In 2016, the Fifth Circuit Court of Appeals decided Griggs v. Brewer[i], which serves as an excellent review of the law related to excessive force and punches. The relevant facts of Griggs are as follows:
Officer Charley Brewer conducted a routine traffic stop of a vehicle driven by Tanner Griggs after Griggs ran a red light around 2:00 a.m. on September 4, 2013. A video and audio recording from Officer Brewer’s dashboard camera captured most of the incident.
Officer Brewer smelled alcohol and suspected that Griggs might be intoxicated, so he asked Griggs to exit the vehicle and conducted a field sobriety test. After testing Griggs for over fifteen minutes, he arrested Griggs for driving while intoxicated.
The decision to arrest came in the midst of the “one legged stand” part of the sobriety test. Officer Brewer told Griggs, who was attempting to stand on one leg, that he could stop. Griggs did not stop and responded “I’m doing it.” Brewer retorted “you’re not actually,” told him to “put your hands behind your back,” and grabbed Griggs’s hands to handcuff him. As he did, Griggs lurched to the side and said “no, no.” Brewer immediately performed a “takedown” maneuver and threw Griggs face-down onto the nearby grass and landed on top of him.
As Griggs lay on the ground following the take down, Officer Brewer attempted to handcuff him. Brewer’s backup officer, Officer Cruce, came to his assistance. Both officers got on top of Griggs and struggled with him, repeatedly ordering him to put his hands behind his back. Brewer punched Griggs with a closed fist to the back of the head in an effort to gain control of his arms; when Griggs pulled his arms back again, Brewer punched him several more times to regain control. The officers finally gained control of Griggs’s arms and handcuffed him.
As noted, a police video was entered into evidence. Although the details of the struggle are blurred in the video, the parties’ testimony tells the same basic story: the officers punched Griggs when attempting to gain control of his arms; he withdrew his arms again; and the officers punched him until they gained (and maintained) control of his arms a second time.
Once Griggs was handcuffed, the officers hoisted him to his feet and Officer Brewer escorted him to the back of his patrol vehicle. Officer Brewer attempted to get Griggs into the vehicle, then pushed Griggs’s head down into the vehicle. After he was pushed into the vehicle, with his legs still hanging out the door, Griggs kicked Officer Brewer in the chest. Officer Brewer responded by quickly climbing on top of Griggs and delivering a closed-fisted punch to the head.
After he was punched the last time, Griggs receded into the car and Officer Brewer was able to close the door. Brewer completed the arrest without further incident. A blood sample taken from Griggs showed that his blood alcohol level was .273, more than three times the legal limit.[ii]
Griggs sued Officer Brewer for excessive force under the Fourth Amendment. The district court held the officer was entitled to qualified immunity. Griggs appealed to the Fifth Circuit Court of Appeals.
On appeal, Griggs argued that Officer Brewer violated the Fourth Amendment by using excessive force when he (1) performed a take-down, (2) punched him while he was on the ground, and (3) punched him after he was handcuffed.
The court of appeals first noted the legal principles relevant to issues in this case. The court stated
The Fourth Amendment right to be free from excessive force during a seizure is clearly established. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). The inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 398, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The use of force must be evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Poole, 691 F.3d at 627 (quoting Graham, 490 U.S. at 397). Factors to consider in determining whether the force was “objectively reasonable” include [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. Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396)
Succinctly stated, a plaintiff must show (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. Poole, 691 F.3d at 628 (citations and quotations omitted).[iii]
The court of appeals then discussed qualified immunity as it relates to an excessive force case. In order to defeat an officer’s motion for qualified immunity, the plaintiff must satisfy a two-pronged test. First, the plaintiff must show that the officer violated the constitution based on the facts alleged by the plaintiff. Second, the plaintiff must show that the law was clearly established such that “every reasonable official would have understood” that his conduct violated the plaintiff’s rights. Regarding the second prong of the test the court stated
In excessive force cases, “the second prong of the analysis is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light of that then clearly established law.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citations and quotations omitted). “If officers of reasonable competence could disagree as to whether the plaintiff’s rights were violated, the officer’s qualified immunity remains intact.” Id.[iv]
Simply put, the court must examine whether the officer’s conduct was unreasonable in light of clearly established law.
The court then set out to examine if the officer was entitled to qualified immunity for (1) the take down, (2) the punches prior to handcuffing while Griggs was on the ground, and (3) the punch after he was handcuffed.
The Take Down
The first issue was whether the take down was excessive force under the Fourth Amendment.
When Officer Brewer decided to arrest Griggs for DUI, he told him to put his hands behind his back. Griggs responded by saying “no, no,” and lurched his body to the side. Officer Brewer then grabbed Griggs, conducted a leg sweep, and “body-slammed him onto the nearby-grass.” Griggs argued that this was excessive force and that (1) he merely lost his balance, rather than intentionally lurched to escape, and (2) even if it was reasonable for the officer to perceive that he lurched as if to escape, the take down was still excessive under the circumstances because he was unarmed and too drunk to be a threat or resist.
Regarding Griggs’ first argument, that he merely lost his balance rather than lurched as if to escape, the court stated
A court must measure the force used under the facts as a reasonable officer would perceive them, not necessarily against the historical facts. Hill v. Carroll Cty., Miss., 587 F.3d 230, 234 (5th Cir. 2009) (emphasis added). “For that reason, when reviewing a grant of summary judgment in the Fourth Amendment context, after first construing disputed historical facts in favor of the non-movant, the court must then ask how a reasonable officer would have perceived those historical facts.” Id.[v]
The court of appeals then held that under the totality of the circumstances, Griggs conduct would lead a reasonable police officer to believe Griggs was resisting arrest.
The court then examined Griggs’ second argument, particularly that even if it was reasonable for the officer to believe he was resisting, the take down was still excessive force. Griggs points to the fact that Officer Brewer had already conducted a pat-down, knew that he was unarmed and knew that he was very drunk. To this argument, the court of appeals held
[W]e conclude that Officer Brewer’s conduct in executing the initial takedown was not constitutionally unreasonable in the light of clearly established law. Or, stated differently, our precedent does not clearly establish that this “takedown” maneuver—against a drunken, erratic suspect who is resisting arrest—is constitutionally unreasonable. See Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) . . . Brewer’s actions may not have been as restrained as we would like to expect from model police conduct, but qualified immunity “protect[s] officers from the sometimes hazy border between excessive and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (citations and quotations omitted), overruled in part on other grounds, Pearson, 555 U.S. at 227; see also Graham, 490 U.S. at 396-97 (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”).[vi]
Thus, the take down was not unreasonable when considering other clearly established caselaw related to similar situations. As such, Officer Brewer is entitled to qualified immunity for the take down.
The punches prior to handcuffing
The second issue was whether the punches while Griggs was on the ground, as the officers attempted to handcuff him were excessive force.
After the take down, Officer Brewer was on top of Griggs. He attempted to handcuff him, but Griggs kept his hands under his body. Officer Brewer punched Griggs to gain control of his arms, and stopped punching him when he gained control. However, Griggs ignored the officers’ commands, and again pulled his arms away from the officers so that they were under his body. Officer Brewer again punched Griggs until he was able to get control of Griggs hands to secure him in handcuffs.
The court of appeals framed the issue as “whether [Officer] Brewer’s conduct was unreasonable in the light of clearly established law.”[vii] The court of appeals then noted that
Griggs points to no authority establishing that it was unreasonable for an officer to use non-deadly punches to gain control of the arms of a drunken, actively resisting suspect. Griggs actively resisted and refused to comply with the officers’ clear and audible commands. Although the officers might have used less forceful conduct, there was no settled authority to put Brewer on notice that his use of force in such circumstances violated Griggs’s constitutional rights.[viii]
As such, the court of appeals held that Officer Brewer was entitled to qualified immunity for punches prior to handcuffing.
The punch after Griggs was handcuffed
The last issue was whether Officer Brewer used excessive force when he punched Griggs, who was handcuffed, after he kicked Brewer.
After Griggs was handcuffed, officers walked him to a patrol car and pushed him in. Griggs’ legs were still “hanging out the door.” Griggs then kicked Officer Brewer in the chest and Brewer put “his weight on Griggs’s legs” and punched Griggs in the face. This caused Griggs to recede into the vehicle and the door was closed.
Griggs argued that the punch was excessive force because it was disproportionate to his kick, and he was handcuffed. He cited caselaw that held that it is excessive force to punch a handcuffed suspect. In response, the court of appeals stated
The principle of law may be correct, but it has no application here. Griggs was clearly not subdued and under restraint; if he were, he would not have been able to physically assault Officer Brewer. He still posed a danger to Brewer, as evidenced by the fact that he did, in fact, kick Officer Brewer in the chest.
Applying the Graham factors, some use of force to gain control of Griggs was not objectively unreasonable. Under Graham, driving while under the influence is a serious crime; the intoxicated Griggs was capable of and evinced erratic behavior; and Griggs had been and continued to demonstrate active resistance during the course of the arrest. And, as it were, the punch was effective for its purpose—Griggs immediately curled up into the back of the police car, and Brewer was able to close the door. In short, the use of force was the sort of “split-second judgment” in a difficult situation that qualified immunity is designed to protect. See Graham, 490 U.S. at 396-97.[ix]
Thus, the court of appeals held that the officer’s punch after Griggs had kicked him and was not fully inside the police vehicle was not objectively unreasonable in light of clearly established law. As such, Officer Brewer was entitled to qualified immunity on this claim.
Therefore, the court of appeals affirmed the decision of the district court.
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] 841 F.3d 308 (5th Cir. 2016)
[ii] Id. at 311-312
[iii] Id. at 312 (emphasis added)
[iv] Id. at 313 (emphasis added)
[v] Id. at 313-314 (emphasis added)
[vi] Id. at 314-315 (emphasis added)
[vii] Id. at 315
[viii] Id. (emphasis added)
[ix] Id. at 316 (emphasis added)
