How Not to Arrest a Runaway Autistic Child

On February 23, 2022, a 12 year old autistic boy, reportedly ran away from home. Law enforcement was dispatched. That child encountered Deputy Matthew Honas, who handcuffed and hogtied the child, and then tased him without warning in the deputy’s police cruiser. This happened in Jackson County, Kansas. Although the officer was fired, the government is doing what government does: it’s hiding the video footage. Also, the government is protecting a bad cop, who is a threat to public safety. They fired him; then they let things settle down for awhile. Then, when it’s no longer in the news, the officer pops up somewhere else and continues working as a police officer. 

There was no report of the child committing any crimes, other than running away from home, which perhaps is some of juvenile delinquency status offense under state law. There was a history between the child and the officer, however. Deputy Honas had previously encountered the child and was aware he was autistic. During the prior encounter there was also a physical struggle, according to a report disciplining the officer. But no details are provided. 

Is there any video footage? How do we know what really happened? The Topeka Capital-Journal newspaper reported that Honas was not wearing a body cam, but that most of the interaction was captured by his in-car camera. The Capital-Journal attempted to obtain a copy of the footage via an open records request, but was denied under the open criminal investigation exception to disclosure under state law.

Honas was fired a little over a week after the incident. Termination of employment isn’t enough though. Why? Because bad cops just pop up somewhere else, usually in a small town that pays less. Then they get what they pay-for, which is a police officer who is already certified and experienced, but willing to work for less – because they’re damaged goods and a liability risk.

The Kansas Commission on Peace Officers’ Standards and Training, which oversees law enforcement certifications in Kansas, issued a disciplinary report that reprimanded Deputy Honas. The report concluded that Deputy Honas “used excessive force multiple times throughout his contact” with the child. He “shoved, elbowed, applied pressure points, carried, pulled, ‘hog tied,” and ultimately tased” the child.” During this time, the child was “sitting in the patrol car” and “not actively resisting.” His hands were cuffed behind his back. Deputy Honas began to press the child’s jaw pressure points without giving any direction to the child to do anything. This, the report concluded, “appeared to be of a punitive nature.” 

But it gets worse. Deputy Honas refused and cancelled assistance from two other available officers. He chose not to use de-escalation techniques; he failed to use other options in restraining the child. He said that he was going to call a transport van, but did not. On several occasions, Deputy Honas applied pain compliance techniques without telling the child what he was supposed to do. He told the boy, “When the other guy gets here, you’re going to hurt more.” He also said, “here’s the deal, you do anything you’re not supposed to do I will tase you again.” 

The report ultimately concluded that Deputy Honas engaged in “Unprofessional Conduct,” which at least in part, is defined as “using excessive physical force in carrying out a law enforcement objective.” The report, for purposes of law enforcement discipline in Kansas, then defines excessive force as “physical force . . . greater than what a reasonable and prudent officer would use under the circumstances.” Unfortunately, the report merely “reprimanded” Deputy Honas rather than revoke his certification to continue to work elsewhere in Kansas as a police officer. 

Isn’t it crazy that I just did another hogtying video, where there was body cam footage, out of Colorado. In that video I discussed some rare hog-tying law that existed in the 10th Circuit. Well guess what. It can be confusing to understand which states are in which federal circuits. But guess which federal circuit Kansas is in? That’s right, 10th Circuit, just like Colorado. There’s a 2008 case, Weigel v. Broad, out of the 10th Circuit, that denied qualified immunity to police officers for hogtying arrestees. Basically, it holds that hogtying is almost never reasonable, as it poses a high danger of positional asphyxiation.

Here’s the prior video:

Pastor Calls Cop a “TYRANT” and Gets Chased Into Church

On August 25, 2019 in Worcester, Massachusetts, police officers arrived outside Cornerstone Baptist Church. They were there attempting to retrieve a child after receiving a report of a custody dispute involving the granddaughter of the church’s pastor, Joseph Rizzuti, Sr. Officers arrived at the church to retrieve the child after the child’s father alleged that the mother had failed to return the child following a visit. Officers wrote in their reports that churchgoers and family members kept interfering, refused orders by police and resisted arrest. The body cam footage shows what happened. The church’s pastor, Joseph Rizzuti, Sr., stands outside the church, telling his daughter to leave. Worcester Police Sgt. Michael Cappabianca, Jr., walks over to him.

Is there a First Amendment right to call a police officer a “tyrant?” Yes. Does it matter whether he’s actually a tyrant or not? No. Does it matter whether you’re a pastor standing in front of your church or a homeless guy with a cardboard sign? No.

Helpful Cops Pepper Spray Old Guy Hit By 18-Wheeler | Lawsuit Filed

On the morning of February 1, 2022, 57 year old Benjamin Quarles was running errands in downtown Minden, Louisiana, after dropping off his wife for a medical appointment. She was a dialysis patient. Mr. Quarles is a school bus driver with no criminal record. As he approached an intersection, he stopped at a red light. While stopped, his car was struck from behind by an 18-wheeler dump truck. The impact pushed Mr. Quarles’ car into the intersection. He had violated no criminal or traffic laws.

Mr. Quarles stayed inside his vehicle. Shortly afterwards, two Minden Police Officers arrived at the scene. body cam footage captured what happened. Due to his wife’s condition, Mr. Quarles was apprehensive about the officers’ germs. As the officers approached him, he communicated to the officers that he wanted to keep his distance from them. For cops, this is sort of like rolling up your window most of the way at a traffic stop. They love that. This is a direct affront to their authority in their eyes. They see it as disrespect. Instead of actually communicating, which is what they’re supposed to be doing in these situations, they instead escalate and retaliate.

The officers yelled to Mr. Quarles that he was under arrest and to step out of the car. Mr. Quarles moved his left leg from inside the passenger compartment of the car and placed it on the ground outside the car. He looked at Officer McClaren and asked, “help me out of the car.” The officers refused. Mr. Quarles then, with his foot still outside the car, grabbed his cell phone off the console, before getting out of the car. At that moment, Mr. Quarles was pepper sprayed by Officer Hammontree, and yanked from his car by the two officers. 

Mr. Quarles was forcibly thrown to the ground. Then Officers McClaran and Hammontree left him lying on the ground, handcuffed and injured, with his mask soaked in pepper spray. He was left there on the ground until the ambulance arrived. He was transported to a local hospital emergency room for treatment. The entire time he was in the hospital, Mr. Quarles was guarded by two Minden police officers. How brave of them. Protect and Serve. That’s their motto.  Mr. Quarles was then put in a cage for a period of time, until his brother came and bailed him out. When he got his car back, he found it had been ransacked, presumably because it had been searched by the officers, obviously looking for the hidden cash and drugs. They didn’t find the cash and drugs, but they did apparently find a $30 Circle K gift card, as it was missing from the car after the officers finished with it. 

At the time this happened, Mr. Quarles was the victim of a traffic accident that was someone else’s’ fault. He had committed no crime. The subsequent accident report determined that he did nothing wrong. The two officers never bothered to determine whether Mr. Quarles was injured in the accident. They just escalated and retaliated, due to a perceived disrespect of their non-existent authority. 

There can be no doubt that due to the show of force by the officers, telling him he was under arrest, using force on him, pulling him out of the car, that he was subjected to a warrantless arrest at that point. A warrantless arrest requires probable cause that Mr. Quarles had committed some crime. There was no allegation of any crime having been committed. The officers charged him with a violation of Louisiana’s “Resisting an Officer” statute, i.e., “resisting arrest.” At his initial court appearance on March 2, 2022, that charge was dismissed on the motion of the prosecutor. The charge was most likely dismissed because the officers did not possess any probable cause to believe that Mr. Quarles had committed any crime prior to him being seized. The chicken cannot come before the egg. 

It’s always necessary to resolve the criminal charges before filing a section 1983 civil rights lawsuit. There are several reasons for this. Depending on the circumstances, a conviction of one or more of the criminal charges arising from the incident can bar a successful 1983 suit. For instance, if the claim is for false arrest, meaning a warrantless arrest performed in the absence of probable cause, one wouldn’t want to plead guilty to the facts you’re alleging didn’t exist. It can get complicated, but that’s the general idea. This is one of the first things I generally have to tell people. Sometimes getting rid of the criminal charges is easy; sometimes it’s not. 

In this case, a section 1983 civil lawsuit was filed and was just recently amended. It appears that the government is fighting hard against it. There is a pending motion to dismiss. What should government have done? They should have apologized and compensated for violating the man’s civil rights. If they didn’t have the evidence to even take the criminal case to a trial, they should compensate him. Then there’s the injuries they inflicted on him. They should compensate him for that. Why? Use of excessive force by police officers against an arrestee, or anyone really, is a Fourth Amendment violation. They are liable for damages, assuming they’re not awarded qualified immunity.

At some point there will be a ruling on qualified immunity in this particular case – probably after depositions are taken and there’s testimony for the court to analyze. I’ll try to keep an eye on this one, as I’m curious to see what happens here. I’ll be rooting for Mr. Quarles. 

Cops Hogtie Innocent Man | Can the Police Hogtie Arrestees?

October 9, 2020, Sterling Police Officer Paul McDaniel pulled Christian Weitzel from his apartment and threw him to the ground. With the assistance of Sterling Police Officer Matt Williams and Logan County Sheriff’s Deputy Alton McGuffin, the three officers hogtied Mr. Weitzel with his wrists handcuffed behind his back, his ankles strapped together, and his ankles and wrists tied together behind his back. They drug him to a police cruiser, threw him into the rear seat, and left him in that position until he was finally released at the jail.

There was a verbal argument between Mr. Weitzel and his wife, Brittany Weitzel. Mr. Weitzel was not arrested or charged with any criminal offenses related to a domestic dispute. The officers were called to the scene following a call from a neighbor of a possible domestic dispute due to hearing loud voices. After the officers arrived at the apartment, they could not hear anyone yelling inside the apartment. They did not observer any altercation taking place, or any crimes being committed. 

Officer McDaniel asked Brittany what was going on and she stated, “just an argument.” She did not appear to have any injuries. She did not request assistance from the officers. She had not called them to the scene. Mr. Weitzel then walked up to the doorway from inside the apartment. He did not step outside the threshold of the apartment door. He asked Officer McDaniel, “what’s up man,” in a calm nonthreatening, and nonaggressive manner. 

Officer McDaniel asked Mr. Weitzel to “come here and talk to me man.” Mr. Weitzel, in a calm, nonthreatening and nonaggressive manner, stated, “I’m cool,” indicating that he wanted to stay inside the doorway of his apartment. He made no sudden moves. He did not threaten the officers in any way. Mr. Weitzel did not appear to be armed. Nor did the officers have any information or indication that Mr. Weitzel was armed. Mr. Weitzel was ultimately hogtied for approximately 16 minutes. Mr. Weitzel was charged with disorderly conduct, resisting arrest, and obstructing. All the charges were subsequently dismissed by Logan County Court Judge Ray Ann Brammer. 

A lawsuit was filed just a few days ago in state court in Colorado over these allegations. I’ll post it up to the blog, link in the description. As for the facts, based on the body cam footage and the facts presented in media reports and the civil lawsuit, constitutional rights were violated. Why?Although the officers were called to the scene of a reported domestic dispute, they ended up acting on a very small amount of information that, even if true, does not justify an arrest of the homeowner, much less a use of force. 

A neighbor called 911, reporting a suspected verbal argument. There was apparently no allegation of a crime being committed, or that anyone’s physical safety was in jeopardy. When officers arrived at the scene, they saw no crime being committed. They located and observed both spouses at the residence. Neither appeared to be in distress, or requested their assistance. Without Mrs. Weitzel requesting their assistance, under these circumstances, the officers had no justification for pulling Mr. Weitzel out of his house. That’s a Fourth Amendment violation right there. But even assuming they acted properly up to that point, then we have the arrestee being hogtied on the ground. 

Colorado is the 10th federal circuit. A quick search of the case law shows that police officers hogtying anyone is a terrible idea under almost any fact pattern. It could theoretically be reasonable under some circumstances, but I really don’t know what that would be. It certainly would not be reasonable under this fact pattern, where the arrestee had not committed any crime at all, much less a severe one. Watching the body cam footage shows that the arrestee is not attempting to harm the officers. He poses no threat to them. 

Rather, it appears that the officers hogtied the man in retaliation for not immediately respecting their authority by stepping out of his house when they asked him to do so – despite having no legal justification for the demand. This appears to be one of those common situations where police are going to teach a lesson about respecting the police. It’s clearly not about the safety of anyone on the scene, including the arrestee. 

There’s a 10th Circuit case, Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), that discusses hogtying, making it clear that the courts consider it akin to the use of deadly force, as it poses a high danger of positional asphyxiation. I’ll put all the legal citations in the blog post on this, which you find in the description. The Weigel case also cites another 10th Circuit case, Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001), which is relevant here. 

In Cruz, Wyoming police officers responded to a complaint of a naked man running on the exterior landing of an apartment building. When the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down and kicking his legs in the air. When he descended from the landing, the officers wrestled him to the ground and handcuffed him. They hogtied him. Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital, where he was pronounced dead on arrival. Expert reports indicated that Mr. Cruz’s death resulted from positional asphyxiation. Citing Cruz, the 2008 Weigel opinion denied those officers qualified immunity for similar conduct, issuing a clear warning to law enforcement to think twice about hogtying arrestees. As a result of this, the Wyoming State Police, as I understand it, prohibited the practice. Back in the 90’s, the DOJ also warned against the cruel practice.

There are a lot of other hogtying cases out there. But I gave you the 10th Circuit law, as that is applicable for this particular jurisdiction. 

Full raw footage here.

My Client Films Officer Appearing to Overdose After Suspect Allegedly Throws Narcotics

It hit the news yesterday that several Oak Hill, West Virginia police officers had supposedly overdosed after narcotics were thrown at them by a suspect they were attempting to arrest. I was already looking into the science behind these claims when I found out that a client of mine actually witnessed what happened, and began filming with his cell phone.

“Sheriff’s Office: Two officers in Oak Hill overdose after suspect throws drugs at them” was the headline. Here’s the media report:

What were the chances that a client of mine just happened to be driving by when it happened? Compare the footage with the press release and let me know your thoughts on the matter. I have some initial thoughts, but want to look into it some more.

Here’s the statement issued by the sheriff’s department:

Here’s the footage:

Cop Slams Pregnant Woman Over Broken Taillight – In Her Own Driveway

So many police encounters we see in the news, or on Youtube, were completely unnecessary. Some may say those are just circumstances where “A-holes collide,” but they need to keep in mind that we’re not talking about random people encountering each other, but rather an interaction between a citizen and that citizen’s government. These are not equal positions. Hot-headed police officers who primarily enforce their ego and authority, tend to escalate situations unnecessarily, creating crime out of thin air and endangering the safety of everyone. A little bit of common sense and a little bit of kindness would really go a long way. 

Recently, a federal lawsuit was filed in Kentucky and the body cam footage was released, showing a young pregnant woman confronted by a police officer, in her own driveway, over a busted taillight. Take a look and then I’ll give you my thoughts about whether her constitutional rights were violated. Can the police just pull in your driveway after you park and detain you in your yard, much less use force on you?

According to the lawsuit, the officer, McCraken County, Kentucky Deputy Jon Hayden threatened to tase this 24 year old pregnant woman, Elayshia Boey. He then “face planted” her into a cruiser, pinned her to the ground, with his knee on her back, holding her down with the full weight of his body. She was six months pregnant at the time. 

In his citation, Deputy Hayden wrote that after Boey refused to identify herself, he attempted to arrest her by grabbing her writ to “gain control.” However, the body cam footage showed that after the deputy asked her to identify herself, she gave her name. The deputy further wrote in his report that “after a brief struggle, Boey was then placed on the ground by physical force to gain control and compliance.” Boey and her mother were both arrested and charged with felony assault of a police officer. Those charges are apparently still pending. After a complaint was received, McCracken County Sheriff Ryan Norman said that the sheriff’s department had investigated itself and concluded that none of their policies or procedures were violated. He apparently didn’t mention whether any constitutional protections were violated. 

A few minutes later, after both women had been arrested, Hayden puts his body camera back on. His audio shuts off twice when he explains to other deputies what happened. Later, Deputy Hayden’s conversation with the jail nurse and the nurse’s evaluation of Boey are also not audible on the body camera. Note that when the women were upset and verbalizing their displeasure during the arrest, that he left that audio running. But at other times, he apparently concealed his own audio.

Deputy Hayden did not take her for medical treatment. Instead a jail nurse refused to admit her because of her injuries and being 6 months pregnant. Only then was she taken to an ER. Legal analysis aside, was any of that really necessary? Is it that difficult to just be kind, or at least calm? You would think that rational police officers would sometimes think to themselves, do I really need to be doing this right now? What is my purpose? What am I trying to achieve? This is where ego gets in the way. The question is not what you think you have the authority to do, but rather, what should you do? Hell, just acting rationally, what is in your own best interests? Whereas citizens should ask themselves at times whether they really want to invite the man into their lives, so should police officers ask whether they want to invite drama into their lives through demonstrating their perceived authority, or demanding what they perceive to be respect. 

It’s really not that much different than child custody litigation. Just because you can, or you think it’s fair, doesn’t mean that it’s also best for your child, or you in the long run. You’ll end up in a better position, and happier, by just being kind, or at least manipulative and pretending to be kind. Meanwhile, record and obtain evidence with a smile on your face. But I guess that’s too much to ask at this point. 

In the footage, we don’t see the beginning of the stop. Thus I’m not sure whether Boey was already out of her car prior to the initiation of the stop. This is actually a common issue I see. Can police officers pull into your driveway, knowing you just pulled in, got out of your car, and begin walking in your house, and then at that point initiate a traffic stop? This is where it depends on the circumstances. 

As we’ve discussed before, reasonable suspicion of a crime is required to detain a suspect. Usually in a traffic stop that is based on the officer allegedly observing a traffic law violation. Driving with a broken taillight could meet the reasonable suspicion requirement. But what about seeing the busted taillight, and then not getting to the suspect until they’re standing in their yard, the car now parked? What about not getting to them once they’re inside their house, even though you saw them drive with a busted taillight? This is where we could get into a lot of “what ifs” that could be tricky for a police officer. If you’re going to have to perform a traffic stop on someone who is now standing in their driveway, or yard, or porch, you might want to ask yourself if the crime for which you’re basing reasonable suspicion on is sufficiently important to justify entering this grey area that may involve you now being within the curtilage of someone’s home, without a warrant, and without probable cause.

Now, if there is a warrant, a police officer could even follow a homeowner inside their home to arrest them. Note I said it has to be their home. The home of a third party would require a search warrant, or a valid exception. If it was a “hot pursuit” situation, under some circumstances officers could be given quite a lot of leeway in entering, or remaining in the curtilage of a residence. But those “what ifs” don’t appear to be relevant here. We are looking at the most minor of minor traffic offenses, followed by an arrest for an alleged failure to identify, where the arrestee had just given her name. As I mentioned in a recent video on one of my cases, he tables turn when you’re talking about a police encounter occurring within the curtilage of a suspect’s residence. Law enforcement has no right to demand identification on your own private property – at least not without a warrant. 

But it just goes back to the fact that a police officer should ask himself, why am I here? What is my purpose? What do I have to gain? And also, what do I have to lose? It would be a novel idea for law enforcement in this country to just try being kind and using common sense. Of course, there are plenty of those officers around. You just don’t hear about them or see them on Youtube. Because they are the ones who go home at night – drama free. 

Cops Tase and Arrest Guy Sleeping in his Truck in a Home Depot Parking Lot

Police officers have a hard time understanding that reasonable suspicion to justify detaining a citizen is supposed to be based on suspicion of a crime, rather than a hunch or ego of the officer. How many police videos we see were completely unnecessary and achieved nothing, other than bad publicity, lawsuits and constitutional violations? 

Devin Thomas was asleep in his truck on Christmas night in a Home Depot parking lot in Delaware. He was waiting for the store to open because he needed to buy products they sell for his business. He was traveling for work, which takes place on the highways, hence the fact that he was sleeping in his truck. He awoke to a flashlight in his face and somebody trying to talk to him. 

A law enforcement officer may detain an individual for investigation when the officer has a reasonable suspicion, supported by articulable facts, that criminal activity is afoot. Courts, in this case the Third Circuit, consider the totality of the circumstances in determining whether the facts known to the officer amount to an objective and particularized basis for reasonably suspecting criminal activity. An officer is entitled to draw specific reasonable inferences from the facts in light of his experience.

Courts have ruled that the government “must do more than simply label a behavior as ‘suspicious’ to make it so.” Police officers must “be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.”

“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, the Supreme Court has noted “the fact that the stop occurred in a `high crime area’ [is] among the relevant contextual considerations in a Terry analysis.”

Courts in the Third Circuit have allowed officers to consider proximity to locations where crimes are known to have occurred as one factor in the development of reasonable suspicion. What crime was suspected here of Mr. Thomas having committed? I reviewed the state trespassing laws in Delaware. I see no basis for any objectively reasonable belief any of those even theoretically could have been violated here. 

It doesn’t appear that there could have been any reasonable suspicion that the crime of trespassing has been committed. Delaware doesn’t appear to have any automatic liability trespassing statute wherein you’re committing the crime of trespassing just by virtue of driving in, or parking in, the parking lot of a closed business. It doesn’t appear that there’s any evidence that Home Depot complained about this individual in particular, or about people driving in, or parking in, their parking lots after hours, or before hours. There appears to have been no allegation that there was any burglary that occurred at this location, but rather alleged knowledge of past issues. Certainly nothing particular to this individual. Moreover, no information is given that the behavior of parking in a parking lot, or the appearance of this individual, or this vehicle, justified suspicion of burglary. To the contrary, it appears to be a work truck in the parking lot of a work supply business. 

Trooper White wrote in his police report, that he was on “proactive patrol” and just happened to be passing by Home Depot when he observed a white truck with its lights on parked next to two Home Depot rental vehicles. He further wrote that “Home Depot recently advised” them that “they were having issues with their alarm system and requested additional patrols in the area for suspicious activity.” He wrote that it was 2:30 in the morning, and the store didn’t open until 7:00 a.m.

However, he mentioned no actual report of any criminal activity, much less criminal activity pertaining specifically to Mr. Thomas. At least not prior to the seizure of Mr. Thomas. It was a white truck in a construction material store parking lot. There was no indication that the vehicle had entered a closed-off area, through a gate, or past no trespassing signs. It was a public place parking lot. I see nothing in the Delaware trespassing laws criminalizing the behavior whatsoever. All we have here is an officer with a hunch and an ego. 

After we get past the reasonable suspicion issue, we have the fact that Mr. Thomas was tased here. The alleged justification for that, according to the officer who fired the taser was that Mr. Thomas was allegedly grabbing and pushing Trooper White’s arm as White attempted to forcibly unlock the driver’s side door. 

However, Trooper White can be heard on the dash cam footage saying to the tasing officer, “I didn’t mean for you to have to tase him.” Apparently that trooper tased Mr. Thomas because Trooper White told him to tase him. At least he did, but didn’t really mean it. At one point in their reports they mentioned that they used “de minimis” force in extracting Mr. Thomas from his vehicle. That’s literally not true. Tasing is actually a high level of force that’s not supposed to be used where unnecessary. I believe there’s a good case to be made here that, even if reasonable suspicion existed to extract Mr. Thomas from the vehicle, that the level of force was unreasonable. 

He was only suspected of having committed trespassing, at best. He wasn’t actually a threat to them in any way. He was just standing on his rights. He was surrounded by police officers. He wasn’t going anywhere. They had no indication of any immediate safety threat to any individual. Except to Mr. Thomas, of course. 

Psycho K9 Officer Caught on Dash Cam

New footage showing dash cam video of the Berkeley County Sheriff’s Department using a K9 to make an arrest. Here’s the footage:

When a K9 is deployed on a citizen, that individual is “seized” for Fourth Amendment purposes. Assuming the seizure itself was lawful, the issue is whether the seizure may be “unreasonable” due to being an excessive level of force. The deployment itself of a police K9 during the course of a seizure may be unreasonable, depending on the circumstances.

Courts look to the Graham Factors: the severity of the crime at issue, whether the suspect is actively resisting or evading, and most importantly, whether the suspect poses an immediate safety threat to the officer, or others. 

The Fourth Circuit held, as early as 1995, that the improper deployment of a police dog that mauls a suspect constitutes excessive force in violation of the Fourth Amendment. Specifically, deploying a dog against a suspected bank robber in a narrow alleyway without warning and a fair opportunity to surrender was unreasonable and excessive. Furthermore, doing so where the suspect was surrounded by police officers is itself unreasonable and excessive, even where a warning is given. (Kopf v. Wing (4th Cir. 1991).The Fourth Circuit has also held that sending a police dog into a home that contained a burglary suspect, without warning, resulting in severe injuries to the homeowner, was an excessive force violation. Vathekan v. Prince George’s County (4th Cir. 1998).

Repeatedly over the years, the Court has held generally that the use of serious or violent force, i.e., disproportionate force) in arresting or seizing an individual that has surrendered, or who is not actively resisting or attempting to flee, and who does not present a danger to others, is an unreasonable excessive force violation. 

The 7th Circuit has denied qualified immunity to a police officer where he failed to call off a police dog that was mauling a “non-resisting (or at least passively resisting) suspect.” Becker v. Elfreich (7th Cir. 2016). That Court also denied qualified immunity to an officer who commanded a dog to attack a suspect who was already complying with orders, and where there were multiple backup officers present. Alicea v. Thomas (7th Cir. 2016).

The Fourth Circuit cited that last case in 2017 as providing “fair warning” to police officers that they will lose qualified immunity where an officer deploys a police dog against a suspect was was “not in active flight at the time he was discovered,” but was “standing still, arms raised….” Booker v. S.C. Dep’t of Corr. (4th Cir. 2017). The Court also cited a 6th Circuit case where officers deployed a police dog to apprehend a suspect that had given police no indication that he presented a danger to others, and was not actively resisting but “lying face down with his arms at his side.” Campbell v. City of Springboro (6th Cir. 2012).

The Fourth Circuit has also cited an 11th Circuit case denying qualified immunity where the officer ordered his K9 to attack a suspect that had previously surrendered and complied with the officer’s order to lie on the ground. Priester v. City of Riviera (11th Cir. 2000).

Generally speaking: Where K9s are deployed, a warning should be given, along with an opportunity to surrender, where possible. Deploying K9s on suspects who have been already subdued, surrounded, or who are not actively resisting or evading arrest, is also likely excessive force, with or without a warning. Deploying K9s on suspects who pose no immediate threat is generally going to be unreasonable. K9s should only be deployed where there exists a serious immediate safety threat in a tense, fast-moving situation, where there’s some actual reason for doing so. 

Raw version of body cam:

Parents Call For Ambulance But Cops Show up With Taser Instead

Body cam footage submitted by Janet, of Union County, Illinois, shows her son, who suffered from meth-induced mental illness, being tased by police officers. Imagine parents calling 911 for an ambulance, and instead, police officers, aware that they have a warrant for the son, show up instead, and without an ambulance. Instead of medical treatment, the use force.

Facebook version:

https://fb.watch/fsrrv7KhWw/

Jacob Anderson’s father called 911 seeking an ambulance for his son, who was suffering a mental illness emergency due to his meth addiction. An ambulance never arrived however. But several police officers did arrive, including Deputy Schildknecht, who turned on his body cam after arriving at the Anderson home. According to his report, he noted that he received a report that Jacob was having a mental health crisis, described as psychotic, and that an ambulance was needed. He then wrote, “I also knew that Jacob had a felony warrant . . . as well as history of running away naked from help when we arrived.” Upon arriving, the deputy made contact with Jacob’s parents, who indicated that Jacob was inside the residence, and appear to have let them in. 

Deputy Schildknecht wrote in his report, “As I approached the door I could hear a male yelling. I then withdrew my taser and knocked on the door. I then heard the male yell “come on through, I’m going to the side door.” “As I walked through the residence and came the side door, Jacob saw me, turned and began to run away from me. “At this point i raised and fired my taser at him as he ran away.” “I was unable to issue a warning to him because the situation evolved so quickly.”

The deputy wrote that he “allowed the taser to run for the five second cycle until Sheriff Harvel and Chief Wilkins could get there to assist.” 

This offers a good example of what I would classify as controversial use of a taser: against someone who poses no threat, but is merely starting to run away, and doing so immediately without explanation or warning. Let’s take a look at the footage, and then we’ll go into the law on tasering unarmed suspects in Union County, Illinois, which is the 7th Circuit.

Here’s the relevant portion of raw footage that Youtube won’t let me show without restricting the video:

He also mentioned in his report that, “After the arrest of Jacob, I realized he broke my Oakley Mercenary sunglasses [he] had been wearing…” He attached a photo of them, noting that he paid approximately $140.00 for them two years ago. 

The International Association of Chiefs of Police puts out a model taser policy, which provides the following guidance to law enforcement agencies around the country, about taser usage on suspects:

Should be used:

to protect the officer or others from reasonably perceived immediate threat of physical harm from the person to be exposed to the ECW;

to restrain or subdue an individual who is actively resisting or evading arrest; or

to bring an unlawful situation safely and effectively under control.  

Should not be used:

on individuals who passively resist and are not reasonably perceived as an immediate threat or flight risk;

on individuals in restraints, except as objectively reasonable to prevent their escape or prevent imminent bodily injury to the individual, the officer, or another person; 

however, in these situations, only the minimal amount of force necessary to control the situation shall be used;

when the officer has a reasonable belief that deployment may cause serious injury or death from situational hazards including falling, drowning, or igniting a potentially explosive or flammable material or substance, except when deadly force would be justified;  

when the suspect’s movement or body positioning prevents the officer from aiming or maintaining appropriate body part targeting unless the risk of increased injury to the suspect is justified because of a perceived threat or flight risk.  

Union County, Illinois is in the 7th federal circuit, which has quite a few published cases on when taser usage is considered excessive. Lewis v. Downey (7th Cir. 2009) held that the tasing of a jail inmate with no warning who wasn’t threatening the officer would be excessive, and ultimately categorized tasers as an intermediate level of force that is designed to cause severe pain. The Court noted that Courts generally hold that the use of a taser against an actively resisting suspect either does not violate clearly established law or is constitutionally reasonable. Thus, “actively resisting” may, or may not be sufficient justification for police to use a taser on a suspect. 

But, what about active resistance from someone known to be mentally ill, who is not actively threatening anyone, but merely trying to run away? 

In the 9th Circuit opinion in Bryan v. Mcpherson, the Court warned that, “The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.” “[T]he use of force that may be justified by” the government’s interest in seizing a mentally ill person, therefore, “differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.” Bryan v. MacPherson (9th Cir. 2010).

The 7th Circuit has cited the 4th Circuit published opinion in Estate of Armstrong v. Pineville, which held that, “Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force.” Estate of Armstrong v. Vill. of Pinehurst (4th Cir. 2016).

Utilizing the Graham Factors, we can skip to the most important Graham Factor, whether the suspect poses an immediate threat to the safety of the officers, or anyone else at the scene. The video proves conclusively that there was no safety threat posed to any individual. He was running away and clearly wasn’t holding a weapon. Nor was he threatening anyone. Reviewing the deputy’s report, he admits that he tased Jacob in the back as Jacob turned to run away. He mentions no immediate safety threat as his basis for the use of force. 

Now the second Graham Factor is met to some extent for the officers. He was actively evading them. However, they had not announced their presence, nor the reason for their presence. They had not identified themselves, or mentioned that they had a warrant. They pretty much instantaneously encountered him and then tased him. Was merely running away from the sight of law enforcement sufficient to constitute “active resistance” sufficient for a 5 second shock from the deputy’s taser? 

Let’s look at the first and final Graham factor, the severity of the crime. There’s no allegation that Jacob had committed a crime. But he apparently did have an outstanding unnamed felony warrant. The officer’s report doesn’t mention any serious crime Jacob was alleged to have committed so as to necessitate an immediate tasing. Moreover, the reports also indicate that the officer was well aware of the fact that Jacob was suffering from a mental illness episode. Thus, the courts expect the officer to take that knowledge into account when deciding whether to tase Jacob, as opposed to tasing first, and asking questions later.

Bystander Films Cops Bothering Homeless Lady and Gets The Special Treatment

In Richmond, Virginia, Kaya had just picked up some groceries and was walking home. She noticed some police officers bothering a homeless lady sleeping on a bench. She stopped to film them. You know what happens next…. She reached out to me and asked me to share her story.

Here’s the full video with the raw bodycam footage: