On March 18, 2021, the Tenth Circuit Court of Appeals decided Ellsworth v. City of Broken Arrow[i], in which the court examined whether officers violated the plaintiff’s rights under the Fourth Amendment when, believing the plaintiffs to be armed robbery suspects, they conducted a felony stop.   The facts of Ellsworth, taken directly from the case, are as follows:

Plaintiffs’ action arose from a traffic stop of a car driven by Ms. Ellsworth. On August 1, 2018, the BAPD dispatch reported that the Tulsa Police Department (“TPD”) was following a black Ford Mustang involved in an armed robbery, that the robbery involved a gun, and that a TPD helicopter was the only unit following the vehicle. Shortly after dispatch described the vehicle’s location, BAPD Officer Marque Baldwin saw a black car traveling at the specified location. Officer Josh Zoller, who also saw the black vehicle, stated it looked like a Ford Mustang, but Officer Baldwin responded it looked more like a Dodge Charger.

After dispatch updated the vehicle’s location and noted there were two handguns in the vehicle, Officer Zoller asked dispatch if TPD had provided a license plate number. Dispatch stated that TPD had not given that information, at which point Officer Zoller provided the license plate number of the black car and asked dispatch to confirm with the helicopter that they were behind the correct vehicle. The helicopter—which was “right above” Officer Zoller, Aplee. Supp. App. at 50—confirmed directly over the radio that he was behind the suspect vehicle. BAPD dispatch also indicated that the car was not reported as stolen.

The BAPD officers then activated their lights and sirens and pursued the black Charger driven by Ms. Ellsworth. Her seventeen-year-old daughter, plaintiff Braeden Walling, was the front seat passenger, and three young children were in the back seat. After traveling an additional half mile over the course of one minute, Ms. Ellsworth pulled her vehicle over. It was approximately 7:15 p.m. Officer Zoller parked behind Ms. Ellsworth; Officers Garner and Baldwin parked behind Officer Zoller, and BAPD Sergeant Bryan Bandy stopped traffic further up the road. Around this time, TPD reported the suspects were two Hispanic males.

The officers exited their vehicles, pointed their firearms at Plaintiffs’ vehicle, and directed the occupants to put their hands up. Officer Zoller first ordered Ms. Ellsworth, who is not Hispanic, out of the vehicle and directed her to walk backward toward his vehicle. Meanwhile, Officer Garner put his rifle in Officer Zoller’s vehicle and waited for Ms. Ellsworth to get close so that he could handcuff her. When she reached Officer Zoller’s vehicle, Officer Zoller directed her to go to her knees, and Officer Garner, using one arm, grabbed her left arm, forced her to the ground, and handcuffed her. In the process, Ms. Ellsworth sustained a bruise on her arm from the grab and bruising on her ankle from striking the curb. Officer Garner then helped her back up and pushed her into the backseat of his vehicle.

While Officer Garner was securing Ms. Ellsworth, Officer Zoller ordered Ms. Walling, who also is not Hispanic, out of the vehicle and directed her to walk backwards. According to Plaintiffs, Ms. Walling was handcuffed as well. The TPD helicopter then reported that Plaintiffs were not the suspects, at which point the BAPD officers holstered their weapons, removed the handcuffs, and released Plaintiffs. Sergeant Bandy explained to Ms. Ellsworth that they were looking for robbery suspects, and she said she understood. He asked if she was okay and if she needed an ambulance, and she stated she just wanted to go home.[ii]

The plaintiffs filed suit and alleged that the officers violated their rights under the Fourth Amendment by arresting them without probable cause and using excessive force.  The district court granted summary judgment for the officers and held they did not violate the Fourth Amendment.  The plaintiffs appealed to the Tenth Circuit Court of Appeals.

The first issue before the court was whether the officers falsely arrested the plaintiff’s during the felony stop based on the manner in which they were detained, particularly plaintiff’s were called out of the car at gunpoint, placed on the ground, handcuffed, and placed in police cars.  The court of appeals first examined the general legal principles applicable to this issue and stated

In evaluating a seizure, “we must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Windom, 863 F.3d 1322, 1327 (10th Cir. 2017) (brackets and internal quotation marks omitted). Although a seizure generally requires probable cause, the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), “recognized the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security . . . based on less than probable cause.” Windom, 863 F.3d at 1327 (internal quotation marks omitted). Under Terry, an investigative detention only requires reasonable suspicion. See Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). But “if a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause.” United States v. Chavez, 660 F.3d 1215, 1223 (10th Cir. 2011) (brackets and internal quotation marks omitted). Accordingly, we consider: (1) “whether the stop was justified at its inception”; and (2) “whether the officers’ actions were reasonably related in scope to the circumstances which justified the interference in the first place.” Windom, 863 F.3d at 1328 (brackets and internal quotation marks omitted).[iii]

Thus, if officers exceed the scope of a Terry stop, their conduct may transform a valid investigative detention into a “de-facto arrest,” which would violate the Fourth Amendment if there was no probable cause to arrest.    In determining whether an officer violated the Fourth Amendment, the court will consider two factors.  First, the court will consider whether the stop was “justified at its inception,” or in other words, supported by reasonable suspicion.  Second, the court will consider whether “officers’ actions were reasonable related in scope” to the reason for the stop.

The court then set out to evaluate if the plaintiff’s stop was justified at its inception.  The court stated that a stop is justified at its inception when

[T]he specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.[iv]

The court of appeals noted that the officers in this case received a dispatch that a Tulsa PD air unit was pursuing a vehicle occupied by two Hispanic males, armed with two guns, who had just committed an armed robbery.  The officers located the vehicle and confirmed with the Tulsa PD air unit that they were behind the correct vehicle.  They provided the tag number of the vehicle to the Tulsa unit who advised they were correct.  The court of appeals stated

Once the TPD helicopter confirmed the officers were following the suspect vehicle, they were entitled to rely on that information. See Oliver v. Woods, 209 F.3d 1179, 1190-91 (10th Cir. 2000) (noting that “officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information” and, instead, may “rely upon information relayed to them by other officers in determining whether there is reasonable suspicion to justify an investigative detention” (internal quotation marks omitted)). And the officers’ reliance on TPD’s information, albeit mistaken, was reasonable. United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (“A mistaken premise can furnish grounds for a Terry stop, if the officers do not know that it is mistaken and are reasonable in acting upon it.” (internal quotation marks omitted)). . . Terry accepts the risk that officers may stop innocent people,” Illinois v. Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). [v]

Thus, the court of appeals held that the stop was justified at its inception because the officer had sufficient reasonable suspicion to justify the stop.

The court then examined whether the officers’ conduct was reasonably related in scope to the reason for the stop.  In other words, in this case, the court examined whether the officer’s actions during the felony stop converted a valid Terry stop into a “de-facto arrest,” which would require probable cause.

The plaintiff’s argued that pointing guns at them, forcing them to the ground, placing them in handcuffs and securing them in a police car amounted to a de-facto arrest.  The court of appeals noted that there was Tenth Circuit precedent that held that, under certain circumstances, the use of handcuffs and the pointing of firearms may be reasonable during an investigative detention.[vi]  The court stated

[U]nder certain circumstances, the steps officers may permissibly take to protect their safety include drawing their weapons, placing a suspect in handcuffs, or forcing a suspect to the ground.” Id. at 1329-30 (brackets and internal quotation marks omitted); see also id. at 1330 (collecting cases); Shareef, 100 F.3d at 1506 (holding such measures did not convert a Terry stop into an arrest).[vii]

The court then noted that the information provided to the officer that the occupants were two armed robbery suspects and there were two guns in the car provided the officers with justification to point their weapons during the stop and to secure the plaintiff’s in handcuffs.

The plaintiff’s argued that immediately upon seeing they were not Hispanic males, as the suspects were described, the officers should have ceased the stop.  However, the court noted that the officers could not see if the suspects were hiding in the back seat of the car.  Further, the plaintiff’s argued that forcing one of the plaintiffs to the ground, handcuffing and “pushing” her into a police car also transformed the stop into a de-facto arrest.  However, the court of appeals noted that the plaintiff’s cited no case law to support that argument, and due to the high-risk nature of the stop, that conduct did not transform the stop into an arrest.

The court then held

Although Plaintiffs’ detention “was undoubtedly more intrusive than an ordinary Terry stop, the precautionary measures of force employed by the officers were [viii]reasonable under the circumstances.”

Lastly, the court of appeals examined whether the officers used excessive force when they conducted the felony stop.

The court first noted the legal principles related to this issue and stated

The authority to conduct a Terry stop “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Cortez, 478 F.3d at 1125 , 478 F.3d at 1125 (internal quotation marks omitted). And that force need not be “the least intrusive.” Marquez, 399 F.3d at 1222 (internal quotation marks omitted). Rather, we assess the force for “objective reasonableness” under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (internal quotation marks omitted. This standard recognizes “that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and [*15]  rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 397. Thus, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. at 396 (citation and internal quotation marks omitted). Ultimately, we must consider, from the perspective “of a reasonable officer on the scene,” whether the force was reasonable in light of “the alleged crime’s severity, the degree of potential threat that the suspect poses to an officer’s safety and to others’ safety, and the suspect’s efforts to resist or evade arrest.” Marquez, 399 F.3d at 1220 (internal quotation marks omitted).[ix]

The plaintiff’s cited four actions that constituted excessive force: (1) pointing guns, (2) grabbing Ms. Ellsworth and forcing her to the ground, (3) handcuffing the plaintiffs, and (4) pushing Ms. Ellsworth into a police car.

The court first noted that for the reasons discussed in the previous issues, the officer’s actions were not excessive force.  The court also examined the incident based on the three factors to evaluate a use of force from Graham v. Connor.  The three factors are (1) the seriousness of the offense, (2) the threat posed by the suspects to the officer and others, and (3) whether the suspects were actively resisting or attempting to evade arrest by flight.  The court applied the facts of this case to the factors from Graham and stated

[W]e conclude the force was not excessive when considering “the alleged crime’s severity, the degree of potential threat that the suspect poses to an officer’s safety and to others’ safety, and the suspect’s efforts to resist or evade arrest.” Marquez, 399 F.3d at 1220. The third factor weighs in Plaintiffs’ favor, as the undisputed facts show they were cooperative and did not resist the officers. But the other two factors plainly weigh in the officers’ favor—an armed robbery is a severe offense, and the possibility of multiple armed robbery suspects and multiple handguns posed a significant risk to the officers’ safety. The force therefore was reasonable, particularly given the “tense, uncertain, and rapidly evolving” situation. Graham, 490 U.S. at 397.[x]

Thus, the court held the force used by the officers was reasonable and affirmed the grant of summary judgment in favor of the officers.



[i] No. 20-5032 (10th Cir. Decided March 18, 2021 Unpublished)

[ii] Id. at 1-4

[iii] Id. at 6-7 (emphasis added)

[iv] Id. at 7

[v] Id. at 8 (emphasis added)

[vi] Id. at 9-10 (See Cortez, 478 F.3d at 1115-16 (“The use of firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest.” (brackets and internal quotation marks omitted) (emphasis added)); United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994) (holding the display of weapons and use of handcuffs exceeded the scope of the Terry stop because, inter alia [*10] , there was no information “the suspects were armed or violent”).

[vii] Id. at 10 (emphasis added)

[viii] Id. at 13-14

[ix] Id. at 14-15 (emphasis added)

[x] Id. at 16-17

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