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Use of Force on Non-Violent Resistors

One of the most difficult decisions a police officer must make is whether to use force on an individual.  That decision becomes even more difficult when an officer confronts an individual in the midst of a mental health emergency.  Consideration of the affected individual’s safety, and the safety of the rest of the public, must inform an officer’s response.  Admittedly, federal courts of appeal throughout the United States have largely failed to announce a cohesive rule that guides officers’ response to mental health emergencies.  A recent case decided by the Fourth Circuit Court of Appeals, Estate of Ronald A. Armstrong v. Village of Pinehurst, provides helpful guidance for officers regarding the appropriate use of force in response to mental health emergencies and non-violent resistors.

In Armstrong, Jinia Armstrong Lopez convinced her brother, Ronald A. Armstrong, to go to the hospital after he exhibited erratic behavior.  Mr. Armstrong suffered from bipolar disorder and schizophrenia.  Shortly after his arrival, Armstrong left the hospital and walked in a nearby road with oncoming traffic.  Armstrong’s examining physician issued involuntary commitment papers and three police officers went to collect Armstrong.  As soon as the officers received notice that Armstrong’s commitment papers were finalized, they surrounded him.  Armstrong wrapped himself around a stop sign post and the officers could not remove him.  Just thirty seconds after telling Armstrong about his involuntary commitment, one of the officers was told to tase Armstrong.  The officer tased Armstrong five times in “drive stun mode,” which only increased his resistance to the officers’ demands that he let go and return to the hospital.  The officers ultimately pinned Armstrong to the ground, cuffed him, and shackled him.  Armstrong was unresponsive and stopped breathing.  He passed away shortly thereafter.

Armstrong’s estate brought suit against the Village of Pinehurst, the three officers tasked with returning Armstrong to the hospital, and the manufacturer of the taser.  The District Court for the Middle District of North Carolina determined that it was unlikely a constitutional violation occurred and the officers were entitled to qualified immunity and summary judgment.  On appeal, the Fourth Circuit determined that Armstrong’s “right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established on April 23, 2011,” the date the officers apprehended Armstrong.  This determination was largely in response to case law from the Sixth Circuit that arguably supported the officers’ use of force.  The officers were entitled to qualified immunity even though the court determined they used excessive force.

In its decision, the Fourth Circuit set out “to clarify when taser use amounts to excessive force in, at least, some circumstances.”  Tasers are intended to cause pain and immobilize an arrestee.  Police officers should only use a taser when “confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.”  The court’s decision made several important points:

  • An arrestee does not create an “immediate safety risk” when he or she resists officers and “physically prevent[s] an officer’s manipulation of his body.”
  • “Erratic behavior and mental illness do not necessarily create a safety risk.”
  • Officers have a diminished interest in using “potentially harmful force” when trying to stop a mentally ill individual from harming himself or herself.

While the court granted the officers in Armstrong qualified immunity, it determined that police officers use excessive force where they outnumber a mentally ill person and tase him when he is potentially a danger to himself while remaining stationary and engaging in non-violent resistance.  While the Fourth Circuit’s decision is not controlling in Ohio, officers within the Sixth Circuit should apply the rationale adopted by the Fourth Circuit to avoid potential violations of arrestees’ constitutional rights.  Officers should reserve the use of potentially harmful forces, like tasers, pepper spray, and batons for individuals who are actively dangerous and pose a threat to themselves, officers, and/or the public.  Use on a stationary and non-violent individual, even when he or she is arguably resisting, should be avoided as it risks violation of the individual’s constitutional rights.


 

The Right To Investigate Versus The Right To Privacy – The Apple Vs. FBI Debate

By: Tami Zupkow Hannon, Esq.

Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.

Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.

The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.

There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.

What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.


For questions or more information on “The Right to Investigate Versus The Right to Privacy – The Apple vs. FBI Debate,” contact:

Tami Hannnon


Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

Drones and Law Enforcement – The Future is Now

By: Curtis M. Graham, Esq.

Nowadays it is not uncommon to look up into the sky and see a drone flying overhead. Everyone seems to have one. The rise (pun intended) of unmanned aerial vehicles (“UAVs”) presents interesting questions for law enforcement officials across the country. Some are responding to criminal complaints, as was the case when a University of Kentucky student was charged with second degree wanton endangerment after flying his drone into Commonwealth Stadium prior to a football game last fall. Others are utilizing UAVs to conduct their own search and rescues.

The Somerset Police Department in Kentucky is believed to be the first police department in Kentucky to use an UAV. The Department has received training from the Federal Aviation Administration (FAA) and has created policies and procedures governing the device’s operation. One Department official commented that they are required to notify air traffic controllers at least 30 minutes before any flight and that they cannot fly higher than 400 feet above ground level. Additionally, officials must maintain visual contact with the drone at all times while it is in flight and all pilots must be FAA certified.

But the law is unsettled, and the Kentucky legislature will soon hear House Bill 22 which could prohibit the use of evidence obtained by drones in criminal trials. Additionally, law enforcement agencies using drones would be required to use the drone “in a manner to collect data only on the target and minimize data collection on individuals, homes, or areas other than the target.” The proposed title for the law is the Citizens’ Freedom from Unwarranted Surveillance Act.

Kentucky is not the only state confronting these issues. According to the National Conference of State Legislatures, 45 states considered at least 156 bills relating to drones in 2015. Needless to say the law in this area is rapidly changing, and it is important for law enforcement officials to stay current on the state of the laws governing drone use.


For questions or more information on “Drones and Law Enforcement – The Future is Now,” contact:


Curtis M. Graham  – MRR Lexington
Phone: 859.899.8516
Fax: 859.899.8498
Email: cgraham@mrrlaw.com

Getting Social – How Law Enforcement Can (And Should) Be Using Social Media

By: Curtis M. Graham, Esq.

There is no question that social networking websites have changed the way we live and connect. These sites have also presented opportunities and challenges for law enforcement departments around the country. From community outreach to criminal investigations, it is clear that law enforcement officials have a valuable new tool at their disposal. However, it is critical that they understand how to properly use these sites and avoid common pitfalls.

A recent survey found that Facebook is the most fruitful social network for law enforcement, followed by YouTube. The various social media outlets can be searched when law enforcement officials suspect that a particular individual may be openly boasting about criminal activity or posting incriminating photographs or videos online. Officials may also receive tips through their department’s home page which can then be followed up on. If there is an urgent situation (such as a credible threat of violence), officials may file an emergency request with the site to access information. However, many sites have their own legal teams to review requests and the standard for having such a request granted is very high.

The creation of a sound internal policy is the first step toward using social media to an agency’s benefit. Drafting this policy will require consideration of a number of issues, the most important being compliance with applicable laws and regulations. The logical starting point is the Fourth Amendment, which provides that every person has the right to be free from “unreasonable searches and seizures” of their “persons, houses, papers, and effects.” Officials should be mindful that the degree of Fourth Amendment protection is almost entirely dependent upon the location from which information is seized, the method of its collection and the type of information obtained. Another source of guidance is 28 CFR Part 23, which is a standard for law enforcement agencies that operate federally funded, multijurisdictional criminal intelligence systems. The purpose behind the regulation is to protect individuals’ privacy and constitutional rights during the collection, storage and dissemination of criminal intelligence information.

Each social networking website features its own unique characteristics; this means a one-size-fits-all approach to drafting a policy should be avoided. However, it is always a good idea to be educated about privacy settings and terms-of-service requirements that seem to apply across all platforms. As just one example, photographs that are posted on public, unrestricted profile pages are treated differently than information on pages viewable only by “friends” of the user when it comes to privacy expectations.

With the abundance of information now available online, law enforcement agencies must take steps to ensure that they are following the law when they gather and act on that information. A thorough social media policy can go a long way in achieving that goal.


For questions or more information on “Getting Social – How Law Enforcement Can (And Should) Be Using Social Media,” contact:


Curtis M. Graham  – MRR Lexington
Phone: 859.899.8516
Fax: 859.899.8498
Email: cgraham@mrrlaw.com

U.S. Supreme Court rules “Qualified Immunity” in Mullinex v. Luna

By: James A. Climer, Esq.

Police use of deadly force has been a hot topic in the news recently. Events like the Ferguson, Missouri riots and the shooting of Tamir Rice as well as the Michael Brelo verdict in Cleveland have spurred countless news stories, blog posts and editorials concerning the propriety of police officers’ use of deadly force. The writers of these pieces have a luxury that police officers do not have when they encounter dangerous situations: time for thought and study. How can law enforcement officers avoid civil liability under 42 USC § 1983 when courts, attorneys and others have hours to sift through reams of confusing and sometimes conflicting cases to determine the proper legal course of action, while officers often have only a few seconds in chaotic situations to decide what to do? That’s the reason for the affirmative defense called qualified good faith immunity.

Qualified immunity protects public officials carrying out discretionary functions from civil liability for monetary damages under § 1983 unless their actions are prohibited by “clearly established law.” In other words, if the judges and lawyers can’t agree on what the law is, police officers and other public officials shouldn’t be called to task after the fact for violating it.

The U.S. Supreme Court recently reminded courts and the bar how to determine whether law is “clearly established” for purposes of qualified immunity in Mullenix v. Luna, 577 U.S. ___ (2015). In Mullenix, Tulia, Texas police attempted to execute an arrest warrant for a man spotted at a drive-in restaurant. They were led on a high-speed chase during which the suspect, who appeared to be intoxicated, reached speeds of 85 to 110 miles per hour and told a Tulia police dispatcher that he would shoot at police officers if the pursuit was not abandoned.

Tulia police set up tire spikes in three locations in an attempt to stop the suspect. Trooper Mullenix of the Texas Department of Public Safety also responded to the pursuit, intending to set up tire spikes near an overpass. After learning that officers were already setting out tire spikes near the overpass, Trooper Mullenix became concerned for their safety given the suspect’s threats, and Mullenix considered shooting at the suspect’s car to disable it. Trooper Mullenix asked for permission from a supervisor to carry out his plan but it was unclear whether he heard the supervisor tell him to see if the spikes worked first. Before the suspect reached the tire spikes, Trooper Mullenix shot at the suspect’s car, apparently intending to disable it, but instead hit the suspect causing his death.

The suspect’s estate sued Trooper Mullenix under 42 USC § 1983 alleging the use of excessive force in violation of the Fourth Amendment. The trial court denied a motion for summary judgment asserting qualified immunity on behalf of Trooper Mullenix and the Fifth Circuit Court of Appeals affirmed.

The Supreme Court reversed and found that Trooper Mullenix was entitled to qualified immunity. The Court first made it clear that it was only addressing the qualified immunity issue and not whether a constitutional violation had occurred. Id. at 4. The Court then rejected the basis asserted by the Fifth Circuit for its decision, the generalized principle that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.” Id. at 5-6.

Instead, the Court reminded the bench and bar that the correct inquiry is whether the law prohibited the officer’s conduct in the “situation [she] confronted.” Id. at 6 citing Brosseau v. Haugen, 543 U.S. 194, 199. While case law does not need to exactly match the facts of the case under consideration, it must be clear enough to indicate to a reasonably competent officer that his/her actions are illegal “beyond debate.” Id. at 7. Noting that it had never ruled the use of deadly force to be illegal in a vehicular pursuit, Id. at 8, the Court further reviewed a number of decisions from other courts and found that they created at best a “hazy legal backdrop” against which to judge the actions of Trooper Mullenix. Given this uncertainty in the law, Trooper Mullenix should have been granted qualified immunity.

Mullenix does not represent a major shift in the law. However, it does provide a strong reminder to the bench, bar and public officials that qualified immunity should be granted unless case law indisputably establishes that an official’s actions are illegal.


For questions or more information on “U.S. Supreme Court rules ‘Qualified Immunity’ in Mullinex v. Luna,” contact:

James A. Climer  – MRR Cleveland
Phone: 440.287.8290
Email: jclimer@mrrlaw.com

 

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Law Enforcement and the ADA

By: Casey C. Stansbury, Esq.

Law enforcement officers encounter individuals with disabilities nearly every day. These disabilities may include people who are deaf or hard of hearing, people with epilepsy or cerebral palsy, persons with autism or Asperger’s, and persons with psychiatric difficulties. However, case law across the country has been inconsistent in determining the circumstances under which police can be held liable when dealing with a person with a mental disability. Questions frequently arise when police interact with individuals who may be protected by the Americans with Disabilities Act (“ADA”). The most recent United States Supreme Court case to deal with these issues is Sheehan v. the City and County of San Francisco.

In Sheehan, the Court was asked to determine whether two San Francisco police officers could be sued over their use of force when arresting a knife-wielding woman with a history of mental illness in a confrontation in which the woman was shot multiple times. In the 6-2 decision released in May of this year, the Court granted the officers qualified immunity on the Plaintiff’s Fourth Amendment claim. However, the Court did not address whether the officers should have provided the Plaintiff with “accommodations” or taken special precautions under the ADA because of her disability.

Cases like Sheehan are extremely fact-intensive and ADA concerns merit special attention by law enforcement departments in training and development of official policies and procedures as well as consideration by officers in the field when encountering members of the public with suspected disabilities. This blog will be updated with developments in this rapidly changing area of law.


For questions or more information on “Law Enforcement and the ADA,” contact:


Casey C. Stansbury  – MRR Lexington
Phone: 800.936.9198
Fax: 440.248.8861
Email: cstansbury@mrrlaw.com