AuthorVallie, Brandon
PositionMassachusetts General Laws

Law enforcement's use of excessive force is a violation of the Fourth Amendment. (1) In Gray v. Cummings, (2) the United States Court of Appeals for the First Circuit determined whether a police officer could be held civilly liable for tasing a mentally ill person who resisted arrest after she had been involuntarily committed. (3) The court held that there were no claims under Title II of the Americans with Disabilities Act ("ADA"), and that the police officer was entitled to qualified immunity, despite his use of excessive force in violation of the Fourth Amendment. (4)

On May 2, 2013, at approximately 4:00 a.m., Judith Gray ("Gray") was admitted to Athol Memorial Hospital after experiencing a manic episode and calling 9-1-1. (5) She was admitted to the hospital pursuant to Mass. Gen. Laws ch. 123, [section] 12, a statute authorizing state agents to involuntary hospitalize individuals at risk of serious harm by reason of mental illness. (6) Gray escaped from the hospital later that morning, and hospital staff called the police to request that "'a section 12 patient'--be 'picked up and brought back.'" (7) Officer Cummings ("Cummings") responded and spotted Gray walking barefoot less than a quarter mile from the hospital. (8) Cummings got out of his police cruiser and told Gray that she had to return to the hospital while Gray used profanities and declared that she was not going back to the hospital. (9) Cummings subsequently followed Gray until she stopped, clenched her fists and teeth, flexed her body, and swore at Cummings while walking towards him. (10)

Cummings grabbed Gray's shirt and took her to the ground after he felt her body continue to move toward him. (11) Once on the ground, Cummings repeatedly told Gray to put her hands behind her back and warned that she would be tased if she did not comply. (12) Instead, Gray continued to swear at him--and when Cummings made one last request for her to comply--Gray refused to listen. (13) Ultimately, Cummings arrested Gray after he "removed the cartridge from his [t]aser, placed it in drive-stun mode, and tased Gray's back for four to six seconds." (14)

Charges were filed against Gray for assaulting a police officer, resisting arrest, disturbing the peace, and disorderly conduct; however, the charges were all subsequently dropped. (15) Shortly thereafter, Gray sued Cummings and the Town of Athol ("the Town") in the United States District Court for the District of Massachusetts under 42 U.S.C. [section] 1983, Title II of the ADA, and supplemental state-law claims for assault and battery, malicious prosecution, and the Massachusetts Civil Rights Act. (16) Cummings and the Town filed a summary judgment motion, and a magistrate judge found that: (1) neither Cummings nor the Town violated the Fourth Amendment under [section] 1983, (2) that there were no viable state-law claims, and (3) that there had been no abridgement of the ADA because Cummings was entitled to employ an "appropriate level of force in response to an ongoing threat." (17) The magistrate judge also noted that Cummings was entitled to qualified immunity as a police officer. (18) The United States Court of Appeals for the First Circuit subsequently affirmed the decision and found (1) that Gray did not have a claim under Title II of the ADA and (2) that Cummings was entitled to qualified immunity, even though a jury could have found there was excessive force in violation of the Fourth Amendment. (19)

Congress enacted [section] 1983 in 1871 to supply a right of action against a person, "who, under color of any statute ... depriv[es] [another] of any rights, privileges, or immunities secured by the Constitution and laws...." (20) A police officer violates an individual's Fourth Amendment rights when the officer uses excessive force to arrest said person. (21) The Supreme Court in Graham v. Connor decided that courts must use a totality of the circumstances approach--now commonly known as the "Graham factors"--to make an excessive force determination. (22) These factors include: "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight. (23)

Even when excessive force is found, police officers and other government officials still have the defense of qualified immunity, which provides protection from civil damages for actions taken under color of state law. (24) To invoke the qualified immunity defense, a government official must first show that their actions did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (25) Secondly, they must prove "the allegedly abridged right was not 'clearly established' at the time of the defendant's claimed misconduct." (26) The second prong of the analysis has two facets, the first of which requires the plaintiff to "identify either 'controlling authority' or a 'consensus of cases of persuasive authority' sufficient to send a clear signal to a reasonable official that certain conduct falls short of a constitutional norm." (27) Second, the plaintiff must demonstrate that "an objectively reasonable official in the defendant's position would have known that their conduct violated that rule of law." (28)

As of May 2013, Estate of Armstrong v. Vill. of Pinehurst, Parker v. Gerrish, and Ciolino v. Gikas were the most directly related cases to the case-in-chief. (29) The plaintiff in Armstrong, a bipolar and paranoid schizophrenic, left the hospital after being committed and was subsequently found by police officers wrapped around a four-by-four post. (30) Armstrong was tased five times in drive stun mode after being warned that he would be tased, and the court found that since the law was "not so settled at the time [April 2011] they acted such that 'every reasonable official would have understood that' tasing Armstrong was unconstitutional" under the circumstances. (31) In Parker, the plaintiff also originally resisted arrest; however, even though he eventually complied, he was still tased. (32) The Parker court held that a jury could have found that the police officer violated the Fourth Amendment by tasing an unarmed suspect who "presented no significant 'active resistance' or threat." (33) Lastly, Ciolino involved a police officer who grabbed the plaintiff and forced him to the ground without giving any warning; ultimately, the court held that because "[the plaintiff] was not given a chance to submit peacefully to arrest before significant force was used ... an 'objectively reasonable police officer' would have taken a more measured approach." (34)

In Gray v. Cummings, the United States Court of Appeals for the First Circuit narrowly addressed the question of excessive force and the application of qualified immunity in Gray's case. (35) In addressing the first prong in the analysis, the appeals court held that Cummings violated Gray's Fourth Amendment rights through his use of excessive force. (36) When applying the first Graham factor--the severity of the crime at issue--the court stated that because Gray had not committed any crime, the scale tipped in Gray's favor. (37) The appeals court then held that the second Graham factor--whether the suspect posed an immediate threat to the safety of the officers or others--also cut in Gray's favor because Gray posed a danger only to herself because she was bipolar and experiencing a manic phase. (38) However, the appeals court held that the third Graham factor--whether Gray was actively resisting...

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