Verbally Abusive Nutcases With 25 Pens And Pencils Have Rights Too

WINTERROWD v. NELSON, USCA-9 No. 04-35855, 2007 U.S.App. LEXIS 7400, on appeal from USDC-AKD, before USCJs Kozinski, Berzon, Tallman, opinion by Kozinski, filed 30 Mar 2007.

LONG STORY SHORT: Motorist's long history of traffic infractions, belligerent attitude, opinion that the state could not make him register his vehicle, verbal abuse of officers, and possession of 25 pens and pencils did not justify pushing him onto hood and pulling injured arm. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA.

FACTS: Four Alaska State Troopers stopped Plaintiff's vehicle because they suspected his license plate was invalid. At least one Trooper was familiar with Plaintiff's long history of traffic infractions and knew of Plaintiff's belief that Alaska had no legal power to require him to register his vehicle. Indeed, after stopping, Plaintiff could produce no valid registration for his vehicle. Troopers ordered Plaintiff out of his vehicle so they could put him in a patrol car and talk to him there. Troopers removed some 25 pens and pencils from Plaintiff, but he did not seem to have any weapons on him. At some point, Plaintiff called Troopers "jackbooted thugs," "armed mercenaries," and "cowards."

For officer safety, Troopers decided to conduct a pat-down for weapons, and got Plaintiff away from his vehicle. They had him face toward the patrol car and told him to put his hands behind his back. According to Plaintiff, even though he told them his arm was injured and he could not comply, Troopers forced him onto the hood and one Trooper grabbed his injured arm and forced it up. Plaintiff screamed in pain but the Trooper increased pressure on his arm and pumped it up and down, then released his arm and allowed him to fall on the ground. Troopers later admitted that a subject may hold his arms out to the side or over his head instead of absolutely having to put his arms behind his back.

PROCEDURE: Plaintiff, representing himself, sued Troopers in U.S. District Court for the District of Alaska per 42 U.S.C. § 1983 for excessive use of force in violation of the Fourth Amendment. Troopers moved for summary judgment on grounds of qualified immunity. The trial court ruled that, since it had to take Plaintiff's statements under penalty of perjury as true, Troopers used excessive force under the totality of the circumstances, and no reasonable officer could have believed otherwise. QUALIFIED IMMUNITY DENIED. Troopers appealed to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: No matter how verbally abusive Plaintiff was, the First Amendment protected his speech, and all the more so because the object of his protest was law enforcement, who must show greater restraint in the face of provocation than the ordinary person might. None of his traffic infractions were of a violent nature. Neither was his (unjustified) belief that the state cound not force him to register his vehicle. Possession of 25 pens and pencils indicated eccentricity, but not necessarily violent tendencies, since pens and pencils have other uses besides weapons.

None of the facts available to Troopers added up to an articulable belief that Plaintiff was particularly violent, but they still could pat him down before installing him in a patrol car. Neither were Troopers expected to put themselves in greater danger by crediting Plaintiff's claim of injury. What they could have done was to have him hold his arms out to the side or other alternative pat-down procedure that did not involve Plaintiff putting his hands behind his back. No reasonable officer could have believed otherwise. Troopers gave a much different account of the events, but that would all have to go before a trier of fact. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

EDITORIAL: Oy vey ... 25 pens and pencils, you can't make me register my vehicle, gitcha hands off me ya fascist pig, owwww my arm, file suit pro se ... somebody's not wrapped too tight. I know the type all too well. Good thing the dash-cam video will prove him wrong ... ahhh, you DID get this on video, didn't you? Wait ... the opinion never mentions video, or at least audio of what was said after they went out of frame. Don't tell me there WASN'T a video. Well, Alaska can use the money it saved by not buying a dash-cam, or not buying new tapes for the one already there, to pay about one-tenth of the costs of defending this suit.

Tape or not, I would bet about a hundred million dollars that he won't survive trial, but then again he might. Poor troopers. If they win, as they ought, this fruitcake needs to go down hard for perjury. But he won't.