On April 7, 2022, the Eleventh Circuit Court of Appeals decided Ingram v. Kubik[i], which is instructive regarding excessive force and supervisor liability. This is Part One of a two part series. This article will discuss the law related to excessive force. The relevant facts of Ingram are as follows:
Ingram is an Iraq War veteran who suffers from post-traumatic stress disorder. In October 2017, while suffering from a mental-health crisis, Ingram cut his wrist with a knife at his home. His girlfriend called the Veterans Affairs suicide hotline, which contacted law enforcement. Deputy Louis Kubik and another deputy from Madison County, Alabama, were dispatched to assist Ingram.
When the deputies arrived, Ingram was calm. The deputies searched him multiple times. They confiscated the knife with which Ingram had cut himself. After the search, the deputies knew that he was unarmed.
“Ingram assured the deputies [that] he was no longer suicidal” and “never expressed any desire to harm himself or any other person during his encounter with the deputies.” He “insisted that the deputies either arrest him or leave.” Both the deputies and Ingram’s mother “tried to convince Ingram to let them take him to a residential program through . . . [Veterans Affairs] that Ingram’s mother wanted him to attend.” When Ingram asked the deputies if he was under arrest, the “deputies told [him] . . . that he was not.” Ingram reiterated “that he would cooperate with any arrest if that [was] what they wanted to do.”
Because the deputies would not leave, Ingram left through the back door “on his third try.” “Ingram ran into a cotton field behind the house, and the deputies followed.” Ingram eventually stopped running and “let the deputies catch up to him.” “The deputies told Ingram that if he would go back to his house and refuse medical treatment,” the deputies would leave. “Ingram agreed to walk back to the house . . . and speak directly with [medical] personnel.” As they walked back, Ingram stated “multiple times that if he was being arrested, the[ deputies] should . . . let him know and he would go voluntarily,” but “[t]he deputies repeatedly told Ingram he was not under arrest.”
When they reached the yard, “Ingram held his hands over his head and told [medical] personnel . . . that he was refusing medical treatment.” The deputies knew that Ingram was unarmed and posed no threat to them. “Without warning, [Deputy] Kubik then grabbed Ingram under his armpits, picked Ingram up, and slammed Ingram to the ground head first, causing Ingram to suffer a serious neck injury.” Ingram alleges that Kubik’s decision to body slam “Ingram was motivated by hostility toward Ingram due to Ingram’s mental illness.” Ingram was taken to the hospital. “A surgeon removed Ingram’s C-2 vertebra and replaced it with a metal rod. The surgeon also fused Ingram’s C-3 and C-4 vertebrae.”
“Despite widespread knowledge of th[is] incident up the chain of command” that included then-Sheriff Blake Dorning, “the incident was not . . . investigated, and the deputy was not disciplined.” Failure to investigate excessive force incidents “ha[d] been Dorning’s standard operating procedure”; “[e]ven obviously-unconstitutional . . . actions of his deputies [were] immune from investigation and discipline.” Ingram’s lawyer learned from discovery in other lawsuits “that formal internal investigations of officer misconduct were not conducted,” and after he requested “records of internal investigations of deputy misconduct,” he was “told no such records existed.” During Dorning’s tenure, the Sheriff’s website “identified no person or division to contact with a complaint [against] a deputy.”
The complaint provides examples of excessive force that were allegedly not investigated. In one “well-publicized revenge beating,” “Dorning refused to investigate and discipline the deputies involved,” despite being “fully informed” of the incident, “including the revenge beating and cover-up.” “Dorning learned that numerous deputies of various ranks were involved in the beating or its planning, in the cover-up, or in both.” Despite that knowledge, and even though a policy and procedure manual required him to investigate, “Dorning took no action against any of the involved deputies” and “did not . . . initiate an internal affairs investigation.” Dorning similarly “refused to investigate serious allegations related to [six] deaths at the Madison County Jail.” And Ingram points to five other incidents that were “approved as a matter of routine through the chain of command without any investigation.”
Dorning’s inaction was “a matter of routine and de facto policy” of “approv[ing] the force used and never initiat[ing] further investigation.” “Thus, no officer was disciplined, let alone terminated, for excessive force or for otherwise violating a citizen’s constitutional rights during Dorning’s 16-year tenure.” As a result of that policy, “[d]eputies under Dorning’s command learned that their justifications for using force and other unlawful actions would never be questioned and that they could act with impunity.” Ingram alleges that “[t]hrough explicit instruction and long-established custom, Dorning established a custom or policy that incidents of possible, likely, or known misconduct were not investigated, with the foreseeable result that deputies like Kubik believed they could get away with violating Ingram’s rights.” Kubik believed that “he would not have to face any investigation and that he could act with impunity”.[ii]
Ingram filed suit in federal court and alleged the Deputy Kubik violated his Fourth Amendment rights to be free from an unlawful seizure and excessive force, and that former Sheriff Dorning violated his rights by being deliberating indifferent to numerous incidents of excessive force such that his deliberate indifference caused Kubik to use excessive force against him. Kubik and Dorning filed motions for qualified immunity. The district court granted qualified immunity for both Deputy Kubik and Sheriff Dorning. Ingram appealed to the Eleventh Circuit Court of Appeals.
Issue One: Are Deputy Kubik and Sheriff Dorning entitled to qualified immunity for Ingram’s claim that he was seized unlawfully under the Fourth Amendment?
Government officials are entitled to qualified immunity for discretionary acts unless the plaintiff alleges sufficient facts to show (1) that the government official violated the plaintiff’s rights, and (2) the right was clearly established such that any reasonable officer in the same position would have known he was violating the plaintiff’s rights. The law is considered clearly established where there is factually similar case law from the Supreme Court, the Eleventh Circuit Court of Appeals or the highest court in the state to give the officers fair warning that their conduct was unlawful. Additionally, the law can be clearly established if, under the facts of the case, it is plainly obvious to a reasonable officer that he is violating the plaintiff’s rights.
The court of appeals then set out to determine if Kubik and Dorning were entitled to qualified immunity in Ingram’s case. The court of appeals first examined the legal principles related to seizing people who are undergoing a mental health crisis. The court stated
The Fourth Amendment protects people from unreasonable . . . seizures.” Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir. 2011). Mental-health seizures are reasonable under the Fourth Amendment when the officer has probable cause to believe that the seized person is a danger to himself or to others. Id. “[T]he correct legal standard to evaluate whether an officer had probable cause to seize a suspect is to ask whether a reasonable officer could conclude that there was a substantial chance,” see Washington v. Howard, 25 F.4th 891, 902 (11th Cir. 2022) , “of dangerous behavior,” Roberts, 643 F.3d at 906 (internal quotation marks omitted).[iii]
The court of appeals then examined the facts relevant to this issue. The court noted that (1) Deputy Kubik was dispatched to a 911 call of a possible suicide attempt, (2) Ingram had cut his wrist with a knife, (3) Ingram’s mother thought that the situation was dangerous enough to merit calling 911 and taking Ingram to VA mental health program, and (4) Ingram’s behavior after the deputies arrived was erratic when he fled into a cotton field.
Based upon the above facts, the court of appeals held that Deputy Kubik had probable cause to believe Ingram was a danger to himself and as such, it was reasonable under the Fourth Amendment to seize him.
Therefore, Kubik and Dorning are entitled to qualified immunity on the unlawful seizure claim, as Kubik did not violate the plaintiff’s rights because he had probable cause to seize Ingram.
Issue Two: Is Deputy Kubik entitled to qualified immunity for Ingram’s Fourth Amendment excessive force claim for body slamming Ingram?
While Deputy Kubik could lawfully seize Ingram, the seizure must still be conducted reasonably under the Fourth Amendment. The court of appeals noted the relevant legal principles and stated
A citizen’s Fourth Amendment right to be free from unreasonable . . . seizures includes the right to be free from the use of excessive force in the course of an arrest.” Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1326 (11th Cir. 2015) . . .
A determination that an officer used excessive force “requires careful attention to the facts and circumstances of each particular case” while “recogniz[ing] that the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. We apply the “Graham framework” to mental health seizures even though they “do[] not involve a criminal arrest.” Mercado v. City of Orlando, 407 F.3d 1152, 1157-58 (11th Cir. 2005). Under that framework, the force used by an officer is reasonable only if it is “reasonably proportionate to the need for that force, which is measured by [1] the severity of the crime, [2] the danger to the officer [or others], and [3] the risk of flight.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002); see for application of force, the relationship between the need and amount of force used, and the extent of the injury inflicted by the arresting officer.” Helm v. Rainbow City, 989 F.3d 1265, 1273 (11th Cir. 2021) (citing Lee, 284 F.3d at 1198 & n.7).
The court then set out to determine if qualified immunity was warranted. The court examined (1) whether the deputy violated the Fourth Amendment by using excessive force, and (2) if the law was clearly established such that a reasonable officer in this case would have known he was violating the constitution.
Deputy Kubik argued that it was reasonable to body slam Ingram because it “had the immediate effect of immobilizing” Ingram and prevented him from being a further threat. Kubik noted that Ingram was a former military veteran and had behaved erratically by running into the cotton field.
The court of appeals noted that all three factors from Graham v. Connor weigh in favor of Ingram. First, Ingram was not committing a crime. Second, the deputies had already searched Ingram, removed his knife, and determined that he was no longer armed. Third, after he surrendered, there is no indication that he “made any threatening moves toward” the deputies. Thus, he did not pose a danger to the deputies. Fourth, before Kubik body slammed Ingram, Ingram allegedly had his hands above his head and made no attempt to flee or resist. Thus, the court of appeals stated that Kubik was not actively resisting the deputies and had ceased his flight. As such, the court stated the need for force was low and the amount of the force used and injury were significant.
Therefore, the court of appeals held that the plaintiff satisfied the first prong of the test to defeat qualified immunity, particularly that the deputy violated Ingram’s rights under the Fourth Amendment.
The court then examined if the law was clearly established. The court stated
We have held that police officers cannot employ gratuitous and seriously injurious force against non-resisting suspects who are under control. See, e.g., Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014) (“We have repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands.”); Lee, 284 F.3d at 1200 (relying on “the clear and obvious principle that once an arrest has been fully secured and any potential danger or risk of flight vitiated, a police officer cannot employ . . . severe and unnecessary force“). And we have explained that “the same rationale applies to the use of gratuitous force when the excessive force is applied prior to the handcuffing but in the course of the investigation.” See Stephens v. DeGiovanni, 852 F.3d 1298, 1328 & n.33 (11th Cir. 2017); see also Patel, 959 F.3d at 1340 (citing DeGiovanni, [*1253] 852 F.3d at 1328 n.33) (rejecting the “argu[ment] that our precedent prohibiting the use of gratuitous and excessive force against non-resisting suspects applies only when the suspect is handcuffed”). Based on precedents that preceded Kubik’s conduct, we have explained that “our case law is clear that serious and substantial injuries caused during a suspect’s arrest when a suspect is neither resisting an officer’s commands nor posing a risk of flight may substantiate an excessive force claim.” Sebastian, 918 F.3d at 1310-11 (examining case law from 1997 to 2017); see also Patel, 959 F.3d at 1343 (“[O]ur cases establishing this principle date to at least 2000.”).[iv]
The court of appeals then discussed specific, relevant case law. First, the court discussed Smith v. Mattox,[v] in which a suspect raised a baseball bat in a threatening manner at an officer. The officer drew is weapon and ordered the suspect to drop the bat. The suspect dropped the bat and ran. The suspect then ceased flight and followed the officer’s command to “get down” and “docilely submitted” to arrest. The officer then allegedly forcefully put his knee in the suspect’s lower back, “with a grunt and blow,” and broke the suspect’s arm while handcuffing him. The court of appeals stated
Smith established that if an arrestee demonstrates compliance, but the officer nonetheless inflicts gratuitous and substantial injury using ordinary arrest tactics, then the officer may have used excessive force” even if the arrestee “was initially recalcitrant and even acted aggressively toward the officer.” Sebastian, 918 F.3d at 1311.[vi]
The court of appeals also examined Mercado v. City of Orlando,[vii] in which a wife called 911 and reported that her husband was armed with a knife and threatening suicide. Officers arrived and found the subject sitting on the kitchen floor while holding a knife to his own heart. The officers ordered him to drop the knife at least twice but he refused, although he made no threatening moves toward the officers. After about 30 seconds, an officer, without warning, shot the subject in the head with a rubber projectile, which caused brain injuries.
The officer argued that the use of force was justified because suicidal subjects sometime make erratic or unpredictable moves that could pose a risk to their safety. The court of appeals noted
Despite the subject’s being armed and not under control, we reasoned that there was “no indication that [the subject] made any threatening moves toward the police,” and that he “was not actively resisting arrest,” “struggl[ing] with the police,” or “posing an immediate threat to [them]” before an officer used seriously injurious, lethal force. Id. at 1157-58. Most of these facts were true of Ingram. But unlike the subject in Mercado, Ingram behaved less erratically, was compliant, was not an immediate threat to himself or to the deputies, and was known to be unarmed.[viii]
The court then noted that Ingram was unarmed, ceased his flight, was not threatening the officers or actively resisting arrest, had his arms above his head and had previously stated that he would cooperate with being arrested. Thus, he was less of threat than Mercado, in which the court denied qualified immunity.
The court of appeals then stated
To be sure, Ingram behaved erratically when he ran into the cotton field. But using seriously injurious force against “even a previously fractious arrestee” is unlawful if at the time of arrest he “was offering no resistance at all.” Smith, 127 F.3d at 1420; see also Mercado, 407 F.3d at 1157. And it is of no moment that Ingram was not yet under physical control in that circumstance. See DeGiovanni, 852 F.3d at 1328 n.33. Kubik’s headfirst body slam was a “gratuitous use of force” against someone who was “not resisting arrest” that our precedents have established “constitutes excessive force.” Hadley, 526 F.3d at 1330. We conclude that “our case law bars [Kubik’s] alleged actions with sufficient clarity to put any reasonable officer on notice” that the use of seriously injurious force against a compliant, docile, non-resisting, and unarmed subject like Ingram “constituted excessive force.” Sebastian, 918 F.3d at 1311. Kubik is not entitled to qualified immunity based on these allegations.
As such, Ingram satisfied the second prong of the qualified immunity test. Therefore, Kubik was not entitled to qualified immunity on the excessive force claim.
Practice Pointer:
If a previously resistant suspect fully surrenders and offers no other indication resistance or action that would lead a reasonable officer to believe that the suspect is resuming his resistance, officers should not use significant, injurious force to arrest that suspect.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] 30 F.4th 1241 (11th Cir. 2022)
[ii] Id. at 1-4
[iii] Id. at 1250 (emphasis added)
[iv] Id. at 1253 (emphasis added)
[v] 127 F.3d 1416 (11th Cir. 1997)
[vi] Ingram, 30 F.4th at 1253 (emphasis added)
[vii] 407 F.3d 1152 (11th Cir. 2005)
[viii] Ingram, 30 F.4th at 1254
