Excessive Force After Subject Resists Violently May Still Be Illegal And Suable

DYER v. LEE, USCA-11 No. 06-14680, 2007 U.S.App. LEXIS 12941, on appeal from USDC-FLMD, before USCJs Barkett, Kravitch, USCJ-1 Stahl by designation, opinion by Stahl, filed 05 Jun 2007.

LONG STORY SHORT: Conviction for resisting arrest with violence does not always foreclose suit against arresting officers for excessive force, especially when some of the events complained of occurred after arrest. Binding in AL, FL, GA.

FACTS: [Note: This is the plaintiff's version of events. The deputies may disagree.] Restaurant manager in Naples, FL called the Collier County Sheriff's Office to ensure that Plaintiff, who had just left drunk, did not drive home. The four Defendants, all Collier County deputies, arrived at the parking lot to find Plaintiff sitting behind the wheel of her boyfriend's car. Deputies Lee and Tutt asked for her license, but she said she didn't have it, wasn't going to drive anyway, and was just waiting for her boyfriend to come get her because she knew she was drunk. Deputy Humann tried to administer field sobriety tests, but she refused and said "just go ahead and arrest me." Deputy Humann handcuffed her behind her back, despite her request to be cuffed in front because of an arm injury, told her she was under arrest, and read the Florida implied consent notice. Plaintiff protested loudly that she wasn't going to drive, so Deputy Humann put his hand over her mouth so he could continue reading the implied consent notice. Plaintiff kicked Deputy Humann in the leg, whereupon Defendants told her she was under arrest for battery on a LEO, and installed her in the back seat of a patrol car.

Plaintiff's boyfriend showed up, and about this time, Deputy Truitt noticed that Plaintiff had slipped her wrists under her feet so that her hands were in front. Deputy Humann extracted her from the patrol car and Defendants shoved her against the car, slammed her head into the car, kneed her in the leg and lower back, and pepper-sprayed her while recuffing her with an unauthorized and very painful technique. Defendants put her back in the patrol car and her boyfriend testified that they again pepper-sprayed her.

PROCEDURE: Defendants charged Plaintiff with DUI, resisting arrest with violence, and three counts of battery on a LEO. Eventually, Plaintiff pleaded no contest to one count of resisting with violence and went on probation, but violated it and was adjudicated guilty of resisting with violence, a felony. The charging document [Note: Florida charges most noncapital felonies by "information," which is like an indictment, but signed only by a prosecutor who has heard sworn testimony in secret, instead of a grand jury. Sort of cuts out the middleman.] read that she had resisted arrest "by offering or doing violence to the person of said officer," but the judgment of conviction did not specify any further findings of fact.

Plaintiff sued Defendants in U.S. District Court for the Middle District of Florida per 42 U.S.C. § 1983 for excessive force in violation of her Fourth, Fifth, and Fourteenth Amendment rights. Defendants moved for summary judgment, arguing that since Plaintiff stood convicted of resisting with violence, a judgment against Defendants for excessive force would imply the conviction was invalid, which federal courts could not do. The trial court agreed. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: While a lawful arrest, followed by a conviction for resisting arrest, may foreclose an action for illegal arrest, that was not quite the case presented here. Plaintiff was suing for excessive use of force, and it is entirely possible for police to use too much force even when overcoming unlawful resistance to a lawful arrest. Here, Plaintiff was already under arrest when she slipped the cuffs to her front, meaning that what happened after Defendants pulled her out of the car and supposedly roughed her up while recuffing her was not part of the arrest. In the Eleventh Circuit, suing for excessive force under these facts would not imply that her conviction for resisting arrest was invalid. Therefore, a § 1983 suit and a criminal conviction could coexist in this particular logical universe. Indeed, any other rule would imply that police can beat resisting subjects to their hearts' content without civil lawsuit worries. SUMMARY JUDGMENT REVERSED and cause REMANDED for entry of denial of summary judgment.

EDITORIAL: Well, if all this is true, as we have to ass-u-me for summary judgment, I have to agree with the decision. Somehow, though, I would guess that not all was as the young lady would have us believe. She didn't manage to complete probation (the opinion calls it "parole" but there is no parole in Florida anymore), which only habitual losers can't do, and shouldn't have resisted in the first place, of course.

In the deputies' place, I might not have been so ready to charge her with drunk driving if she was only sitting in the driver's seat with no key and the engine off. Which makes me think that maybe she was doing MORE than just sitting there. For sure, I wouldn't have put my hand over her mouth. That's a good way to get bitten! Which again, makes me doubt that part of her story, because most people would allow their fear of getting bit to overcome their instinct to shut her up. I say, if she doesn't want to hear the implied consent statement, she doesn't have to ... but she does have to do what it says anyway.