On January 24, 2022, the Ninth Circuit Court of Appeals decided Williamson v. City of Nat’l City[i], which is instructive regarding police use of force with protestors at public meetings. The relevant facts of Williamson are as follows:
In July 2018, protestors, including Williamson, performed a “die-in” at a city council meeting in National City, related to the death of Earl McNeil, a black man who died in police custody. At a predetermined time, the protestors disrupted the meeting by chanting, and several of them made their way toward the public speaking podium and city council members. After showing the city council members their “bloody hands,” six protesters lay down on the ground near the podium, keeping their red-painted hands raised and chanting “I am Earl McNeil,” and “you have blood on your hands.” Several other people associated with the protest remained in the audience showing painted red hands, chanting, and video-recording the demonstration. The mayor called for order, but the protesters refused to stop their demonstration, and the council meeting was adjourned.
A few minutes after the protest began, National City police officers informed the protesters that they would be arrested if they did not leave the podium area. When the six protesters ignored repeated requests to leave, the officers began arresting them. The protesters had previously agreed that, if arrested, they would act as dead weight and refuse to cooperate with being removed. The six protestors followed through with this agreement, and officers pulled or carried each of them out.
B. Williamson’s arrest
Officers Lucky Nguyen and John McGough (the Officers), handcuffed Williamson with her wrists behind her back and brought her to a seated position. But as they lifted her toward a standing position, they lost their grip on her and she rolled back to the ground on her stomach. The Officers then repositioned Williamson onto her back and again tried lifting her. Officer Nguyen held Williamson under her left arm, and Officer McGough held her under her right arm. As they lifted her up, Williamson initially placed her feet under her, but she did not support her own weight. The Officers struggled to lift Williamson and pulled her backward by her arms and wrists while she was in nearly a seated position. Williamson was loudly chanting before the Officers started removing her from the room. During the approximately 12 seconds that she was being pulled from the room, Williamson screamed continually. As the Officers and Williamson approached the exit door, Officer McGough released Williamson’s upper right arm, and Officer Nguyen dragged her through the doorway alone, by her left wrist and forearm.
In the hallway outside the meeting room, Williamson told the Officers that they had hurt her shoulder, and they called an ambulance. The Officers also double-cuffed Williamson to lessen the tension on her arms and make her more comfortable, but she complained that they were “still pulling” her arms in doing so. Paramedics arrived, evaluated Williamson, and offered to take her to the hospital, but she refused to go with them. The Officers then arrested Williamson and took her to a detention facility. After she was released the next morning, Williamson drove herself to the hospital. She suffered a sprained wrist, mild swelling, and a torn rotator cuff.[ii]
Williamson subsequently sued the City and the officers for excessive force under the Fourth Amendment, as well as state law claims (which will not be discussed in this article). Under the Fourth Amendment excessive force claim, Williamson alleged that it was excessive force to pull the “full weight of her body by her hyperextended arms.” The officers filed a motion for qualified immunity and the district court denied the motion, finding (1) a reasonable jury could conclude the force was excessive, and (2) that the law was clearly established such that the officers were on notice they were violating the Fourth Amendment. The officers appealed to the Ninth Circuit Court of Appeals.
The court of appeals first noted that, to defeat an officer’s qualified immunity, the plaintiff must allege sufficient facts to show (1) that the officer violated a constitutional right and (2) that the law was clearly established such that a reasonable officer in the same situation would have known he was violating the constitution.
The court then set out to determine the first prong of the qualified immunity analysis, particularly, whether the officers violated Williamson’s rights under the Fourth Amendment. The court noted that they must examine (1) the type and amount of force used, (2) the governmental interest at stake, and then (3) they must balance the amount of force used with the government’s interest to determine if the force was excessive.
I. The type and amount of force used –
Regarding the type and amount of force used, the court observed the officers repeatedly told Williamson and other protestors to leave or be arrested. Williamson and the others ignored those requests. When the officers handcuffed Williamson to arrest her, they brought her to a seated position. She refused to stand and walk, so the officers lifted her into a standing position. She then fell back to the ground. The officers then each took one of her arms and attempted to carry her since she would not stand or walk. Ultimately, they pulled her backwards by her arms while she was in a seated position.
The court then examined precedent from the Ninth Circuit regarding the use of force on protestors. First, they examined Forrester v. City of San Diego[iii] in which officers used pain compliance techniques such as physical pressure to limbs, that was increased as needed, to cause pain to move protestors that refused to move. The court of appeals upheld that type of force as reasonable under the Fourth Amendment.
Second, the court examined Felarca v. Birgeneau[iv] in which officers used baton strikes and baton jabs against a large group of student protestors who blocked police accessing tents that were erected against university policy. The court held that the baton strikes and jabs were a “minimal use of force under the circumstances” and reasonable under the Fourth Amendment.
The court then compared the force used on Williamson to the force in the two cases above. They noted that in both Forrester and Felarca, officers used techniques or weapons to cause pain to induce compliance. The officers did not use any pain compliance techniques with Williamson. They merely tried to carry her when she was unwilling to stand or walk on her own volition. When they could not carry her, they dragged her by her arms in a seated position. Additionally, the court noted that that Williamson’s injuries were “minimal.”
The court then concluded that the type and amount of force that the officers used on Williamson was minimal.
II. The government’s interest –
The court then set out to examine the government’s interest at stake in removing the protestors from the public meeting.
The court first noted the applicable legal principals related to the government’s interest and stated
[W]e “evaluate the state’s interests at stake by considering ‘(1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.'” Rice, 989 F.3d at 1121 (quoting Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc)). “Among these considerations, the ‘most important’ is the second factor—whether the suspect posed an immediate threat to others.” Id. (quoting Isayeva, 872 F.3d at 947). “These factors are non-exhaustive, and we examine the totality of the circumstances, including the availability of less intrusive alternatives to the force employed and whether proper warnings were given.” Id. at 1121-22 (internal citation omitted). Where an arrestee’s conduct risks the lives or safety of innocent bystanders, the court also considers her relative culpability under the second factor. See Scott, 550 U.S. at 384.[v]
The court first noted that Williamson’s crime of disrupting the meeting was relatively minor and did not pose a threat to the safety of others. As such, the city’s interest in “forcibly removing Williamson” from the meeting was low, but “it was not nonexistent.” The court stated
[E]ven if the city’s interest was low given the lack of exigency posed by threat of harm or other factors, this does not mean that the city was “required to permit the ‘organized lawlessness’ conducted by the protestors.” Felarca, 891 F.3d at 818. HN8 “Even passive resistance may support the use of some degree of governmental force if necessary to attain compliance . . . depend[ing] on the factual circumstances underlying that resistance.” Nelson, 685 F.3d at 881 (quoting [*15] Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010)) (internal quotation marks omitted). Moreover, the risk posed by the protesters was not zero. While the six who laid down near the podium were docile and merely refused to leave the area when directed, other protesters (or people sympathetic to the protesters’ demonstration) who remained in the audience area were yelling at the officers and at times trying to push into the podium area.[vi]
The court also stated
It goes without saying that citizens have a right to express their disagreement and dissatisfaction with government at all levels. But they do not have a right to prevent duly installed government from performing its lawful functions. See Felarca, 891 F.3d at 818. To conclude otherwise would undermine the very idea of ordered society.[vii]
The court then concluded
[A]s in Forrester, National City had a legitimate interest in “dispersing and removing lawbreakers,” but the extent of its interest was low because it was not facing a voluminous crowd acting with a “concerted effort to invade private property, obstruct business, and hinder law enforcement.[viii]
III. The amount and type of force used vs. the government’s interest –
Lastly, the court set out to balance the amount and type of force used against Williamson with the government’s interest in responding to illegal conduct and restoring order to the public meeting.
The court noted that while the city’s interest was low, the force used by the officers was also “appropriately minimal.” The court reasoned
Williamson testified that she and the other protesters had decided in advance that they would not willingly leave the meeting room. The very purpose of their protest was to disrupt the city council meeting and interfere with the city conducting its business. Thus, they created a situation in which the city had to either succumb to the disruption or use some amount of force to remove the protesters from the meeting room. The city chose the latter, and the “undisputed evidence shows that the officers used only the force reasonably necessary to remove [Williamson] from the meeting.” Acosta v. City of Costa Mesa, 718 F.3d 800, 826 (9th Cir. 2013) (per curiam).
Williamson could have avoided or reduced the pain and injury she alleges she suffered from the Officers’ conduct by cooperating with them and leaving the room under her own power. She did not. But her choice does not render the Officers’ conduct unreasonable. To conclude otherwise would be to discount entirely the City’s legitimate interests in maintaining order and ensuring that the public’s business is not circumvented by people engaging in disruptive, albeit nonviolent, conduct.[ix]
As such, the court of appeals held that the officers did not violate Williamson’s rights under the Fourth Amendment when they dragged her from the public meeting by her hyperextended arms while she refused to stand and walk. Because Williamson did not satisfy the first prong of the test to defeat qualified immunity, particularly that the officers violated her constitutional rights, the officers are entitled to qualified immunity.
Therefore, the court of appeals reversed the district court’s denial of qualified immunity for the officers.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 20-55966 (9th Cir. Decided January 24, 2022)
[ii] Id. at 4-7
[iii] 25 F.3d 804 (9th Cir. 1994)
[iv] 981 F.3d 809 (9th Cir. 2018)
[v] Williamson at 13 (emphasis added)
[vi] Id. at 14-15 (emphasis added)
[vii] Id. at 15 (emphasis added)
[viii] Id. at 16
[ix] Id. at 17-18