||ELEVENTH CIRCUIT UPHOLDS QUALIFIED IMMUNITY FOR ARREST AND USE OF FORCE: PART TWO – EXCESSIVE FORCE

ELEVENTH CIRCUIT UPHOLDS QUALIFIED IMMUNITY FOR ARREST AND USE OF FORCE: PART TWO – EXCESSIVE FORCE

On June 4, 2018, the Eleventh Circuit Court of Appeals of decided Manners v. Cannella et al.[i], in which the court discussed whether officers were entitled to qualified immunity for an arrest and use of force incident.  This is a two-part article.  Part One discussed whether probable cause existed to arrest Manners.  Part Two will discuss whether the use of force was reasonable under the Fourth Amendment.  The relevant facts of Manners are as follows:

Close to three in the morning on June 24, 2014, Livingston Manners was sitting in his car on the side of Plunkett Street, a residential street in the City of Hollywood, Florida (“the City”), before heading to work. Ronald Cannella, a City of Hollywood police officer, was on patrol “in reference to recent crimes of theft in the area,” and he drove past Manners. Soon after Cannella drove by, Manners pulled out and turned south on 26th Avenue. There is a dispute about what happened next. Cannella said he saw — through his rearview mirror — that Manners ran a stop sign. Manners claimed that he came to a complete stop.

Cannella made a U-turn and followed Manners down 26th Avenue. At some point between Plunkett Street and Pembroke Road, a distance of some four or five blocks, Cannella activated his emergency lights and also ran his sirens, although there is some dispute about when exactly this happened. Manners admitted that, some three blocks past Plunkett Street, he saw Officer Cannella behind him and that the officer’s lights and sirens were on. Cannella said that he “activated [his] emergency lights and sirens, as [he] hit the intersection of Pembroke Road and 26th Avenue” and that he was directly behind Manners’ vehicle at that intersection.

On this record, however, and taking the evidence in a light most favorable to the plaintiff, it is undisputed that Manners did not stop when he saw Cannella behind him, or when he saw Cannella’s lights and sirens activated. Manners knew that the vehicle was a police car, that a police officer was instructing him to stop, and that the lights and sirens meant he was required to stop his car. Instead of stopping, Manners continued along 26th Avenue, through a traffic light at Pembroke Road, and stopped at a gas station across the intersection. We know this because Manners has said repeatedly, and explicitly, that he did not stop when directed to do so…”[ii]

Manners stated in his deposition that he knew it was a police officer trying to stop him but he did not stop because it was very dark.  He further explained he saw the officer’s lights and heard the siren but he had been “punched or hit” by an officer in the past because he is “big and black.”[iii]

Now continuing with the facts directly from the case, the court stated

Manners offers that because he was afraid, he continued driving until he reached a well-lit gas station where video surveillance was available. By Manners’ own account, the distance he intentionally travelled after seeing the officer behind him with lights and sirens, but before coming to a stop, was about three blocks, one-tenth of a mile, or 176 yards. He continued to drive after being directed to stop for 14.4 seconds, or, as he said at another occasion in his deposition, for “[a]bout two minutes, two minutes at the most.”1

At the gas station, Cannella stopped behind Manners and approached the driver’s side of Manners’ car. Cannella asked for Manners’ driver’s license, which Manners provided. A silent video recording of the entire incident at the gas station was taken from surveillance cameras. Cannella can be seen at Manners’ driver’s side door, and while Cannella looked in the backseat, Manners stepped out of the vehicle. Cannella and Manners spoke, facing one another, for several seconds. There is no dispute that Cannella informed Manners he was under arrest. Manners knew this; in fact, Manners said he asked Cannella to hurry up so that he could get to work and Cannella said “[y]you’re going to jail.” According to Cannella, he repeatedly directed Manners to get back into his car, but Manners refused to do so. Cannella then placed Manners under arrest. Cannella said: “I must have told him at least two to three times [to remain seated in his vehicle] and he said, no, every time.” Manners, on the other hand, denied that Cannella ever directed him to stay in the car.

A review of the video recording clearly establishes that a physical struggle ensued when Cannella attempted to place Manners under arrest. Manners’ efforts to thwart the arrest are equally evident from the video. The first attempt to handcuff Manners occurred outside the vehicle — Cannella apparently grabbed Manners’ wrist as Manners either sat or fell back into his car. A struggle ensued in the car; Cannella leaned or fell on top of Manners, and he tried to pull Manners out of the vehicle. The parties disagree about what happened inside the car. Manners conceded that he pulled back, asked why he was under arrest, and said Cannella punched him three times while lying on top of him. Cannella, in turn said Manners screamed at him and struck him (Cannella) three to four times.

After the details of an indiscernible struggle occurred inside the car, the video recording shows that Cannella pulled Manners out of the car. Cannella flipped Manners onto the ground and went on top of him. Manners, in turn, is seen shoving at Cannella, and Cannella is seen punching Manners in the head. Cannella then flipped Manners onto his stomach and attempted to bring Manners’ arms together behind his back, evidently attempting to handcuff Manners. Manners is seen pulling his arms away, flailing, and then rolling onto his back. Manners is also seen bringing his leg up and onto Cannella’s upper back, and grabbing and holding Cannella’s wrists for an extended period.

Officer Sabillon arrived on the scene as backup; she said it “looked like [Cannella] was trying to take Livingston Manners into custody, but he couldn’t because of the constant power struggle between the both of them with their hands.” On the video recording, Sabillon is seen deploying her taser on Manners’ stomach. Manners flailed on the ground, and both Cannella and Sabillon are seen attempting to handcuff him for about a minute, deploying one or both of their tasers. Eventually, Sabillon is seen lying across Manners, while Cannella placed Manners in handcuffs. More officers arrived, and four or five of them surrounded Manners and attempted to fully restrain him. Manners is eventually seen lying on his back, handcuffed, and subdued. At no point thereafter was he struck or tased by the officers.

The parties disagree about what Cannella and Manners said to one another during the incident. Both sides agree, however, that Cannella advised Manners during the incident that he was being placed under arrest. The video recording makes it abundantly clear that Cannella (and later Sabillon) attempted to place Manners under arrest, and Manners is clearly visible resisting those attempts for some time, a little more than three full minutes. The parties agree that at the time of the incident, Manners was 6 feet 2 inches tall and weighed 240 pounds while Cannella was 5 feet 10 inches tall and weighed 215 pounds.[iv]

Manners was arrested and went to trial violations of Florida law related to battery on a law enforcement officer and resisting an officer without violence.  A jury acquitted him of both charges.  He incurred approximately $30,000 in legal fees.

He then filed suit against Officer’s Cannella and Sabillon and alleged they violated his rights under the Fourth Amendment to be free from malicious prosecution and excessive force.  This article will not discuss the state law claims.  The district court granted qualified immunity to the officers and Manners appealed to the Eleventh Circuit Court of Appeals.

The court of appeals first discussed qualified immunity.  Qualified immunity protects officers from liability for reasonable mistakes when they are engaged in discretionary functions, such as whether or not to make an arrest.  When determining whether an officer is entitled to qualified immunity, the court uses a two-part test.  First, they determine whether a constitutional right was violated.  If not, then the officer is entitled to summary judgment, which means the suit is dismissed.  If the court determines the officer did violate a constitutional right, they examine whether the right was clearly established, such that another reasonable officer in the same situation would have had fair warning that the conduct at issue violated the Constitution.  If the law was clearly established, then the officer is not entitled to qualified immunity.  If the law was not clearly established, the officer is entitled to qualified immunity.  It’s also important to note that, at this stage of litigation, the court is required to view the facts in a light most favorable to the plaintiff, or in other words, accept their version of the facts unless there is clear evidence to the contrary, such as video.

After the court of appeals first determined that probable cause existed to arrest Manners for fleeing and attempting to elude in violation of Florida law, the court next set out to determine if the officers used excessive force during Manner’s arrest.

Regarding the Fourth Amendment excessive force claim, the court noted that, because the officers had probable cause to arrest Manners, they were entitled to use “that quantum of force reasonably necessary and proportionate to effect his arrest.”[v]  Manners argued that even if the officers had the legal authority to arrest him, they still used “unnecessary and gratuitous force when they punched and tased him.”[vi]

The court of appeals noted several legal principles regarding reasonable force under the Fourth Amendment.  The court discussed those principles as follows:

  • [L]aw enforcement officers conducting a lawful arrest have the right to take reasonable physical steps to place a suspect under arrest. In fact, “[w]hen an officer lawfully arrests an individual for the commission of a crime, no matter how minor the offense, the officer is entitled . . . to effectuate a full custodial arrest.[vii]
  • The Supreme Court has held that “the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effectGraham, 490 U.S. at 396.[viii]
  • The determination of whether the force used is reasonable “requires careful attention to the facts and circumstances of each particular case.” And the events “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[ix]
  • The Graham excessive-force inquiry considers whether officers acted in an objectively reasonable way given the circumstances present during an incident, and the inquiry considers factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest.” ; see also Lee, 284 F.3d at 1197.[x]

The court also discussed the fact that gratuitous force violates the Fourth Amendment and they cited precedent as examples of gratuitous force.  The court stated

Gratuitous force used during the course of an arrest is excessive. See, e.g., Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (punching arrestee while he was handcuffed and not struggling or resisting constituted excessive force); Lee, 284 F.3d at 1198 (slamming arrestee’s head against a trunk “after she was arrested and secured in handcuffs” was excessive); Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014) (“We have repeatedly ruled that a police officer violates the Fourth Amendment . . . if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands.”).[xi]

The court of appeals then set out to apply the facts of Manners’ case to the factors from Graham v. Connor.  The first factor is the severity of the crime at issue.  The court stated that this weighed in favor of Manners, as the stop sign violation is relatively minor.  Additionally, the fleeing charge was not high speed and was not a dangerous pursuit.  The second factor was whether the suspect posed a threat to the officers.  The court stated that this factor weighed in favor of the officers.  The court noted that a reasonable officer on the scene could believe that Manners posed a threat when he moved back into his car and clearly tried to escape from the officer’s grasp.  Regardless of Manners’ subsequent explanation of his conduct, the incident must be viewed from the perspective and information known to the officer at the time the force was use, rather than with 20/20 hindsight.  Manners was larger than the officer, who was initially alone and did not know if there were weapons in the vehicle.  As such, it was reasonable for Officer Cannella to believe that Manners posed a threat.  Additionally, when Officer Sabillon arrived and observed Manners struggling with Officer Cannella, it was reasonable for her to believe that Manners posed a threat to Cannella.  The third factor to consider from Graham was whether Manners was actively resisting arrest.  The court stated that this was the most relevant factor. The court observed from the gas station video, that Manners resisted arrest from Cannella’s first attempt to handcuff him for approximately three minutes thereafter.  The court said that the officers had to make split second decisions in tense, rapidly evolving circumstances.

After examining the factors from Graham, the court stated

Substantial force was needed to secure Manners. Manners struggled against Cannella’s repeated attempts to place him in handcuffs through physical actions — rolling over, bracing his arms, shoving at Cannella, and, indeed, grasping and holding Cannella’s wrists for an extended period of time. When Sabillon arrived on the scene, Manners continued to struggle against both officers. Rather than being gratuitous, the force used was proportional to restrain someone who was six-foot-two and 240 pounds and was actively resisting for an extended period.[xii]

The court also noted that Manners had not pointed to any specific case law that has held that the amount of force used by the officers in his case was unconstitutional in a similar case.

Regarding the officer’s use of the taser, the court stated that it would violate the constitution to tase someone “repeatedly in a short period where an arrestee was mostly cooperative and made no attempt to flee.”[xiii]  In contrast, in Manners’ case, his resistance was evident from the beginning and the taser was used to “restrain, subdue, and handcuff” Manners. It is also clear from the video that all force stopped once Manners was subdued.

Therefore, the court of appeals held that the officer’s use of force against Manners was not excessive under the Fourth Amendment and the officers were entitled to qualified immunity.

___________________________________

CITATIONS:

[i] No. 17-10088 (11th Cir. Decided June 4, 2018)

[ii] Id. at 2-3

[iii] Id. at 4

[iv] Id. at 5-8

[v] Id. at 23

[vi] Id. at 24

[vii] Id.

[viii] Id. at 24-25

[ix] Id. at 25

[x] Id.

[xi] Id.

[xii] Id. at 27

[xiii] Id. at 28

By |2018-12-18T16:42:32+00:00December 18th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.