AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
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Assault and Battery: Choke Holds
Monthly
Law Journal Articles: Civil
Liability for Neck Restraints - Part 1, 2013 (12) AELE Mo. L. J. 101.
Monthly Law Journal
Articles: Civil
Liability for Neck Restraints - Part 2, 201 (1) AELE Mo. L. J. 101.
Two members of an FBI/Grand Rapids task force were searching for a male suspect. Neither officer was wearing a uniform, but both were wearing lanyards displaying their badges. They knew that the suspect was a 26-year-old white male, 5ʹ10″ to 6ʹ3″ tall, with glasses, who bought a soft drink from a particular gas station every afternoon. The suspect’s driver’s license photo was seven years old. The defendants approached the plaintiff (who was not the suspect) near the gas station. The plaintiff, a 21-year-old student, 5ʹ10″ to 6ʹ3″, and wearing glasses, claims that the defendants never identified themselves. The defendants asserted that that one of them identified himself as a police officer. The plaintiff gave his name and followed instructions to put his hands on his head because the defendants “had small badges.” One officer removed the plaintiff’s wallet. The plaintiff then asked, “[a]re you mugging me?” and attempted to flee. An officer tackled him. The plaintiff then yelled for passersby to call the police. The officer then put him in a chokehold. The plaintiff claimed that he lost consciousness. He also responded by biting the officer, who started punching him in the head and face. Bystanders called the police and began filming. Officers arrived and ordered them to delete their videos because they could reveal undercover FBI agents. One bystander stated, “They were out of control pounding him.” A 911 caller stated, “[t]hey’re gonna kill this man.” Emergency room doctors released the plaintiff with painkillers. Police then arrested him. He spent the weekend in jail. A jury acquitted him of all charges. The trial court found that it lacked subject matter jurisdiction over the plaintiff’s Federal Tort Claims Act (FTCA) claim against the United States, and granted the defendants summary judgment based on qualified immunity. With respect to the plaintiff’s 42 U.S.C. 1983 or Bivens civil rights claims, a federal appeals court reversed. The FTCA judgment bar, 28 U.S.C. 2676, does not apply because the FTCA judgment was not on the merits. The defendants were not protected by qualified immunity. A jury could reasonably conclude that the plaintiff bore no resemblance to the suspect’s photograph. Under clearly established law, removing the plaintiff’s wallet during a protective search was unreasonable. Clearly established law held that using a chokehold when the plaintiff was attempting to flee was objectively unreasonable under these circumstances. King v. United States, #17-2101, 2019 U.S. App. Lexis 5438, 2019 Fed. App. 0027P (6th Cir.).
Officers responding to a report about an armed hostage situation arrested a suspect. In the course of making the arrest, they took him to the ground, struck him, and rendered him unconscious with a carotid restraint maneuver. While he was unconscious, they handcuffed his arms behind his back, zip-tied his legs together, and moved him into a seated position. He subsequently sued for excessive force, claiming among other things that when he gained consciousness, the officers resumed hitting him and placed him into a second carotid restraint, rendering him unconscious a second time, even though he was then handcuffed and otherwise restrained. A federal appeals court held that the officers acted reasonably under the circumstances, at least until the plaintiff was handcuffed and restrained. They were entitled to quailed immunity for their conduct until he was handcuffed and restrained, but not for their alleged conduct after that point. McCoy v. Meyers, #17-3093, 2018 U.S. App. Lexis 8943 (10th Cir.).
An arrestee claimed that a police officer used excessive force by choking him and using pepper spray against him in the course of an arrest for taking eight pairs of shorts from a store. Upholding a denial of qualified immunity to the officer on an excessive force claim, a federal appeals court ruled that a jury could find that excessive force was used in the deployment of pepper spray or use of choking since the force was on a non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor, While some use of force was reasonable here, it was not reasonable to immediately use significant force. The right not to be pepper sprayed or choked under these circumstances was clearly established. Tatum v. Robinson, #16-1908, 2017 U.S. App. Lexis 9342 (8th Cir.).
A man claimed that officers who came
to his house to arrest his brother under a warrant used excessive force against
him when he answered the door, lying on top of him, using a chokehold, and
using pepper spray. The jury awarded the plaintiff over $2 million in damages,
which was reduced by $500,000 to $1,611,656.52 by the trial court. A federal
appeals court found that the jury's award and their decision to believe the
plaintiff's version of the incident were supported by the evidence, and that
the officers were not entitled to qualified immunity. It rejected the officers'
argument that if they mistakenly believed that the plaintiff was resisting them
that they could use any amount of force as they were only entitled in that
instance to use force reasonably necessary. A "reasonable officer would
have known it violated clearly established law to use a chokehold on a
non-resisting arrestee who had surrendered, pepper-spray him and apply such
knee pressure on his neck and back that it would cause the collapse of five
vertebrae in his cervical spine."It also found that the trial court failed
to adequately explain its reasons for reducing the amount of attorneys' fees
and in denying the plaintiff pre- and post-judgment interest, so further
proceedings were required. Barnard v. Theobald, #11-16655, 2013 U.S. App. Lexis
13415 (9th Cir.).
In a federal civil rights lawsuit over an
arrestee's death, genuine issues of fact as to whether the arresting officer
was justified in using a choke hold to subdue the arrestee precluded summary
judgment for the officer. Griffith v. Coburn, No. 05-2720, 2007 U.S. App. Lexis
426 (6th Cir.). [N/R]
In lawsuit claiming that officers used excessive
force, including a chokehold, in attempting to place a man under arrest,
resulting in his death, trial court found not to have abused its discretion in
barring expert testimony concerning excessive force. The Plaintiff sought to
introduce such testimony by a police department Office of Professional
Standards inspector and a police sergeant who investigated the claim of
excessive force during the arrest, and to ask them whether the officer used
excessive force or violated departmental General Orders, policies or
procedures. The appeals court upheld a trial court ruling that the
"probative value" of such evidence was "substantially
outweighed" by the danger of unfair prejudice, and that it would not
assist the jury in reaching a decision, but rather would cause
"confusion." Court also upholds ruling barring evidence concerning
the department's General Orders on the appropriate use of force, since the
issue of whether or not the officer violated a departmental regulation was
different from whether his use of force was unconstitutional. Thompson v. City
of Chicago, No. 04-3177, 2006 U.S. App. Lexis 31138 (7th Cir. December 20,
2006) [N/R]
Trial court's determination that a trooper that
detained a shopper in a grocery store did not use a choke hold in the
apprehension was supported by the evidence that the officer had grabbed the
detainee around the shoulders, rather than by the throat or neck, as well as
officer's testimony that he never used choke holds and had never been taught or
trained to use them. Wasserman v. Bartholomew, No. S-9604, 38 P.3d 1162 (Alaska
2002). [N/R]
311:163 New York City settles choke hold death
case for $2.94 million. Baez v. Livoti, N.Y Sup. Ct., Bronx, New York, Reported
in The New York Times, National Edition, p. A23, October 2, 1998.
306:84 Jury awards $45 million to surviving
family of 25- year-old double amputee motorist who died following altercation
with officer who pulled him over; pepper spray and neck hold used to restrain
motorist. Mallet v. City of Phoenix, Phoenix Superior Court, Phoenix, Arizona,
reported in The Chicago Tribune, p. 16 (March 13, 1998).
304:51 Federal appeals court overturns injunction
against California Highway Patrol officers using carotid hold except when
necessary to prevent death or serious bodily harm. Nava v. City of Dublin, 121
F.3d 453 (9th Cir. 1997).
270:84 Federal court enjoins California Highway
Patrol officers from using carotid hold except when necessary to prevent death
or serious bodily harm Nava v. California Highway Patrol, No C 93-01309 CW,
U.S. Dist. Ct., N.D. Calif, December 21, 1994
273:131 Parents of youth who died after police
cadet used carotid neck restraint hold on their son receive $450,000 settlement
in suit against city alleging negligent training Hampton v. City of San Diego,
Cal, San Diego County Super Ct, Cal, No 652716, June 27, 1994, reported in 38 ATLA
L. Rep.140 (May 1995).
City to pay $75 million and lifetime medical
bills to man placed in an apparent permanent coma by officer's use of a choke
hold; settlement cost may reach $34 million Edwards v. City of Miami, U.S.
Dist. Ct., Miami, Fla, The New York Times, National Ed, p. A6 (July 1, 1993).
Supreme Court overturns injunction issued against
LA police regarding use of choke holds. City of Los Angeles v. Lyons, 103 S.Ct.
1660 (1983).