On July 24, 2020, the Sixth Circuit Court of Appeals decided Siders v. City of Eastpointe[i], in which the court answered the question presented in the title of this article. To set the stage for the case, the Circuit Judge Alice M. Batchelder began the case by stating
The main question in this case is whether a police officer dispatched to the night-time scene of an alleged domestic-violence assault must permit the suspect: (1) to withdraw into a dark minivan and close the door, then (2) to resist physical restraint by kicking the officer and clinging to a seat, and finally (3) to expressly refuse the officer’s commands to submit to handcuffing. To be more specific, the plaintiff contends that the officer used excessive force, in violation of her clearly established constitutional rights, by: (1) seizing her bodily and physically removing her from the minivan—rather than allowing her to remain in the minivan and close the door; (2) overwhelming her resistance by brute force—rather than relenting when she kicked him and clung to the seat; and (3) tasing her when she physically and verbally refused to comply after six orders to place her hands behind her back—rather than permitting her to remain un-handcuffed.[ii]
While the answer would have seemed so obvious two months ago, the politically charged environment in which law enforcement officers work today, is often not that simple. The facts of this case are lengthy but they are worth reading because “use of force” cases are very fact-specific. The relevant facts of Siders, taken directly from the case, are as follows:
At about 10:45 p.m., on March 18, 2015, Melvin Siders called 911 on his estranged wife, Patricia Siders. The City of Eastpointe police dispatcher broadcasted a call for officers to respond, reporting: 911-caller and wife “are physically fighting” in the driveway, can hear wife “screaming in the background,” caller says wife hit him, weapons unknown. R. 35-3 (police broadcast report). A dashcam video from a responding officer’s cruiser recorded the events that follow.
A female officer, Rene Deladurantaye, was the first to respond. The area was dark, lighted only by streetlamps and the lights from the police cruisers. Officer Deladurantaye encountered a minivan, parallel parked at the curb. Melvin, a 30-year-old, 5’5″, 190 lb. African-American man in a suit and tie, was standing in front of it. Patricia, a 28-year-old, 5’5″, 200 lb. African-American woman in a tank top and jeans, was in the minivan but leaning out of the open driver-side rear door. Three children (ages eight, five, and three) were seated inside the minvan.1 Melvin was disheveled and holding a “club” by its center, in a non-threatening manner. A “club” is a tradename for a metal bar that locks onto a car’s steering wheel to prevent or discourage theft of that car. Officer Deladurantaye told him to put it down and he tossed it aside, claiming that Patricia had attacked him with it. Officer Deladurantaye could see that Melvin had been struck in the face.2 While Melvin was calm and cooperative, explaining why he called 911 for help, Patricia was yelling and antagonistic.
The second officer on scene was a male officer, Joseph Piro, who arrived almost immediately after Officer Deladurantaye and, because of where he parked his cruiser, it was his dashcam that recorded the on-scene events.3 Officer Deladurantaye directed Officer Piro to talk with Patricia while she talked with Melvin. As Officer Piro approached Patricia, she withdrew inside the minivan and tried to close the door.4 Officer Piro stopped approximately two-to-three feet away from the minivan’s open side door, but extended his left leg straight out and put his left foot in the door jamb to keep the door from sliding closed, and asked, conversationally, why she was closing the door on him. Patricia snapped back, defiantly, “because I don’t want you to walk up on me,” and appeared to kick his foot out of the door jamb as she tried again to close the door.5 Officer Piro immediately moved nearer to the open door and threatened: “Well, I’m gonna f***ing walk up on you, okay? Close the door on me and you’re gonna get ripped out of this car.” At this point, Officer Piro was standing with both feet on the street as close to the open door as possible; he was standing fully upright (not leaning into the van) with his hands at waist level, slightly inside the van, but not extended in front of him. It is possible that he attempted to touch, actually touched, or even grabbed ahold of Patricia by her nearest extremity (arm, leg, etc.), if it was in his immediate grasp, but it is clear from the video, and beyond question, that he did not bend, extend, or reach into the minivan at that point, nor did he do anything overtly violent, aggressive, or with substantial or overwhelming force. Nonetheless, we cannot see from the video exactly what was happening inside the van during the four seconds that Officer Piro was giving this warning or threat. But we can see in the video that, at the moment he finished saying the word “car,” Patricia—apparently leaning back so as to piston her leg out horizontally—kicked him in the [*7] midsection, causing him to buckle and take two steps backward, either from the force of the kick or in an effort to avoid it. Then Patricia yelled, “Don’t put your hands on me, you have no reason to put your hands on me.
After the kick, Officer Piro looked to Officer Deladurantaye, who was still speaking with Melvin, and then turned back to Patricia and reached into the van with both hands. Officer Deladurantaye left Melvin and went to assist Officer Piro with Patricia, as Melvin can be heard exclaiming, “see what I’m sayin’, see what I’m sayin’?,” in obvious reference to Patricia’s frenzy. While Officer Piro was trying to get hold of Patricia, she continued to kick at him and, when he got a grip on her left ankle and tried to pull her out of the minivan, she held onto a seat creating a bizarre tug of war as Officer Piro put his feet up on the door jamb for leverage and pulled Patricia by the ankle. Meanwhile, Officer Deladurantaye was trying to coax Patricia to stop resisting, let go of the seat, and get out of the van, asking, “Ma’am, do you really want to do this with your kids right there?”; Patricia answered, “Yeah!,” and continued to fight. After about five seconds of this tug of war, Officer Piro managed to drag Patricia completely out of the minivan, pulling her by the left ankle at about his waist level while she held the minivan door with her left hand at about the same height, so that she was stretched sideways with her right foot and right hand on the ground. Officer Deladurantaye pried Patricia’s fingers from the door and the officers lowered her to the ground: Officer Deladurantaye let Patricia put her left hand down, then Officer Piro put her left ankle down, so that she was on her hands and knees, but she immediately rolled on to her left side and kept fighting and yelling.7 At this point, 15 seconds after Patricia first kicked Officer Piro in the midsection and after about 10 seconds of struggle, Melvin decided to intervene, so Officer Deladurantaye had to turn back to Melvin to keep him away. A third officer arrived, grabbed Melvin from behind, yanked him away, and wrestled him to the ground.
Meanwhile, Patricia was still thrashing, fighting, and yelling, and Officer Piro was shouting at her to stop resisting and to put her hands behind her back. She refused to comply, both physically and verbally, yelling at him that she would not. After futilely telling her six times to cooperate, Officer Piro tased her in the middle of her back and Officer Deladurantaye was able to cuff Patricia’s hands behind her back. Officer Piro went to help subdue and cuff Melvin. While that was going on, Patricia—who is double jointed—brought her cuffed hands up over her head to her front, tried to twist free from the officer holding her, and dropped herself onto the ground on her bottom. The officers re-cuffed her behind her back but she again, while in the cruiser, brought her cuffed hands over her head to the front, and then fixed her hair while looking in the car mirror. She was also repeatedly fixing her hair while waiting at the police station. This focus on primping her hair, and her apparent unawareness of or disinterest in any physical injury while at the station, undermines her claims of serious injury and effectively refutes any claim that the officers had reason to recognize that she had a serious medical need, a substantial risk of harm arising from it, or a need to act on it. Photos of her in the record, taken by police during her booking, are of the two prong-marks in her back from the taser, albeit without any evident discoloration or swelling, and of her face and a closer picture of her lips, revealing no evident swelling or an identifiable split lip.
The officers arrested Patricia for domestic-violence-based aggravated felonious assault on Melvin, an aggravated felonious assault on Officer Piro for kicking him, and obstructing a police investigation. Pursuant to a plea agreement, the prosecutor dismissed the latter charges and Patricia agreed to plead guilty to a domestic-violence charge and to enter a diversion program, which led to the dismissal of that charge after she completed a year without further incident. [iii]
After the criminal case was dismissed, Patricia Siders filed suit in federal court against the officers and the city. The officers and the city filed a motion for summary judgment to have the suit dismissed. The court granted the motion for the city but denied qualified immunity for Officer Piro and Officer Deladurantaye. The officers appealed the denial of qualified immunity to the Sixth Circuit Court of Appeals.
QUALIFIED IMMUNITY
The Sixth Circuit first discussed qualified immunity and the rationale behind it. The court stated
Qualified immunity shields government officials in the performance of discretionary functions from standing trial for civil liability unless their actions violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). It “is an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526, it allows police officers “breathing room to make reasonable but mistaken judgments,” and “protects all but the plainly incompetent or those who knowingly violate the law,” Stanton v. Sims, 571 U.S. 3, 6, 134 S. Ct. 3, 187 L. Ed. 2d 341 (2013).[iv]
The court also discussed the legal standard that a plaintiff must satisfy to overcome the officer’s motion for qualified immunity.
The plaintiff in a § 1983 action bears the burden of overcoming the officer’s qualified-immunity defense. Bunkley, 902 F.3d at 560. At the summary-judgment stage, the plaintiff must show that (1) the defendant officer violated a constitutional right and (2) that right was clearly established. Id. . . . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).[v]
In order to show that a right was “clearly established” there must be case law that is factually similar enough to put an officer on notice that his conduct was unlawful. Stated another way, the case law must be clear enough that the action for which the officer is accused is beyond debate with respect to its unlawfulness.
The Sixth Circuit then began to examine Sider’s excessive force claims.
EXCESSIVE FORCE – OFFICER PIRO
On appeal, Siders alleged that there were three instances during the incident where she was subjected to excessive force by Officer Piro, which are as follows: (1) Officer Piro’s act of touching or grabbing Siders as she sat in the minivan; (2) Officer Piro’s act of grabbing Siders by the ankle and pulling her out of the van after she kicked him; and (3) Officer Piro’s act of tasing Siders after she “thrashed” on the street and actively resisted being handcuffed. The court analyzed each of these instances individually.
First, the court examined Officer Piro’s act of touching or grabbing Siders as she sat in the van before she kicked him. The court noted that the police video of the incident shows that this “touch or grab” was not “excessive or violent,” therefore, Siders’ allegation “must be that the mere act of seizing her physically was per se excessive.”[vi] The court noted that officers may, consistent with the Fourth Amendment seize and detain suspects when they have reasonable suspicion that the suspect may be involved in criminal activity. Further, the court stated
When officers “reasonably believe[] that a crime occurred,” and that “the occupant[] of [a] car [was] involved in that crime,” the officers have enough reasonable suspicion to remove the car’s occupants from the car and for a potential seizure. Houston v. Clark Cty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999).[vii]
In the case at hand, the court stated that the officers had reasonable that Siders was involved in criminal activity. This was based on the dispatch, Siders’ aggressive demeanor, statements made by Melvin, and Siders’ attempt to retreat into the van. The court then held that Officer Piro’s “mere act of seizing (touching or grabbing) her as she sat in the minivan, before she kicked him, was permissible under the Fourth Amendment.
Second, the court examined Officer Piro’s act of grabbing Siders by the ankle and pulling her from the van, after she kicked him. The court stated that the officer’s video shows that, after Siders tried to close the door on him, he told her if she did that again he would “rip” her out of the van, at which time she kicked him in the midsection. He then grabbed her ankle, put his foot on the door-jam of the vehicle for leverage to overcome her resistance as she held onto the seat, and he pulled her from the van. The video shows that at no time did Officer Piro slam or drop Siders on the ground, as she alleged.
The court noted that the Fourth Amendment protects people from unreasonable seizures, such as excessive force. The court explained that there are three factors the court considers in determining the reasonableness of an officer’s use of force. The court stated
To determine whether force was excessive, the court “appl[ies] an objective reasonableness test, looking to the reasonableness of the force in light of the totality of the circumstances confronting the defendants, and not to the underlying intent or motivation of the defendants.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). Three factors guide the reasonableness test: [1] “the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officer or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 396).[viii]
As the court noted, the officers were investigating a violent domestic assault, they had a reasonable belief she was the suspect, she attempted to retreat into a van and close the door, she was warned not to close the door again, she kicked the officer and was physically pulled out of the van, as she resisted by hanging onto a seat. The court also stated
As the video makes clear, every bit of the force that Officer Piro used to remove Patricia from the minivan was necessary to overcome her resistance (i.e., clinging to the seat and kicking); he did not slam or drop her on the ground or commit any other form of gratuitous violence. [ix]
The court then held that Siders had “made no legitimate claim that the amount of force Officer Piro used in effectuating that removal was excessive” under the Fourth Amendment.[x]
Third, the court examined Officer Piro’s act of tasing Siders after she “thrashed” on the street and refused to put her hands behind her back to be handcuffed. The court noted that the Taser was discharged into a “fleshy” part of Siders’s back and was used properly according to Taser standards; as such, there is no allegation that the Taser was used in an excessive manner. Rather, the claim is simply that it was unreasonable for Officer Piro to use his Taser at all in the incident with Siders and was per se excessive. However, the court, citing case law, stated
Our cases establish that police do not use excessive force when they tase someone (even multiple times) who is actively resisting arrest. Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015) (citing Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012), Williams v. Sandel, 433 F. App’x. 353, 363 (6th Cir. 2011), and Cockrell v. City of Cincinnati, 468 F. App’x. 491, 495 (6th Cir. 2012)). The video makes clear that Patricia was actively non-compliant and resisting until and even after Officer Piro tased her. Therefore, this tasing was permissible under the Fourth Amendment and the facts of this case.[xi]
As such, the court held that Officer Piro did not violate the Fourth Amendment by using his Taser on Siders.
Further, the court held that Officer Piro did not violate the Fourth Amendment in the incident with Siders and was therefore entitled to qualified immunity.
FAILURE TO INTERVENE – OFFICER DELADURANTAYE
Next, the court set out to determine if Officer Deladurantaye was entitled to qualified immunity for failure to intervene during the alleged excessive force. Importantly, in order to meet the requirements for a “failure to intervene” claim, there must be some unreasonable conduct, such as excessive force, where an officer was obligated to intervene. In this case, the “failure to intervene” claim was premised upon Officer Piro’s alleged excessive force. As previously discussed, Officer Piro did not commit excessive force so the “failure to intervene” claim must fail.
Additionally, the court noted that even if Officer Piro had violated the Fourth Amendment, the “failure to intervene” claim would still fail in this case. The court explained
We have held repeatedly that officers are not liable under failure-to-intervene claims when the ostensible “opportunity and means” to intervene do not last long enough for the officer to “both perceive what was going on and intercede to stop it.” Burgess, 735 F.3d at 475 (citing Durham v. Nu’Man, 97 F.3d 862, 868 (6th Cir. 1996)); see also Ontha v. Rutherford Cty., 222 F. App’x. 498, 506 (6th Cir. 2007). Even if Officer Piro’s conduct of removing Patricia from the van and tasing her until she complied with his instructions had been excessive force, Officer Deladurantaye did not have an opportunity or means to intervene to stop it. She was questioning Melvin when Officer Piro began pulling Patricia from the minivan; for a few seconds, she assisted Officer Piro with releasing Patricia’s grip from the door and lowering her to the ground; but then she abandoned that assistance when Melvin attempted to intervene and instead she focused on removing Melvin from the struggle. She was not involved in the tasing and had no reason to prevent it.[xii]
Therefore, Officer Deladurantaye is entitled to qualified immunity on the “failure to intervene” claim.
DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS – OFFICER DELADURANTAYE
Lastly, the court examined whether Officer Deladurantaye was entitled to qualified immunity for allegedly failing to provide adequate medical treatment to Siders. The court discussed the requirements of these claims and stated
A cause of action under § 1983 for failure to provide adequate medical treatment requires a showing that the defendants acted with deliberate indifference to the serious medical needs of the arrestee. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). There are two parts to the claim: objective and subjective. For the objective component, the arrestee must demonstrate “the existence of a ‘sufficiently serious’ medical need.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). For the subjective component, the arrestee must demonstrate that the defendant knew of and disregarded a substantial risk of serious harm to the arrestee’s health and safety. Id.[xiii]
The court stated that Siders cannot meet either requirement of this claim. First, she has not provided any evidence of a serious injury. Second, there was no evidence that the officers were subjectively aware of any serious harm from Siders’s injury.
As such, Officer Deladurantaye is entitled to qualified immunity on this claim.
Therefore, the court of appeals reversed the decision of the district court.
______________________________________________
Citations
[i] No. 19-1331 (6th Cir. Decided July 24, 2020 Unpublished)
[ii] Id. at 1-2
[iii] Id. at 4-11
[iv] Id. at 13 (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 15
[vii] Id. at 16 (emphasis added)
[viii] Id. at 18-19
[ix] Id. at 19
[x] Id.
[xi] Id. at 21 (emphasis added)
[xii] id. at 21-22 (emphasis added)
[xiii] Id. at 22-23 (emphasis added)
