New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

The Court recited the background of this strange case:  

“After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.”

Id. at 22825.  Las Cruces police department Officers Joann Schnell and Roberto Gutierrez responded to the scene, finding a bewildered Robert Fisher in the backyard, with his shirt off, nursing his wounds.

After retrieving Fisher’s gun, Officer Gutierrez ordered Fisher to lay on his bleeding stomach and spread his arms over his head. Fisher resisted this order, telling the officers that he could not comply due to his injuries. After repeating these orders, Fisher again did not comply.  Officer Schnell then proceeded to handcuff Fisher behind his back.  Because of the swelling to Fisher's bicep, she placed her knee into Fisher's back, in order to leverage his arms behind his body.

“Fisher begged not to be handcuffed in this manner. As he later reported: "I  protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds. . . . I begged her not to handcuff me behind my back." Aplt. App. 77. The manner in which he was handcuffed--with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body--caused, in Fisher's words, ‘excruciating pain. It felt like my bicep was tearing.’ Id. at 78.”

Id. at 22825.  Fisher sued the officers under Section 1983, claiming the officers used excessive force, in violation of his rights under the Fourth Amendment.  The District Court ruled against Fisher at summary judgment, claiming his injuries were minor, and he had not offered enough evidence “that he suffered a non-de minimis injury.”  Id. 

          After surviving the two-part test laid out for qualified immunity explained in Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) , the Court reviewed United States Supreme Court doctrine found in Saucier v. Katz, 533 U.S. 194, 121 (2001).  The Court requires establishment of 1) a violation of a Constitutional right and 2) that the right was clearly established.

          Following this analysis, the Court moved on to several balancing factors found in Graham v. Connor, 490 U.S. 386 (1989) to explain that a seizure’s reasonableness turns not just on why or when it is made, but also on how it is accomplished.  In some circumstances, an inquiry into objective reasonableness won’t just focus on why, but also how.  The Court cited Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007), for the proposition that, “If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force."

          Applying prior doctrine, the Court analyzed, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.  The Court drew extensively on Buck v. City of Albuquerque, the war protestor case from 2003, in which the city was sued for excessive force in dealing with individuals exercising their 1^st Amendment rights:

“We do not agree with the concurrence that Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement where the injury occurs during the course of handcuffing. The facts of the case make it clear why not. Doyon (the only person even handcuffed) did not attempt to flee, or pose a threat to any officer or individual, but nonetheless, the ‘officers grabbed him, dragged him, and pushed him face down on the pavement. One officer kneed him in the back and pinned him to the ground. An officer pushed him face forward onto the roof of a police car, and he was exposed to tear gas while handcuffed in the car.’ Id. at 1290. … Doyon was exposed to gas while handcuffed in the police car.  Buck, in short, cannot fairly be read as a case in which excessive force arises solely from the manner in which officers applied handcuffs, rather than from force independent of the handcuffing itself.”

Fisher at 22825.

Finding that discharge of a gun in the city limits of Las Cruces is only a petty misdemeanor, and therefore not a severe crime, and viewing facts in light most favorable to the Plaintiff, the Court concluded in Fisher’s favor on all three Graham factors.  The Court found that a reasonable juror could find injury, if even tiny injury.  Either way, physical injury was not required, so long as emotional injury, or dignitary injury, could also be independently found.  Remand for further proceedings and trial was appropriate.

Stating a clear rule of law, “In Cortez we explained that in a handcuffing case ‘to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Id. at 1129.  Fisher at 22825.

In a concurrence on the judgment by Judge Gorsuch, he took issue with a rule requiring a showing of actual injury. “[O]utside the context of a claim alleging overly tight handcuffing, proof of injury [either physical or emotional] is not essential to an excessive force claim. See [Cortez] at 1129 n.24.  “… [T]he circumstances of an encounter . . . may themselves be so outrageous as to demonstrate excessiveness’ without any evidence of a consequent injury).”   Fisher at 22825.

The push came after 14-year-old Kailee Martinez of Tucumcari, New Mexico was brutally struck in the head by a Taser dart. She now has 18 staples and 6 stitches on her head, thankful that she did not lose her life, compared with New Mexico’s 4 other lethal cases.

According to Truth Not Tasers, there have been 443 individuals killed by tasers in North America, as of July 1, 2009.  Amnesty International placed the fatality number at 330 since 2001, while excluding cases resulting in severe brain damage, acoma, or a vegatative state.

Other recent cases of police brutality include a 14-year-old middle schooler with autism from Indianapolis, IA, who was tasered twice for “acting out” in school. Instead of following the IEP and individual discipline plan for the autistic child, school authorities resorted to police intervention. Robert Smith of Indianapolis despicably labeled the incident as simply “enabling” the child, only encouraging him to “cross the line” further and disrespect police authority in the future. One wonders what would have occurred to Rosa Parks had tasers been in use in Montgomery, Alabama in 1955.

Several lawsuits have unsuccessfully challenged TASER International, Inc.’s claims that use of the device is a “non-lethal” alternative to older-fashioned methods of police brutality, challenging the device on products liability grounds. These lawsuits have met with limited success, however, and have yet to thoroughly penetrate America’s political consciousness. An incomplete list includes: Powers v. Taser Intern., Inc., 2007 WL 5446674; Williams v. Taser Intern., Inc., 2007 WL 1630875 (N.D.Ga. 2007); Neal-Lomax v. Las Vegas Metropolitan Police Dept. 2006 WL 2668190; and other big cases. 

Over the summer, in a huge victory against TASER International, a California jury awarded $6.2 million to a man wrongfully and excessively tased.  The victory is the first ever against Taser International in a product-liability claim.  TASER is appealing the award.

In Merced, California, an unarmed black man in a wheelchair, Gregory Williams, was excessively tased for no justifiable reason.  Gregory had no legs at the time of incident (and therefore fleeing was not a possibility), as shown in this video.  Mr. Williams lost his legs to gangrene previously, along with his job as a truck driver.  No resolution from the incident is known at this time.

In Michigan, a 15-year old was tasered to death after bailing out of his Dodge Stratus, having done nothing more than drive on an expired license plate.  After being shocked a single time by police, he paid the death penalty for driving on expired tags.  A second Michigan case was that of 15-year-old Brett Elder, who was executed by taser after wanting to fight the police bare-handed.  In all of the cases, the juveniles were completely unarmed.

“50,000 volts of shock can damage your nerves, can cause cardiac arrest and death. Your nervous system is a series of delicate cords,” said Ralph Arellanes of Albuquerque, New Mexico, LULAC’s District 1 Director and Chairman of the Hispano Roundtable of New Mexico. “We have medical professionals that say it hasn’t been tested enough by science, and there is no statistical evidence that Tasers actually save lives. If anything, lethal encounters between officers and civilians have actually increased.”

Arellanes attributes this to the fact that Albuquerque’s police training manuals falsely list a Taser as equal in force to that of mace or pepper spray, another assertion without any credible evidence. He believes there is a high percentage of police officers abusing tasers and too many innocent people are getting tased and dying at the hands of these police officers as a result of this abuse.

“Even good officers lose their temper from time to time ... Some love to watch people squirm and scream,” Arellanes observed, noting that it is often fun for officers to deploy the devices. “The abuse of these devices by police departments is widespread. Some of them enjoy watching people electrocuted,” while others he characterizes as simply numb or insensitive to the damage being caused.

In Tucumcari, Police Chief Roger Hatcher is back on the job six weeks after using a Taser stun gun to deliver 50,000 volts to apprehend a 14-year-old girl, all to stop her from running away from her mom and sending text messages to her friends.   Perhaps because of misleading information provided in training or various other issues, this young girl suffered unnecessary damage by the Taser. All in a day’s work and simply business as usual, without a second thought to the damage, both physically, psychologically, and to the community at large. 

-Derek Garcia for The Kennedy Law Firm

City to pay $100,000 in officer attack
By Maggie Shepard
Tribune Reporter
June 11, 2005

An Albuquerque police officer's actions will cost the city $100,000, the amount awarded to a man he is accused of pepper-spraying and whose arm was broken during a September 2003 incident.

On Wednesday, a federal jury in Santa Fe found Officer Keith L. Sheley liable for using excessive force against Adam Arendt, 31. Arendt had been walking Downtown with his girlfriend when he was assaulted, according to court documents.

Sheley, responding to the assault, pepper-sprayed Arendt and pushed him against a wall, breaking his arm, according to court documents.

Claims that Sheley and his supervisor, Steven Hall, falsely arrested, neglected and unlawfully detained Arendt were dismissed, said Kathryn Levy, the city attorney assigned to the case.

Sheley, still with the Police Department, now works in the Valley Area Command.

The department has concluded an internal investigation into the incident, police spokeswoman Sgt. Beth Paiz said.

The results of the investigation and any administrative action - which could include suspension, a reprimand or retraining - for Sheley is confidential, Paiz said.

Levy said the $100,000 judgment was for compensation, not for punitive reasons.

There were no criminal charges filed in the incident, but the department was alerted to Arendt's lawsuit as a matter of policy.

Any lawsuit involving a police officer is forwarded to the department's internal affairs unit, said Charles Kolberg, a city risk manager.

Usually, though, Kolberg said, complaints are filed with the police department or the city's Police Oversight Commission before lawsuits are filed.

Levy said the city has not decided whether to appeal the case.

The decision is doubly disappointing for this blogger as he was co-counsel for the plaintiff. Mr. Gutierrez was inebriated and lost on a cold morning. He saw a car that he thought he recognized and decided to sleep in the car. Albuquerque police were called to the scene. After a five minute investigation, the dog handler ordered the dog into the car and ordered the dog to attack. The two most bothersome facts were that the police came in close proximity to Mr. Gutierrez when an officer opened a car door and the dog was ordered to bite rather than to bark when it entered the car. Luckily, Mr. Gutierrez was not severely injured.

The Tenth Circuit simply sided with the jury on this one:

When viewed from the perspective of a reasonable officer on the scene, and in the light most favorable to Officer Hackett, the situation presented a man who had broken into an automobile in the middle of the night, who would not respond to any of the officers' repeated demands to emerge, and who kept his hands hidden in such a manner as to conceal a weapon. As soon as he revealed his hands to the officers, the police dog was called off. The jury determined that under these circumstances, Officer Hackett did not use constitutionally unreasonable force, and we determine that the record contains substantial evidence to support the verdict.

This was the second of two cases Brad Hall (Albuquerque) and I litigated against APD for dog attacks. The first case was successful in vindicating our client's rights and in changing APD policy. Smith v. City of Albuquerque, 01cv416 (United States District Court New Mexico) However, the Gutierrez result was and is a bitter pill.

There are no published Tenth Circuit decisions dealing with the use of police dogs to arrest persons. Perhaps, the decision to issue an unpublished opinion signals that the Tenth Circuit is not quite ready to weigh in on the issue. Thankfully, the opinion establishes no rule of law against plaintiffs. We were hopeful of achieving some rule of law that protected non-violent offenders from dog attacks.