CA10: Unlawful provoked flight to make an arrest supported criminal civil rights violation against officer

Defendant was a sheriff indicted in Albuquerque for excessive force during an off-duty road rage incident. The victim’s unlawful arrest was based on provoked flight caused by the sheriff. There was also 404(b) evidence of similar occurrences. He was sentenced to 121 months. United States v. Rodella, 2015 U.S. App. LEXIS 19275 (10th Cir. Nov. 4, 2015):

Relatedly, the jury reasonably could have found that Tafoya’s flight and any careless or reckless driving that he engaged in was provoked by Rodella. Although the law regarding provocation “is far from developed,” both the Supreme Court and other circuits “have touched on this issue” of what constitutes provoked flight. United States v. Jeter, 721 F.3d 746, 753 (6th Cir. 2013) (collecting cases). Both the Sixth and Eleventh Circuits have concluded, and we agree, “that officers cannot improperly provoke—for example, by fraud—a person into fleeing and use the flight to justify a stop.” United States v. Franklin, 323 F.3d 1298, 1302 (11th Cir. 2003); see Jeter, 721 F.3d at 754 (holding that “[f]raud … would surely suggest wrongdoing on the part of the officers and thus make a finding of provocation more likely”); see also Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (holding that an individual’s “unprovoked” flight was sufficient to give officers reasonable suspicion to conduct a Terry stop). In addition, the Sixth Circuit has indicated, and we agree, that “[i]f police officers put a defendant in reasonable fear of physical harm, that might also qualify as provocation.” Jeter, 721 F.3d at 754. Applying those principles in this case, we conclude that the jury reasonably could have found, based upon Tafoya’s testimony, that the actions of Rodella and his son placed Tafoya in reasonable fear of physical harm and in turn provoked Tafoya into panicking and fleeing for his safety. In other words, we conclude that the jury reasonably could have found that Rodella and his son provoked Tafoya into committing the alleged traffic violations that Rodella identified at trial.

For these reasons, we reject Rodella’s challenge to the sufficiency of the evidence underlying the jury’s finding that he unlawfully arrested Tafoya.