On May 21, 2015, the Fifth Circuit Court of Appeals decided Singleton v. Darby [i], which is instructive regarding the constitutionality of an officer’s actions at the scene of a protest. The relevant facts of Singleton, taken directly from the case, are as follows:
On November 19, 2012, citizens opposed to the Keystone XL Pipeline conducted a protest at Farm to Market Road 1911 in Cherokee County, Texas. Approximately eighty people attended the protest, including Singleton, a retired schoolteacher who opposes the pipeline. Although a few of the protestors, including Singleton, were older persons, and a few of the protestors were confined to wheelchairs, a video taken at the protest demonstrates that a large number of the protestors were young and able-bodied.
The Cherokee County Sheriff’s Department dispatched a truck carrying a cherry picker to the site of the protest to remove protestors from nearby trees. The Sheriff’s Department also dispatched Darby, a deputy sheriff sergeant, to ensure that the protest remained under control.
The truck arrived at the scene first, with Darby following behind in his police car. Some of the protestors, including Singleton, became concerned that the truck was about to run over a young demonstrator. Accordingly, they entered the road and began screaming at the driver to stop. One protestor banged on the hood of the truck, jumped on the vehicle, and opened the door to make the driver stop. Upon witnessing the protestor climb on the truck, Darby exited his vehicle and began walking toward the protestor. Before the protestor reached the driver of the truck, he jumped off the truck and fled.
At some point, the young demonstrator in the path of the oncoming truck stood up and moved out of the way. Several protestors nevertheless remained in or entered the road to prevent the cherry picker from reaching the protestors in the trees. The video shows several protestors leaning against the grill of the truck and inviting about a dozen other protestors into the road to block the truck’s path. Singleton remained in the road during this time.
Darby walked toward the protestors blocking the truck, including Singleton, and ordered them to “[g]et out of the road.” The protestors did not obey his command. Approximately five seconds later, Darby leveled a stream of pepper spray toward Singleton and several other protestors in the road. Darby did not spray any of the protestors on the sides of the road who were not obstructing traffic.
Singleton described the burning in her eyes as extremely painful. After Singleton left the protest, she visited her doctor, who treated and released her that same day [ii].
Singleton sued Darby for violations of her rights under the First and Fourth Amendments. The district court granted summary judgment in favor of Darby and Singleton appealed to the Fifth Circuit Court of Appeals.
The court first examined Singleton’s First Amendment claim. Regarding this claim, the court stated:
To survive summary judgment on her First Amendment retaliation claim, Singleton must, among other things, produce sufficient evidence that (1) she was “engaged in constitutionally protected activity;” (2) Darby’s actions caused her “to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity;” and (3) Darby’s adverse actions “were substantially motivated against [her] exercise of constitutionally protected conduct.” [iii]
The court then stated that Singleton failed to prove the first element, particularly, that she was engaged in constitutionally protected activity. The court stated:
The First Amendment does not entitle a citizen to obstruct traffic or create hazards for others. A State may therefore enforce its traffic obstruction laws without violating the First Amendment, even when the suspect is blocking traffic as an act of political protest. [iv]
The court then examined the facts of the case relevant to this issue. First, they noted that there was video that corroborated the officer’s statement that Singleton and other protestors were blocking the road and climbing on the truck. The court also observed Darby told the protestors to get out of the road, not to cease protesting. Further, Darby did not spray other protestors that were on the side the road. Thus, the court held that Singleton failed to meet the elements of First Amendment retaliation claim; therefore, Darby was entitled to summary judgment on this claim.
The court next considered Singleton’s Fourth Amendment excessive force claim against Darby for spraying her with pepper spray.
Regarding this issue, the court first stated:
To gauge the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for force,’ paying ‘careful attention to the facts and circumstances of each particular case.’” Even at the summary judgment stage, “[w]e must evaluate an officer’s use of force ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” “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. [v]
The court then noted that there are three factors, according to the United States Supreme Court, to consider when evaluating the reasonableness of a use of force. The factors are as follows:
- The severity of the crime at issue;
- Whether the suspect posed a threat to the officer or others; and
- Whether the suspect was actively resisting or attempting to evade arrest by flight.
As to the first factor, the court of appeals noted that, while the crime of blocking a roadway is not particularly severe, Singleton was blocking traffic and the police do have an interest in keeping roads free from obstruction.
Next, the court considered whether Singleton posed a threat. They noted that the protestors vastly outnumbered the officers, they were climbing on the truck, they attempted to open the truck door, they attempted to summon help from other protestors, and it was reasonable for the officers to conclude the protestors were out of control. As such, the court held it was reasonable for the officers to believe that the protestors posed a threat to the officers and others.
Lastly, the court considered whether the protestors and Singleton were actively resisting. The court stated that it was clear from the video that Singleton and her accomplices did resist the officer’s attempts to clear the road. Further, officers gave verbal commands for Singleton and the others to leave the road and they refused.
In light of the above facts, the court held that:
Darby, as a reasonable officer, was justified in using some degree of force to clear the road. The force Darby employed was not disproportionate to the need. Deploying pepper spray was not an unreasonable way to defuse the situation. Indeed, it was probably the least intrusive means available to Darby. To reiterate, the protestors vastly outnumbered Darby. As one of only two police officers on the scene, Darby could not have individually handcuffed and arrested each of the numerous protestors blocking the road. In addition to the obvious difficulty of one officer attempting to handcuff so many violators, Darby faced the likelihood that such an action could motivate a larger number of protestors lining the road to join in the road-blocking enterprise or otherwise retaliate against Darby. Darby’s decision to utilize pepper spray was therefore not an unreasonable way to gain control of a potentially explosive situation. [vi]
Therefore, the court affirmed the grant of qualified immunity for Officer Darby.
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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. 14-40040 (5th Cir. Decided May 21, 2015)
[ii] Id. at 1-3
[iii] Id. at 4
[iv] Id.
[v] Id. at 6
[vi] Id. at 8
