PD assaulted her while she waited for the release of her recently arrested son. She was pregnant at the time, and she alleges that the assault cause her to miscarry. This article highlights her basic allegations:

Kenya Harris sued the City of Albany, Ga., police chief John Proctor and officers Ryan Jenkins and Richard Brown, Jr. for excessive force, assault and battery and infliction of emotional distress.


Harris says she was called to the Albany Police Department in May 2011 after her minor son was arrested. After waiting five hours, she told Jenkins that she had other children at home and needed to leave but Jenkins responded with hostility, according to the complaint.


"Defendant Officer Jenkins stated that he did not appreciate the tone in which she was communicating with him, and further stated that if she continued he would take her head and 'put it to the floor,'" the complaint states.


Harris says when she again tried to explain that she needed to leave, Jenkins followed through on his threat.


"Defendant Officer Jenkins, without provocation, grabbed plaintiff, who weighs less than one hundred twenty (120) pounds, by her neck and slammed her to the ground. Plaintiff momentarily blacked out and came to with defendant Officer Jenkins sitting on her back, and with his knee on her arm. Plaintiff was pregnant at the time," the complaint states. "Defendant Officer Jenkins put handcuffs on plaintiff and slammed her against the wall. Plaintiff was placed into an interrogation room after she was beaten and handcuffed."


Harris' request for medical attention was denied and she was taken to Dougherty County Jail for the night on a charge of obstruction, according to the complaint. She says her subsequent miscarriage was a result of Jenkins' excessive force.

February 9, 2015 in Excessive Force | Permalink | Comments (0)

Sunday, November 2, 2014

Albuquerque PD agree to independent monitor, reforms after criticisms of use of force

DOJ and the Albuquerque PD agreed Friday to a consent degree requiring an independent monitor of APD and sweeping reforms to its use-of-force policies. The LATimes's Cindy Carcamo reports:

The main points call for disbanding a problematic tactical investigative unit that became something of an unofficial SWAT team, revision of when and how force should be used and implementation of a civilian police oversight agency to conduct independent investigations of all citizen complaints concerning the police force.

The settlement calls for the Police Department to consider specialized responses that would minimize the need for use of force when officers are dealing with people in mental health crisis. The agreement also requires the department to establish a mental health response advisory committee, provide crisis intervention training to all officers and expand the number of detectives assigned to the crisis intervention unit.

The agreed-to terms were expected. In April, a DOJ report chided APD for "structural and systemic deficiencies -- including insufficient oversight, inadequate training, and ineffective policies -- contribut[ing] to the [pattern and practice of] use of unnecessary force."  Shortly before the report's release, a helmet-cam recording surfaced that shows APD officers shooting a homeless man in the back. Protests of course ensued, as did clashes between citizens and APD officers. 

November 2, 2014 in Department of Justice, Excessive Force | Permalink | Comments (0)

Thursday, October 30, 2014

Holder calls for structural changes to Ferguson PD, police chief announces intention to resign

AG Eric Holder said the Ferguson PD required "wholesale change" in order to fix the structural deficit revealed by the unrest following the killing of Michael Brown by Officer Darren Wilson, reports The NYTimes's Mitch Smith and Monica Davey. Holder's comments come as DOJ investigates the white officer's shooting of the black teenager as well as the PD's response to subsequent turmoil. And a grand jury currently is considering whether to indict Officer Wilson for the killing -- local law enforcement have been preparing for possible tumult when the decision is announced. 

Some apparently suggested that Ferguson PD chief Thomas Jackson should be ousted from his post. But Jackson saved the city council the trouble by announcing his intention to resign. Another option is giving the St. Louis PD jurisdiction over the town.

October 30, 2014 in Excessive Force | Permalink | Comments (1)

Wednesday, October 29, 2014

Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...

...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.

October 29, 2014 in Excessive Force, First Amendment, Fourth Amendment, Strip Searches | Permalink | Comments (0)

Saturday, October 25, 2014

Police officer pointed gun at teenager's head because of seat belt violation...

...according to this local report. The incident in the driveway of the the teenager's home prompted his family to file a civil rights suit against the local Georgia PD for alleged racial profiling, excessive force and false arrest. They're asking for $12.5 million in damages.

October 25, 2014 in Excessive Force | Permalink | Comments (0)

LAPD officer's "horrific" attack left man "look[ing] like a rag doll" as he was carried to nearby squad car

Twenty-two-year-old Clinton Alford was riding his bicycle when he heard over his shoulder the command to stop. He says he didn't know who it was, so he ran. Two police officers chased him, and, after a short distance, he surrendered voluntarily, lying down and placing his hands behind his back. An Imagesofficer reportedly then placed him in handcuffs, which appeared to be the end of the routine encounter. But moments later a second squad car arrived, and Alford soon began "praying...they wouldn't kill me." A nearby security camera captured everything, according to The LATimes's Joel Rubin:

[A] uniformed officer, who the sources described as “heavyset” or “very large,” rushed from the driver’s side, according to sources. The officer moved quickly over to Alford, who was still held on the ground by the other officers, and immediately stomped or kicked...


The officer then dropped to the ground and delivered a series of strikes with his elbows to the back of Alford’s head and upper body, sources said. Alford’s head can be seen on the video hitting the pavement from the force of the strikes, two sources recounted. Afterward, the officer leaned his knee into the small of Alford’s back and, for a prolonged period, rocked or bounced with his body weight on Alford’s back...


Throughout much of the altercation, two officers restrained Alford but eventually they moved away.




When it was over, Alford’s body was limp and motionless, according to sources who viewed the video. It took several officers to carry him to a patrol car, they said.

Police officials confirmed that the video shows an officer, believed to be ten-year LAPD veteran Officer Richard Garcia, "delivering a powerful kick to the suspect's head." They added that Alford hadn't been resisting arrest, according to Rubin. Also:

The sources who reviewed the video of the incident also raised concerns about the officers’ actions following the arrest. Several minutes after Alford is put in the patrol car, they appear to notice the security camera on the building wall. The officer who kicked Alford knocked on the door of the building, which houses a small garment factory, until someone opened the door and he disappeared inside.

What happened after the officer entered the building isn't yet known, but the investigation continues. The officer's attorney disputes claims that his client used excessive force against a defenseless and compliant arrestee.

Alford was taken to a nearby hospital for treatment. He was later charged with drug possession and resisting arrest, but he claims he's not guilty. 

October 25, 2014 in Excessive Force | Permalink | Comments (0)

Friday, October 24, 2014

Off the Cuff: Criminal Justice Community Teach-In & Roundtable

...this Saturday, Oct. 25 @ 9 a.m. at East L.A. College. The event is free and open to the public, and among the planned topics for discussion is the need for civilian oversight of L.A. County jails.  As ACLU's Mark-Anthony Johnson explains, the new year likely will bring a fresh opportunity to institute this needed change. Register here.

October 24, 2014 in Excessive Force, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Appeals court finds officers violated civil rights of "calm child" they cuffed for disobeying teacher

An en banc 9th Cir. recently ruled that two Sonora, Calif. PD officers used excessive force when they handcuffed an 11-year-old who hadn't followed his teacher's instructions during recess, reports Education Week's Mark Walsh. Worried that the child might run off, the school called police when the boy didn't respond to the physical education teacher's attempt to get him back inside the school. The responding officers placed the cuffed boy in the back of the police car and took him to his guardian. According to the court:

It is beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers' instructions, and who is, by an officer's own account, unlikely to flee, was completely unnecessary and excessively intrusive.

The court found, however, that the officers were immune from allegations that they'd violated the child's Fourth Amendment right against unreasonable seizures.

October 24, 2014 in Excessive Force, Fourth Amendment, Schools, Seizure | Permalink | Comments (0)

Thursday, October 23, 2014

"Justice Department condemns Ferguson leaks as effort to sway opinion"

The LATimes's Matt Pearce:

With a grand jury decision looming on whether a white police officer should face charges in the killing of an unarmed black 18-year-old in Ferguson, Mo., the investigation has sprung a few leaks.


New details from the inquiry into Michael Brown’s Aug. 9 death — all provided by unidentified sources and which seem to support Officer Darren Wilson’s story of what happened that day — have emerged in St. Louis and national news outlets in recent days.


The U.S. Department of Justice condemned the leaks Wednesday as “irresponsible and highly troubling” and said, “There seems to be an inappropriate effort to influence public opinion about this case.”

October 23, 2014 in Department of Justice, Excessive Force | Permalink | Comments (0)

Wednesday, October 22, 2014

Autopsy “supports the fact that this guy is reaching for the gun…"

...claimed Dr. Judy Melinek, a forensic pathologist, after the release of the official autopsy of Michael Brown, according to this St. Louis Dispatch report.

October 22, 2014 in Current Affairs, Excessive Force | Permalink | Comments (0)

Tuesday, October 21, 2014

Inmate in TN claims prison officials beat him and left him in a dark cell without water for two days

...among other civil rights violations, according to this local report.

October 21, 2014 in Excessive Force, Prisons and Prisoners | Permalink | Comments (0)

DOJ officials and consultants to begin review of police misconduct by Baltimore PD officers "within weeks"

After continued complaints of excessive force by Baltimore PD officers, DOJ yesterday announced plans to begin the collaborative review of BPD practices. According to The Sun's Mark Puente:

Policing consultants, working with federal officials, plan to start interviewing community members, elected leaders, officers and union officials within weeks. They plan to ride with officers and examine the culture, practices, policies, supervision and oversight in the department.


[Community Oriented Policing Services (COPS) director Ronald L.]Davis said federal officials would be “very blunt” in identifying deficiencies and holding officials accountable to rebuild the trust with residents.


“This is very strong process,” he said during a news conference at the U.S. attorney’s office in Baltimore. “I want to reassure the community this is about helping the city of Baltimore reform. This is not about forcing them to reform in a way that we decided.”


The Justice Department plans to hold community meetings so residents can discuss problems they have seen with the police. Officials plan to issue an assessment and recommendations, and provide two updates in the 18 months after the review is finished.


The consultants plan to review disciplinary records and files from review boards, and sift through residents’ complaints to match them to lawsuits in which officers were accused of abuse. 

City leaders had called on DOJ to commit to a full civil rights investigation, which, unlike collaborative review, carries the authority of court order. Many feared BPD otherwise would have no incentive to fully comply in the inquiry, and without such an incentive the community couldn't fully trust that the review would produce meaningful results. But DOJ assures that its review will be "thorough, independent and objective."

A recent Sun investigation found that BPD had paid out more than $5.7 million in settlements for police misconduct since 2011, costing the city more than $11.5 million with attorneys fees.

A few related posts:

October 21, 2014 in Excessive Force | Permalink | Comments (0)

"Exclusive video: Did the NYPD really need to pepper-spray a guy waiting for the train?"

October 21, 2014 in Excessive Force | Permalink | Comments (0)

Sunday, October 19, 2014

Florida DOC official requests independent audit of use of force in state's prisons

Florida DOC secretary Michael Crews has requested an independent audit by The Association of State Corrections Administrators into the use of force by officers in the state's prisons, according to The Miami Herald's Julie Brown. The audit stems from the nearly twofold increase in use-of-force cases since 2008. As Brown writes:

In the recently completed fiscal year, state corrections officers logged 7,300 use-of-force cases, nearly 1,000 more than the previous year, according to the department's data... 


And these are only the cases that are reported by the officers and the prisons. Many others never get documented.




“Use of force’’ is a broad term. It covers any time a corrections officer uses physical force or certain chemical agents to subdue an inmate deemed to be causing a disturbance or resisting a lawful command. Officers are sometimes named as subjects, sometimes as participants.


Corrections officials know that a significant number of force applications never get reported, said Ron McAndrew, former warden at Florida State Prison.


“There were many times at Florida State Prison where I would come upon situations where I encountered an inmate who had two black eyes, a bloody mouth, and bruises up and down his body,” he said. “I would ask him what happened and he said he fell off his bunk. Well, he didn’t get injuries like that from falling off his bunk.He was too afraid to tell me that he was beaten by the officers.”

October 19, 2014 in Excessive Force, Prisons and Prisoners | Permalink | Comments (0)

Saturday, October 18, 2014

Officer who killed Michael Brown claims he was forced inside his vehicle and feared for his life

Darren Wilson, the white police officer who killed Michael Brown, an 18-year-old black man, told federal investigators his account of the events of August 9 that resulted Brown's death. According to Wilson, Brown "punched and scratched him repeatedly"as the teenager held him inside his vehicle. Wilson claims "Brown reached for his gun" and "removed [it] from the holster on [Wilson's] right hip," according to this NYTimes report.

In September, Officer Wilson appeared for four hours before a St. Louis County grand jury, which was convened to determine whether there is probable cause that he committed a crime. Legal experts have said that his decision to testify was surprising, given that it was not required by law. But the struggle in the car may prove to be a more influential piece of information for the grand jury, one that speaks to Officer Wilson’s state of mind, his feeling of vulnerability and his sense of heightened alert when he killed Mr. Brown.


Police officers typically have wide latitude to use lethal force if they reasonably believe that they are in imminent danger.


The officials said that while the federal investigation was continuing, the evidence so far did not support civil rights charges against Officer Wilson. To press charges, the Justice Department would need to clear a high bar, proving that Officer Wilson willfully violated Mr. Brown’s civil rights when he shot him.


The account of Officer Wilson’s version of events did not come from the Ferguson Police Department or from officials whose activities are being investigated as part of the civil rights inquiry.

The Brown family's attorney said that Wilson's account is unreliable, and that Wilson cannot dispute that he shot "Brown [as he] ran away from him." Dorian Johnson, who was with Brown that day, claims that Wilson actually "grabbed [Brown] around his neck" and pulled him into the police S.U.V.  before shooting him. After he shot Brown, Johnson says they "took off running" but Wilson shot Brown again -- and again -- a claim supported by at least one eyewitness. Johnson also denies that Brown ever attempted to grab Wilson's gun. 

The evidence confirms that there was a struggle between Wilson and Brown at last part of which occured inside the S.U.V., and that Brown was shot at close range with Wilson's gun. Brown's blood has been found on the gun and Wilson's uniform, as well as on the inside of the police S.U.V. The evidence also shows that two bullets were fired inside the vehicle, one of which struck Brown's arm. 

Then there's the matter of the shots fired outside the vehicle. The Times reports that Wilson did not account for these shots. Even if Wilson's conduct inside the vehicle was reasonable (which is disputed), the family's attorney will certainly claim that any perceived threat ceased once Brown began to flee. 

It seems to me that the NYTimes's report protends badly for those hoping the grand jury will issue an indictment. But perhaps I'm a cynic. Supposedly, we'll find out within the next 30 days.

October 18, 2014 in Excessive Force, Reasonableness | Permalink | Comments (1)

Wednesday, October 15, 2014

Judge considers request to order Pasadena to release independent report on shooting of unarmed black teenager

In 2012, 19-year-old Kendrec McDade was killed by a Pasadena PD officer responding to a 911 call reporting a gun-point robbery of a computer. The pursuing officer claimed he saw and heard gunfire coming from McDade's direction. As it turned out, another teenager with McDade had stolen the computer. And, contrary to information given by the 911 caller, neither McDade nor the other teenager were armed. Because of the false report, the DA deemed the officer's conduct reasonable under the circumstances and didn't bring charges. But McDade's family filed a civil rights claim against the city, which later settled for $850,000.  

Now, the family wants the city to release an independent consultant's report of the 2012 shooting. The LATimes and various civil rights groups have joined them in their effort to get the full report. The police union opposes its release because of the personal information it allegedly contains, and the city is pushing for a heavily redacted version. According to The Times's Richard Winton, a judge may soon order the release of the redacted version:

Superior Court Judge James C. Chalfant said he would make a final decision this week on whether the report about the killing of 19-year-old Kendrec McDade should be released.


Chalfant said during a hearing that he did not want to tip his hand but was leaning toward the arguments by city officials, who said they believed a redacted version of the report could be made public.

October 15, 2014 in Excessive Force | Permalink | Comments (0)

Tuesday, October 14, 2014

Federal data shows black teenagers much more likely to be killed by police than white teenagers

ProPublica recently analyzed police records from 1980 to 2012 and found that black teenagers are 21 times more likely to be killed by police than white teenagers. The analysis revealed:

The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.




Black officers account for a little more than 10 percent of all fatal police shootings. Of those they kill, though, 78 percent were black.


White officers killed 91 percent of the whites who died at the hands of police. And they were responsible for 68 percent of the people of color killed. Those people of color represented 46 percent of all those killed by white officers.


There were 151 instances in which police noted that teens they had shot dead had been fleeing or resisting arrest at the time of the encounter. 67 percent of those killed in such circumstances were black. That disparity was even starker in the last couple of years: of the 15 teens shot fleeing arrest from 2010 to 2012, 14 were black.


[T]here were many deadly shooting where the circumstances were listed as "undetermined." 77 percent of those killed in such instances were black.

The data is not perfectly clear. Some PDs don't file reports on fatal shootings at all, while others do so inconsistently; the data is self-reported. Although these "unreported killings could alter ProPublica's findings," the observable disparity between the killings of black and white teenagers is not likely affected by their omission. Indeed, the data represents reports from more than 1,000 PDs, many of which are among the largest in the country.

October 14, 2014 in Excessive Force | Permalink | Comments (0)

Monday, October 13, 2014

Nearly half of Americans "confident" police use unnecessary force

Forty-nine percent, actually. And when police officers are found guilty of misconduct, only half of Americans believe they suffer meaningful consequences. 

That's according to the most recent Reason-Rupe poll, which Reason Foundation director Emily Ekins highlights here.  The poll also finds nearly three-quarters of Americans oppose racial profiling by police.

A closer look at the numbers reveals some rather predictable results -- whites view police conduct differently than blacks and Hispanics, a result unexplained by disparities in class. As Ekins observes:

There are significant differences in perception across race and ethnicity, as well as income and age. Younger, lower-income, and nonwhite Americans are considerably more likely than older, high-income, and white Americans to perceive injustice in the police force.


African-American and Hispanic Americans are more likely than Caucasians to believe police abuse their authority and use force excessively...Only 34 percent of Caucasians believe the police use lethal force unnecessarily, compared to 82 percent of African-Americans and 72 percent of Hispanics.

So, is the criminal justice system discriminatory?

Forty-five percent of Americans believe the criminal justice system treats whites, African-Americans and Hispanics equally, while 44 percent think the criminal system treats whites more fairly than it treats blacks and Hispanics.

Residents in urban areas are more likely to believe that police too often resort to unjustifiable use-of-force than those in rural areas. Nevertheless, nearly three quarters of all Americans still view police favorably.

Nearly three-quarters also believe nonviolent drug offenders should be allowed to vote when their sentences end, and 80 percent believe that mandatory minimum sentences for such offenders need to go.


October 13, 2014 in Excessive Force, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Friday, October 10, 2014

"NYPD Cop Knocks Out Teenager Smoking a Cigarette Walking Home From School"

Slate's Elliot Hannon:

The incident took place over the summer, when 17-year-old Marcel Hamer was walking down the street in Brooklyn. According to lawyers for the family,... Hamer was walking home from school around 3:30 p.m. smoking a cigarette when he was confronted by a plainclothes police officer.


The video, taken by a friend of Hamer, begins with the young man lying on the curb underneath the rear bumper of a parked car. The police officer, who apparently suspected the cigarette contained marijuana, stands over Hamer as he pleads, “Mister, it was just a cigarette, sir.” The cop then appears to knock Hamer unconscious and handcuffs him.

October 10, 2014 in Excessive Force | Permalink | Comments (0)

Eric Garner's wife replaces lawyer handling civil rights suit against NYPD following rape allegations

Renowned civil rights lawyer Sanford Rubenstin is no longer representing Esaw Garner, wife of chokehold victim Eric Garner, in her $75 million lawsuit against the NYPD and serveral NYPD officers. Earlier this week a National Action Network official accused Rubenstein of raping her after Rev. Al Sharpton's 60th birthday, effectively ending his involvement in the case. As the NY Daily News reported yesterday:

Rubenstein, who bowed out of the case Wednesday, had hoped his partner, Scott Rynecki, would pick it up.


Garner’s widow, apparently disgusted by allegations that Rubenstein violated an intoxicated woman, chose to cut the cord completely.

Rubenstein maintains his innocence, but Ms. Garner wisely left that mess and acquired Beldock Levine & Hoffman's Jonathan Moore to represent her going forward.

NYPD Officer Daniel Pantaleo killed Garner with a chokehold earlier this year. Garner was unarmed and video of the incident gives little reason to believe he posed any threat. Pantaleo reportedly has a history of complaints alleging civil rights violations. A grand jury currently is considering whether to bring criminal charges against him for Garner's death. 

October 10, 2014 in Current Affairs, Excessive Force | Permalink | Comments (0)

"I don't trust this administration. We will benefit by pulling up all the carpet to see what is under it."

...said Marvin L. Cheatham, Sr., former president of the NAACP's Baltimore branch. Cheatham and other civic leaders have called on the DOJ to conduct a full federal civil rights investigation into the use-of-force by Baltimore PD. The DOJ and the city already have agreed to a "collaborative" review of BPD practices, but such a review is not subject to court order. Only if the DOJ has serious concerns about BPD conduct will there be a full investigation. But, as Mark Punte and Luke Broadwater write in this fine report in yesterday's Baltimore Sun:

[Justice Department spokesman Kevin] Lewis said each review is independently done and there is no set criteria that would turn the review into a civil rights investigation. "It doesn't rule out a civil rights investigation in the future if patterns persist."




Senior staff attorney David Rocah of the ACLU of Maryland, a former Department of Justice lawyer, said police departments prefer collaborative reviews because they are "far less threatening" than full-scale investigations.


The broader probes, he said, focus on whether departments commit constitutional violations and often lead to lengthy and costly consent decrees overseen by federal monitors.

As Cheatham's comment demonstrates, some don't expect a "collaborative" review between the DOJ and BDP will produce the appropriate reckoning for the BPD's alleged abuses. Others reportedly have been calling for years for a full federal investigation into the deaths of Tyrone West and Anthony Anderson while in BPD custody, for which no one was held accountable. But there hasn't been one. Punte and Broadwater report:

Hill-Aston, the NAACP branch president, said the deaths illustrate why the community wants the Department of Justice to conduct a wider probe. "No person should end up dying in police custody if they don't have a weapon."


Tawanda Jones, an anti-police brutality activist and West's sister, doesn't support a probe that does not carry the weight of law.

As I've noted, a recent investigation by The Baltimore Sun documented incidents of excessive force by BPD officers. The report found that the violence has begotten widespread community distrust. Also, since 2011, the city has shelled out more than $5.7 million in settlements in these cases. Recently, a local 90-year-old even won $90K after she locked in the basement a BPD officer conducting a warrantless (and particularly hostile) search of her house.

Local distrust for the BDP makes it imperative that it accept and encourage the DOJ's participation in the review. The BDP has an opportunity to be completely forthright with the DOJ and to respond to any of its relevant inquires. Without a genuine effort by the BPD to account for past and present policies, distrust and discord will persist while taxpayers continue to foot the bill.

For its part, the DOJ assured that a "candid" effort will be given to the "collaborative" review.

October 10, 2014 in Civil Rights Litigation, Excessive Force | Permalink | Comments (0)

Thursday, October 9, 2014

Surveillance video shows NYPD officers violently attack teenager

According to this local report, one of the police officers pointed his gun at the 16-year-old before the two officers commenced beating him. They allegedly broke one of the victim's collarbones in the attack.   

The family has filed a lawsuit claiming the beating amounted to excessive force in violation of the victim's civil rights.

October 9, 2014 in Excessive Force | Permalink | Comments (0)

Police brutality verdict sets new record in Portland

Portland got slapped with $562,000 in damages to be paid to the man to whom several of the city's police officers did this (it's a beating, so viewer discretion and what not):


Despite the video, Internal Affairs already declared that the officers' severe beating of the 40-year-old who had been stopped on suspicion of drunk driving did not violate any duty owed, nor did they deserve any discipline. In light of this recent award, however, it is willing to reconsider the situation. As The Oregonian's Aimee Green reports, "[P]olice spokesman Sgt. Pete Simpson said Internal Affairs will look at evidence presented during the trial. If any is found to be new and significant, Internal Affairs could re-open its investigation[.]" 


Whether IA takes this review seriously is yet to be determined.

A federal judge recently approved reforms that require the city to conduct full investigations into the incidents of use-of-force by police officers in which litigation ensued. The reforms were passed after the city shelled out millions of dollars in settlements and jury rewards to plaintiffs claiming excessive force by police, a history Green nicely documents in her excellent report.

Insurance will cover some of the costs of these incidents, but taxpayers nevertheless will remain on the hook for substantial sums of money. 

A few related posts:

October 9, 2014 in Excessive Force | Permalink | Comments (0)

Wednesday, October 8, 2014

Woman locks officer in basement during warrantless search, wins civil rights suit against police

As I recently noted, Baltimore PD has had its problems. And its image isn't improving. This local article explains the BPD's latest embarrassment:

In July 2009, [87-year-old Venus] Green's grandson, Tallie, was shot and wounded. Tallie said he was shot at a convenience store, but police insisted it happened inside Green's house and that the shooter was either Tallie or Green.


"Police kept questioning him. They wouldn't let the ambulance attendant treat him," Green said. "So, I got up and said, 'Sir, would you please let the attendants treat him? He's in pain,'" Green said.


Green said the officer said to her, "Oh, you did it, come on, let's go inside. I'll prove where that blood is. You did it."


Police wanted to go the basement, where Tallie lived, but Green refused on the basis that the police did not have a warrant.


"I said, 'No, you don't have a warrant. You don't go down in my house like that. He wasn't shot in here.'" Green said the officer replied, "I'm going to find that gun. I'm going to prove that you did it."


A struggle ensued between a male officer and Green [in which she suffered a separated shoulder].


"He dragged me, threw me across the chair, put handcuffs on me and just started calling me the 'b' name. He ridiculed me," Green said.


An officer went into the basement and Green locked him inside.

The city recently settled with Green because it doubted it could prevail in a case before a jury.

October 8, 2014 in Excessive Force, Fourth Amendment | Permalink | Comments (0)

NYC Civilian Review Board finds "misinterpretation" of no chokehold rule subverts officer accountability

NYC's Civilian Complaint Review Board has issued a 140-page report in which it accounts for the lack of accountability for police officers who have used chokeholds, a practice banned more than 20 years ago. The NYTimes's J. David Goodman reports, "The report, 'A Mutated Rule,' provides a statistical view of chokehold complaints by New Yorkers from 2009 to June 2014 and describes trends in how and when they occur." He writes:

In a new report analyzing more than 1,100 chokehold complaints, the [Civilian Complaint Review Board] offers a reason [officers often aren't punished for using chokeholds]: In the department’s disciplinary proceedings room, and in the board’s own investigations, the very definition of a chokehold had narrowed significantly.


As a result, a banned practice appeared to spread, the report found, and a disciplinary process meant to head off wrongdoing “failed to hold officers accountable” as complaints over the use of force increasingly included allegations of chokeholds.




Most allegations of chokeholds stemmed from encounters on the street in the busiest police precincts and were more likely in the late evening and early morning hours, and on Fridays and Saturdays, when there is more crime and more police activity. Chokehold complaints closely tracked with arrests, the report found.


While the department teaches permitted holds to its officers, such lessons can give way to a survival instinct in the heat of grappling with a suspect, said Joseph A. Pollini, a retired lieutenant commander who made or oversaw more than 1,000 arrests. “It’s like any other fight, like you had when you’re a kid, you don’t have a lot of time to focus,” he said.


Chokeholds represent a small fraction of the roughly 7,000 complaints the board receives each year. Between 2009 and June 2014, 10 were substantiated by the board’s investigators, while more than a third, the report found, were deemed “unfounded.”


One reason for the small number of substantiated complaints, the report found, was misinterpretation, by the board’s own investigators, of the Police Department’s chokehold rule, which bans all pressure on the neck and throat that “may” impede breathing. Instead, many board investigators redefined a chokehold as pressure on the neck that actually impairs a person’s ability to breathe. The report found that the board’s investigators miscategorized at least 156 allegations of chokeholds simply as “use of force.”

October 8, 2014 in Excessive Force | Permalink | Comments (0)

Sunday, October 5, 2014

NYPD is investigating renowned civil rights attorney accused of raping a National Action Network official following Rev. Al Sharpton's 60th birthday party

Sanford Rubenstein had been representing the family of Eric Garner, who an NYPD officer had chocked to death earlier this summer. Now that Rubenstein's been accused of the third-degree rape of a high ranking official in Sharpton's group who had passed out in his hotel room after a party, which medical staff reported to the police when she arrived at the hospital the next day complaining of continuous bleeding, his attention likely will be diverted elsewhere. 

October 5, 2014 in Current Affairs, Excessive Force | Permalink | Comments (0)

Saturday, October 4, 2014

"Brutality Cases Call For Federal Probe Into Baltimore Police Department"

Baltimore's city council and mayor hope the DOJ will review a slue of police brutality claims that continue to cost the city millions of dollars. As Baltimore's local CBS affiliate reports:

Commissioner [Anthony] Batts’ request for a full review by the Department of Justice comes after multiple videos of police brutality surfaced –including one from June, showing an officer brutally beating a man at a bus stop.




The [Baltimore] Sun’s investigations also revealed more than 100 people have won settlements that along with legal fees cost city taxpayers $11.5 million over the years.


“We know there are a few of us who are not in alignment with the philosophy I have set forth for this police agency,” Batts said.


Mayor Rawlings-Bblake says it’s clear the changes are necessary and that a full review by the federal governments into their policies and procedures will help put the past behind them and benefit the entire city.

The Baltimore Sun's full report on the prevalence of claims of police brutatily there can be found here.

October 4, 2014 in Excessive Force | Permalink | Comments (0)

Friday, October 3, 2014

Killing of Michael Brown "could spark long-lasting political change."

The voter registration drive in Ferguson is picking up and paying off. More than 3,000 Ferguson residents have registered to vote. Ferguson's total population only amounts to about 21,000 people, the majority of which are black and tend to vote less, resulting in an awfully white city council. But the killing of Michael Brown could change this. As MSNBC's Zachary Roth observes:  

Two out of three Ferguson residents are black, but five of the city’s six city council members, as well as its mayor, are white—a disparity that has received widespread attention since the unrest began.




Data suggests turnout among Ferguson’s black residents is far lower than among whites. There are several reasons for that: Blacks tend to be newer arrivals in Ferguson, and more transient, than whites. And Ferguson’s elections are held in April, which almost always correlates with lower black turnout. 


Less than two weeks after Brown’s death, Antonio French, a local alderman, set up an office in Ferguson to serve as a headquarters for a voter registration and mobilization effort. Other activists have placed registration tables at the site of Brown’s death, and outside the convenience store on Florissant Avenue where he is said to have stolen cigars not long before being killed.


Not everyone is happy about the drive for increased participation. Matt Wills, the executive director of the Missouri Republican Party, said setting up a registration booth at the site of Brown’s death was “fanning the political flames.”

Related posts:

October 3, 2014 in Election Law, Excessive Force, Right to Vote | Permalink | Comments (0)

Thursday, October 2, 2014

Protesters shot with pepper spray and rubber bullets say Ferguson police violated their civil rights

The police used "wanton and excessive force" against protesters who took to the streets following the the killing of 18-year-old Michael Brown by police officer Darren Wilson, say several protesters added to the civil rights complaint against the city of Ferguson and several members of its police force. As Reuters' Cary Gillam reports:

The amended complaint, filed Thursday in U.S. District Court for the Eastern District of Missouri, seeks approximately $60 million and claims police used "wanton and excessive force" as they dealt with protests after the Aug. 9 killing of 18-year-old Michael Brown.




One of the new claimants, Ferguson resident Antawn Harris, said he was recording police as they beat another man when police turned to him and shot him in the face with a rubber bullet. Harris had to be treated at a hospital, the suit claims.


Plaintiff Nathan Burns claims he was sprayed with mace while handcuffed on the ground, and had his head slammed into the pavement.


Other plaintiffs also said they were shot him with rubber bullets, beaten and sprayed with pepper spray with no provocation.

October 2, 2014 in Civil Rights Litigation, Excessive Force | Permalink | Comments (0)

Monday, September 8, 2014

Video shows NYPD officers beating man during routine noise disturbance call's Johanna Rothkopf notes this local report on a young man in the Bronx who was violently beaten by NYPD officers responding to routine noise disturbance. The video shows the two officers stop-and-frisk the young man. After more officers arrive, it shows them kicking him and hitting him with nightsticks and fists.

NYPD Internal Affairs Bureau is reportedly investigating the incident.

September 8, 2014 in Excessive Force, Stop-and-frisk | Permalink | Comments (0)

Friday, August 29, 2014

"Houston Cops Always Justified in Shootings. Always."

The Texas Observer's Emily DePrang writes:

Every shooting by a Houston Police Department officer is investigated by HPD’s Internal Affairs and Homicide divisions. Between 2007 and 2012, according to HPD records, officers killed citizens in 109 shootings. Every killing was ruled justified.


The 112 instances of an officer shooting and injuring a person were justified, too.


So were the 104 times an officer wounded an animal, and the 225 times an officer killed an animal.


There were 16 shootings found “not justified,” but they were all ruled accidental.


In more than one in five cases in which officers fired on citizens, the citizen was unarmed.

I suppose it's theoretically possible that every single shooting by a Houston police officer was entirely legit. But I'm skeptical - and a little scared.

DePrang also points out that Houstonians have very little authority to oversee questionable police conduct because the body charged with reviewing Internal Affairs investigations has no enforcement authority. 

August 29, 2014 in Excessive Force | Permalink | Comments (1)

Disturbing video of Minneapolis police harassing, tasing man while he waits to pick up his children from school's Joanna Rothkopf has the story here.

August 29, 2014 in Excessive Force | Permalink | Comments (0)

Thursday, August 21, 2014

L.A. to pay $5 million in damages for 2013 shooting by LAPD officers

As protests continue in Ferguson, MO over the shooting death of Michael Brown, the L.A. City Council reminds us that the costs of excessive force by police extends beyond the physical and emotional pain such violence causes. Yesterday, by a 12-2 vote, the council approved a $5 million settlement in the civil rights case that followed the 2013 shooting death of Brian Newt Beiard. As The Los Angeles Times reports

The incident began around 9:30 p.m. [on Dec. 13] as a suspected drunk- or reckless-driver pursuit in Cudahy by Los Angeles County sheriff's deputies. The LAPD took over the chase when it reached city limits.


Beaird was driving erratically and at high speeds on freeways and surface streets. With several LAPD cars following him, he slammed his Corvette into a Nissan crossing the intersection at Olympic Boulevard and Los Angeles Street, sending the Nissan into a fire hydrant.


After initially trying to drive his mangled car, Beaird stepped out of the Corvette and staggered to the back of the car, with his hands up at one point and his back to the officers. Within moments, TV footage showed objects — possibly nonlethal rounds — bouncing off Beaird almost in concert with crackling gunfire.


Beaird fell to the ground, where he flailed from side to side before lying still as officers approached.

The question, of course, is not whether police were pursuing a criminal--even a potentially violent one. Rather, the question is whether the use of force by police was excessive under the circumstances. The belief that a jury may well have found that the officers' use of force under the above circumstances was excessive compelled the council to agree to the settlement amount.

Councilman Bernard Parks, a former LAPD chief, said that the case was serious enough to warrant such a large payout and that a jury could have awarded far more had the case gone to trial.


"This is a case that clearly had significant potential liability far beyond what the settlement offer was," he said. "It was a good business decision when you have a loss of life and you have evidence that could be viewed as overwhelming against the city of L.A."


The settlement was approved by a 12-2 vote. Two council members who have served with the LAPD voted against the payout, saying the shooting appeared justified. Councilman Mitchell Englander said the officers could not see the driver's hands when he fell so could not be sure whether he had a weapon.

Beaird's father originally had requested $20 million in damages. 

The $5 million settlement is the largest for a fatal shooting by L.A. police in the last ten years.

August 21, 2014 in Excessive Force | Permalink | Comments (0)

Thursday, June 19, 2014

'Correctional Officer Excessive Use of Force: Civil Liability Under Section 1983'

The title of this post comes from this intriguing study recently published by the The Prison Journal, the abstract of which states:

Despite recent research demonstrating the impact of inmate perceptions of correctional legitimacy on order maintenance, the extant literature has failed to examine the contextual reality of correctional excessive use of force claims. Utilizing legal cases from the U.S. Court of Appeals and U.S. District Courts, this article examines correctional officer excessive use of non-deadly force and identifies recurring themes in these claims. Findings highlight the common occurrence of retaliatory violence, negative attitudes, failure to listen to inmate concerns, inadequate training, and an inability to decipher reliable threat cues consistently present in correctional officer use of non-deadly force claims. Suggestions for future research and policy implications are offered.

June 19, 2014 in 42 U.S.C. § 1983, Excessive Force, Prisons and Prisoners | Permalink | Comments (0)

Thursday, May 29, 2014

Federal civil rights claims against Philly police continue rise in 2013

The title of this post comes from this notable article by Dana DiFilippo and David Gambacorta in today's Philadelphia Daily News on the nearly sixty percent increase in 2013 in settlement payments to plaintiffs claiming misconduct by Philadelphia police. The extensive article begins:

ImagesOn a warm night in Overbrook, Askia Sabur spotted his cousin outside a Chinese takeout and pedaled his bicycle over to chat.


Within minutes, Sabur lay bleeding and barely conscious on the sidewalk, as a crowd of cops - several with long histories of brutality complaints - beat him, opening gashes on his head that would require six staples to close.


In West Philadelphia, Stephen Moore was watching TV alone in his bedroom when his home-security system announced his front door was open.


Moore went to investigate, only to be pumped full of lead by a cop who started firing after entering the house without saying a word.


And in Kensington, police who tried to arrest Kahlif Snowden over a suspected drug sale ended up violating policy by Tasing him in the neck three times until he fell unconscious. He was left in a persistent vegetative state.


Sabur, Moore and Snowden were among 128 plaintiffs who received nearly $14 million in settlements from the city last year from civil-rights lawsuits filed against police.


That marked a huge jump from the $8.3 million paid out for such suits in 2012, and an even bigger increase from the $4.2 million paid five years earlier. Those figures don't include the millions paid annually to settle lawsuits from police-involved car accidents or labor and employment claims.

Philadelphia is not alone. For example, The Las Vegas Sun also reported on the substantial increase in federal civil rights claims filed against the city's police department, a trend beginning in 2008.

May 29, 2014 in Civil Rights Litigation, Excessive Force | Permalink | Comments (0)

Tuesday, May 13, 2014

After breathalyzer and blood test, man suspected of drunk driving subjected to forced catheterization

In Indiana, 23-year-old William Clark alleges that local police violated his civil rights by subjecting him to forced catheterization after he failed to provide a urine sample on his own. He had been arrested on suspicion of driving drunk. As this local article reports:

PoliceLightsAccording to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states [Officer Matthew] Djukic, however, became impatient with Clark's inability [sic] to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

Clark says the forced catheterization was "painful, degrading and humiliating." Among other things, he alleges that it amounted to excessive force, and he’s seeking more than $10 million in total damages.

Excessive force claims usually are analyzed under the Fourth Amendment, which protects citizens’ “persons, houses, papers, and effects” from “unreasonable searches and seizures” by law enforcement. A reasonable search or seizure generally is one supported by a warrant issued by a magistrate, although certain circumstances may justify waiving the requirement. Such is the case when the search is likely to produce evidence of criminality, and when the warrant requirement is impractical.

In Schmerberg v. California, the Supreme Court held that warrantless blood testing for alcohol by law enforcement squares with the Fourth Amendment’s prohibition on unreasonable searches. Because the body works to eliminate alcohol as soon as drinking stops, the application of the warrant requirement to drunk driving cases would prevent discovery of needed evidence. Blood testing also is “a highly effective” means of determining one’s level of intoxication.

But a prick of the finger is less invasive than catheterization. Blood testing usually requires only the exposure of one’s finger to momentary discomfort. Forced catheterization requires exposing one’s genitals to medical staff so that a tube may be inserted into the urethra, allowing for the collection of urine directly from the bladder. The procedure could last a minute or more. Because some people experience severe pain, local anesthetic is occasionally used. The propriety of the warrantless procedure is also specious given Grant’s submission to both a breathalyzer and a blood test—less invasive, but effective, alternatives to urinalysis.

As one federal judged argued, unlike blood testing, “the Fourth Amendment’s protection of human dignity and privacy might require a warrant at the very least before government officials could compel a citizen to undergo a catheterization.” Officer Djukic didn't have one, and the existence of exigent circumstances justifying forced catheterization is doubtful.

Still, even assuming the validity of Grant’s excessive force claim, Officer Djukic may nevertheless be immune from legal action if a reasonable officer wouldn’t have known the forced catheterization violated Grant’s rights.

(h/t Debra Cassens Weiss at the ABA Journal Blog)

May 13, 2014 in Excessive Force, Fourth Amendment, Search | Permalink | Comments (1)

"Qualified Immunity and Statutory Interpretation"

The title of this post comes from this recent paper, the abstract of which states:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

May 13, 2014 in 42 U.S.C. § 1983, Excessive Force | Permalink | Comments (0)

Monday, February 24, 2014

Qualified Immunity and Statutory Interpretation

The title of this post comes from this recent paper arguing that SCOTUS's decision in Graham v. Connor created a new qualified immunity jurisprudence--a shift from the common-law approach to qualified immunity in excessive force claims to the current federal doctrine, which is substantially less protective of plaintiffs. Specifically, it argues for a return to the former method. Here's the abstract:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

CRL&P related posts:

February 24, 2014 in 42 U.S.C. § 1983, Excessive Force | Permalink | Comments (0)

Tuesday, February 18, 2014

Civil rights groups want Texas schools rid of pepper spray and Tasers

The Texas Observer reports that several groups want schools to eliminate the use of Tasers and pepper spray on students, which seems like an entirely reasonable request. Since 2001, more than 500 people have died after having been tased. The Observer article states:

Last week, a group of civil rights organizations including the ACLU and the Texas Criminal Justice Coalition called on Texas Education Commissioner Michael Williams to ban the use of Tasers and pepper spray on schoolchildren, citing the recent severe injury of a Cedar Creek High teen as an example of the devices’ potential to inflict serious damage.


Within the Texas juvenile justice system, guards are banned from using Tasers on young offenders. But in public schools, “resource officers” are allowed to use the devices—along with pepper spray—at the discretion of local school boards.


PepperSprayIotacon“Texas families deserve to send their children to school without fear, knowing they can trust their schools to be safe havens,” the letter reads. “Emitting a shock of up to 50,000 volts, Tasers are designed to restrain adults. They simply should not be used on children.”


Williams’ office responded Thursday that it doesn’t have the “statutory authorization” to impose a ban on the weapons, noting that the authority lies with local school districts and charter school boards.


“That is a conversation that has to take place among local elected officials,” he said in a statement.


Last year the same coalition of civil rights groups called on the Texas Commission on Law Enforcement to enact a ban on the “non-lethal” devices, and were met with a similar response. Commission officials, however, vowed to work with the criminal justice groups in providing specialized curriculum for school police officers. TCLOSE only requires school security to meet the “minimum standards” of peace officers as established by the Texas Education Code—generalized training that is not specific to dealing with minors.


John Helenberg, director of operations at the law enforcement commission, said the agency is forming an independent committee of “experts across the state from various law enforcement agencies,” to take a closer look at how peace officers should use force in schools. That review will begin in March, Helenberg said.


Texas Appleseed and the ACLU examined the policies of 18 school districts in the state which volunteered to supply data; the use of pepper spray was prevalent throughout. The 2011 ACLU study also revealed the use of other weapons among the school districts: Killeen ISD listed police batons as one option; El Paso ISD reported using police dogs. Two Houston school districts recently began using “pepper guns,” which are more accurate than pepper spray.


The tactics used to restrain students are also determined independently by each school district and vary widely. Austin ISD officers use “soft empty-hand control” techniques when a student doesn’t respond to two verbal warnings, whereas Tyler ISD officers report using pepper spray after the student’s third failure to comply.


In 2009, several Hillcrest High students in Dallas were given medical treatment for exposure after an officer used pepper spray to break up a fight. Despite these injuries, information on force used against students and the types of implements officers wield is difficult to obtain because there are no legislative mandates requiring schools to report that data to the state. A Taser International spokesman told the Los Angeles Times in a 2009 article that “‘well over 4,000” law enforcement agencies nationwide use their product in schools.

CRL&P related posts:

February 18, 2014 in Excessive Force, Schools | Permalink | Comments (0)

Friday, January 24, 2014

Excessive force claims under Fourth Amendment less protective when police use tasers?

In Shocking the Conscience: What Police Tasers and Weapon Technology Reveal about Excessive Force LawAaron Sussman argues that excessive force jurisprudence under the Fourth Amendment has tended towards providing less protection for citizens who make excessive force claims against 
Taserpolice who have used tasers during an arrest. For such cases, Sussman prescribes a re-commitment to "the balancing standard" articulated by the Supreme Court in Graham v. Conner, 490 U.S. 386 (1989); and, (2) a more "reality-based approach" to qualified immunity claims. 

The Fourth Amendment protects "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures[.]" According to the Graham Court, excessive force claims fall under the Fourth Amendment's protection against "unreasonable...seizures." Id. at 395.  Whether the use of a taser is "unreasonable" requires balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests [on account of being tased] against the countervailing governmental interests at stake." Id. at 396. (Internal quotations omitted). This inquiry "depends not only on when [a seizure] is made, but also on how it is carried out." Importantly, the Graham Court wrote: 

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene...With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance 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.


As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. Id. at 396-97. (Internal citations and quotations omitted).

Susmann claims courts have demonstrated little actual fidelity to the Graham balancing test. "Courts are likely to misjudge both the individual’s and the government’s interests in taser cases," he writes, "because these cases involve poorly understood technology and less serious observable injury." He later adds,

Courts do not serve the mandates of Graham when they fail to acquire a sufficient understanding of what tasers actually do or of what is still unknown about what they do. In addition to obtaining an understanding of the use of force before deciding whether its use was reasonable, courts should presume that it would be unreasonable for officers to deploy a weapon without understanding its effects. Similarly, neither Graham nor fundamental Fourth Amendment principles are served by discounting plaintiffs’ experience of pain, emotional distress, and fear. Doing so will effectively turn weapons designed to inflict severe pain while minimizing tissue damage into tools for avoiding legal liability, a role they may already play given developments in qualified immunity doctrine.

Qualified immunity protects individual police officers from lawsuits arising from their actions in furtherance of an unconstitutional law or policy. According to Sussman, "Qualified immunity substantially advantages defendant police officers. The doctrine helps courts justify grants of summary judgment and provides defendants two opportunities to escape liability, both entailing their own pro-defendant" biases.

Here's the abstract to Shocking the Conscience:

Since Graham v. Connor, the U.S. Supreme Court’s 1989 opinion establishing the Fourth Amendment standard for assessing whether a police officer’s use of force was unconstitutionally excessive, the law has slowly developed through a body of narrow and fact-specific precedents that guide judges’ excessive force and qualified immunity analyses. Recently, the Ninth Circuit — the source of many of the most influential excessive force opinions — decided three contentious cases regarding when an officer’s use of a taser is unconstitutional. On one view, these cases raise novel questions about how to apply the Fourth Amendment standard for nontraditional and technologically advanced uses of force. In this Comment, however, I argue that these cases predominantly present issues that pervade all excessive force jurisprudence and illuminate judicial trends and tendencies disadvantaging plaintiffs while advantaging defendant officers. In light of this understanding, my proposal is not for new rules or standards in taser cases. Rather, I suggest that courts, first, faithfully apply Graham’s standard of balancing the nature and quality of the Fourth Amendment intrusion against the government’s interest in the officer’s use of force and, second, employ a reality-based approach in deciding whether the officer is entitled to qualified immunity. For courts to do this, excessive force jurisprudence must evolve to match the development of police weapons technology. That evolution includes fully understanding and considering the distinctive effects and risks posed by tasers and presuming that a reasonable police officer would have done the same.

Relatedly on CRL&P: 

January 24, 2014 in 42 U.S.C. § 1983, Excessive Force, Fourth Amendment | Permalink | Comments (1)

Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge

The title of this post comes from this paper by Professor Douglas McKechnie discussing excessive force under the Fourth Amendment. Here's the abstract:

This article suggests that requiring an injury in a Fourth Amendment excessive force claim is neither constitutional nor practical. The article has two components. First, it examines the requirement that an arrestee allege an injury to have a valid Fourth Amendment excessive force claim. The article explores the de minimis injury exception’s genesis in Fourth Amendment jurisprudence and discusses whether and how the circuit and district courts have implemented an injury requirement. The article demonstrates that an injury requirement in some circuits has created contradictory and confusing tests and exceptions. It then argues why an injury requirement is not supported by the Supreme Court’s seminal Fourth Amendment excessive force case. Second, the article discusses the technology of future non-lethal weapons as well as the physical and psychological impact on the weapons’ targets. The article posits that a de minimis injury exception to Fourth Amendment excessive force claims is impractical in light of the deceptively minimal harm these non-lethal weapons will cause.

January 24, 2014 in 42 U.S.C. § 1983, Excessive Force, Fourth Amendment | Permalink | Comments (1)

Friday, December 20, 2013

Lawsuit: Police K-9 ordered to attack handcuffed man

The title of this post comes from this article about an Indiana man's federal lawsuit alleging civil rights violations by the sheriff's office during this regrettable K-9 incident: 

Biting_Dog_webCook admits he was hiding out in an attic as police stormed into his home, when Wayne County sheriff's deputy Ronald Lindley sent his K-9 named "Larry" in to find him.


In his lawsuit, Cook claims he remained silent as police scoured the home, but when the K-9 peered into the attic, Cook said he quietly spoke out with the words, "Please don't bite me," and then something to the effect of, "I like dogs."


Cook claims the dog began barking when Deputy Lindley gave a command, so he then blurted out, "Get that dog out of here."


Cook said the K-9 was then released into the attic, where it bit him and then ended up dragging him by the arm toward a group of officers.


He said Deputy Lindley then punched him in the head as he was ordering the dog to release his hold around Cook's arm so that he could crawl from the attic.


According to Cook's lawsuit, "Deputy Lindley ordered the K-9 to attack and bite Mr. Cook on the left hamstring after he was handcuffed."   He said the dog continued to bite his leg as he was cuffed, resulting in "significant injuries."


Cook was taken by ambulance to Reid Hospital for treatment before going to jail.

December 20, 2013 in Excessive Force | Permalink | Comments (2)

Thursday, December 19, 2013

CRL&P Daily Reads: Dec. 19, 2013

Five recommendations from NSA task force; The Week asks whether NSA's mass surveillance is effective; Politico looks at how task force's recommendations affect Obama's policy options; and, Dave Eggers says Dave Eggers and others should speak out against the NSA's policies.

ACLU alleges Native American and black students subject to racial and sexual harassment from students and teachers in California school district.

Bill in Ohio Senate would allow married same-sex couples to file joint tax returns.

Former officer alleges sex discrimination by police department when it terminated her because of a workplace relationship; police in New Jersey settle civil rights suit alleging harassment of a teenager; officer in Georgia faces lawsuit after putting a man in the hospital with a blow from his flashlight; and, Columbus alleged to have violated event organizer's civil rights when it shut down his festival after the shooting of an 11-year-old. 

No more donations to the Boy Scouts until gay leaders are allowed, says Lockheed Martin.


December 19, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (0)

Wednesday, December 18, 2013

CRL&P Daily Reads: Dec. 18, 2013

Larry Klayman, Larry Klayman, Larry Klayman.

Brazil shirks Snowden.

Plain Dealer columnist argues for armed employees in schools.

Federal judge will hear challenge to Ohio's ban on recognition of same-sex marriages on death certificates.

Student's civil rights suit alleges anti-LGBT harassment by teachers and administrators; police lieutenant claims he was fired in retaliation for testimony he gave against the department in several civil rights cases; Orlando PD face allegations of excessive force by a group of officers; and, civil rights suit over alleged unjustifiable death of Lansing teenager re-emerges.


December 18, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Gun Policy, Same-sex marriage, Schools, Web/Tech | Permalink | Comments (0)

Tuesday, December 17, 2013

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.


December 17, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (1)

Monday, December 16, 2013

CRL&P Daily Reads: Dec. 16, 2013

Sunday, December 15, 2013

CRL&P Daily Reads: Dec. 15, 2013

Friday, December 13, 2013

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.


December 13, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Voter ID | Permalink | Comments (0)

Tuesday, December 10, 2013

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.


December 10, 2013 in Civil Rights Litigation, Excessive Force, First Amendment, Fourth Amendment, Freedom of Press, Freedom of Speech, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches, Web/Tech | Permalink | Comments (0)

Sunday, December 8, 2013

Don't tase me, Bro!

In Texas, civil rights groups are challenging the authority of police officers and school security personnel to use non-lethal weapons in schools. Keeping schools safe and orderly may be difficult, but those goals are frustrated when permissible measures include ones that are themselves unsafe. In 2004, Amnesty International raised concerns that "electro-shock weapons are particularly open to abuse by unscrupulous officials," and it may have been right. Earlier this year, an elderly Alzheimer's patient died after being tased by a police officer; and, there's this... 

Since 2001, more than 500 people have died after having been tased.

Reported by The Police News, the article begins:

Dont_tase_me_bro_sticker-rb8c013f1fdee49f29e7198399577149f_v9waf_8byvr_512After a November altercation between a law enforcement officer and a high school student left the student in a coma, civil rights groups are urging the Texas Commission on Law Enforcement to ban the use of non-lethal weapons like Tasers and pepper spray on school grounds.


Last month, Sheriff's Deputy Randy McMillan, who was a school resource officer at the time, used a Taser on Noe Nino de Rivera, 17, while trying to break up a fight at Cedar Creek High School in Bastrop County, Texas. After receiving the shock from the stun gun, the teenager fell to the ground and suffered a traumatic brain injury, according to the Austin American-Statesman. The teen remains in a medically induced coma.


Now, seven civil rights groups including the American Civil Liberties Union (ACLU) of Texas, and the National Alliance on Mental Illness, are fighting back against the use of non-lethal weapons on students. In a letter sent to the Texas Commission on Law Enforcement on Wednesday, the groups called on the commission to implement standards barring the practice, according to a statement released by the Texas ACLU.

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December 8, 2013 in Excessive Force | Permalink | Comments (2)