On November 14, 2019, the Fifth Circuit Court of Appeals decided Defrates v Podany[i], in which the court examined whether an officer was entitled to qualified immunity for an arrest of a parent and use of force against a parent at a school function. The relevant facts of Defrates, taken directly from the case, are as follows:
On May 16, 2015, Podany, an off-duty police officer, arrested Defrates for criminal trespass and resisting arrest at an off-campus school event put on by Village Tech Schools. But there is more to this story than just the events of that day.
About a year earlier, Robert Johansen, Assistant Superintendent for Village Tech Schools, contacted Corporal Brakenridge regarding concerns about Defrates. Johansen stated that Defrates—who at the time was going through a divorce and a custody battle over his son (a student at Village Tech)—had made concerning statements at the school, which raised concerns that he could be mentally troubled and could pose a safety risk to the staff and students. Johansen also directed Brakenridge to Defrates’s Facebook page, which had a post about PTSD and another one saying, “Death is better than Divorce.” In response to Johansen’s concerns, Brakenridge called Defrates’s wife. She confirmed the custody battle and stated that Defrates had served in the Special Forces in the Army. Brakenridge put this information in a report and disseminated it through the department. Podany knew of the information in the report when he confronted Defrates in 2016.
Defrates’s troublesome conduct eventually led Johansen to issue a criminal-trespass warning to him in August 2014. The warning stated that it was issued because of Defrates’s continued, aggressive conduct related to having unsupervised access to his son while at school. In response to Defrates and around the same time, Johansen requested that the Cedar Hill Police Department provide school staff with active-shooter training. Then, in January 2015, Johansen summoned a police officer to the school campus to issue a second, verbal criminal-trespass warning to Defrates. Again, Podany knew of all the above events.
With this background information in hand, we fast-forward to May 16, 2015. On that day, Defrates arrived at an off-campus event with his son. He checked in at the sign-in table. Johansen was standing nearby. Defrates then went to the room where his son was to give a presentation. He watched the presentation, but then he got up, left the room, and began to wander the halls. This is when Johansen first confronted him. Johansen told Defrates that he needed to either go back to the room where his son was or leave. Defrates said that he did not need to listen to Johansen and that he was not doing anything wrong. Johansen then went to find Podany. He explained to Podany that Defrates was violating the criminal-trespass warning and refusing to leave. He asked Podany to help force Defrates to leave. Podany then contacted his dispatch and requested that an on-duty officer be sent to arrest Defrates.
After he called dispatch, Elizabeth Podany, David Podany’s wife and another school administrator, asked to speak with Defrates in a small clear-glassed office. Exactly what was said in that exchange is in dispute. According to Elizabeth, she told Defrates not to do this to his son and to please leave. Defrates responded to Elizabeth by calling her the “evil in this world” and by saying, “I’m going to go talk to all of your little kids and there is nothing you can do about it.” He then excused himself, saying he needed to get a drink of water. According to David Podany—who overheard the end of the conversation—Defrates said that “[y]ou’re going to have to arrest me, I’m not leaving. I’m going to get a drink of water and I’m coming back in.” Defrates’s version paints a different story. He claims that he calmly explained that he was going to watch his son’s presentation and would be leaving as soon as it ended. He maintained that he had done nothing wrong and needed to get a drink of water. He then walked away from Elizabeth and toward the adjacent hallway.
Podany was waiting for him when he left the office. Defrates immediately identified Podany as a “cop.” They walked into the hallway and Podany repeatedly told him to keep walking down the hall to talk. Defrates dismissed these verbal commands, insisting instead that he needed a drink of water and was doing nothing wrong.
At this point, Podany grabbed Defrates’s arm and turned him around to face the wall. Defrates pushed back off the wall. Podany then spun Defrates against the other wall and attempted again to wrangle Defrates’s arms behind his back. But Defrates resisted Podany’s efforts, while simultaneously saying that he did not do anything wrong and was just trying to get a drink of water. Podany next used a “takedown” maneuver to wrestle Defrates to the ground, and as Defrates was attempting to get back up, Podany kneed him in the neck/head area to keep him down. Finally, with the assistance of others, Podany gained control over Defrates by placing his weight on Defrates’s upper back/neck and putting him in a wrist lock. Soon thereafter, an on-duty officer arrived, placed Defrates in handcuffs, and walked him out of the building. Defrates claims that Podany caused him severe brain trauma.”[ii]
Defrates filed suit in federal district court and alleged that Officer Podany violated his rights under the Fourth Amendment for false arrest and excessive force. The district court granted Officer Podany qualified immunity on all claims and held the arrest was supported by probable cause and the use of force was reasonable. Defrates appealed to the Fifth Circuit Court of Appeals.
The issues before the court of appeals were as follows:
(1) Whether Officer Podany was entitled to qualified immunity on the false arrest claim?
(2) Whether Officer Podany was entitled to qualified immunity on the excessive force claim?
The court then discussed qualified immunity. Simply put, when an officer who was engaged in a discretionary function, such as making an arrest or a use of force, is sued, the officer can assert qualified immunity from suit. This shifts the burden back to the plaintiff who must satisfy a two-part test to overcome the officer’s qualified immunity. First, the plaintiff must show that a constitutional violation occurred. Second, the plaintiff must show that the law was clearly established such that “every reasonable official would have understood that what he was doing violates that right.”[iii] Clearly established law comes from case law of similar circumstances that puts the officer on notice regarding the unlawfulness of the conduct.
The court then set out to answer the first issue, whether the officer was entitled to qualified immunity for false arrest. The court first discussed the relevant law and stated
The Fourth Amendment protects citizens from false arrests—that is, arrests unsupported by probable cause. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). Nonetheless, qualified immunity grants police officers some wiggle room for mistakes when it comes to probable cause. Plaintiffs must not only show that there was no probable cause but also that the “officers were objectively unreasonable in believing there was probable cause for the arrest.” Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017). Put differently, qualified immunity protects officers so long as they had “arguable (that is, reasonable but mistaken) probable cause for the arrests.” Club Retro, 568 F.3d at 207.
Probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (quotation omitted). The probable cause can be for any crime, not just the one the officer subjectively considered at the time. Davidson, 848 F.3d at 392.[iv]
The court then looked at the Texas criminal trespass statute and noted that
Texas law makes it illegal for any person to enter or remain on the property of another “without effective consent” when that person “had notice that the entry was forbidden” or “received notice to depart but failed to do so.” TEX. PENAL CODE ANN. § 30.05(a).[v]
The court also considered the relevant facts known to the officer. First, the officer knew that the school had issued a criminal trespass warning to Defrates. Second, a school official told the officer he told Defrates to leave and he refused. Third, the officer heard Defrates tell Elizabeth Podany that he did nothing wrong and was getting a drink of water. The court held that these facts, at a minimum, gave Officer Podany arguable probable cause to arrest Defrates for criminal trespass. The court then held
We hold that Defrates’s seizure was supported by probable cause and did not violate his Fourth Amendment right against false arrest.[vi]
Therefore, Officer Podany was entitled to qualified immunity on the false arrest claim.
The court then set out to examine the second issue, whether Officer Podany was entitled to qualified immunity on the excessive force claim.
The court of appeals first noted the rules relevant to this issue. Specifically, the court stated
To determine whether the force was objectively unreasonable, this court must carefully evaluate the individual facts in each case and consider the totality of the circumstances. Deville, 567 F.3d at 167. Factors to consider include “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.” Graham v. Conner, 490 U.S. 386, 396 (1989). The temporal focus is on how the officer perceived the scene as it unfolded, not with 20/20 hindsight. Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013).[vii]
Defrates alleged that the officer used excessive force when he “slammed Defrates into the wall and then used a takedown, a knee strike, a wrist hold, and placed pressure on Defrates’ head.”[viii] The court noted that, when evaluating a use of force, the specific facts of incident are very important. The court also noted that the correct inquiry for determining qualified immunity in a use of force case is
[W]hether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the situation [he] confronted.[ix]
The court then examined the facts of Defrates’ case. At the outset, it was noted that Officer Podany did not immediately resort to using force on Defrates. Rather, the court stated
[H]e used the type of “measured and ascending” force in the face of “escalating verbal and physical resistance” that this court has approved. Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)[x]
First, Officer Podany was told by a school official that Defrates refused to leave the premises, and he needed help removing him. Second, the officer asked Defrates to walk with him. Defrates refused and began to walk away. Third, the officer took ahold of Defrates and turned him to face a wall. Defrates spun around. This prompted the officer to put him more forcefully against the other wall. Defrates escalated his resistance and the officer then used a takedown. On the ground, Defrates continued to resist, trying to get up, and the officer used a knee strike to control Defrates. The officer also used a wrist hold on Defrates until assistance arrived to handcuff him.
In addition to the above incident, the court noted that it was also relevant that Officer Podany knew of Defrates volatile and dangerous history at the school.
Defrates cited several cases that he argued clearly established that the officer used excessive force, however, the court of appeals examined each and determined that there were significant differences, such that the cases cited by Defrates did not clearly establish the law in this case.
The court then held that the law was not clearly established in this case and as such, Officer Podany was entitled to qualified immunity.
[i] No. 18-11177 (5th Cir. Decided November 14, 2019)
[ii] Id. at 2-4
[iii] Id. at 5
[iv] Id. at 6-7 (emphasis added)
[v] Id. at 7
[vi] Id. at 8
[vii] Id. at 9 (emphasis added)
[x] Id. at 10