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?

Shuler Arrest-Incident Report by Roger Shuler