Thursday, April 2, 2015

Actions of Alabama deputy, including use of pepper spray, constitute unlawful arrest and excessive force

It has been just more than a year since my five-month incarceration for blogging ended in Shelby County, Alabama. We already have shown that the arrest was unlawful on at least three grounds, but the list of abnormalities in the case seems to keep growing.

That's because the actions of Deputy Chris Blevins in "effectuating" my arrest so clearly fall outside the boundaries of the law. Blevins' unlawful actions fall into at least four categories: (1) His failure to state his purpose for being at our home; (2) His failure to state his mission before entering our home; (3) His use of excessive force, as defined by law; (4) His use of pepper spray in a situation where the law does not support it.

Let's examine each of these issues closely:

(1) Failure to state his purpose--Under Alabama law, an officer making an arrest must give notice of his authority. From Code of Alabama 15-10-2: "An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant."

In other words, an officer must tell you why he is in your presence, he must describe his purpose for being there. We've already established that Blevins did not show a warrant, but perhaps more importantly for our purposes now, he never stated that he was at our home to arrest me--until after he had already knocked me to a concrete floor three times and directed pepper spray into my face.

That makes the arrest unlawful, especially when you consider that it took place inside our home. That takes us to item No. 2.

(2) Failure to state his mission before entering our home--Both statutory law and case law in Alabama show that an officer has important responsibilities before entering a home. To quote further from Code of Alabama 15-10-2: "If [an officer] is refused admittance, after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house, in order to make the arrest."

Blevins was refused admittance to our home--I told him to get out of our garage--but he had given no "notice of his authority and purpose" for being there. A videotape of the arrest shows Blevins walking into our home without stating why he is there. Under Alabama statute, this is unlawful.

Case law, in the form of Livingston v. Browder, 285 So. 2d 923 (Ala. Civ. App., 1973), provides additional insight on this point:

Importantly, in most circumstances, a person must make known his purpose and demand admittance before breaking into and entering the house of another to make an arrest. 5 Am.Jur.2d Arrest § 93. Mr. Justice Bouldin, in Gray v. Williams, 230 927*927 Ala. 14, 18, 160 So. 715, 718, spoke to this point when he stated:

"In entering the dwelling of a third person, especially at night, the officer is under duty to apprise the head of the family of his mission and authority. No particular words are necessary, but, coming in the name of the law, he should make known such fact."

The arrest videotape shows that Blevins failed to fulfill his duty before entering our home, and that is one more ground for making my arrest unlawful.

(3) Use of excessive force, as defined by law--When an arrest is unlawful--as this one was on almost a half dozen grounds--a law-enforcement officer is not authorized to use force. As stated in Jackson v. Sauls, 206 F. 3d 1156 (11th Circ., 2000): 

" . . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim."

As we've shown, Blevins' actions were illegal from the moment he stepped into our garage without stating his purpose for being there. Under Jackson, all of the force that Blevins subsequently used was unlawful.

(4)  Improper use of pepper spray--Courts have found that the use of pepper spray is reasonable under certain conditions. But those conditions were not present in my case. The U.S. Eleventh Circuit Court of Appeals addressed the issue in a case styled Vinyard v. Wilson, 311 F. 3d 1340 (11th Circ., 2002). The court in Vinyard borrowed heavily from two major excessive-force cases: Graham v. Connor, 490 U.S. 386 (1989) and Lee v. Ferraro, 284 F. 3d 1188 (11th Circ., 2002).

From the Vinyard ruling:

As this Court also recently explained in Lee, "Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight. . . ."

Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.

In my case, there was no crime at all, severe or otherwise. I was being arrested for alleged contempt of court in a civil matter--one where I could not lawfully be subjected to a contempt finding. By Blevins' own words in his incident report, he was the one acting violently, throwing me through boxes (twice) and up against a sturdy, metal dog pen. By Blevins' own account, all I did was put my arms in front of my face to protect myself from his blows. When finally informed that I was under arrest, I was lying on the floor of my own garage--with the doors closed--so it seems clear I was not a flight risk. (See incident report at the end of this post.)

Reporting on my story has focused largely on clear violations of the First Amendment. In my view, however, the story goes way beyond that. Discussions of the First Amendment tend to be nuanced and theoretical. But there was nothing nuanced about Chris Blevins' actions in our garage--or about the five months I spent in jail.

Police abuse has been one of the leading stories in the United States over the past eight to 10 months;  my story is just one more example of it. I managed to live through it, but the closer you look at the details, the uglier it gets.


Anonymous said...

It seems to be just common sense that a deputy should tell you why he's approaching you. It might be obvious to him, but it's not necessarily obvious to the guy on the other side--especially if he knows he has not violated the law.

Anonymous said...

It would have been interesting, if your wife had a gun and heard the commotion in your garage, and went down and shot this deputy right between the eyes. He would have deserved it, seems to me.

Anni said...

How does pepper spray feel? I can't imagine what that must be like.

legalschnauzer said...

Anni, I thought I would never be in a position to answer that question--but I am. With me, I was seated on the floor of our garage, with my head down, so I didn't see the guy pull out the spray and aim it at me. It caught me completely off guard. Next thing I know, my eyes are stinging, and I have the strange feeling of being incapacitated. It was like I couldn't move, and my first thought was, "What has this guy done to me--in my own house?" It was the strangest feeling I've ever encountered. Then, when I get to the jail, I have to be stripped and put into a decontamination shower to get the stuff off. It has a paralyzing effect on you.

Anonymous said...

How hard is it to say, "I'm from the Shelby County Sheriff's Office, and I have a warrant for your arrest. I have to take you in"?

legalschnauzer said...

It should be real easy, @12:18, if there was a warrant. I don't think there was a warrant, or at least not a valid one that had been signed, etc.

I think the plan was to rough me up, and it was easier to do that by failing to say anything about a warrant.

legalschnauzer said...

One other thought: I was interested in law that says an officer has to show a warrant if asked to produce it. I was in such a state of shock that I didn't ask to see a warrant, but after they dragged me outside, I said there is no way you have a valid warrant, meaning there is no way I can be arrested because of the prior restraint law under First Amendment.

I think it's possible that one reason I was maced was to keep me from asking about a warrant. Once you are maced, it's hard to think of anything, other than, "Why can't I move? What's happening?"

Anonymous said...

That's good information about a cop having to show a warrant if asked to show one. Going to tuck that bit of information away.

legalschnauzer said...

I wish I had asked to see a warrant, but with pepper spray in my eyes, I couldn't have even read it. I suspect the cops would not have had a warrant to show me.

I have a pretty good idea who was behind this kidnapping, and if I had demanded to see a warrant, I might have been killed.

Michelle said...

They well may have killed you, Roger if they thought they could get away with it. Law enforcement today is frightening when as children we were taught to respect it.

I had phoned former Sheriff Ronald Hewett of Brunswick NC two weeks before this incident, where he was tased to death in jail while in federal custody. I had wanted to speak with him about a murder (Amy Frink) that I and my son had knowledge of. Hewett never returned my call and soon he was dead. This is the shocking video that was shown on tv: Brunswick Sheriff

Hewett was labeled a drunk, discredited, and completely trashed in his career and in the news media several years back. Many wonder what he knew or what powers he was against. Strange before that they made a movie of him being a tough sheriff. He was the youngest man to ever be elected sheriff.

Frink's death, I have been told, was autopsied (like the notable Crystal Todd case) in Charleston, S.C. by Dr. Jamie Downs who testified, being paid $4,000, in the Nodine/Angel Downs case. Dr. Jamie Downs was appointed head of Alabama Forensics by AG Pryor, and was head of Forensics, Alabama when my son was allegedly suicided in Baldwin County. Pryor, as you know, later became the federal judge.

Downs moved then to Savannah, Ga working for the GBI (Georgia Bureau of Investigation) where he ruled suicide in the Tom Sublett case. Sublett had been found with zip ties tied around his wrists, a bullet in his head and his body in the water.

Roger, this country is in trouble. There is no question about it. Many areas are corrupt to the very core. My situation spanned states and the people who made the arrangements knew it would be difficult for anyone to unravel and expose their conspiracies.

We have to cling to the foundation we were raised to believe in–– that eventually GOOD will prevail over evil. Our USA polices the world to end cruel, inhumane activities. These horrors are not supposed to be occurring in our homeland which guarantees our freedom and right to be honest and to tell the truth..

Michelle said...

Roger, I should have added that Tom Sublett was a county commissioner in the coastal county of Glynn County, Georgia. Very interesting that both Nodine and Sublett were commissioners. In both cases, Dr. Jamie Downs had power and professional opinions that were highly questionable - even suspicious.

Anonymous said...

Michelle, the video I saw shows a man clearly fighting with officers. In fact after he was tazed he continued to resist. If the tazer killed him, why didn't he die right away. I'll give you the answer, because the tazer didn't kill him. Nobody has ever died from being tazed. Every report, I have seen, states the person had a pre-existing condition that ultimately caused their death. These conditions could have easily caused their deaths from the physical exertion during a fight not involving a tazer. What would you have had the officers do in this situation? Should they have let this inmate run rampant in the jail? There is a clear danger from this inmate to the staff and they took reasonable action. It sucks that he died, but that's his fault, not the officers.

Michelle said...

1:45 pm: Anon, it was a well known and publicized fact that Hewett had a problem with alcohol. He also had a heart condition–– whether that was widely known I am not sure. My issue is that they even opened the door and let an almost naked man run around the halls. We don't know if or why he was agitated because they didn't show the video prior to opening the cell door. Would they have let a woman run around the halls in her underwear? Why did they even open the door?

The tasing coupled with his health conditions is what killed him (my personal opinion from all I've read) and the report actually documented the death as a homicide, which is defined in legal terms.

Hewett knew about the Frink murder which I had tried to help solve. Six months later my own son disappeared with similar characteristics as Frink. When last year I phoned Hewett hoping to discuss it, two weeks later he was dead.

Hewett knew more than most will ever know about Brunswick County, NC. Dead men tell no tales. I wish I had never tried to be a good citizen and help solve a murder in his county.

It was the biggest mistake of my life.