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Thursday, August 6, 2015

The law sets ground rules for use of pepper spray, and Alabama deputies trampled those rules in my arrest

Alabama deputy Chris Blevins
A 2011 federal-court ruling, which originated from an excessive-force case in Florida, adds to the growing body of law that indicates Alabama deputies trampled my constitutional rights when they arrested me inside my home in October 2013.

In Fils v. City of Aventura, 647 F. 3d 1272 (11th Cir., 2011), the appellate court that covers Alabama, Georgia, and Florida found that law-enforcement officers violated Fourth Amendment rights by using substantial force to arrest individuals who were not charged with a serious crime, posed no threat to the safety of officers, and did not actively resist arrest or attempt to flee.

The heart of the Fils case developed when the plaintiffs (Cindy Fils and Nemours Maurice) attended a party at a billiards club in Aventura, Florida. A commotion began inside the club, leading to two arrests and prompting Maurice and Fils to try to serve as peacekeepers. Those efforts apparently failed because Maurice wound up being tased, and Fils was knocked unconscious to the ground after taking a step toward an officer's back. Both Maurice and Fils were arrested, and both filed federal lawsuits, alleging use of excessive force under 42 U.S. Code 1983.

How do constitutional issues enter the picture? The Fils court explains:

The Plaintiffs' excessive force claims arise from the Fourth Amendment's protection "against unreasonable ... seizures." Graham v. Connor, 490 U.S. 386 . . . (1989). An officer's use of force is excessive under the Fourth Amendment if the use of force was "objectively [un]reasonable in light of the facts and circumstances confronting" the officer. . . .

When determining whether the force used to make an arrest was reasonable for purposes of the Fourth Amendment, "a court must carefully balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests. . . . " And we evaluate whether force was necessary by examining: "`(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. . . . '" See also Graham . . . 
The Graham case, decided by the U.S. Supreme Court in 1989, obviously is central to this area of law. And it's three-pronged test takes us back to roughly 6 p.m. on October 23, 2013, when Shelby County deputy Chris Blevins entered the garage underneath our home--without showing a warrant, stating he had a warrant, or even stating his purpose for being on our property--and proceeded to knock me to a concrete floor three times and direct pepper spray into my face. All because I supposedly was wanted on a contempt-of-court charge related to a defamation lawsuit that Republican political operative Rob Riley and lobbyist Liberty Duke had filed.

We already have shown that Blevins' entrance into our home probably violated U.S. Supreme Court precedent in Payton v. New York, 455 U.S. 573 (1980). We also have shown that Blevins violated Alabama law by failing to state his purpose before entering our home--and this failure clearly is shown on the dash-cam video of my arrest.

Now, we have the Eleventh Circuit's Fils case, citing the U.S. Supreme Court's three-pronged test in Graham, and that adds to what is slowly becoming a mountain of case law that shows Blevins acted well outside the law. Let's examine the three-pronged test for excessive force and apply it to events in our garage:

(1) What was the severity of the crime at issue? Heck, there was no crime involved. I supposedly was wanted for contempt of court related to a lawsuit, a 100 percent civil matter.

(2) Did I pose an immediate threat to the safety of officers or others? According to Blevins' own incident report (which can be seen at the end of this post), the property on me at the time of my arrest consisted of "$1.43, three blank checks, chapstick, and keys." Sounds threatening, doesn't it? I guess I was going to attack him with a tube of chapstick and my monstrous stash of cash?

(3) Was I actively resisting arrest or attempting to flee? Well, I was inside my own home, and Blevins' own words give no indication I was trying to leave my home. Blevins charged me with resisting arrest, the same stunt officers in the Fils case pulled on plaintiff Maurice. And guess what? Federal judges don't necessarily buy any "resisting arrest" charge that a state deputy might dream up. Consider this from the Fils ruling, which more or less states that the resisting-arrest against Maurice was a steaming pile of horse feces:

Maurice was not resisting arrest or attempting to escape. Although he was charged with resisting arrest, Maurice's version of events shows that he did not ignore any verbal instructions, nor did he attempt to free himself from [the officer's] control once he was on the ground.

Our conclusion is in line with other excessive force cases from this court. Put together, these cases establish that unprovoked force against a non-hostile and non-violent suspect who has not disobeyed instructions violates that suspect's rights under the Fourth Amendment.

Blevins failed all three prongs of the Graham test, and his own words from the incident report show that he used "unprovoked force"--that I was non-hostile and non-violent, and I was inside my own home and charged with no crime. As for disobeying instructions, I wasn't given any instructions--I wasn't told to put my hands up, put my hands behind my back, none of that.

What about the use of pepper spray specifically? The Fils court addresses that by citing a case we already have covered here at Legal Schnauzer. It's styled Vinyard v. Wilson, 311 F. 3d 1340 (11th Cir., 2002), and it shows that the use of pepper spray amounts to excessive force in cases where the three-pronged Graham test is not met. From Vinyard:

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.

You might not know it from living in Shelby County, Alabama, but longstanding law is supposed to govern an officer's use of force, including his use of pepper spray. Chris Blevins ignored that law, and in the process, ripped my constitutional rights asunder--while I was inside my own home and not suspected of any crime.

Is that what civil rights have come to mean in the US of A? Are we going to allow "officers of the law" like Chris Blevins to behave like thugs and get away with it?


Wayne said...

Maybe they should round up all parties involved and throw their buts in jail for abusing the system. I hope you sue, sue, sue the pants off all of them LS.

Anonymous said...

But, but . . . the cop was in fear for his life!

Anonymous said...

I bet most cops never receive any instruction about the law you cite before they are handed a canister of pepper spray and sent out on the streets.

Anonymous said...

Very informative post, Mr. Schnauzer. I hope this gets widespread attention, especially with all of the recent stories about police misconduct.

Bruiser said...

Gotta side with the cop here, man. You were in your garage with a tube of chapstick in your pocket. You obviously were looking for trouble.

Anonymous said...

Under this law, did the cop in Texas have grounds to pull a taser on Sandra Bland?

legalschnauzer said...

That's a good question, @10:14. In fact, you might have raised an issue "of first impression," as courts like to say. In the Bland case, the officer did not actually tase her, but he threatened to do it, and that's what caused her to exit her vehicle when she probably would not have otherwise done so. Not sure if courts have addressed the question of threatened use of force.

As I think about it, though, I think the officer violated her rights on other grounds. For example, he placed her on the ground with a knee in her back, which obviously seems to be force. And she had committed no crime, was not a threat to anyone, and was not attempting to flee. So yes, I think he violated the law here, although maybe not on taser grounds.

Anonymous said...

You've done a real public service, LS, with this post, especially in light of all that's going on in our country regarding cops.

Cruiser said...

I have to agree with Bruiser, man. You can't just go walking around in public with $1.43 on you. That kind of cash tells an officer, "Hey, this guy must be laundering drug money." No wonder you got roughed up.

Anonymous said...

As a former cop, I've seen numerous brawls start over a tube of chapstick. You have no idea how dangerous that stuff can be. Plus, it leads to use of even more dangerous products, like toothpaste, eyewash, and ear-wax remover. Next thing you know, you've a deodorant junkie on your hands. We were taught to use maximum force on any suspect with a tube of chapstick in his pocket. Officer Blevins must have taken the same training course that I did.

Anonymous said...

Maybe the thug cop in Huntsville will be convicted and sent to federal prison--and Blevins and DeHart can join him. Seems all three enjoy depriving citizens of their civil rights under color of law. And that's a crime.

Anonymous said...

Didn't you disobey instructions by refusing to go outside your garage?

legalschnauzer said...

First, @3:09, it wasn't an instruction. He said, "Why don't you come outside?" And I said no and instructed him to get out of my house. He already was at the entrance to our garage without stating why he was even there. I'm not aware of any law that says a citizen has to respond in a certain way to an officer's question when the officer hasn't said or shown you anything that says he has authority to be on your property. Even if it had been an instruction, the law (both state and federal) says he has to state his purpose for being there. There are special burdens on an officer who is in or on the property where someone resides. And Blevins did not follow any of them.

All I essentially said was, "Get out of my house, where you don't belong, and leave me alone." Our encounter should have ended at that point, but Blevins decided to continue in, turning himself from a cop into a burglar and a trespasser. I've yet to find any statutory or case law that says my actions were improper.

Curious George said...

I find it very interesting that the federal court pretty much blew off the state charge of resisting arrest. They didn't seem to give it any credence at all.

Anonymous said...

Nice one Chris👍. I'm with Chris B.

Anonymous said...

If you were black the media would be all over this story. And the DOJ would investigate.
I am serious in saying this but a judge probably will not allow it.......legally change your last name to a Hispanic, Middle Eastern, Asian name. Might get more leverage.