{"id":817,"date":"2007-04-06T14:16:28","date_gmt":"2007-03-02T05:39:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-03-02T05:39:37","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=817","title":{"rendered":"9th Cir. analyzes force during an arrest under Graham<\/em> that led to a broken neck"},"content":{"rendered":"

Plaintiff refused a pocket search after being arrested in a casino for being in the wrong place reading a magazine. He was handcuffed and in casino holding. The defendant LVMPD officer showed up and attempted to search his pockets, and that led to a shoving and pulling match. The officer spun him around and slammed him into the wall breaking the sheet rock. They went down to the floor, and the plaintiff finally stopped resisting, and he was taken to the jail and then to the hospital where it was discovered that plaintiff’s neck was broken. Davis v. City of Las Vegas<\/a>, 2007 U.S. App. LEXIS 4580 (9th Cir. February 28, 2007); quoted at length because it is a good analysis of how “force” turns into unconstitutional “excessive force” under Graham<\/em>:<\/p>\n

Here, as in Smith<\/em>, an assessment of the facts in the light most favorable to Davis shows that his Fourth Amendment rights were violated. We start our analysis by assessing the quantum of force used against Davis. We do so because the “factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure.” Id.<\/em> at 701 (quoting Chew v. Gates<\/em>, 27 F.3d 1432, 1441 (9th Cir. 1994)). Looking at the facts in the light we must for purposes of this appeal, Officer Miller’s use of force was extremely severe. After Davis refused to consent to being searched, Miller forcefully slammed him head-first against a wall, and then swung him into another wall, also head-first, thereby breaking his neck. Officer Miller then threw Davis face-down onto the floor, placed his knee on his back, and then turned him over and punched him in the face.<\/p>\n

Next, we must assess the governmental interest that might justify the use of such force under the Graham<\/em> factors, starting with an assessment of “the severity [*15] of the crime at issue.” Graham<\/em>, 490 U.S. at 396. Trespassing and obstructing a police officer, as those offenses were committed by Davis, are by no means such serious offenses as to provide an officer with a reasonable basis for subduing a person by the means employed by Officer Miller. Indeed, these offenses are much less serious than the domestic violence offense at issue in Smith, which we held did not “warrant the conclusion that [the plaintiff] was a particularly dangerous criminal or that his offense was especially egregious.” Id.<\/em> at 702-03. Here, too, “the nature of the crime[s] at issue provide[] little, if any, basis for the officer[‘]s[] use of physical force.” Id<\/em>. at 703.<\/p>\n

Second, we assess “whether the suspect pose[d] an immediate threat to the safety of the officer[] or others.” Graham<\/em>, 490 U.S. at 396. Here, Davis posed no immediate threat to Officer Miller or to anyone else. Davis was unarmed, in handcuffs, and never attempted to harm Miller or anyone else in any way. Indeed, even if Davis had wanted to harm Miller, it would have been difficult for him to do so given that he was in handcuffs, was confined within a small area, and was surrounded by security guards. Thus, nothing in the record suggests that Davis posed an immediate threat to Miller’s safety or to that of anyone else.<\/p>\n

Next we consider whether Davis was “actively resisting arrest or attempting to evade arrest by flight.” Graham<\/em>, 490 U.S. at 396. Although Davis was somewhat uncooperative and resisted Officer Miller’s attempts to search his pockets, at no point during the encounter did he attempt to flee, nor could he have done so in light of the fact that he was in handcuffs, surrounded by security guards, and confined in a small holding area. Thus, Davis was neither actively resisting arrest nor attempting to flee.<\/p>\n

Finally, we consider whether Miller could have used other methods to accomplish the search of Davis’s pocket, Smith<\/em>, 394 F.3d at 703; Chew<\/em>, 27 F.3d at 1441 n. 5, assuming that he had lawful cause to do so. Viewing the facts in the light most favorable to Davis, it is clear that other, less abusive methods of conducting the search were available. Miller could have attempted to persuade Davis to submit to the search, could have obtained the assistance of the security guards who were present, could have used less force than he did in seeking to attain his objective, or, having already conducted a pat-down, could have simply waited to conduct the search until he had delivered Davis to the jail. Indeed, Miller was reprimanded by the Police Department because he “did not use the minimal amount of force necessary and had options other than punching the suspect in the face who was on the ground in handcuffs to gain compliance.”<\/p>\n

In sum, the force used by Officer Miller was severe, the crime Davis had committed was minor, the danger to Officer Miller was minimal as was any risk of flight, and there were many less abusive means through which Miller could have accomplished his objective. Thus, weighing the severity of the force used against the governmental interests at stake, we have no difficulty in concluding that the facts here at issue, viewed in the light most favorable to Davis, demonstrate that Officer Miller’s actions were unreasonable and that Davis’s Fourth Amendment rights were violated.<\/p><\/blockquote>\n

Summary judgment denied an officer on use of excessive force during arrest because a question of fact remained. Lawler v. City of Taylor, 2007 U.S. Dist. LEXIS 13637 (E.D. Mich. February 28, 2007)*:<\/p>\n

Here, neither party has addressed whether Toro perceived Plaintiff as a threat to his safety. Plaintiff was in custody at the police station, and his apprehension and transport to the station occurred without incident. The crime giving rise to Plaintiff’s arrest was not serious, and although Plaintiff became verbally combative, his resistence to Toro’s order appears more a function of his intoxication than a threat to Toro. Based on these facts and the video of the incident, the Court cannot say as a matter of law that Toro’s conduct was objectively reasonable. The circumstances facing Toro at the time he made his initial decision to use force were not particularly “tense,” or “uncertain.” See Graham<\/em>, 490 U.S. at 396-97. Plaintiff admits that he was told repeatedly by Toro to keep his hands on the counter, and the video shows that Plaintiff failed to follow Toro’s instructions. Plaintiff kept turning toward Toro with arms raised. The video also shows that when Toro physically moved Plaintiff’s arm to the counter, Plaintiff did not cooperate. Only after Toro forcefully put Plaintiff on the ground, did Plaintiff’s resistance become aggressive.<\/p>\n

Moreover, the record shows that Toro was disciplined for his conduct; and that a commander at the police department testified at Toro’s disciplinary hearing that excessive force was used. Therefore, the Court cannot say as a matter of law that no reasonable person could find that the force was excessive.<\/p><\/blockquote>\n

Officers in constant communication with confidential informant gave probable cause for stop of the defendant’s vehicle as defendant was doing a drug deal. United States v. Traxler, 477 F.3d 1243 (10th Cir. 2007).*<\/p>\n

Showing how unforgiving the law can be, a Fourth Amendment \u00a7 1983 claim in Due Process clothing is dismissed without prejudice for not being brought under the Fourth Amendment. Thomas v. City of Detroit, 2007 U.S. Dist. LEXIS 13520 (E.D. Mich. February 28, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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