Excessive force cases are typically very fact specific as to whether the officers’ actions were reasonable under the Fourth Amendment. As such, it is instructive to look at specific facts of excessive force case to glean insight as to what type of force may be considered “reasonable” in certain circumstances. On February 26, 2014, the Eleventh Circuit Court of Appeals decided Flowers v. City of Melbourne et al. [i], which is instructive regarding the use of force to make an arrest. The facts of Flowers are as follows:
Albert Flowers is a sixty-six year old man whom family members described as having mental problems for years. Since filing this action, he has been adjudged incompetent. The incident giving rise to this action was an altercation between Flowers and his employee, Cornelius Culbert. The material facts regarding this event are not in dispute. Flowers and Culbert argued over money while on a jobsite. Each man brandished a knife during this argument. After the altercation, Culbert, in conjunction with Flowers’ nephew Garrick Flowers, called the Melbourne police to report the incident. By the time the first officer arrived, the knives had been put away, but their location was unknown to the officer. The officer briefly talked to Culbert, and then Culbert identified Flowers as the individual who had pulled the knife on him. Culbert told the officer that Flowers had “problems.” The officer directed Flowers to approach him. Flowers walked towards the officer. Three times the officer ordered Flowers not to come any nearer to him, holding his hand out flat in a “stop” signal to Flowers. All parties agree that Flowers continued to advance toward the officer and did not verbally respond to his commands. The officer even stepped away from the direction in which Flowers was approaching him, but Flowers changed course and came towards him.
When Flowers approached to within three to four feet of him, the officer kicked Flowers in the solar plexus and knocked him off his feet. Although the officer tried to flip him over on his stomach, Flowers struggled and resisted. The officer struck Flowers three or four times with a closed fist and then succeeded in flipping him onto his stomach. Although the officer tried to secure Flowers with handcuffs, Flowers hid his arms under his chest and continued to resist. At this point, the officer called over his radio for backup. Throughout the physical encounter, the officer ordered Flowers to stop resisting.
When the second officer arrived on the scene, he observed the struggle and drew his Taser. The first officer, however, told him not to use it yet and continued to try to secure Flowers. At this point, two more officers arrived. The officers repeatedly ordered Flowers to stop resisting and to put his hands behind his back, but Flowers continued to struggle. One of the newly-arrived officers attempted to perform a knee spike on the outside of Flowers’ right thigh but hit the first officer instead.
At this point, one of the officers tased Flowers. The officer removed the probes from the Taser and employed a “drive stun” for approximately one and one-half seconds. Immediately, the officers were able to secure handcuffs on Flowers. The officers searched Flowers and recovered a knife from his pocket. Flowers seemed to have no idea what had just happened and requested food and to return to work.
Rescue services were called and Flowers was transported to the hospital and then released to police custody. He was taken to the Melbourne Police Department and booked for resisting arrest and assault on a law enforcement officer.
Since the incident, a doctor has diagnosed Flowers as “globally impaired” and opined that the impairment is attributable to dementia and to traumatic brain injury as a result of this incident. [ii]
The defendant city and officers in this case filed a motion for summary judgment alleging that their conduct was reasonable under the Fourth Amendment. The district court agreed and granted summary judgment for the defendants. Flowers appealed to the Eleventh Circuit Court of Appeals. The issue on appeal was whether the officers’ use of strikes and the Taser while arresting Flowers was excessive, unreasonable force under the Fourth Amendment.
At the outset the court stated:
It is well-established that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). In effecting an arrest, officers are permitted to use a level of force that is “necessary in the situation at hand.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). Officers are entitled to continue to use that force until the suspect thought to be armed is fully secured. See Crenshaw v. Lister, 556 F.3d 1238, 1293 (11th Cir. 2009). [iii]
The court then looked at the facts relevant to this case. First, the officers knew from the report that Flowers had been armed with a knife, and they did not know whether he still possessed the knife. Second, Flowers ignored the officer’s commands to stop advancing on him. Third, Flowers vigorously resisted the officer’s verbal commands to stop resisting and their attempts to secure him when he was on the ground. The court then stated:
The officers had no choice but to regard Flowers as armed and dangerous, and to make split-second decisions about the amount of force necessary to secure him. We do not second guess these decisions where the amount of force applied was not grossly disproportional to Flowers’ resistance or to the threat he posed to the officers. See Ryburn v. Huff, 132 S. Ct. 987, 991-92 (2012). In these circumstances, it cannot be concluded that the officers’ actions were unreasonable as a matter of law. [iv]
As such, the court held the officers’ use of force in this case was reasonable. Therefore, the court of appeals upheld the grant of immunity for the officers and summary judgment for the city.
Practice Pointers
While not discussed in the opinion, it is instructive for officer to remember that, in Graham v. Connor, the U.S. Supreme Court stated that there are three factors to consider when evaluating an officers use of force. The three factors are as follows:
(1) the severity of the crime at issue;
(2) whether the suspect posed a threat to the officer or others; and
(3) whether the suspect was actively resisting or attempting to evade arrest by flight.
As such, it is important for officers to clearly document specific facts in their reports to support the relevant factors from Graham.
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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] No. 13-14336 (11th Cir. 2014 Unpub)
[ii] Id. at 2-5
[iii] Id. at 5
[iv] Id. at 6
