AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
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Assault and Battery: Baton/Nightstick
A federal appeals court overturned summary judgment to officers regarding their alleged excessive force in making an arrest. The plaintiff’s version of events asserted that the officers suspected him only of making a false statement and that he was not actively resisting arrest or fleeing, nor did pose a threat to officers or the public. Despite this, the officers carried out the arrest by grabbing him by the throat and using a baton with enough force to break his arm. Accepting this version as true for purposes of appeal, the force used could be found to be unreasonable. On a false arrest claim, it was objectively unreasonable to believe that there was probable cause to arrest the plaintiff where his statement that his sister intentionally drove her car over his foot was not a false report justifying his arrest. Michael v. Trevena, #17-1946, 899 F.3d 528 (8th Cir. 2018).
An arrestee claimed that three officers
violated his constitutional right of access to the courts by refusing to
disclose who used excessive force against him in the course of his arrest. He
believed that one or more of six officers on the scene threw him to the ground
and struck him several times in the back of his left thigh with a baton or
flashlight. Because he was face-down on the ground, he could not identify the
officer or officers responsible. He also argued that the city violated that
same right by adopting a "conspiracy of silence" concerning such
disclosure, preventing him from knowing who to sue. While the federal appeals
court assumed, for purposes of the appeal, that the officers' alleged conduct
was unconstitutional, it found that the issue of whether an evidentiary
cover-up by officers could violate an individual's right of access to the
courts was not clearly established. The officers, therefore, were entitled to
qualified immunity, but the city was not entitled to summary judgment since the
claims against it were not "inextricably intertwined" with the claims
against the officers. Lynch v. Barrett, #12-1222, 2013 U.S. App. Lexis 290
(10th Circuit).
Police stopped a
motorist driving a stolen car. Police officers smashed the car's window and
dragged the driver through it. The trial court found that this use of force was
reasonable but allowed the issue of whether the officers used excessive force
by allegedly beating him with batons after removing the arrestee from the car
to go to the jury, which returned a verdict for the officers. The appeals court
ruled that because of a factual dispute as to whether the arrestee's hands were
on the steering wheel or making furtive gestures when the officers smashed the
window, it had been erroneous to grant summary judgment on the initial use of
force, since this was relevant to whether he then posed a threat to the
officers. The erroneous jury instructions stating that the initial use of force
was reasonable as a matter of law required reversal of the jury verdict also,
since it prevented them from properly considering the totality of the
circumstances. Coles v. Eagle, #11-16471, 2012 U.S. App. Lexis 24923 (9th
Cir.).
An officer's use of pepper spray and a baton
against a motorist who disobeyed orders to get back in his vehicle was an
"intermediate" use of force that "while less severe than deadly
force, nonetheless present a significant intrusion upon an individual's liberty
interests." It is "rarely necessary, if ever," a federal appeals
court stated, "for a police officer to employ substantial force without
warning against an individual who is suspected only of minor offenses, is not
resisting arrest, and, most important, does not pose any apparent threat to
officer or public safety." The motorist did not resist, but merely sat on
the curb, so he could proceed with his excessive force claim. Young v. County
of Los Angeles, #09-56372, 2011 U.S. App. Lexis 17829 (9th Cir.).
Article, collapsible vs. fixed baton study:
"Although the smaller batons may be easier to handle, these lighter batons
simply cannot generate the force of larger, heavier batons. Consequently, this
practice actually works against the smaller officers by reducing the force that
they are capable of delivering. A baton that is too light or too small may
cause an officer to strike a subject repeatedly to effectively control a
suspect, which is perceived badly by both the media and the public. While a
heavier baton is more likely to cause injury, this risk is reduced when strikes
are properly delivered to an approved target area on the body and is more
likely to be effective in a single strike. The most practical, less-than-lethal
force option is one that incapacitates with the least number of
applications." A Pilot Study of Kinetic Energy Transfer Based Upon Police
Baton Designs, by K. Collie, B. Wargo, C. Berry, and C. Mesloh, 9 (1) Law
Enforcement Executive Forum 121-128 (2009).
If the facts were as the plaintiff alleged, the
decedent was knee deep in water, unarmed, surrounded by police, and had ceased
trying to escape arrest when he was shocked with a Taser five times, struck
with a baton multiple times, and pushed into a position that submerged his head
in water, causing him to drown. Under those circumstances, officers were not
entitled to qualified immunity on an excessive force claim. The officers should
have known that striking the arrestee with a baton after he was no longer
resisting violated clearly established constitutional rights. Prior case law
indicating that the unwarranted use of pepper spray was excessive force was
sufficient to put officers on notice that improper use of a Taser could be
excessive force. Additionally, the officers should have known that it is almost
always an excessive use of force to restrain an arrestee in a manner that
places his head under water for a long period of time. Landis v. Cardoza, Civil
No. 05-74013, 2007 U.S. Dist. Lexis 74838 (E.D. Mich.).
Dispute over whether an arrestee resisted arrest,
or whether he only tried to take officers' nightsticks in self-defense when
they hit him as he made no threatening motions, and then complied with an order
to lie down made a trial court's grant of qualified immunity to the officers "premature."
If the arrestee's version of the incident was true, the force used was
excessive. A state law prohibiting the use of physical force to resist arrest
did not prevent an arrestee from attempting to protect himself against an
unjustified assault. McLaurin v. New Rochelle Police, No. 04-4849, 2007 U.S.
App. Lexis 1839 (2nd Cir.). [N/R]
In a lawsuit over the death of a man weighing
almost 350 pounds with PCP and cocaine in his bloodstream who allegedly
struggled with police and resisted their attempts to arrest him outside a fast
food restaurant, the plaintiffs claimed that the officers used excessive force,
unnecessarily striking him with metal batons and causing him to suffer
respiratory failure from positional asphyxia when they sat on him, after
spraying a chemical irritant (pepper spray) in his face. The trial court found
that the plaintiffs sufficiently stated a claim that the officers who
apprehended him used excessive force against him, as the confrontation began
simply because firefighters who encountered him perceived him as creating a
"nuisance," which is "not the type of crime" permitting
officers to use a greater use of force. It was disputed whether the decedent
subsequently was resisting arrest, or was simply trying to position himself so
that he could breathe. Additionally, the plaintiffs in the case alleged that
the officers used pepper spray against the decedent after he was already face
down and was being handcuffed, which the court stated, if true, could also
constitute an excessive use of force. The officers were not entitled to
qualified immunity because a reasonable officer might have known that engaging
in the alleged acts violated the decedent's right to be free from excessive
force. The court granted a motion to dismiss claims by the plaintiffs against
the firefighters, who left the scene before some of the incidents that resulted
in the decedent's death, and against police supervisors and a fire chief. It
denied a motion to dismiss claims against the police officers involved in the
incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis
75430, 2006 WL 2987820 (S.D. Ohio). [N/R]
Police officer was not entitled to summary
judgment on claim that he used excessive force against arrestees when it was
possible for a jury to find that he struck them with a baton after they
surrendered, and there was a genuine issue of fact as to whether he acted with
malice or bad faith in doing so. Baker v. City of Hamilton, No. 05-4390, 2006
U.S. App. Lexis 31056 (6th Cir.). [N/R]
Officers were not entitled to qualified immunity
on arrestee's claim that they used excessive force by using pepper spray
against him and hitting him repeatedly with a baton while he was seated in his
truck after a traffic stop. Arrestee claimed that he had not resisted the
officers or tried to flee, and that he was "passive" and cooperative.
Reed v. City of Lavonia, No. 3:03-CV-111, 390 F. Supp. 2d. 1347 (M.D. Ga.
2005). [N/R]
Officer's use of baton against individual in the
course of attempting to clear an intersection following receipt of an anonymous
bomb threat was reasonable when individual failed to comply with orders to
leave, and the baton was only used to push him away from the officer and in the
direction of the leaving crowd . Zavala v. Parks, 124 Fed. Appx. 527 (9th Cir.
2005). [N/R]
Officers did not use unreasonable force in
employing swinging batons at waist level and then hitting striking workers who
refused to disburse or move. Evidence showed that the crowd's violent behavior
caused personal injuries and at least 91 incidents of property damage, and that
the striking workers' behavior affected not only non-striking workers at the
struck factory, but also persons on their way to work at another nearby
business. Further, there was testimony that objects were being thrown at the
officers as they started marching toward the strikers. Thurmond v. City of
Huntsville, 904 So. 2d 314 (Ala. Civ. App. 2004). [N/R]
314:19 Officers did not use excessive force in
utilizing kubaton to force detainee to release another detainee's driver's
license from his mouth; medical records did not support plaintiff's claim that
officers forcefully shoved kubaton into his nose and mouth 8-10 times. Taylor
v. McDuffie, #94-6808, 155 F.3d 479 (4th Cir. 1998).
306:90 City and officer who allegedly hit another
officer during baton training exercise, resulting in disabling injury, liable
for $2.35 million in damages; suit claimed negligent supervision by city.
Hamilton v. City of Brawley, Cal. Imperial County Super. Ct., No. 84701, Nov.
24, 1997, 41 ATLA L. Rptr. 94 (April 1998).
Award of $135 million upheld for officers'
beating of man, resulting in stitches and defecation in pants Janda v. City of
Detroit, 437 N.W.2d 326 (Mich App. 1989).
Court overturns $15 million award to transit
passenger blinded in one eye by officer's nightstick; passenger's prior
conviction for assault on officer was binding in civil case Chism v. New York
City Transit Authority, 535 N.Y.S.2d 730 (A.D. 1988).
The fact that an assault is committed by a police
officer does not make it a constitutional violation Dandridge v. Police Dept of
City of Richmond, 566 F.Supp. 152 (E.D. Va 1983).
No liability to officer, chief of police, or city
for alleged assault and battery of arrestee Rogers v. Rulo, 712 F.2d 363 (8th
Cir. 1983).
Troopers had cause for initial detainment but
continued detainment and excessive force may result in liability Daniel v.
State Thru Wash State Patrol, 671, P.2d 802 (Wash App. 1983).
Officer cleared upon expert testimony on
nightstick injuries Coleman v. DeMinico, 730 F.2d 42 (1st Cir. 1984).
Officer's counter suit for assault and battery
dismissed Ysaguirre v. Hummert, 667 S.W.2d 741 (Mo App. 1984).
City could be liable for policy of issuing
blackjacks to officers with inadequate training or supervision Hardeman v.
Clark, 593 F.Supp. 1285 (DDC 1984).
Court awards maximum amount of liability for
nightstick injuries that left skull portions missing Belanger v. Cross, 488
A.2d, 410 (RU 1985).
Court orders City to accept additur on new trial
Bustamente v. City of Tucson, 701 P.2d 861 (Ariz App. 1985).
Court may consider post-event situation in
determining policy/custom Loza v. Lynch, 625 F.Supp. 850 (D.Conn 1986).
Court dismisses claim alleging permanent deafness
from nightstick injury Scarpa v. Murphy, 806 F.2d 326 (1st Cir. 1986).
Officer did not use excessive force in using
nightstick when he did not attempt to injure suspect Ball v. Tong, 677 F.Supp.
1177 (N.D.Ga 1988).
City can be held liable for $500,000 in officer's
alleged beating of suspect even if officer is held not liable in later lawsuit
Daigle v. City of Portsmouth, 534 A.2d 689 (NH 1987).
"Power chop" with baton to knee was not
unreasonable force; exclusion of videotape evidence of baton training harmless
error Fronk v. Meager, 417 N.W.2d 807 (N.D.1987).