Righteous Baton Wielder--or Officer Fru-Fru? Jury Must Decide

BAKER V CITY OF HAMILTON, USCA-6 No. 05-4390, 2006 U.S.App. LEXIS 31056, appeal from USDC-OHSD, before Circuit Judges Siler, Gilman, and Griffin, opinion by Griffin, filed 18 Dec 2006.

LONG STORY SHORT: Two citizens testified that the same officer used his baton to hit them on the head when they were not resisting, which a reasonable jury could find to be excessive force and could deny qualified immunity. Binding in KY, MI, OH, TN.

FACTS: Plaintiff 1 had spent 15 Dec 2002 smoking a rock or two of crack and drinking at least 10 beers when he encountered one of his regular drug dealers on the sidewalk. As he was in the process of declining the dealer's offer of sale on grounds that he had enough crack to tide him over at the moment, Plaintiff 1 saw Hamilton Police Officer Taylor and his partner cruise by in a police car. Plaintiff 1 began to walk away. The officers told him to stop, and Plaintiff 1 ran for two blocks and hid in bushes. Plaintiff 1 testified that Officer Taylor discovered him, but even though he stood up with his arms extended in the traditional surrender posture, Officer Taylor hit him in the head and in the knee with an ASP collapsible baton. Also according to Plaintiff 1, "that's for running from me" was Officer Taylor's comment after the knee strike. Plaintiff 1 required stitches to close the head wound. Plaintiff 1 also had three crack rocks on him when arrested, and later pleaded guilty to related charges including resisting arrest.

Plaintiff 2, age 17, was walking outside with two friends at 3:50 in the morning of 23 Oct 2003 when Officer Schuster drove by and stopped them to ask about recent car break-ins nearby. The trio said they had been at a friend's house and while waiting for permission to spend the night there, decided to take a walk around the block. No one had identification, but neither did Officer Schuster's Terry patdowns find any tools, weapons, contraband, or evidence of criminal activity. Plaintiff 2 gave a false name and overstated his age. A curfew made it illegal for 17-year-olds to be out at that hour. Officer Alatore arrived, performed a second search, and escorted the other two subjects to the back seat of the patrol car. Plaintiff 2 ran away until he believed he had evaded the officers, then slowed to a walk, but Officer Taylor and others had heard the activity over the radio and responded to the scene. Plaintiff 2 ran again upon seeing them, and testified that Officer Taylor yelled "stop or I'll shoot," so Plaintiff 2 slowed down and said "I'm stopping, I'm stopping." Plaintiff 2 testified that Officer Taylor hit him in the back of his head with an ASP baton, tackled him, and sat on his back, maintaining a choke hold while other unknown officers kept hitting him in the legs with batons. Plaintiff 2 was later convicted of curfew violation.

PROCEDURE: Both Plaintiffs sued Officer Taylor in U.S. District Court for the Southern District of Ohio, seeking compensation under 42 U.S.C. § 1983 for violation of their Fourth Amendment rights against unreasonable seizure, and also for damages on state assault and battery claims. Officer Taylor moved for summary judgment on grounds that as a matter of law, he did not use unreasonable force, and even if he did, qualified immunity protected him because he was performing his official duties. SUMMARY JUDGMENT GRANTED in all respects; case closed. Plaintiffs appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing that material issues of fact were still in dispute and that Officer Taylor could not use qualified immunity.

DECISION: The Sixth Circuit looks at three factors to decide whether force was excessive: (1) the severity of the crime at issue; (2) whether the subject posed an immediate threat to the safety of police or others; and (3) whether the subject actively resisted arrest or fled to evade arrest. Courts must apply these factors in light of the split-second judgment required of officers in dangerous, dynamic encounters with arrestees. The Sixth Circuit also noted that other reported cases featured far worse police behavior than what might have happened here.

Even so, the Sixth Circuit ruled at least eight months before the events in this case that once a subject is incapacitated or not resisting, further use of force is excessive as a matter of law. A reasonable jury could credit Plaintiffs' testimony and find that Officer Taylor had used excessive force, and since he was on notice that such force was excessive, a jury could also deny him qualified immunity. Furthermore, even though his department's baton policy forbids it except in cases of extreme physical danger, Officer Taylor struck Plaintiffs on their heads, and Plaintiff 1 on his knee, after they had surrendered. Lastly, Plaintiffs had put forth evidence that Officer Taylor's use of force was gratuitous, which could prove the necessary malice or bad faith element of assault and battery under Ohio tort law. Summary judgment REVERSED and cause REMANDED for further proceedings on Plaintiffs' civil rights and state tort claims.

EDITORIAL: What the Sixth Circuit calls an "asp" is of course a Tactical Baton from Armament Systems and Procedures, Inc. It looks like a thin rubber-covered flashlight until you flick your wrist and out comes a telescoping length of steel, from 16" to 31" long depending on the exact model (mine is 21", the best overall length). To collapse it, you must smack the end on a very hard surface, preferably the sidewalk or a brick, and then you put it back in the belt holster. Some call it an "expandable" baton, others a "collapsible" baton, depending on whether the glass is half empty or half full, I guess. ASPs aren't the only such baton out there but they were (I think) the first and (everybody thinks) the best, so all telescoping batons are ASPs like all copiers are Xerox machines.

I've never had to take mine out in earnest (but the day is young) and hope never to need it, if for no other reason than exactly this sort of incident. We were thoroughly trained in a number of baton moves with the weapon both expanded and closed, and all authorized impact points are where strong bone lies underneath meaty muscle. Batons are not for inflicting injury, but for distraction by means of temporary pain, long enough for you to gain control and handcuff the subject. Strikes to the joints are verboten, and one of my instructors had her career ended when a fellow officer broke her knee in half during training. Rib cages, necks, and heads are off limits unless it's a deadly force situation. Now, ASS-U-ME-ing that the subjects here are telling the truth, it's time for the Good Fairy to pepper-spray this officer and inquire kindly about all the head-bopping.

Then again, Plaintiff 1 is in technical medico-legal terms a "crackhead," meaning that he would rather climb a tree and tell a lie than stand fast and tell the truth. The Sixth Circuit found it unnecessary to consider his alleged hospital records because his sworn testimony was enough for a jury to believe. I suspect that Their Honors held their noses when writing that, since no one is likely to credit Smokey Joe Twelvepack here. Plaintiff 2 and his buds maybe were just out for their evening constitutional, and maybe they were trying door handles. Since all he was convicted of was a status offense for breaking curfew, he shouldn't even have been arrested, but at the time, the police didn't know that. I think the case will settle for a moderate amount and we won't hear anything more about it.