||SIXTH CIRCUIT GRANTS IMMUNITY IN EXCESSIVE FORCE CASE WHERE SUSPECT WAS ACTIVELY RESISTING

SIXTH CIRCUIT GRANTS IMMUNITY IN EXCESSIVE FORCE CASE WHERE SUSPECT WAS ACTIVELY RESISTING

On November 15, 2018, the Sixth Circuit Court of Appeals decided the Estate of Collins v. Wilburn[i], in which the court examined whether officers were entitled to qualified immunity regarding a use of force incident where the suspect died.   The facts of Collins, taken directly from the case, are as follows:

In 2015, Sergeant Wilburn was working a local high school graduation; as traffic was released, Wilburn was informed by Police Chief Fugitt that a truck had been driven into a ditch nearby. Wilburn approached the vehicle, encountered Collins, and asked what was going on and how he ended up there. Wilburn obtained Collins’s license, insurance information, and ran his tags, which revealed that Collins was driving on a suspended license. Wilburn also looked into Collins’s truck and observed a bucket of beer sitting in the passenger’s seat and open empty beer cans and bottles in the back of his truck. While Wilburn did not smell any alcohol on Collins, he did conduct a field sobriety test to determine whether Collins was under the influence. Although Wilburn did not observe any physiological indications of alcohol intoxication, Collins screamed and cursed at people going by during the course of the field sobriety test and disregarded Wilburn’s repeated instructions not to do so.

Wilburn therefore arrested Collins for disorderly conduct and operating on a suspended license. Wilburn decided not to handcuff Collins for transport to the police station; Collins agreed to sit in the back of Wilburn’s police cruiser and cooperate if he wasn’t handcuffed. However, by the time the pair arrived at the police station, Collins repeatedly refused to get out of the car and cursed at Wilburn. Collins eventually acquiesced, saying “something to the effect of ‘Fuck you motherfucker, I guess I’ll go.'” As they walked up the ramp to the back door of the police station, Collins grabbed the ramp’s railing, began yelling and cursing at both Wilburn and people across the street, and refused to let go despite Wilburn’s repeated instructions to do so. It was at this time that Wilburn activated his body camera.

Wilburn attempted to handcuff Collins to get him inside, but was only able to handcuff his left wrist before Collins tensed up and pulled his arm away. Wilburn warned Collins that if he didn’t let go, Wilburn would use his Taser, stating, “I’m gonna light you up. Let go of the rail right now. We can do this easy or hard, come on. Billy?” Collins remained combative, yelling, “Bullshit! You aren’t my goddamn boss![,]” “You better let the fuck go of me. I’m fixing to get pissed off. I’m going to get pissed off. You aren’t going to like it[,]” and “Why don’t you go ahead and get mad. Go and get mad. I want you to get mad. Get mad, boy. Go ahead.” Wilburn continued to instruct Collins to “come on” and release his grip on the rail. He then radioed Officer Miller to confirm he was on his way to provide backup. Wilburn again requested that Collins “let go of the banister,” which Collins again refused, responding, “Fuck you.”

Officer Miller arrived at that point, as Wilburn continued to warn Collins that he would be tased if he did not release his grip on the railing; Collins continued to refuse, even asking Miller to “Get [Wilburn] off me. I’m not going.” Wilburn then delivered a “drive-stun” tase to Collins’s shoulder; Collins released the railing, swung and missed at Wilburn’s face, and struck Wilburn in the chest, knocking Wilburn back. Miller, who did not see the drive-stun Taser deployment due to his perspective, deployed his own Taser at Collins. Although the probes struck Collins, they were ineffective, as Collins simply removed either the probes or the wires.

Staggering back, Collins went through the door into the police station and closed the door behind him. Wilburn then requested additional backup. Collins barricaded himself in the foyer of the police department by holding one hand against the door, preventing the officers’ efforts to push the door open. Keefer then arrived to provide backup. As Wilburn testified, weapons were accessible within the department through closet doors that could be kicked down, as well as readily available makeshift weapons including chairs, staplers, and scissors, in addition to the handcuff on Collins’s wrist. The officers decided to try to open the door as wide as possible to allow Keefer to attempt to deploy his Taser; Collins again simply removed the wires and was unfazed by Keefer’s efforts to cycle the Taser again while the wires were in Collins’s hand. Collins then slammed the door shut again and began banging on the door’s glass pane. Sheriff’s Deputy Douglas Wilhite arrived as additional backup.

Wilburn realized he had a key to the back door and informed the other officers he would gain entrance and approach Collins from behind. Wilburn ran to the back, entered, and positioned himself outside the foyer where Collins was barricaded. When Wilburn came through the door behind Collins, Collins was still holding the outside door shut, hitting the glass, and “being aggressive towards the other officers.” Wilburn successfully deployed his Taser, the probes making contact with Collins’s back. Collins, however, refused to go to the ground, despite Wilburn’s instructing him to do so five times.

The other officers were able to enter the door Collins had been holding shut and—following a “closed hand strike to Collins[‘s] face” by Keefer—brought Collins to the ground, face down. Collins then refused multiple orders to put his hands behind his back to be handcuffed, and Wilburn cycled his Taser again. Keefer thus employed “closed strikes” with his baton as Miller employed closed empty hand strikes to attempt to gain control of Collins’s arms, and Miller, Keefer, and Wilhite used their batons to pry his hands out from underneath his body.

The officers successfully secured Collins’s hands in the original set of handcuffs, cuffed together with a second set applied to his right wrist, declared the situation safe, and, when Keefer “observed Collins[‘] face turning dark,” rolled Collins onto his side and sat him upright. Although Collins had a pulse and was breathing, he was unresponsive, and was “mumbl[ing], but he wasn’t making accurate words.” The officers called for EMS to respond, but members of the Louisa Fire Department arrived first and began administering CPR to Collins. EMS arrived shortly thereafter and transported Collins to Three Rivers Medical Center where he was pronounced dead.

Following an autopsy, the Kentucky Medical Examiner attributed Collins’s death to atherosclerotic cardiovascular disease and noted that cardiomegaly, emphysema, and physical struggle were contributory to the death but did not result in the atherosclerotic cardiovascular disease. The autopsy report also included photographs, and a discussion of injuries including abrasions on the head, periorbital ecchymosis, a laceration on the right upper eyebrow, and contusions on the forehead and scalp; however, no fractures or evidence of acute trauma were found in the neuropathology report.[ii]

Collins’ Estate filed suit in federal district court and alleged that the officers violated his Fourth Amendment right to be free from excessive force, failure to train against the city, and negligence under Kentucky law.  The district court granted summary judgment to the City, qualified immunity to the officers, and sovereign immunity to the city on the state law claims. The Estate appealed to the Sixth Circuit Court of Appeals.  [Note: This article will only discuss the Fourth Amendment claims; it is noted the claims under state law were also decided in favor of the defendant officers and the City.]

The court of appeals first noted the legal standard that applies regarding whether officers are entitled to qualified immunity.  The court stated

The doctrine of qualified immunity protects government officials [performing discretionary functions] ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). After a defense of qualified immunity is raised, the burden shifts to the plaintiff to demonstrate that the defendants violated a right that was so clearly established “that every ‘reasonable official would have understood that what [they were] doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (cleaned up). We ask two questions, in interchangeable order, in examining claims of qualified immunity: (1) do the facts as the plaintiff has alleged or shown make out a violation of a constitutional right; and (2) was the right at issue “clearly established” at the time of defendant’s alleged misconduct. Pearson, 555 U.S. at 232.[iii] [emphasis added]

Simply stated, even if an officer violates a suspect’s constitutional rights, if the right was not clearly established, such that “every reasonable official would have understood that what [they were] doing violated” the suspect’s rights, then the officer will be entitled to qualified immunity.  It is also important to note that at this stage of litigation, unless there is clear evidence to the contrary, the court is required to view factual disputes in a light most favorable to the plaintiff; in other words, give credit to the plaintiff’s version of events.

The court also examined the constitutional law relevant to the Fourth Amendment claim.  The court stated

Claims of excessive force in the course of an arrest implicate an arrestee’s Fourth Amendment right to be free from unreasonable searches and seizures and are analyzed under the “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 394-95 (1989). “The test is ‘reasonableness at the moment’ of the use of force, as ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007) (quoting Graham, 490 U.S. at 396) (internal citations omitted). Evaluating the use of force involves consideration of the totality of the circumstances, “including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396-97 (citation omitted). “In determining whether there has been a violation of the Fourth Amendment, we consider not the ‘extent of the injury inflicted’ but whether an officer subjects a detainee to ‘gratuitous violence.'” Miller v. Sanilac Cty., 606 F.3d 240, 252-53 (6th Cir. 2010) (quoting Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009) (citation omitted)).[iv]

The most important principles from above can be summed up as follows:

  • To judge an officer’s conduct in a use of force incident, one must view the facts from the perspective of a reasonable officer on the scene, at the moment the force was used;
  • When a suspect is injured, the court does not look at how badly the suspect was injured, but rather whether the officer subjected the detainee to “gratuitous violence;” and
  • The court will consider the totality of the circumstances and three primary factors: (1) the severity of the crime at issue; (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.

With the legal standards and principles set forth, the court considered the estate’s arguments on appeal.  The estate argued that the body camera showed that Collins was incapacitated by the Taser and was unable to comply with the officer’s commands.  Further, the estate claimed that once Collins was incapacitated on the ground, he was no longer resisting the officers, but was subjected to multiple officers laying on top of him while striking him.  The estate also claimed the injuries in the photographs support head trauma and the excessive force claim.  Thus, the estate claimed that the above, taken together, created a factual dispute such that qualified immunity and summary judgment were not appropriate; rather, the estate argued that a jury must decide the factual dispute.

The defendant officers argue that material facts are not in dispute, but rather there are “competing interpretations of undisputed facts.”

After reviewing the facts and evidence, the court of appeals stated that the estate’s statement of facts regarding the incident recorded on the body camera footage were not supported by the record.  Particularly, the video itself contradicted their version of events, as does the testimony of the officers, who all described Collins’ behavior as continuously noncompliant after he was brought to the ground.  Specifically, the officer’s testified that Collins failed to release his arms from under his body to be handcuffed.  The court then stated

We have found that active resistance includes “physically struggling with, threatening, or disobeying officers[,]” Cockrell v. City of Cincinnati, 468 F. App’x 491, 495 (6th Cir. 2012), as well as refusing to allow oneself to be handcuffed when coupled with disobedience of officer orders or threatening behavior. Caie v. W. Bloomfield Twp., 485 F. App’x 92, 94, 96-97 (6th Cir. 2012). Despite the estate’s protestations at the self-serving nature of the officers’ testimony, based on the record before us, the district court’s finding that no genuine dispute of material fact has been raised as to whether Collins was actively resisting arrest is correct. Cox v. Ky. Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“[A] nonmoving party may not avoid a properly supported motion for summary judgment by simply arguing that it relies solely or in part upon credibility considerations or subjective evidence. Instead, the nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment.” (citation omitted)).

Where video shows an arrestee actively resisting and refusing to be handcuffed, officers do not violate his Fourth Amendment rights by using force—such as a knee strike and a Taser deployment—in subduing him. Rudlaff, 791 F.3d at 639, 642-43.[v] [emphasis added]

The estate argued that the officers should have used less force because Collins was being arrested for a misdemeanor offense, but the court of appeals pointed out that this argument ignored the two other factors that must be considered, specifically, (1) the threat posed by the suspect, including the fact that he punched an officers, and (2) the suspect’s active resistance to being handcuffed.

As such, the court held that

[T]he estate has failed to establish a violation of Collins’s clearly established constitutional rights based upon the officers’ use of excessive force.

Therefore, qualified immunity for the officers was affirmed.  Further, because there was no evidence of an underlying constitutional violation, the estate failed to meet its burden to prevent summary judgment for claim against the City.

______________________________________________

Citations

[i] No. 17-6436 (6th Cir. Decided November 15, 2018 Unpublished)

[ii] Id. at 2-5

[iii] Id. at 607

[iv] Id. at 7-8

[v] Id. at 8-9

By |2019-06-18T13:58:58+00:00June 18th, 2019|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.