In 2016, the Fifth Circuit Court of Appeals decided Griggs v. Brewer[i], in which the court examined whether an officer was entitled to qualified immunity for performing a takedown on resisting DUI suspect, punching the suspect in the head when he actively resisted handcuffing, and then, after being handcuffed and placed partially in the police vehicle, punching the suspect in the face after he kicked the officer in the chest. The 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 subsequently sued Officer Brewer and alleged that he violated his rights under the Fourth Amendment by using unreasonable or excessive force when he (1) performed the takedown, (2) punched him before he was handcuffed, and (3) punched him in the face after he was handcuffed. Officer Brewer filed a motion for qualified immunity, and the district court granted the motion, dismissing the suit. Griggs appealed to the Fifth Circuit Court of Appeals.
On appeal, the court first discussed qualified immunity. In order to defeat an officer’s motion for qualified immunity, a plaintiff must show (1) that the officer violated the plaintiff’s constitutional rights, and (2) that the law was clearly established such that every reasonable officer would have known he was violating the plaintiff’s rights. When evaluating an officer’s motion for qualified immunity, the court can skip the first part of the test (whether there was a violation of the plaintiff’s rights) and go straight to the second part, because, if the plaintiff cannot show that the law was clearly established, the officer will receive qualified immunity, even if he violated the plaintiff’s rights. This is what the court of appeals chose to do in Griggs’s case. Thus, if Officer Brewer’s conduct was not unreasonable in light of clearly established law, then he is entitled to qualified immunity.
The court of appeals also examined the legal principles relevant to uses of force and 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).[iii]
The court then set out to examine the three issues raised by Griggs.
Issue One: Whether Officer Brewer is entitled to qualified immunity for the takedown?
Griggs alleged two theories of why the takedown violated his right to be free from unreasonable or excessive force under the Fourth Amendment. First, he argued that the takedown was unreasonable because he was not trying to flee when he lurched sideways; rather, he explained he lost his balance. Second, he argued that, even if the officer’s perception that he may flee or resist was reasonable, the takedown was excessive force because he was clearly unarmed, drunk and unable to “meaningfully resist.”
The relevant facts related to the takedown are as follows:
[A]s Griggs was performing the one-legged stand during the sobriety test, Officer Brewer decided to arrest Griggs and told him to put his hands behind his back. As he did, Griggs lurched to one side and said “no, no.” Brewer immediately placed Griggs in a choke hold, swept his legs out from under him, and body-slammed him onto the nearby grass.[iv]
The court of appeals then examined Griggs’s first argument the court of appeals stated, even if a jury found that he was not attempting to resist the arrest at this point,
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, . . .the court must then ask how a reasonable officer would have perceived those historical facts.” Id.[v]
The court then concluded that considering the totality of the circumstances, a late night DUI stop and arrest of a clearly obstinate person, who lurched to the side, and said “no, no,” as the officer attempted to handcuff him, would lead a reasonable officer to believe that Griggs was resisting arrest.
The court then examined Griggs’s second argument, particularly that the takedown was excessive force because he was clearly unarmed and too drunk to offer meaningful resistance. The court stated that the standard to determine whether Officer Brewer was entitled to qualified immunity was whether the takedown was “clearly unreasonable” when considering “clearly established law.” The court noted that Griggs did not provide any caselaw that clearly established that Officer Brewer’s takedown of Griggs was clearly unreasonable. The court stated
[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) (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.)[vi]
Therefore, Officer Brewer is entitled to qualified immunity regarding the takedown.
Issue Two: Whether Officer Brewer is entitled to qualified immunity for punching Griggs as he was actively resisting by pulling his arms under his body as the officer tried to handcuff him?
The court described the facts relevant to this issue as follows:
[A]fter Officer Brewer threw Griggs to the ground, he placed his weight on top of him, and he attempted to handcuff him. Griggs’s hands were under his stomach. Brewer then punched Griggs to gain control over his arms. After Brewer gained control, Griggs, ignoring the officers’ commands, again pulled away and again tucked his arms back under him. Brewer again punched Griggs until he was able to regain control of his hands to handcuff him.[vii]
The court of appeals noted that Griggs was not able to provide any caselaw to support his argument that Officer Brewer used excessive force by punching him in the head as he actively resisted arrest as the officer was attempting to handcuff him. The court noted that, even if the officer’s could have used less force, there was no caselaw or authority that put Officer Brewer on notice that punching Griggs would violate his rights under the Fourth Amendment. The court of appeals stated that the question to answer for whether Officer Brewer is entitled to qualified immunity is whether the punches in this situation were unreasonable in consideration of clearly established law. Since there was no caselaw that held such force was unreasonable, Officer Brewer is entitled to qualified immunity for the punches he administered while attempting to handcuff Griggs.
Issue Three: Whether Officer Brewer is entitled to qualified immunity for punching Griggs in the face after Griggs kicked him in the chest when being placed in the police car?
The court first described the facts relevant to this issue as follows:
[A]fter Officer Brewer finally handcuffed Griggs, he hoisted Griggs up, escorted him to his patrol vehicle, and pushed him in. Griggs, whose legs were still hanging out the door, delivered a kick to Officer Brewer’s chest. Brewer quickly responded by placing his weight on Griggs’s legs and delivering a swift punch to Griggs’s face. Griggs receded into the vehicle, and Brewer closed the door.[viii]
Griggs argued that the punch in his face was disproportionate to his kick to Officer Brewer because he was restrained in handcuffs. He cited caselaw that that holds
[P]unching or otherwise gratuitously harming a restrained suspect constitutes excessive force. See, e.g., Ramirez, 716 F.3d at 378.[ix]
While this is generally true, the court of appeals noted that it is not true in Griggs’s case. The court stated
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.[x]
The court applied the three factors from Graham v. Connor, and noted that (1) the crime of DUI is a serious crime, (2) Griggs posed a threat to the officers as he intoxicated and erratic and was able to kick Officer Brewer, and (3) he continued to actively resist during the course of his arrest. Therefore, the court concluded that “some use of force to gain control of Griggs was not objectively unreasonable.” Further, the court stated
[A]s 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.[xi]
Therefore, Officer Brewer was entitled to qualified immunity for punching Griggs in the face after he kicked Brewer in the chest while being placed in the police car.
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. 2022)
[ii] Id. at 2-7
[iii] Id. at 312 (emphasis added)
[iv] Id. at 313
[v] Id. at 313-314 (emphasis added)
[vi] Id. at 314-315 (emphasis added)
[vii] Id. at 315
[viii] Id.
[ix] Id. at 316
[x] Id.
[xi] Id.
