On October 27, 2022, the Eleventh Circuit Court of Appeals decided Ashley v. Bennett[i], which serves as an excellent review of the law related to excessive force under the Fourth Amendment. The relevant facts of Ashley are as follows:

On January 21, 2020, defendant Bennett was a task force officer assigned to the Carroll County Aggressive Criminal Enforcement (“A.C.E.”) Unit.  The A.C.E. Unit is charged with investigating drug and gang related offenses and is a partnership between the Carrollton Police Department, defendant Bennett’s employer, and the Carroll County Sheriff’s Office.

On January 20, 2020, the A.C.E. Unit began investigating a possible homicide after Timothy Alan Cook found his brother’s deceased body in the backyard of plaintiff’s residence. Shane Spradlin, a Sergeant with the Carroll County Sheriff’s Office and a member of the A.C.E. Unit, began his investigation by interviewing a member of plaintiff’s family in order to determine plaintiff’s location. Sergeant Spradlin learned that plaintiff had barricaded himself inside a residence in Bremen, Georgia.  Upon receiving that information, the A.C.E. Unit, including defendant Bennett, responded to the residence in order to apprehend plaintiff.

Defendant Bennett knocked on the front door of the residence and observed plaintiff run to the side of the residence from the living room.  The owner of the residence, Kevin Green, answered the door and granted the officers verbal consent to enter the residence in order to locate plaintiff. Defendant Bennett attempted to make contact with plaintiff, who had barricaded himself in a bedroom of the residence.  Defendant Bennett asked Green and his daughter to exit the residence because he believed that plaintiff was potentially armed and dangerous and that he would potentially start shooting at the officers.

Members of the A.C.E. Unit secured the residence for several hours and attempted to negotiate with plaintiff to exit the residence, but plaintiff refused to do so. After several hours, the Paulding County Sheriff’s Office SWAT Team arrived and took control of the scene. Members of the Paulding County Sheriff’s Office SWAT Team then removed plaintiff from the residence and placed him under arrest.

Carroll County Sheriff’s Office Deputy Ryan Taylor and defendant Bennett assisted plaintiff, who was handcuffed and seated on the ground in the garage of the residence, to his feet and placed him inside Deputy Taylor’s patrol vehicle. Deputy Taylor then transported plaintiff to the Carroll County Sheriff’s Office. Defendant Bennett did not arrest plaintiff, use force of any kind against plaintiff, observe any of the officers present use excessive force on plaintiff, or participate in plaintiff’s transport to the Carroll County Sheriff’s Office.[ii]

Ashley sued Officer Bennett and alleged that he used excessive force under the Fourth Amendment when he “roughly seized his elbow, yanking him in the air, and dragging him to the patrol vehicle.”[iii]  The federal magistrate issued a report and recommendation that the officer be granted summary judgment.  Ashley failed to timely object, and the district court adopted the magistrate’s recommendation and granted the officer summary judgment and qualified immunity.  Ashley appealed to the Eleventh Circuit Court of Appeals.

The issue on appeal was whether the officer was entitled to qualified immunity.  Qualified immunity shields government officials from suit when they are acting in a discretionary capacity, which Officer Bennett was in this case.  To defeat a motion for qualified immunity, a plaintiff must allege sufficient facts to establish (1) that the officer violated the plaintiff’s constitutional rights, and (2) that the law was clearly established such that any reasonable officer in the same situation would have known he was violating the constitution.  A plaintiff can show that the law was clearly established by showing that (1) there is a case with materially similar facts from the Supreme Court, Eleventh Circuit, or highest court of the relevant state, (2) a broader legal principle that can clearly control the facts in this case, or (3) the conduct was so egregious that any reasonable officer would have known he was violating the constitution.

The court of appeals then examined the legal principles that are relevant to the case at hand and stated

The Fourth Amendment guarantees the right of persons to be free from unreasonable seizures, which encompasses the right to be free from the use of excessive force during an arrest. U.S. Const. amend. IV; Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Whether the degree of force used was “reasonable” is determined through an objective inquiry judged from the perspective of the officers at the scene, given the circumstances that they faced, 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.” Graham, 490 U.S. at 396-97. Allowances must be made for officers’ split-second judgments about the amount of force necessary when the circumstances are “tense, uncertain, and rapidly evolving.” Id. Accordingly, while “[r]econsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred,” this Court will not second-guess the officers on that basis. Carr v. Tatangelo, 338 F.3d 1259, 1270 (11th Cir. 2003) (quotation marks omitted). Determining whether the force used was “reasonable” in a particular seizure “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quotation marks omitted).[iv]

Simply put, the Fourth Amendment protects people from unreasonable force used by officers.  Whether force is reasonable is judged from the perspective of a reasonable officer on scene, based on what the officers knew at the time the force was used, rather than based on 20/20 hindsight.  The court must consider that officers must make split-second decisions in tense, rapidly evolving circumstances.  Lastly, the court should consider (1) the seriousness of the crime at issue, (2) whether the suspect posed a threat to the officer or others, and (3) whether the suspect is actively resisting or attempting to evade arrest by flight.  This should be considered while balancing the nature of the intrusion to the individual versus the government interests at stake.

The court of appeals also examined case law that is relevant to the force used by Officer Bennett against Ashley.  The court stated

Any arrest requires some level of force, and an officer may use “a reasonable amount of force to subdue and secure” an individual. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002); Brown v. City of Huntsville, Ala., 608 F.3d 724, 739-40 (11th Cir. 2010). “[T]he application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d 1253, 1257, 1258 n.4 (11th Cir. 2000) (concluding that only de minimis force was used when, in the process of a lawful arrest, an officer grabbed a suspect, threw him against a car several feet away, kneed him in the back, and caused minor bruises); see also Croom v. Balkwill, 645 F.3d 1240, 1252-53 (11th Cir. 2011) (ruling that an officer used de minimis force by holding a suspect on the ground for ten minutes with a foot on her back until the area was secured); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (holding that an officer used de minimis force in forcing a suspect to the ground to handcuff him, and that, even if this force was unnecessary, it was not unlawful). “[S]ome use of force by a police officer when making a custodial arrest is necessary and altogether lawful, regardless of the severity of the alleged offense.” Durruthy, 351 F.3d at 1094. The extent of an individual’s injuries is also relevant to determining whether the force that was used was excessive. Stephens v. DeGiovanni, 852 F.3d 1298, 1325 (11th Cir. 2017). [v]

Thus, if a court finds that an officer’s use of force is “de minimis” then it is not considered excessive force under the Fourth Amendment.

Ashley argued that there was a material dispute of fact because Officer Bennett contends that he and another officer picked him up from a seated position and placed him in a patrol vehicle, whereas Ashley alleges Bennett “roughly seized on either of [his] elbows,” “yanked up into the air from a seated position on the ground,” and “dragged approximately 60 to 70 feet to the patrol vehicle”.[vi]  The court stated that these “competing narratives, on their face, are not necessarily inconsistent with each other, such that they would create a genuine issue of material fact that would preclude summary judgment,” as the officer’s statement is more generic while Ashley’s allegation is more detailed.[vii]

The court of appeals then examined three factors from Graham v. Connor and applied them to Ashley’s case.  Regarding the seriousness of the crimes for which the suspect was arrested, the court noted that Ashley had just been arrested after a standoff in residence for “malice murder, felony murder, aggravated assault, armed robbery, concealing the death of another, tampering with evidence, and theft.”[viii]  These are very serious offenses.

Regarding the second factor, the threat posed by the suspect, the court noted that after Ashley was arrested, handcuffed and seated on the floor in the garage, he no longer posed a serious threat to the officers or others.  Regarding the third factor, whether the suspect was actively resisting or attempting to flee, the court noted that Ashley was no longer resisting.

The court also considered the nature of the intrusion on Ashley versus the government interest at stake.   Bennett’s contact with Ashley was limited to picking him up and placing him in a police vehicle.  The court stated

Officer Bennett’s use of force to place Ashley in the vehicle, even viewed in the light most favorable to Ashley, as set out in his unsworn statements in opposition to the summary-judgment motion, as “roughly seizing” his elbow, yanking him into the air, and dragging him to the patrol vehicle, was only de minimis force. Nolin, 207 F.3d at 1257.[ix]

Thus, even crediting the facts as alleged by Ashley, the court stated the force used was “only de minimis force.  The court continued

Such contact by Officer Bennett was even less egregious or aggressive than the force applied in a similar arrest situation in Nolin, where an officer forced the suspect against the car, kneed him in the back, and caused minor bruising, or in Croom, where the officer held the suspect on the ground for ten minutes with a foot on his back until the area was secured. Nolin, 207 F.3d at 1257; Croom, 645 F.3d at 1252-53. This Court held that the more forceful physical contacts in Nolin and Croom were still lawful uses of de minimis force during an arrest. See Nolin, 207 F.3d at 1257; Croom, 645 F.3d at 1252-53.

Thus, the nature of the intrusion (picking up Ashley and carrying him roughly 60-70 to the police car) versus the government interest (transporting an arrested murderer to jail) weigh in favor of the officer, as de minimis force needed to complete the arrest.

Ashley argued that he suffered injuries to his shoulders and back but he provided no medical records to support this allegation.

Therefore, the court held

Because Officer Bennett only applied de minimis force and not excessive force to place Ashley into the patrol vehicle, his conduct did not violate Ashley’s Fourth Amendment rights.[x]

As such, Ashley failed to satisfy the first prong of the test needed to defeat the officer’s qualified immunity.

The court also noted that Ashley failed to cite any case law that showed that the law was clearly established that Bennett’s use of force in this case was unconstitutional.

Therefore the court held

Because Officer Bennett acted within his discretionary authority as a law enforcement officer to help lift Ashley into the patrol vehicle, and because Ashley failed to show that Officer Bennett violated a constitutional right, the district court correctly found that qualified immunity shielded Officer Bennett from any liability.[xi]

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.

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Citations

[i] No. 21-14178 (11th Cir. Decided October 27, 2022 Non-Argument)

[ii] Ashley v. Bennett, 2021 U.S. Dist. LEXIS 257953, 2021 WL 8441782 (N.D. Ga., Oct. 14, 2021)

[iii] Ashley, No. 21-14178 at 10

[iv] Id. at 4-5 (emphasis added)

[v] Id. at 5-6 (emphasis added)

[vi] Id. at 7

[vii] Id. at 8

[viii] Id. at 8-9

[ix] Id. at 9

[x] Id. at 10 (emphasis added)

[xi] Id. at 11 (emphasis added)

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