On January 28, 2021, the Sixth Circuit Court of Appeals decided Earnest v. Genesee County[i], which serves as an excellent review of the law related to excessive force. The facts of Earnest, taken directly from the case, are as follows:
On February 28, 2016, Plaintiff became upset because he was unable to see his son. In the afternoon, he went to a friend’s house and drank some liquor. Eventually, Plaintiff and his friend went to a bar and split a pitcher of beer. They left, and Plaintiff went home for a few hours. Plaintiff then returned to the bar by himself, had more beer, and left to go home around 2:00 a.m. According to Plaintiff, his vehicle stalled as he was driving home. He then claims he tried to call a friend to help, but was unsuccessful. Concerned that his car would be impounded if he walked home, Plaintiff decided to sleep in his vehicle. Plaintiff’s next memory is waking up in an ambulance, strapped down, with someone poking his arm. He has no recollection of how he left his vehicle or came to be in the ambulance.
Sometime between 2:00 a.m. and 3:00 a.m. on February 29, 2016, Miller, then a deputy with the Genesee County Sheriff’s Department, responded to a reported accident. When he arrived on the scene, he found a vehicle parked at an intersection, with wheels off the roadway, and resting on a support wire for a telephone pole. Miller was personally aware that the intersection was located in a high-crime area in the City of Flint, characterized by incidents of drug trafficking, felonious assault, domestic violence, and homicide.
When Miller approached the vehicle, he saw Plaintiff sitting upright in the driver’s seat. Miller’s initial assessment was that Plaintiff was drunk and passed out because he smelled alcohol on Plaintiff’s breath. Miller lightly shook Plaintiff, gave him open-handed pats, and spoke to him in a normal speaking voice in an attempt to wake him. Plaintiff did not respond to any of these efforts, and after Miller satisfied himself that Plaintiff was breathing and had a pulse, he returned to his vehicle, advised dispatch that he believed the driver was drunk but unharmed, and waited for mobile medical response (“MMR”).
Shortly after the MMR ambulance arrived, Miller activated his body camera. The video depicts emergency medical technician (“EMT”) Dwayne Rose attempt to wake Plaintiff up by patting him and telling him to wake up. When it became clear that these efforts at waking Plaintiff were going to be unsuccessful, Miller and Rose determined that they would have to pull Plaintiff out of the vehicle. As Rose started to move Plaintiff, Plaintiff groaned and swung his left arm in Rose’s direction.
After Plaintiff had been removed from the vehicle, the video shows Miller and Rose removing Plaintiff’s sweatshirt, pushing him toward a stretcher, and ultimately taking him to the ground. At this point, Miller was on top of Plaintiff and told Plaintiff to stop resisting, and Plaintiff responded that he was not resisting. After a short time on the ground, Miller and Plaintiff stood up, and Miller pressed Plaintiff up against the side of Plaintiff’s vehicle. The video then shows the pair going back to the ground, where Miller again told Plaintiff to stop resisting, and Plaintiff responded again that he was not resisting. Miller repeatedly told Plaintiff to put his hands behind his back, and while Plaintiff responded “OK,” the video shows that Plaintiff’s hands were not placed behind his back. Miller and Plaintiff rose again, but Miller again took Plaintiff to the ground and yelled at Plaintiff to put his hands behind his back.
The video then shows Miller and Rose holding Plaintiff on the ground, while Miller repeatedly yells at Plaintiff to put his hands behind his back, to which Plaintiff responds that he cannot. Eventually, Miller and Rose managed to get both of Plaintiff’s arms behind him, and Miller handcuffed Plaintiff’s hands behind his back. After Plaintiff was handcuffed, Miller and Rose continued to hold Plaintiff on the ground, while Plaintiff made indistinct sounds and words. Eventually, Miller and another police officer placed Plaintiff on the stretcher, and Plaintiff was strapped in.
Plaintiff suffered a number of injuries as a result of the February 29, 2016 incident. Hospital records show that he had a head contusion and abrasions of his right elbow and left wrist. Plaintiff’s booking photos and other pictures show bruising on his face. Plaintiff also reported suffering from headaches, nausea, and vomiting after the incident. He claims these latter symptoms are consistent with having sustained a severe concussion.[ii]
Earnest later sued Officer Miller and Genesee County. He alleged that Officer Miller used excessive force in violation of the Fourth Amendment, and the county failed to properly train and supervise its officers regarding the use of force. The district court granted summary judgment for the officer and the city and dismissed the case, holding that the officer did not violate the Fourth Amendment in his use of force against Earnest. Earnest appealed the grant of summary judgment to the Sixth Circuit Court of Appeals.
The court of appeals first noted the constitutional principles that are relevant to this case. The court stated
It is well-established that the Fourth Amendment protects individuals from the use of excessive force by law enforcement officers. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). It is equally well-established that the touchstone for this constitutional inquiry is reasonableness and “requires careful attention to the facts and circumstances of each particular case, 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.” Id. at 396. “[T]he amount of force must be objectively reasonable under the totality of the circumstances” from the perspective of a reasonable officer at the time of the alleged excessive force. Stewart v. City of Euclid, 970 F.3d 667, 672 (6th Cir. 2020) (citing Graham, 490 U.S. at 396).[iii]
Earnest argued that the body camera video created an issue of fact that the officer used excessive force. However, the court of appeals noted that, on the body camera, Earnest can be seen attempting to strike the EMT, standing up after being taken to the ground at least twice by the officer, and refusing to put his hands behind his back in spite of repeated commands to do so. The court then stated
We have held that it is reasonable to use a taser, batons, and pepper spray to subdue “a suspect actively resisting arrest and refusing to be handcuffed . . . .” Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509 (6th Cir. 2012). . . We have also held that a person who refuses to be handcuffed by a law enforcement officer thereby resists arrest such that tasering and knee strikes are justified. Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015).[iv]
As such, the court held that the officer did not violate the Fourth Amendment with the force that he used to arrest Earnest.
Earnest also argued that the injuries that he received show that the officer used excessive force. Evidence showed that Earnest had a contusion on his head and abrasions on his elbow and wrist. His booking photo shows some bruising on his face. Earnest also stated he had a concussion based on headaches, nausea and vomiting after the incident. The court, however, stated
Plaintiff also argues that the extent of his injuries shows that Miller used excessive force. We have been clear, however, that the critical question in Fourth Amendment cases is not the extent of the injury, but whether the force used by the law enforcement officer was gratuitous. Miller v. Sanilac Cnty., 606 F.3d 240, 252-53 (6th Cir. 2010). . . [T]he Supreme Court has been clear that “[i]njury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins v. Gaddy, 559 U.S. 34, 38, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010).[v]
The court then held that the injury to Earnest’s head, arms and the alleged concussion do not render the force excessive because Earnest continued to resist arrest.
Therefore, the court of appeals held that the officer’s use of force did not violate the Fourth Amendment and affirmed the grant of summary judgment for the officer.
The court of appeals also considered the claim against the county for failure to train and failure to supervise. The court of appeals affirmed the grant of summary judgment for the county because, in order to establish such a claim, there must be an underlying constitutional violation. Since the officer’s use of force did not violate the constitution, there was no underlying constitutional violation.
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Citations
[i] No. 20-1342 (6th Cir. Decided January 28, 2021 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 7 (emphasis added)
[iv] Id. at 8 (emphasis added)
[v] Id. at 9-10 (emphasis added)
