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.

Tenth Circuit Courtney v. Department of Public Safety 12-7028

Decision here.

   An Oklahoma trooper pulled Courtney over for driving 82 in a 75 and failing to dim his headlights.  Courtney apparently took his time about pulling over (later claiming he was driving to a well-lit gas station for his own safety).  The trooper instructed Courtney to get out of his car and sit down in the front seat of the trooper's car where he would be giving him a written warning for the traffic offenses.  A very highway patrol thing to do... maybe someday I'll find a trooper who can explain it to me.

   Anyway, while the trooper was completing a written warning, he asked Courtney about his travel plans.  Courtney said he was driving to Tennessee to Tulsa because his family lived in one place and his job was in the other, so he went back and forth a lot.  The trooper observed that Courtney seemed very nervous (the court decision mentions nervous laughter, yawning, shaky hands, a visibly pulsing carotid artery, and Courtney's heartbeat being visible through his shirt.  Can't say I've ever seen that last one...).

   After releasing Courtney on a warning, The trooper asked Courtney if he would mind answering a few more questions.  Courtney declined, but then the trooper ordered him to stop and to get back in the trooper's car.  The trooper told him he was being detained for suspicion of criminal activity, and asked him if there were any guns, drugs, or large amounts of cash in the car.  Courtney told him there was a gun in the trunk.

   The trooper called for a K9 (who did not alert on the car), and checked Courtney's criminal history.  The criminal history showed a juvenile adjudication of a felony offense 12 years ago.  Oklahoma law prohibits a person from possessing a firearm if they have an adult felony conviction, or if within the last ten years they have had a juvenile felony adjudication.  The trooper arrested Courtney for being a felon in possession of a handgun (even though he wasn't).  Courtney was released three days later, charges were never filed.  It took almost a full year for him to get his gun back.  He filed a 1983 suit against the trooper and the state, arguing that the traffic stop was unreasonably extended and that he was arrested without probable cause.  The district court granted summary judgment for the defendants based on qualified immunity, and Courtney appealed.

   Regarding the extension of the traffic stop, the trooper's position was that since there was PC to arrest for the traffic offenses, no further justification was required for extending the stop.  The Tenth Circuit disagreed.  The trooper cited cases which have shown the Fourth Amendment allows for custodial arrests even for minor traffic offenses, and that the Fourth Amendment allows for arrest even when state law says that a person should be released on a summons, and that the Fourth Amendment allows for arrests even when the officer thinks he is arresting someone for a crime other than the one he has probable cause for.  But none of these cases allow an officer to continue to detain someone for a traffic offense that he has already released someone on a warning for.  The Tenth Circuit didn't find that reasonable in this case, either.

   However, the Tenth was willing to humor the trooper's argument that the extension of the stop was justified by reasonable suspicion.  The district court had identified three factors establishing reasonable suspicion: Courtney's delay in pulling over, Courtney's extreme nervousness, and Courtney's travel plans.  Although the Tenth observed that Courtney's travel plans weren't suspicious at all, the other two factors were just barely enough to establish reasonable suspicion.  So the Tenth affirmed the lower court's grant of qualified immunity as it related to extending the stop.

   But the arrest is another matter.   The district court had reasoned that the trooper might have thought that the juvenile adjudication had been charged as an adult, but there was no basis for that (especially since the criminal history described it as a juvenile adjudication).  The district court had also held that the trooper had probable cause to arrest Courtney for obstruction, because Courtney claimed not to remember the juvenile adjudication.  The Tenth saw that for the nonsense it is.

   Since there was no probable cause to justify Courtney's arrest (or the year long retention of his gun), the Tenth reversed the granting of qualified immunity as it related to everything other than extending the stop.  The case was sent back to the district court for further proceedings.

Tenth Circuit Schwartz v. Booker 11-1583

Decision here.

   I remember reading the criminal appeal from this case, but it didn't make the blog because it did affect police actions in the field (it was one of those decisions more important to prosecutors than to cops, if I recall correctly).  Anyway, it was a pretty gruesome read.

   The case centers around a child (Chandler) who was in foster care, and who was the subject of child abuse complaints whilst in foster care.  Suspicious bruises, long absences from school with cryptic explanations, and some really bizarre and heavy-handed discipline.  In the end, Chandler died of starvation after being confined to a closet as a punishment for something trivial.  Heads rolled.

   In this case, the child's biological parents filed a §1983 suit against a pair of social workers who didn't investigate one of the latest complaints of abuse.  Specifically, they alleged a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties. 

   In order to meet the special relationship exception, the facts have to show some sort of involuntary custodial relationship between the state and the person whose rights are being violated (such as being under arrest, being involuntarily committed, or being a child in foster care).  Then the facts also have to show that the official knew of the danger or failed to exercise professional judgment, and that this behavior was conscious shocking.  As applied to this case, the social workers were held to have abandoned their professional judgment when they inexplicably closed the case in violation of agency guidelines and in light of all the previous information this was held to be conscious shocking.

   The social workers argued that since they weren't the ones who actually placed Chandler in the foster home where he died, they didn't have a special relationship with Chandler for the purposes of this exception.  The court didn't buy it; the special relationship isn't limited to the official who initially creates it by putting the victim in state custody.  The special relationship attaches to the state, not to the individual official.  The individual official becomes liable when in the context of a special relationship they abandon their professional judgment in some conscious shocking way.

   This is another one where the instant case doesn't involve police action, but the applications to law enforcement should be obvious.