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.
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.
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.
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.
There’s a jury trial in Euclid, Ohio this week where Euclid police officer, Michael Amiott is being prosecuted for a use of force incident following the 2017 traffic stop of Richard Hubbard. Amiott is charged with two counts of assault and one count of interfering with civil rights. Cell phone video showed the officer repeatedly punching Richard Hubbard after he was pulled over for an unspecified moving violation.
Hubbard was accused of resisting arrest after allegedly refusing Amiott’s orders, and the ensuing struggle resulted in Hubbard being hit multiple times while on the ground. The criminal charges against Hubbard were later dropped, and while he suffered no permanent injuries, the city later agreed to a $450,000 settlement with both him and the owner of the car he was driving.
Following a 45-day suspension, Euclid Mayor Kirsten Holzheimer Gail fired Amiott from the police force, but an independent arbitrator reinstated him a year later. Nevertheless, Amiott was arrested and charged in Euclid Municipal Court in August of 2019 following further investigation, and his trial was subsequently delayed two years by COVID-19.
The entire trial has been live streamed on Youtube by WKYC and some of the testimony has been interesting. This is what we’re dealing with by the way, in the mission to obtain some accountability where citizens are violently victimized by the government.
Also, this isn’t his only excessive force incident:
About 7 months ago, I posted a video about a West Virginia police officer, Everette Maynard, formerly of the Logan, WV Police Department who was found guilty by a federal jury of violating an arrestee’s civil rights by using excessive force. This was caught on video. This is the one where the officer was caught by a surveillance camera flipping the bird to the camera.
Today I talked to one of the investigators involved with that prosecution and thought I would give you an update video about what ended up happening to Officer Maynard. The DOJ recently issued another press release on the case, announcing that former-Officer Everette Maynard has been sentenced to 9 years of prison to be followed by 3 years of supervised release due to his conviction of violating an arrestee’s civil rights by using excessive force against him.
In the video I posted late last year, I showed you the actual photos presented to the jury during the trial, and I went over the actual jury instructions used in that case. Here’s the video:
This is a rare case of a police officer being held accountable in the most important way. He received almost a decade in prison for his actions. The U.S. Department of Justice had this to say about the sentencing of Maynard:
“This defendant’s abuse of law enforcement authority inside a police station was egregious and caused serious injuries,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “Police misconduct undermines community trust in law enforcement, and impedes effective policing. This sentence confirms that law enforcement officers who use excessive force against arrestees will be held accountable.”
Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law. For a jury to find the defendant guilty, the federal prosecutors must prove each of the following elements beyond a reasonable doubt at trial:
1. The defendant acted under color of law;
2. The defendant deprived the victim of a right secured or protected by the Constitution or laws of the United States – here, the right of an arrestee to be free from unreasonable seizures, which includes the right to be free from the use of unreasonable force by a law enforcement officer;
3. The defendant acted willfully; and
4. The defendant’s acts resulted in bodily injury to the arrestee.
(NOTE: elements 1 and 2 are by themselves a misdemeanor; when elements 3 and 4 are present, it rises to the level of a felony.)
On Nov. 17, 2021, a federal jury convicted Maynard of using excessive force against an arrestee while Maynard was a police officer with the Logan Police Department in West Virginia. At trial, the jury heard evidence that Maynard assaulted the victim in the bathroom of the Logan Police Department before dragging him into an adjoining room, hauling him across the room, and ramming his head against a doorframe.
The assault initially rendered the victim unconscious and left him with a broken shoulder, a broken nose, and a cut to his head that required staples to close. While the defendant assaulted the victim, the defendant berated the victim for “making demands” of him by, among other things, asking to go to the bathroom. After the assault left the victim unconscious in a pool of his own blood, the defendant bragged about his use of force.
It’s important to note that, in this actual case, the jury was instructed that a police officer “may not use force merely because an arrestee questions an officer’s authority, insults the officer, uses profanity, or otherwise engages in verbal provocation – unless the force was otherwise objectively reasonable at the time it was used. Additionally, the jurors were instructed that an officer may not use force solely to punish, retaliate against, or seek retribution against another person.
These sorts of unnecessary uses of violent force against arrestees, if true, can never be reasonable.
How did the jurors know that it happened this way? Because it was captured on video, which is by-far the most important tool available to us for constitutional accountability. The police certainly like to use video evidence against the public in their prosecutions. But they don’t like it when it happens to them. In this case however, I’m told that it was actually a law enforcement officer who originally blew the whistle on this guy to federal investigators. Good for that individual. There needs to be more of this. And I have reason to believe that there will be more of this in West Virginia.
A former officer with the Monroe Police Department in Monroe Louisiana, has now pled guilty in federal court to a felony charge of deprivation of rights under color of law, in a case handled by the U.S. DOJ Civil Rights Division. The excessive force incident happened on April 21, 2020 and involved former officer Jared Desadier. I obtained the body cam footage, which shows Officer Desadier kicking an arrestee on the ground unnecessarily.
According to the DOJ’s statement, the incident occurred shortly after midnight, when MPD officers overheard an alarm system activate, and Desadier and other officers detained a man for questioning. When officers discovered drug paraphernalia on the man, the man ran from the scene and officers gave chase. Approximately a block away, a patrolling MPD officer caught up to the man and ordered him to the ground. The man complied, by lying flat on his stomach and putting his hands behind his back. As that officer approached and prepared to handcuff the man, Desadier ran up to the scene and kicked the man in the face as he lay face-down on the ground with both hands behind his back.
Desadier admitted in court that his assault on the victim was without justification, as the man did not present a threat to any officer or other person on the scene. Desadier also admitted that he knew, at the time, that his actions were unjustified and unreasonable under the circumstances.
Desadier faces a maximum sentence of up to 10 years in prison, three years of supervised release and a fine of up to $250,000. His sentencing has been set for November 21, 2022.
The Fourth Amendment bars police officers from using excessive force to effectuate a seizure. Courts evaluate claims of excessive force based on an objective reasonableness standard. Utilizing what’s known as the “Graham Factors,” the Courts look at three things: the severity of the alleged crime at issue, whether the suspect poses an immediate safety risk to any individual, and whether the suspect is actively attempting to resist or evade arrest. See Graham v. Connor (SCOTUS 1989).
The Courts also look to the proportionality of the force in light of all the circumstances. Force must generally be reasonable.
Here, the case is an easy one. The suspect’s alleged crime is mostly unknown, and thus minor. An alarm was triggered. Thus we know that an alarm was triggered. We don’t know whether any crime was committed by any individual. Once the suspect was detained for questioning, drug paraphernalia was discovered, resulting in the man running away. Still minor. Possession of drug paraphernalia, perhaps some sort of foot pursuit crime.
Secondly, the man appears to pose no immediate safety risk to any individual. The body cam footage shows that he is secured into custody prior to the use of force. He doesn’t appear to pose any specific threat or safety danger. Which brings us to the third and final Graham Factor.
Lastly, he doesn’t appear to be resisting or making any further attempts to run away. Thus the kick to the head by the pursuing officer appears to be solely malicious and retaliatory. There was no need for it. Other than the illegal need for the officer to punish or hurt the man unnecessarily.
A note about injuries. I’m unsure as to whether this man was injured in any substantial way, or whether he just suffered pain. However, there’s no threshold injury which must occur to create an excessive force violation. It is however relevant to damages, as well as for evidence of the level of force used by the officer.
A friend of the eyewitness to a crazy police shooting that happened today in Beckley, West Virginia, sent me the footage captured via smartphone, while bystanders stuck in traffic watched it go down right in front of them. I already posted it on my twitter page, where it’s spreading quickly and obviously disturbing most people. I didn’t want to get in trouble again on Youtube, so I’m going to edit the version I post there, and then re-direct anyone who wants to see the entire thing to this post. So, here’s the footage:
Apparently there was a pursuit involving an unidentified subject, who is very clearly armed with what appears to be a handgun, and he is pointing it at his own head, as he walks quickly away from a small army of police officers pursuing him. He walks onto the public road, with bystanders in stopped traffic watching. It appears that the officers are ordering him repeatedly to drop the gun. It’s also obvious that he is in a bad place mentally, and is threatening suicide, or perhaps seeking “suicide by cop.”
Eventually, one or more officers start shooting the man. He drops the ground. Also dropping to the ground is the man’s handgun, which thereafter can be seen out of his reach, below where his feet are lying. What’s really disturbing here, is that the police officers’ guns continue to fire, and continue to impact the limp and incapacitated man lying motionless on the ground. The video then cuts off after a barrage of such shots. It’s unknown to me whether there were additional shots after the camera cuts out. I count at least 6 officers in the immediate vicinity, with more following behind them, as the first shots ring out. I tried to count the number of times they fired, but it seems impossible. It looks like the first two shots incapacitated the man and then the large majority of them came afterwards. In the video, you can see that the officers who are firing can see the handgun on the ground, because some of the rounds are hitting right where the gun is located on the ground. Perhaps they were still shooting at the gun? They keep shooting the man, as his body rolls over prone, with rounds hitting the asphalt all around him, as well as impacting his body, and apparently his legs.
I don’t think there’s much of an issue about the first shots fired. The case law is pretty clear that cops can shoot a suspect armed with a handgun, so long as he’s objectively viewed as an imminent threat. An officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner (1985). I looked closely, and can’t quite tell which hand is holding the handgun at the time the first shots are fired. It looks to be the right hand. And it’s also a close call whether the right hand, arguably holding the gun, rises towards the officer before, or after, the first shot. But it does start to come up.
However, the Fourth Amendment still prohibits law enforcement officers from using excessive or unreasonable force in the course of making an arrest or otherwise seizing a person, which includes shooting him. See Graham v. Connor (1989). The courts determine whether the amount of force used by police is reasonable based on an objective standard, looking at the the circumstances confronting the officer “immediately prior to and at the very moment” he fired his weapon. Greenidge v. Ruffin (4th Circ. 1991). Moreover, this is assessed specifically as of the “moment that force is employed,” Waterman v. Batton (4th Cir. 2005).
This took place in the jurisdiction of the Fourth Circuit, which has previously held that the number of shots fired by police, itself, is not dispositive, if other facts indicate reasonableness. See Elliott v. Leavitt (4th Circ. 1996). The Fourth Circuit has held a couple of times that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” See Brockington v. Boykins (4th Circ. 2011). An officer will not be entitled to qualified immunity for engaging in a use of force that is “unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen….” Estate v. City of Martinsburg (4th Circ. 2020). Although the subject appears to have been armed at the time of the first shots, the video very clearly shows he was not armed for the majority of the shots. Thus, the courts could treat subsequent shots as against an unarmed subject. Of course there could be additional facts of which we’re unaware, such as information indicating to the shooters that another firearm was present.
I wonder if any of these officers were interviewed, or provided statements, immediately following the incident, while it was still fresh in their minds? Or will they be given the opportunity to sleep on it; to review video footage; to speak with union reps; to seek legal counsel; and to submit a written statement at a later time? Whatever the answer is to that – we peasants should be entitled to the same protections….
Join me and special guest LACKLUSTER, tonight to watch, discuss and analyze some recent police videos making the rounds, including the OIS in Tucson of the guy in the power chair. And more….. LIVE at 7pm ET – Freedom is Scary, Ep. 84.