EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 27, 2016

Florida Court Grants Qualified Immunity to Officers Who Tackled Suspect Holding Knives "Kind of Like Wolverine"

Today marks the release of "X-Men: Apocalypse." If you were to expect one X-Man to show up in a judicial opinion, which one would it be? If your answer was this guy


you'd be correct, at least in Prevatt v. City of Gainesville, Florida, 2016 WL 154107 (N.D.Fla. 2016).

In Prevatt, Randall Prevatt

was walking near and towards an elementary school and carrying what turned out to be a pellet gun and two kitchen knives. After receiving multiple calls from concerned persons, the police officers confronted him. Upon command, Mr. Prevatt put down those weapons. But he did not comply with their subsequent commands to raise his hands and get on the ground. Instead he kept walking away. The officers tackled Mr. Prevatt just after he eventually raised his hands, throwing him face-first onto the ground and causing injuries. Mr. Prevatt br[ought] state law battery and negligence claims. He also br[ought] federal claims under 42 U.S.C. § 1983 based on allegedly unconstitutional use of excessive force.

In response, the defendants brought a motion for summary judgment dismissing the complaint. In doing so, the defendants asked the judge to take judicial notice that

the date of the incident was less than three weeks after the nationally publicized shootings at Sandy Hook Elementary School in Newtown, Connecticut.

Federal Rule of Evidence 201 states that 

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

The court did take judicial notice of this fact under Rule 201(2), citing to Margery Eagan, All we can do now is pray for these souls, 2012 WLNR 27198673 (Boston Herald Dec. 17, 2012). Of course, this fact doesn't seem especially compelling given that the "[d]efendants concede[d]...that school was not in session that day because local schools were still on winter break."

The court did not explicitly take judicial notice of another fact, but it implicitly did so. According to the court,

the officers had some reason to believe that Mr. Prevatt still posed an immediate threat. In addition to the gun, Mr. Prevatt was carrying two knives—a fact not reported by the 911 callers. Officer Abbott described Mr. Prevatt as holding the knives “kind of like Wolverine...[t]he knives were sticking out in between his fingers.”

The court then inserted a footnote after this quote, stated that

“Wolverine” appears to refer to the character in the X-Men comic book series by Marvel who has been portrayed in major motion pictures by actor Hugh Jackman....

Of course Mr. Prevatt only had two knives. And there is no suggestion that he threatened the officers with the knives.

This kind of reminds me of this scene from "X2: X-Men United." Of course, this event was real life, and Prevatt could have complied with the officer's command. As a result, the court found that "it was not clearly established that the amount of force that the officers used was constitutionally excessive" and granted the officers qualified immunity.



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Is there video? Because if there isn't I don't see much reason to believe the police account.

But I don't expect the courts to do anything other than accept the police account when there's a lack of evidence.

Posted by: bacchys | May 29, 2016 6:42:48 AM

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