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.

Shuler Arrest-Incident Report by Roger Shuler