Thursday, March 13, 2014

Tenth Circuit Booker v. Gomez 12-1496

Decision here.

   This a qualified immunity case, so it's important to note that the court is currently resolving all factual disputes in favor of the plaintiff (Mr. Booker's estate).  It's possible that should this case eventually go to trial, the court will find that the below facts are not actually true.  On the other hand, there is video evidence in this case, and even the version of events that the defendants (that is, the officers involved) put forward doesn't look good for them.  This is ugly.

   Booker, a 56 year old man, was arrested for an FTA warrant on a drug charge.  During the booking process, he was apparently uncooperative (the defendants claim that he was cussing at them, but this fact is in dispute).  At some point, he walked away from the officer who was booking him.  She tried to grab his arm, he took a swing on her, and he missed.

   The next part is no surprise: a lot of detention officers took Booker to the ground.  So far, so good.  But during the struggle to restrain him, there were officers controlling each hand, an officer controlling his legs with nunchakus, an officer kneeling on his back (he would later estimate that 75% of his weight was on Booker, which would be more than what Booker weighs), and an officer applying a carotid neck restraint.  That officer would maintain the carotid neck restraint for about two and a half minutes, which is WAY outside of what his training guidelines allow for that technique.  

   The officers were able to handcuff Booker, but continued to maintain the neck restraint, the pressure on his back, and the control of his legs even after he was handcuffed.  While he was handcuffed and at the bottom of a pile of officers, they even called for a taser.  Booker was given an 8 second drive stun, and then carried limply and unconsciously to a cell.  

   He was unresponsive, so they checked on him about 20 seconds after leaving him in the cell.  He was dead.

   Unsurprisingly, his estate sued.  The officers tried to claim qualified immunity, which was denied.  They appealed, and now the Tenth circuit has spoken.

   Since Booker was a pre-trial detainee (already in the jail), the use of force is governed by the 14th Amendment (as a due process violation) rather than the 4th (as a seizure).  It doesn't matter that much, because the facts alleged would be excessive force under either standard, but they are different standards.  Under 4th amendment analysis, the court would consider the objective reasonableness of the force used.  Under 14th amendment analysis, the court considers: 1- the relationship between the force used and the need presented, 2- the extent of injury inflicted, and 3- the motives of the officer (that last one is not a factor in 4th amendment cases).

   Given that Booker was handcuffed, on his stomach, and not resisting (really, unable to meaningfully resist), the court held that the force used was disproportionate to the need for force.  The extend of injury in this case is death.  And the motives of the officers... for due process violations, the standard is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness.  So the court looks at things like holding the carotid hold for two and a half minutes, applying an 8 second drive stun to a handcuffed prisoner, and putting more weight on Booker's back than what Booker weighs while he's laying prone and completely restrained.  In light of all that, a reasonable jury could find that the defendants acted with the requisite mental state for a due process violation.

   So a constitutional violation has been shown, but in order to overcome qualified immunity the plaintiffs also have to show that the law was clearly established.  The defendants argue that since most excessive force case law relates to the 4th rather than the 14th amendment, the law was not clearly established.  The court held that since 4th amendment case law is informative as it relates to the relationship between force used and the need presented, and since the result is the same under either standard, the law here was clearly established.  Qualified immunity was denied.

   Qualified immunity was also denied (for similar reasons) on claims of supervisory liability and denial of medical care.

   This next part is important: The defendants also argued that each officer should be entitled to or denied qualified immunity separately, rather than collectively.  After all, they each used different force and some of them may not have actually used excessive force (for example, the ones who just applied the handcuffs weren't necessarily doing anything excessive.  This guy did just take a swing on one of them, and handcuffing him was entirely appropriate).  But the court was not having it.

   There are two different approaches that the court took to resolve this problem.  First, the court noted that sometimes it is appropriate to analyze the conduct of different officers together.  They were all working together towards the same objective, each participating in the overall conduct.  If the overall use of force was excessive, they each participated in and contributed to that even if some of them played a bigger part than others.

   Second (and, in my opinion, much more importantly): a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.  So even if some of the officers didn't do anything excessive themselves while restraining Booker, they also didn't do anything to stop the obviously excessive force going on right in front of them.  Their inaction makes them liable even if the actions they did take wouldn't.

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