If you want your rights violated, all you need to do is call a cop. If you want your rights upheld, you’ll probably want your rights to be violated in another federal circuit.
We can learn something from this decision. But it won’t be things we want to learn. Instead, it shows how courts (especially this one) will protect cops who decide the best way to respond to a reported crime is to verbally and physically assault the people reporting the crime.
Here’s what started off this regrettable chain of events, as retold in the plaintiffs’ request for en banc hearing by the Fifth Circuit. (via the Volokh Conspiracy)
[Jacqueline] Craig called the police after her neighbor, Itamar Vardi, admitted to choking her son for accidentally dropping raisins on the sidewalk in front of Vardi’s home.
There was a criminal act here. And it wasn’t the “littering” the Fifth Circuit vaguely alludes to in its decision [PDF]. It was the alleged assault of child by an adult, one apparently provoked by an accidental act.
The mother did what she could to prevent things from escalating before law enforcement arrived.
Craig waited for law enforcement to arrive with several members of her household, including her daughter, then nineteen-year-old, Brea Hymond who began recording the encounter. While waiting for law enforcement to arrive, Craig can be seen in the recording preventing another man from confronting Vardi. She reassured the man that she had contacted police and asked that he allow law enforcement to deal with the assault on her son.
But escalation was apparently all the responding officer (William Martin) had in mind. Rather than attempt to address the alleged assault, he decided to go after those who had initially reported the crime. (A previous 911 was placed by a resident (presumably Vardi) who claimed many people were on his property “arguing” and “throwing trash.” This call was followed by Craig’s call reporting the assault.)
Officer Martin responded to the call on his own. He activated his body camera once he had arrived on the scene. He spoke to both parties — one who claimed to be the victim of littering and one who claimed her son had been physically assaulted. Martin chose sides.
When Martin arrived at the scene, he spoke with the male complainant; Martin then approached Craig to obtain her version of the events. Craig told Martin that the man had grabbed her son, A.C., after A.C. had allegedly littered. In response, Martin asked: “Why don’t you teach your son not to litter?”
Well, Officer Martin, why don’t you teach adults it’s not ok to choke other people’s children? An equally valid question given the circumstances. The child’s mom made a good point, but it was delivered to someone who had already apparently decided which side he was going to take.
Craig, visibly agitated, told Martin that it did not matter whether her son had littered, asserting that the man did not have the right to put his hands on her son. Martin replied: “Why not?”
At least the Fifth Circuit calls these questions by Officer Martin “provocation.” Craig was still irate but one of her daughters tried to de-escalate the situation. That effort was rewarded with more escalation by the officer.
Martin asked why she was shouting at him, to which Craig responded: “Because you just pissed me off telling me what I teach my kids and what I don’t.” Martin replied in a calm voice: “If you keep yelling at me, you’re going to piss me off, and I’m going to take you to jail.” Immediately after this exchange, J.H., Craig’s fifteen-year-old daughter, stepped between Craig and Martin and put her hands on Craig’s forearms. Martin grabbed J.H. and pulled her away from her mother.
Another family member showed up, Craig’s fourteen-year-old daughter, K.H. K.H. pushed Officer Martin. Martin unholstered his Taser and shoved Craig to the ground. He then walked Craig and J.H. to his cruiser. J.H. resisted and the officer “shoved her to the ground” and placed his hand on the back of her neck. K.H. reappeared and attempted to prevent Martin from placing her mother and sister in the car. The officer told her to move. She didn’t. He allegedly “struck” K.H. “in the throat” to move her. The officer then kicked J.H.’s leg when she refused to lift it into the back seat.
All this escalation provoked a response from teens in Craig’s household. The officer’s violent acts against these teens are considered to be nothing more than justified police work by Officer Martin. The court says one daughter (J.H.) was resisting arrest, justifying the shove, neck grab, and kick that followed. K.H. was obstructing the officer, which justified the strike to the throat.
But there was someone else present on the scene, and this is the qualified immunity issue being reconsidered here. Brea Hymond, another member of the family being arrested, recorded the encounter. Supposedly her recording of the arrest and her shouting was all the “resistance” necessary to justify Officer Martin’s use of force.
Here’s how this is depicted in the Fifth Circuit decision:
Throughout Martin’s encounters with and arrests of Craig and J.H., Hymond shouted at him while photographing what was transpiring from a close range. After placing Craig and J.H. in the back of his police car, Martin turned to Hymond to arrest her for interfering. He grabbed her by the wrist, put her up against the side of the police vehicle, and attempted to wrangle her cell phone out of her hands, which he eventually did. As he attempted to restrain her, Hymond tried to raise her hands and continued to scream at him. He handcuffed her and then put her up against the vehicle a second time. Although Hymond was in handcuffs, she continued to resist. Martin told Hymond that she was under arrest and asked if she understood, but she continued shouting without answering.
Hymond was also twisting her body as she shouted, and she walked away from the squad car at one point. Martin moved her back. Hymond continued shouting and twisting. She turned her head halfway to her left in an attempt to look at Martin. Martin then began asking Hymond for her name and age. As Martin continued to ask, Hymond began twisting her body more aggressively, her body briefly moved up and down as if she were jumping, and she moved her head even more to her left to look squarely at Martin. All the while she continued to shout at Martin.
Officer Martin called his lifting of Hymond’s handcuffed arms a “compliance technique,” one he swore to the court was not excessive. Hymond referred to it as a “hyper-extension” of her arms, apparently applied solely because she refused to identify herself, rather than as a response to any physical resistance.
Martin’s description of his actions (the one utilized by the Fifth Circuit) kind of grinds down the edges of what actually happened here, which gives credence (by subtle omission) that Hymond’s resistance demanded this application of force against a handcuffed person. Here’s what the record shows (and by record, I mean the multiple recordings), recounted with a bit more honesty and accuracy by the Institute of Justice in its petition for a rehearing.
After Martin secured Hymond’s mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone’s safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymond—who had been recording the incident from a distance and yelling at the officer that she was doing so—grabbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for “interfering.” But Martin’s display of authority did not end there.
While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin “kick her,” referring to J.H. In response, Martin started questioning Hymond: “How old are you? What is your name?” Hymond did not immediately answer his questions. So, with Hymond’s hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow,
purposeful staccato: “What. Is. Your. Name?”
That’s the crucial issue. The “pain control technique” was meant to prompt a response, rather than restrain a resisting arrestee. Even the Fifth Circuit court admits as much, even as it decides against the plaintiff, who, it says, simply did not provide enough evidence to counter what’s plainly observable on the officer’s body cam recording.
Nothing in our opinion should be construed as suggesting, much less holding, that officers may use pain maneuvers to force non-resisting individuals to respond to questioning. We hold only that, consistent with our precedent, an officer may use reasonable force on someone “actively” resisting arrest.
But it will be construed this way. It will be taken to mean officers can use force to provoke responses to questions, so long as they can claim the handcuffed person was still resisting arrest, even if the resistance was to nothing more than an officer’s questions.
In the end, we have an officer showing up to a scene to address two contradictory narratives before deciding that only one party (the one not alleged to have committed a violent crime) deserved his attention. After insulting the child’s mother and suggesting it was ok for adults to choke other people’s children for littering, he arrested the mother and one daughter for the apparent crime of not shutting up. And he arrested a third family member for the crime of not shutting up while recording the arrest. That arrest culminated in the apparent appliance of force solely for the purpose of making the third arrestee “respect” the officer by answering his questions. All of this is held to be constitutional by the Appeals Court. And whatever wasn’t strictly constitutional had never been clearly held otherwise by the court.
This is not the most egregious violation of rights given a pass by this court. But it’s just another in a long string of questionable calls that encourage excessive force deployment and misconduct by officers in the Appeals Court’s jurisdiction. Small wins like this generate ripple effects that will manifest later as truly horrifying abuses of people’s rights. And because the court has refused to generate precedent, these too will be forgiven.