The 6th U.S. Circuit Court of Appeals1 recently decided a case that is controversial at minimum, not because of its ultimate decision, but because the appellate court relied on an incorrect standard in determining whether police officers used excessive force during the course of an arrest.
In Griffith v. Coburn,2 the estate of Arthur Partee filed a civil rights lawsuit under 42 U.S.C. 1983 against Benton Township, Mich., the Township s police chief and two of its police officers after Partee died within moments of being arrested by the two officers. The estate claimed the officers violated Partee s rights to remain free from unreasonable seizure under the Fourth Amendment and that the chief of police and the Township failed to train the officers regarding the use of force applied to Partee during his arrest. The defendants (two officers, chief of police and Township) filed a motion for summary judgment, which the district court granted. The plaintiff estate appealed the district court s decision.
The only issue on appeal was whether one of the officers, Officer Sutherland, was entitled to qualified immunity for the use of force he used to subdue Partee.
The Disputed Facts
Partee s mother, Ethel, came to the Benton Township Police Department to request assistance in getting her son hospitalized because he had been acting strangely in the home they shared together. She spoke with Sutherland, who advised her Partee could not be involuntarily committed because he was not a danger to himself or others. However, Sutherland checked Partee s background and learned he had an outstanding warrant for driving without a license. Sutherland advised Ethel he could arrest Partee on the warrant so that Partee could be evaluated. Ethel voiced no objection to this suggestion.
Sutherland and a second officer went to the home, where they observed Partee sitting on a couch watching television. The officers told him of the outstanding warrant and asked for his date of birth. Partee refused to give the information and told the officers that the warrant was not for him. Partee turned his attention back to the television set and continued to ignore the officers. After the coffee table was moved from in front of the couch, a struggle ensued, the facts of which were disputed between the parties.
According to Ethel, after the officers moved the table, Sutherland took out his handcuffs while Partee leaned back on the couch, resisting only passively by trying to put his arm behind his back and ... refusing to help or cooperate in any way. 3 She claimed that all of a sudden, Sutherland jumped on her son, put his arm around Partee s neck and began choking him while the second officer watched. Ethel stated the struggle continued for some minutes, with her son eventually going limp. Partee s limp body was thrown to the ground face down, where he was handcuffed. Ethel states she screamed that her son was dead but the officers responded that Partee was just faking. 4
It comes as no surprise the officers recited a different account of the events. According to the officers, Partee ignored Sutherland s commands to stand up from the couch after being told several times he was under arrest. However, once Sutherland took his handcuffs out, Partee lunged at him but was pushed back onto the couch immediately. Both officers attempted to subdue Partee, but he resisted those efforts by holding his arms close to his torso. Eventually, Partee went to a kneeling position while his upper body leaned on the couch with his arms beneath him.
According to Sutherland, he struggled with Partee for several minutes before the officers were able to effect his arrest. Sutherland also stated that at one point Partee unsnapped one of the snaps on his holster.
Sutherland later painted a more detailed picture of the events in his deposition. He testified that because he believed Partee was trying to retrieve his weapon, Sutherland used a vascular neck restraint on Partee to cut off the flow of oxygenated blood to his brain. 5 After holding him in this position for two or three seconds, he was able to subdue Partee and handcuff him.6 Sutherland also stated in his deposition that as he tried to catch his breath, other officers attempted to lift Partee to his feet, but Partee could not stand on his own. Sutherland then noticed that Partee s breathing was declining, so he notified paramedics. In the meantime, the officers uncuffed Partee, and Sutherland performed CPR but was unable to revive Partee.
Unfortunately, for whatever reason, Sutherland failed to report his use of a neck restraint in his initial report. Instead, Sutherland wrote that Partee appeared to have some difficulty breathing and then just stopped breathing. 7 The second officer also failed to report Sutherland s use of a neck restraint to subdue Partee, but he later admitted he saw Sutherland use a neck restraint. He estimated Sutherland had Partee in the hold for a few seconds and caused Partee to go limp, after which he was able to assist in taking Partee to the ground.8
An autopsy was later performed and the medical examiner concluded Partee s death was caused primarily by asphyxia associated with physical restraint. 9
The Court s Decision
The district court granted summary judgment in favor of all of the defendants based on qualified immunity, stating that the use of the vascular neck restraint under the circumstances was not objectively unreasonable, because the undisputed facts of this case reveal that Partee actively and physically resisted arrest and in addition, there is evidence that during the struggle Partee reached for Sutherland s gun. 10 However, the appellate court took issue with the district court s impermissible credibility determination in favor of Sutherland and its disregard of all of the other conflicting evidence and reversed the district court s holding.
As stated above, the ultimate decision by the 6th Circuit Court of Appeals is not surprising, particularly given the factual dispute between the parties. However, what is surprising is the standard the appellate court used to determine Sutherland was not entitled to qualified immunity.
The appellate court correctly stated the basic rule of qualified immunity: Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 11 It went on to recite the two-pronged inquiry set forth by the United States Supreme Court in the context of the Fourth Amendment. First, the court must determine whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer s conduct violated a constitutional right. 12 If so, the court must then determine whether that right was clearly established on a specific level. 13
In addressing the first prong, the Court of Appeals correctly stated that in determining whether an officer s use of force is excessive in violation of the Fourth Amendment, the court must apply the objective reasonable standard enunciated by the U.S. Supreme Court in Graham v. Connor.14 The appellate court stated the question is whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them. Further, the test is whether the use of force is reasonable at the moment as judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 15
However, if the legal question of qualified immunity turns upon which version of the facts one accepts, it s up to the jury, and not the judge, to determine liability, and summary judgment must be denied. According to the Court of Appeals, the question of reasonableness and thus the question of whether a constitutional right was violated turns completely on which version of the facts one accepts in this case.16
The appellate court also reviewed Sutherland s training. Sutherland was instructed that vascular neck restraints are justified when the officer s attempt at lower forms of subject-control have failed, or when the officer believes that lower forms of subject control would not be successful, and that the restraint is designed to control high levels of resistance. 17 According to a certified instructor, the neck restraint is a technique that can be used in situations where someone is being violent or assaulting the officer.18 The instructor also testified the vascular neck restraint falls toward the harder or the more violent part of the [use of force] continuum, probably beyond pepper spray, at the point where you are using batons, or tasers. 19 The chief of police also testified that the officers were carrying pepper spray and that they should have had night sticks on their persons when they were attempting to subdue Partee.
According to the Court of Appeals, based on the position of the neck restraint on the use of force continuum and the undisputed fact that Partee never actually had possession of Sutherland s gun, let alone threatened anyone with it, it could only conclude a jury could find that Sutherland s use of the neck restraint was unreasonable, particularly in light of the mandate in this circuit that a Fourth Amendment seizure must be effectuated with the least intrusive means reasonably available. 20 The court then went on to address the second prong of qualified immunity, and it found the right to be free from excessive force under these facts was clearly established.
Problematic Standard Applied
Clearly, the language used by the 6th Circuit Court of Appeals regarding the use of the least intrusive means to effectuate an arrest should cause concern for police officers, law enforcement trainers, police administrators and attorneys who defend the law enforcement community against civil-rights claims. As stated above, the proper standard in determining the legality of an arrest under the Fourth Amendment is whether the use of force was objectively reasonable. This standard has not changed since the Graham decision in 1989. Certainly, the standard imposed by the 6th Circuit may be considered a policy standard or perhaps a procedural standard. One could argue it s a moral or ethical standard, but it s not the constitutional standard governing the Fourth Amendment. Put simply, this standard has no business in any analysis under the Fourth Amendment, and its inclusion has the potential for causing officers severe injuries or death as they struggle to determine the least intrusive tool to use as they are placed in harm s way. That potential is completely unacceptable.
Unfortunately, police officers within the jurisdiction of the 6th Circuit Court of Appeals are left to grapple with the ramifications of this decision. Even police officers outside the 6th Circuit cannot ignore the potential impact of this decision.
No doubt, the 6th Circuit is at odds with the majority of circuits that do not require the use of the least intrusive means to effectuate an arrest under the Fourth Amendment.21 Curiously, the 6th Circuit is also at odds with itself. For example, in Collins v. Nagle, the appellate court held that police officers are not required to use the least intrusive means.22 And, despite Griffith s holding to the contrary, Collins has not been overruled.
This issue is ripe for review by the United States Supreme Court, and all police officers should closely follow it until its ultimate resolution.
References
1. The 6th Circuit Court of Appeals is a federal appellate court that has jurisdiction over Michigan, Ohio, Kentucky and Tennessee.
2. 473 F.3d 650 (6th Cir. 2007).
3. Id. at 653.
4. Id.
5. Id. at 654.
6. Id.
7. Id.
8. Id. at 655.
9. Id. at 652.
10. Id. at 655.
11. Id. at 656, quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
12. Id. at 656, quoting Saucier v. Katz, 533 U.S. 194, 201 (2001).
13. Id., quoting Saucier, at 200.
14. 490 U.S. 386 (1989).
15. Griffith, at 656, quoting Graham v. Connor, 490 U.S. at 396.
16. Id. at 657.
17. Id.
18. Id.
19. Id.
20. Id. at 658, citing St. John v. Hickey, 411 F.3d 762, 774-75 (6th Cir. 2005) (quoting United States v. Sanders, 719 F.2d 882, 887 (6th Cir. 1983)) (emphasis added).
21. See, Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994); Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996); Plakas v. Drinksi, 19 F.3d 1143 (7th Cir. 1994); Krueger v. Fuhr, 991 F.2d 435 (8th Cir. 1993); Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994).
22. 892 F.2d 489 (6th Cir. 1989).