{"id":1579,"date":"2007-12-08T14:08:55","date_gmt":"2007-12-04T06:01:55","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-04T06:01:55","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1579","title":{"rendered":"Handcuffing 11 year old child stated excessive force claim"},"content":{"rendered":"

On rehearing from a prior holding, 457 F.3d 1088 (9th Cir. 2006), the Ninth Circuit held that pointing a gun at the head of an 11 year old boy clad only in shorts and a t-shirt, then handcuffing him during a search of a house he already had come out of stated a Bivens<\/em><\/a> claim because he clearly posed no threat. Tekle v. United States<\/a>, 04-55026 (December 3, 2007):<\/p>\n

[3] Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial \u201cintercom,\u201d he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway. He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes. We conclude under these circumstances that the amount of force used against Tekle constituted a \u201c\u2018very substantial invasion of [his] personal security.\u2019\u201d Id.<\/em> at 1015 (quoting Baker<\/em>, 50 F.3d at 1193). Consequently, this factor weighs in favor of Tekle.<\/p>\n

[4] Turning to the second and most important factor, we conclude that \u201cthe need for the force, if any, was minimal at best.\u201d Meredith v. Erath<\/em>, 342 F.3d 1057, 1061 (9th Cir. 2003). All the factors to be considered in determining the need for the force weigh in favor of a finding that the need for force was minimal. First, Tekle clearly was a child and was not the subject of the arrest warrant. Tekle was unarmed and vastly outnumbered and did not pose an immediate threat to the officers\u2019 safety. He did not actively resist arrest or attempt to flee. Under these circumstances, even if the officers needed to secure Tekle in order to execute the search and arrest warrants, it should have been apparent that this eleven-year-old boy did not pose a threat and that the need for force accordingly was minimal. Cf. id.<\/em> (finding the force excessive where the officer threw the plaintiff to the ground and handcuffed her, despite the fact that she posed no safety risk and made no attempt to leave the property); Baldwin v. Placer County<\/em>, 418 F.3d 966, 970 (9th Cir. 2005) (stating that the governmental interests in using handcuffs were at a minimum when there was no indication that officers believed the suspects would flee or be armed), cert. denied<\/em>, 126 S. Ct. 1331 (2006); Wall v. County of Orange<\/em>, 364 F.3d 1107, 1111-12 (9th Cir. 2004) (reversing the grant of summary judgment where the deputy violently arrested the plaintiff, handcuffing his hands tightly, even though there was no probable cause for arrest and the plaintiff was following the deputy\u2019s instructions).<\/p>\n

[5] Balancing the force used against the need, we conclude that, \u201cwhen the disputed facts and inferences are treated in the manner required by law, a jury could properly find\u201d that the force used was \u201cgreater than [was] reasonable under the circumstances.\u201d Santos<\/em>, 287 F.3d at 853, 854. There were over twenty officers present at the scene, and Tekle was not suspected of any crime. He was cooperative and unarmed and, most importantly, he was eleven years old. A reasonable agent confronted with these circumstances should have known that there was no need to use guns and handcuffs. Yet, the officers kept Tekle handcuffed and pointed their weapons at him even after it was apparent that he was a child and was not resisting them or attempting to flee. Moreover, Tekle has alleged that an officer pulled him up from behind by the chain of the handcuffs, an act which, if true, could support a jury finding of excessive force. We understand that \u201c[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments\u2014in circumstances that are tense, uncertain, and rapidly evolving\u2014about the amount of force that is necessary in a particular situation.\u201d Graham<\/em>, 490 U.S. at 396-97. Nonetheless, we are convinced, if only by the sheer number of officers versus the one, clearly unarmed, barefoot child that a reasonable jury could find that the officers used excessive force.<\/p><\/blockquote>\n

Defendant who was hanging in a drug house that was without electricity or door locks had no expectation of privacy when the police entered without a warrant in response to neighbors’ complaints. This was “wrongful” occupancy. United States v. Hoyle, 2007 U.S. Dist. LEXIS 88026 (E.D. Mich. November 30, 2007).<\/p>\n

A resident advisor of a Hofstra University dorm called University Security officers when he smelled marijuana coming from plaintiff’s room. Plaintiff was later suspended for one semester. His suit against the University under various theories was dismissed, including a lack of state action for the entry. He was not prosecuted. Franchetti v. Hofstra Univ., 2007 N.Y. Misc. LEXIS 7823, 238 N.Y.L.J. 98 (Nassau Co. October 19, 2007).*<\/p>\n

Defendant’s traffic stop escalated to reasonable suspicion based on excessive nervousness and furtive movements, the explanation of which was completely implausible. Defendant was even moved to another officer a half-mile away because the officers needed to back each other up. State v. Forbes<\/a>, 2007 Ohio 6412, 2007 Ohio App. LEXIS 5616 (12th Dist. December 3, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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