On January 4, 2019, the Eighth Circuit Court of Appeals decided Awnings v. Fullerton et al.[i], which serves as an excellent review of Constitutional law pertaining to false arrest, excessive force and denial of medical treatment. The relevant facts of Awnings are as follows:
On an early morning in July 2013, Officers Fullerton and Duncan of the LPD encountered Damien Wilkins on a sidewalk in Lincoln. The officers questioned Wilkins about his possible involvement with criminal activity. Awnings, Wilkins’s companion, inserted himself into the conversation and began asking the officers why they were questioning Wilkins. Officer Fullerton informed Awnings that the officers were conducting law enforcement business with Wilkins. Officer Fullerton then told Awnings, who had been drinking, that he could wait for his friend a short distance away, if he wished.
Unsatisfied, Awnings—now obviously angry and agitated—refused the direction to step away. Awnings then, in an expletive-laced exclamation, declared that “[h]e would protect his buddy” and that he was “not going anywhere.” Qualified Immunity Order at 9. Awnings was several feet from Officer Fullerton, and the officer instructed Awnings to step away from the officers. Awnings again refused, asking, “Why should I leave?” Id. at 9. Officer Fullerton answered that Awnings was interfering with an investigation and that his behavior distracted them from their work. Awnings uttered another expletive and told the officer, “I am staying right here.” Id. Officer Fullerton—for the third time—asked Awnings to leave the immediate area; Officer Fullerton reinforced his request by warning Awnings that if he refused, he would go to jail. In response, Awnings again blurted out the same expletive, followed by “I’ll kick your ass.” Id.
At that point, Officer Fullerton informed Awnings that he was under arrest and commanded Awnings to place his hands behind his back. Awnings refused, telling Officer Fullerton, “I’m gonna kick your [expletive] ass.” Id. Officer Fullerton then “reached out and grabbed onto [Awning’s] arm and wrist, but then [Awnings] stiffened his arm and began to pull away. Officer Fullerton again told [Awnings] he was under arrest and to stop resisting and [Awnings] continued to resist and pull away.” Id. at 10. The officer then executed a hip toss maneuver, which put Awnings “on his back on the ground with Officer Fullerton on top of him.” Id. The two men began to fight. Officer Jon-Eric Meyer, who had arrived at the scene, joined with Officer Duncan and came to Officer Fullerton’s assistance. As the officers attempted to handcuff Awnings, he resisted, “actively kicking and punching at the officers.” Id. Awnings then hook[ed] his hand under Officer Duncan’s LPD uniform shirt and [brought] his hand up to the collar, grabbing onto the body armor and undershirt as well as his collar. [Awnings] used this hold . . . to try to pull Officer Duncan to the ground with force, causing the collar to cinch around Officer Duncan’s neck. Id. Meanwhile, “Officer Duncan gave numerous commands for [Awnings] to let go” and to put his hands behind his back. Id. Awnings ignored the directive and continued to tighten his grip on Officer Duncan’s shirt collar, and the officer “tried to strike [Awnings] a couple of times” to induce Awnings to release his grasp. Id. at 11. Awnings pinned Officer Duncan to the ground.
Officer Duncan yelled to his colleagues for help. Awnings eventually released Officer Duncan’s shirt, and the officers then rolled Awnings onto his stomach and handcuffed him. Awnings refused to walk to the police cruiser. Officer Jeremy Carther from the University of Nebraska-Lincoln Police Department arrived and assisted the LPD officers in placing Awnings on his back in the backseat of the cruiser. Awnings continued to resist and yell profanities. Awnings kicked Officer Carther in the chest twice. At that point, Officers Fullerton, Meyer, and Carther removed Awnings from the cruiser and called for a vehicle with a “full backseat cage.” Id. at 11. Awnings continued to resist the officers, and when a police vehicle equipped with the full cage arrived, Officer Chris Howard placed Awnings in leg restraints. The officers then placed Awnings into the police cruiser. Officer Duncan sustained minor injuries from the scuffle.
B. Awnings’s Transport to the Detention Center
Awnings sustained visible injuries during his arrest. Because he was bleeding, the LPD officers called for an ambulance to transport Awnings to the Bryan West Medical Center (“the Hospital”). Officer Howard accompanied Awnings in the ambulance. At the Hospital, Awnings told the examining physician that he believed he had one or more fractured ribs. The doctor ordered a chest X-ray, which revealed no rib fracture. The doctor pronounced Awnings fit for incarceration, but he ordered a follow-up examination at the Hospital within one to two days. Officer Banks, who had relieved Officer Howard during Awnings’s examination at the Hospital, then transported Awnings to the Lancaster County Jail. Officer Banks neglected to inform jail personnel of the doctor’s request for a follow-up appointment with Awnings; he “simply informed jail personnel that [Awnings] had been to the emergency room and had been deemed fit for confinement.””[ii]
Awnings subsequently pleaded “no contest” to two criminal charges related to the incident. He then filed suit in federal district court and alleged that the officers violated his Fourth Amendment rights to be free from false arrest and excessive force and his Fourth and Fourteenth Amendment rights as related to denial of medical treatment for not informing the jail that he had a follow-up appointment regarding his alleged injuries. The district court granted qualified immunity and summary judgment to the officers and Awnings appealed to the Eighth Circuit Court of Appeals. Note: Other issues not related to the constitutional questions will not be discussed.
Issue One: Whether the officers violated the Fourth Amendment by arresting Awnings without probable cause?
The court of appeals first noted that they would not decide whether the Awnings’s plea of “no contest” barred this claim under the Heck doctrine. This doctrine simply states that a person who enters a guilty plea or is convicted, cannot subsequently file suit for unlawful warrantless arrest, or false arrest. The court stated it was not necessary to determine if a plea of “no contest” bars this claim because there was clearly probable cause to arrest Awnings under the Nebraska “obstruction of a peace officer” statute. The court stated
A person commits the offense of obstructing a peace officer, when, by . . . physical interference, or obstacle, he . . . intentionally obstructs, impairs, or hinders . . . the enforcement of the penal law or the preservation of the peace by a peace officer . . . acting under color of his . . . official authority.” Neb. Rev. Stat. § 28-906(1)(a).[iii]
In Awnings’s case, officers were attempting to question another male, a friend of Awnings. Awnings refused commands to move away, refused a gesture to move away, yelled at the officer that he was staying “right here,” and stated “[Expletive] you, I’ll kick your ass.”[iv] Based on this, the officers had probable cause to arrest Awnings for “obstruction.” The court also stated
With probable cause, it was unnecessary for Officer Fullerton to issue a “verbal advisement of an attempted arrest”; rather, “actions to effectuate physical control over [the defendant] [are sufficient to] constitute[] an attempt to arrest.” State v. Heath, 838 N.W.2d 4, 17 (Neb. Ct. App. 2013) (first alteration in original) (citation omitted). By grabbing Awnings’s arm, Officer Fullerton attempted to effectuate physical control over Awnings. Awnings resisted by pulling away. Awnings’s ensuing fight with the officers is undisputed.[v] [emphasis added]
Thus, the court upheld the grant of qualified immunity for the officers.
Issue Two: Whether the officers used excessive force in violation of the Fourth Amendment during Awnings’s arrest?
The court first discussed the relevant legal principles pertaining to the Fourth Amendment and use of force. The court stated
To determine whether a particular use of force was excessive, the court considers whether it was objectively reasonable under the circumstances, relying on the perspective of a reasonable officer present at the scene, rather than the 20/20 vision of hindsight.” Ehlers, 846 F.3d at 1011 (cleaned up). “Force is excessive when an officer’s actions are not objectively reasonable in light of the facts and circumstances confronting him.” Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002) (citing Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)). “When an arrestee flees or resists, some use of force by the police is reasonable.” Greiner v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994) (citing Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 1990)). “[E]vidence of only de minimis injury [does not] foreclose[] a claim of excessive force under the Fourth Amendment.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). “[I]t is logically possible to prove an excessive use of force that caused only a minor injury . . . . ” Id. We “focus instead on whether the force applied is reasonable from the perspective of a reasonable officer on the scene at the time the force is used.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).[vi] [emphasis added]
The court also noted that there was no factual dispute between Awnings’s allegations and the officer’s statements. Particularly, Awnings resisted arrest, the officer conducted a take-down maneuver, and Awnings continued to swing and kick at officer’s during the arrest. While Awnings further contended that four officers physically attacked him, the court noted that he only sustained a “de-minimis” injury, a small cut above his right eyebrow. The court stated that “relatively minor scrapes, bruises, and contusions” are considered “de-minimis.”[vii] It was noted that Awnings claimed he had broken ribs or a collapsed lung but this was refuted by his medical exam at the emergency room after the incident.
Awnings made no specific allegations or statements regarding particular actions of the officers other than the general allegation of being taken down and “attacked.” Based on this, his level of resistance (pulling away, swinging and kicking), and his relatively “de-minimis” injury, the court held that Awnings failed to show that the officers used excessive force against him. As such, they upheld the grant of qualified immunity for the officers.
Issue Three: Whether the officer that transported Awnings violated the Fourth and/or Fourteenth Amendment by failing to tell the jail personnel that the hospital ordered a follow-up examine at the hospital?
The court first noted that they have not decided whether an arrestee’s claim for denial of medical care should be decided under the Fourth or Fourteenth Amendment; however, the court stated that they don’t need to decide that legal question based on Awnings’s case because any denial of medical care associated with Awnings’s arrest ended when he received medical care at the hospital. As such, the claim is based on the transporting officer’s failure to tell the jail about his follow-up appointment at the hospital. Therefore, the court stated that this claim was governed by the Due Process Clause of the Fourteenth Amendment.
The court then described the legal standard for this claim as follows:
Under the Fourteenth Amendment, “‘[d]eliberate indifference’ entails a level of culpability equal to the criminal law definition of recklessness, that is, a prison official ‘must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'” Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The standard for evaluating a substantive due process claim is whether the alleged ‘behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.‘” Schmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (quoting Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)).[viii] [emphasis added]
In this case, Awnings’s visible injury was small cut above his eye. While he claimed his ribs were broken or his lung was collapsed, the medical exam showed no such injury. The court then held that under the circumstances of this case, “it cannot be said that [the officer’s] failure” to tell jail personnel about “Awnings’s follow-up medical visit rises to the level of conduct that ‘shocks the contemporary conscience.’”[ix]
As such, the court affirmed the dismissal of this claim.
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Citations
[i] No. 17-2884 (8th Cir. Decided January 4, 2019)
[ii] Id. at 2-5
[iii] Id. at 15
[iv] Id.
[v] Id. at 15-16
[vi] Id. at 16
[vii] Id. at 17
[viii] Id. at 19
[ix] Id.
