E-Newsletter Edition: Feb 24, 2010
Response Provided By: Brian S. Batterton, Attorney
Always note that state law may be more restrictive on police power than the U.S. Constitution.
I recently took a POST Supervisor class, and during the Use of Force instruction block, the instructor said that there was a previous court decision regarding the use of verbal profanity by officers. According to the instructor, the court stated: “In certain circumstances the use of profanity by officers could be an appropriate action by officers.”
The use of profanity, in and of itself, is not likely to be considered a constitutional violation. It is a matter of courtesy, personal preference and, obviously and importantly, department policy. Thus, the use of profanity is most often a matter of department policy in the context of “courtesy,” and it is within the discretion of the law enforcement agency to restrict or prohibit the use of profanity when dealing with citizens. From the constitutional perspective, profanity may sometimes be a factor in a court’s evaluation of whether a use of force is “reasonable” under the Fourth Amendment.
Consider this example:
Officers respond to a domestic dispute, and the involved parties are yelling and refuse to be quiet. The officers are having difficulty speaking to people to determine what happened. The officers then yell “Everybody shut the F#$% up!”
In this example, the officers did not violate the involved party’s constitutional rights, but they may have violated department policy.
Now consider this example:
Officers respond to a domestic dispute, and the involved parties are yelling and refuse to be quiet. The officers are having difficulty speaking to people to determine what happened. The officers then point their guns at the people and yell “Everybody shut the F#$% up or we’ll shoot!”
In this example, along with violating department policy, the officers likely violated the Fourth Amendment as the “use of force” (pointing the guns and threatening, unjustifiably to shoot”) was not reasonable. For example Brown v. City of Milwaukee and Officer Garcia , from the United States District Court for the Eastern District of Wisconsin, contains similar facts to the above example.
At the outset, it is important to note that that the officer’s version of events and the plaintiff’s version of events differ significantly. The court, in deciding whether to grant a motion for summary judgment and qualified immunity, is required to view the facts, unless there is clear evidence to the contrary, in a light most favorable to the non-moving party (the plaintiff). Therefore, the facts as stated, at trial, may be later determined to be different than the facts used here. The facts of Brown accepted by the court are as follows:
Police received a lookout from an anonymous complainant that stated a woman driving a two toned van had a gun. The plaintiff alleges that that the officers received no information as to what the woman reportedly did with the gun. [Note that the officers allege that the report indicated that the suspect also fired the weapon, but the court was required to view the facts as stated by the plaintiff.] A few minutes after the dispatch, the officers see a vehicle meeting the description driven by a woman. At least five police cars with at least ten officers, surrounded the woman’s car, ordered her out using the public address system, and pointed pistols, rifles and shotguns, at her. The woman alleges that she heard the “clicking sounds of the guns being prepared for firing.” She also alleges that the officers, while pointing guns at her, shined their spotlights in her face, and shouted commands at her such as “get your goddamn hands out and get out of the goddamn car,” “get the fuck out of the vehicle,” and “shut your fucking mouth or I’ll shoot.” The court stated that the tactics, as a whole, subjected the woman to “sensory overload.” The court also said that it appeared the tactics were used to “frighten and disorient [the woman].” The woman said she was trembling and terrified but obeyed the commands. She walked back to Officer Garcia as ordered. He then allegedly took her arms and pulled them back and up to handcuff her. About this time, the officers received information that they had the wrong vehicle and woman and they released her. She was so upset that she was unable to drive, and an officer was going to drive her home. However, a friend came and picked her up. She later went to the hospital and was told that she had a dislocated shoulder. The woman later became the “plaintiff.” In her lawsuit, the she claims to have permanent pain and post traumatic stress symptoms.
While her suit alleged both violations of constitutional and state law, we will only address the constitutional claim. Particularly she alleges that her Fourth Amendment rights were violated by both her stop and the level of force used during the stop. The court identified the following two issues:
- Whether the police were aware of specific and articulable facts giving rise to reasonable suspicion to justify the stop?
- Whether the police conduct or their level of force, given the known facts and circumstances, was reasonable?
As to the first issue, the court noted that the information possessed by the officers was only that an anonymous complainant said the woman in the van possessed a gun. The court then noted the United States Supreme Court’s decision in Florida v. J.L, where they held that an anonymous tip that a person possessed a gun, standing alone, does not provide sufficient reasonable suspicion to justify a stop and frisk. Base on this, the court concluded that the stop was not based on reasonable suspicion and therefore, not reasonable within the bounds of the Fourth Amendment. It is important to note that on this issue, the court determined that the officers should get qualified immunity because, at the time of this incident (1998), the law was not clearly established such that a reasonable officer should have known that the stop was not reasonable.
As to the second issue, the court looked at a Seventh Circuit Court of Appeals case for guidance. In the United States v. Tilmon , the court addressed the issue of the reasonableness of a “show of force” used to arrest an armed robbery suspect. In Tilmon, officer had sufficient reasonable suspicion to believe the suspect had robbed a bank by threatening to blow it up with a bomb. When officers stopped the suspect, they surrounded his vehicle, drew their weapons, ordered the suspect to get out the car and lie on the ground, and they handcuffed the suspect. The court held that the officers’ actions were reasonably related to the circumstances that justified the stop because the suspect was considered armed and dangerous and had threatened to blow up a bank. Thus, pointing weapons and ordering the suspect to the ground were necessary actions to protect the officers from the perceived threat. However, the Seventh Circuit did state that the officers’ actions were at the “outer edge” of reasonable conduct for an investigative stop.
After considering Tilmon, the court, in Brown, held that the officers conduct was unreasonable during the stop. First, the court noted that, viewing the facts in a light most favorable to the plaintiff, the woman had not committed a serious offense compared to the armed robbery in Tilmon. They noted in the case that uses of force are governed by the three factors articulated by the United States Supreme Court in Graham v. Connor. The three factors are (1) the severity of the suspected crime, (2) whether the suspect posed an immediate threat to the officer or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight.” The court held that this case did not meet the seriousness of Tilmon, which the Seventh Circuit Court of Appeals considered to be the outer edge of reasonableness.
The second reason addresses the legal question posed at the beginning of this article. The court said, in this case:
[the officers] not only attempted to subdue the plaintiff and to protect their own safety, but, drawing all inference in the light most favorable to plaintiff, they attempted to terrify and disorient her. They did this by training their spotlights on her so that she was unable to speak, by shouting profanities such as “shut your fucking mouth or I’ll shoot,” and by making her believe that they were about to fire their weapons.
The court found that the officers in Brown acted more intrusively than the officers in Tilmon.
Lastly, the court noted that, “in addition to subjecting the plaintiff to sensory overload,” the plaintiff here was also subjected to a physical injury, particularly a torn ligament. When the court viewed the facts of this case and compared them to the factors in Graham v. Connor, it held that “none of the Grahamfactors would justify the use of force sufficient to cause the plaintiff to sustain a torn ligament and permanent pain and suffering.” Particularly, there was no reason to suspect the plaintiff did anything more than possess a weapon, the plaintiff gave little indication that she was a threat to the officers, and she complied with all commands rather than resisting or fleeing. As such, the use of force was not reasonable.
The court then held, when viewing the facts in a light most favorable to the plaintiff:
[the court] cannot conclude, as a matter of law, that the officer’s use of the sensory overload tactic and physical handling of this fifty-five year old woman, suspected only of possession a gun was reasonable.
Since the court determined that the plaintiff’s constitutional rights were violated by the officer’s actions, it next had to determine whether the officers were entitled to qualified immunity. This involved determining whether the conduct of the officer was prohibited by “clearly established law.”
The court, quoting the Seventh Circuit Court of Appeals in McDonald v. Haskins, stated:
It was also established that holding a gun to a person’s head and threatening to pull the trigger is a use of deadly force.
The court also considered the tactics used in Brown, particularly, surrounding the plaintiff’s vehicle, shining lights, pointing guns, and shouting profanity laced threats and commands, and compared them to a Tenth Circuit case. In Holland ex rel. Overdorff v. Harrington , a ten member SWAT team, while executing a misdemeanor assault warrant, entered the plaintiffs’ property with guns drawn, using profanity laced verbal commands, and ordered those present, including children, to lie face down. The Tenth Circuit, relying on the Seventh Circuit case of McDonald v. Haskins, stated:
The display of weapons and the pointing of firearms directly at persons inescapably involve the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others based upon what officers know at that time…Where a person has submitted to the officers show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person in contrast to simply holding the weapon in a fashion ready for immediate use.
In Holland, the Tenth Circuit also addressed the officer’s use of profanity, which was noted by the court in Brown. The Tenth Circuit stated:
Of course, in conducting a search or making a seizure, the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. Simple instructions spoken in a firm, commanding tone of voice communicate clearly what an officer wants a subject to do, and likely would be most effective, particularly in dealing with bystanders and children.
In contrast, expletives communicate very little of substance beyond the officers’ own personal animosity, hostility or belligerence. Such animus would be entirely misplaced…where they have offered no resistance to the officers’ initial show of force.
One can be firm and direct without being foul and abusive.
In evaluating the Fourth Amendment reasonableness of a seizure, the officers’ verbal interaction, as well as their physical conduct, become part of the totality of the circumstances to be considered. While it seems unlikely that harsh language alone would render a search or seizure “unreasonable,” verbal abuse may be sufficient to tip the scales in a close case. [emphasis added][internal citations omitted]
The court, in Brown, concluded that the law was clearly established that the officer’s tactics and use of force were not reasonable under the totality of the circumstances; therefore, the officers were not entitled to qualified immunity.
So, now we go back to the question about whether profanity, in some circumstances, is justified. As stated in Holland, an officer’s harsh language is a factor the court may look at as part of the “totality of the circumstances” when faced with a question about the reasonableness of an officers tactics and use of force. However, it is unlikely that harsh language alone would amount to a constitutional violation. Put another way, harsh language or profanity will not always (and maybe not often) result in a constitutional violation. However, it does seem that stern verbal commands without profanity will be viewed in a much better light by the court, if the officer’s conduct and language were called into question in court. Most likely, profanity will violate a department code of conduct related to “courtesy,” and departments have great latitude in regulating that type language during the course of employment.
ii 288 F. Supp. 2d 962 (E.D. Wisconsin 2003)
ii 529 U.S. 266 (2000)
iii 19 F.3d 1221 (7th Cir. 1994)
iv 490 U.S. 386 (1989)
v Brown, 288 F. Supp. 2d at 972
vii Id. at 973
viii 966 F.2d 292 (7th Cir. 1992)
ix 268 F. 3d 1179 (10th Cir. 2001)
x Brown, 288 F. Supp. 2d at 976 (quoting Holland, 268 F. 3d at 1192-93)
xi Id. (quoting Holland, 268 F. 3d at 1194)