EXCESSIVE FORCE CASES AND INCIDENTS OF DEADLY POLICE FORCE IGNITE POSSIBILITIES FOR CHANGE IN EIGHTH CIRCUIT [section] 1983 LAW.

• Author: Christman, Shad E.

1. INTRODUCTION

   Throughout history, and especially in recent years, the United States has faced challenges over the complicated relationship between police officers and the public. (2) These strained relationships have often lead to conflict, protest, and substantial criminal litigation. (3) Recent incidents of police violence, especially against people of color, have also sparked national conversations aiming to make constructive changes in local, state, and national governments. (4) These occurrences, which garner national media attention and deeply permeate our national conscience, have typically involved the use of deadly police force. (5) Uses of excessive force, as opposed to uses of deadly force, may affect a significantly larger population of suspects and arrestees on a more frequent basis. (6) Federal law provides for civil remedies for both these causes of action. (7) Since civil actions carry a lighter burden of proof, they may provide more obtainable remedies for individual victims of excessive force. (8) For this reason, examination of excessive force law in the Eighth Circuit, and by extension, the nation, is needed to foster understanding and create solutions to problems created by police officer's use of force. (9)

   The federal law that provides for a civil remedy against a police officer for the use of excessive force is 42 U.S.C. [section] 1983, commonly referred to as a [section] 1983 action. (10) This comment will first examine the factual background of several significant Eighth Circuit excessive force cases. (11) Next, this comment will examine the legal nature of excessive force cases--exploring [section] 1983 actions, qualified immunity, excessive force, and the de minimis injury classification on both a nationwide level, then within the Eighth Circuit. (12) Finally, this comment will evaluate the weaknesses of excessive force law and will provide suggestions for changes to improve the law for both plaintiffs and defendants. (13)

2. A SNAPSHOT OF EIGHTH CIRCUIT CASES: FACTUAL BACKGROUNDS

   A small sampling of Eighth Circuit cases with diverse factual patterns will help to illustrate the vastly different scenarios where [section] 1983 claims for excessive force are used. (14) Part A will discuss cases where the use of force was unjustifiable, and Part B will highlight cases where the use of excessive force was either reasonable or unclear. (15)

   1. CASES WHERE USE OF FORCE WAS UNJUSTIFIABLE

      1. Lollie v. Johnson (16)

         On January 31, 2014, in St. Paul, Minnesota, Christopher Lollie was waiting to pick his children up from the bus stop. (17) It was cold, so Lollie took refuge inside the First National Bank Building, in an open seat within a skyway. (18) Several minutes later, a security officer asked Lollie why he was there, informed Lollie he was in a private seating area, and asked Lollie to leave. (19) When Lollie refused and claimed the seating was public, the security officer called police to report an "uncooperative male." (20) Lollie eventually left the seating area and encountered a police officer in a skyway. (21) "[I]n just over one minute, Lollie [was] stopped [by the police officer], told he [was] going to jail, restrained against a wall, allegedly choked, tased, and taken to the floor by Officers." (22) Lollie claimed he had done nothing wrong, that he was called in for trespassing only because he was black, and that he was not required to identify himself to police officers. (23) Officers on the scene believed Lollie was belligerent and viewed him as uncooperative and non-compliant. (24)

         Lollie sued the officers and the City of St. Paul, asserting, among other things, excessive force under [section] 1983. (25) The police officers moved for summary judgment on all claims. (26) The district court concluded the rapid progression of the incident precluded the court from ruling, as a matter of law, that the force used was objectively reasonable. (27) The court also ruled a jury should decide which side of the story to believe. (28) Disputed issues of fact left for the jury included: whether the force used was excessive; whether Lollie gave the officers reason to fear for their safety; whether the officers had probable cause; and whether the use of force was willful or malicious. (29) Even in the face of what appears to be a clear violation of police authority, the court in Lollie's case decided that only a jury could make an accurate assessment of the credibility of the parties. (30)

      2. Peterson v. Kopp (31)

         Robert Peterson and his friend were hanging out at a bus stop in downtown St. Paul, Minnesota on April 25, 2011. (32) Three individuals joined Peterson and his friend, and the group began to smoke a hookah together. (33) Public Transit Officer Michael Kopp observed the group, and noticed they did not board several buses that pulled up to the stop. (34) Kopp asked the group to leave, but Peterson stayed behind. (35)

         Peterson told Kopp the group was leaving and that Kopp did not "have to be rude." (36) Peterson also asked Kopp for his badge number. (37) Kopp responded, "[y]ou have no right to have my badge number[,]" to which Peterson replied, "I have every right." (38) Kopp grabbed Peterson's arm and pulled Peterson off the top of the bicycle lockers where Peterson was sitting. (39) Peterson protested Kopp's actions, stating "[y]ou can't handle me like that." (40) Kopp then pepper sprayed Peterson. (41) Peterson yelled "What the f***? What the f***? What did I do? I didn't do anything. Police brutality." (42) Kopp replied, "[y]ou want to see police brutality?" and "then pushed Peterson into the bicycle lockers, handcuffed him, and placed him in the back of the squad car." (43) Kopp never told Peterson he was under arrest and only issued a citation for misdemeanor trespass. (44)

         Peterson sued Kopp for excessive force under 42 U.S.C. [section] 1983. (45) The district court granted the defendant's motion for summary judgment on the basis of qualified immunity. (46) The Eighth Circuit Court of Appeals affirmed. (47) The Eighth Circuit stated, based on the law at the time of the incident, that Kopp could have reasonably believed that his actions were permissible under the Constitution, so long as he did not cause more than a de minimis injury to Peterson. (48) Peterson was unable to prove he suffered more than de minimis injury through the use of pepper spray. (49) Kopp's conduct could have been deemed unreasonable under later decisions by the Eighth Circuit, (50) but since the incident in question predated the more favorable legal precedent, Kopp was held to an outdated legal standard. (51)

      3. Robinson v. Payton (52)

         On September 13, 2011, Matthew Robinson and his mother were out walking their dog near their home. (53) City of Dover Deputy Marshal Steven Payton viewed the pair as "suspicious people walking." (54) Payton saw Robinson throw something into the grass, stopped the Robinsons on the sidewalk, then witnessed the Robinson's dog run away. (55) When Robinson returned with the dog, he and his mother were placed in Payton's patrol car. (56) When another officer asked Robinson to exit the patrol car, Robinson refused and was tased. (57) Robinson, a six foot tall man who wore a size sixteen shoe, claimed he was tased as he struggled to get out of the back of the patrol car. (58) Robinson also claimed he grabbed a police officer's arm only to assist him in getting out of the vehicle. (59) The officers present claimed Robinson refused to exit the vehicle after multiple requests, and officers told Robinson he would be tased if he did not comply. (60) Even after Robinson was pulled from the car, Payton continued to tase Robinson. (61) Photos of Robinson after the incident showed at least fifteen taser marks. (62) Robinson was charged with refusal to submit to arrest. (63)

         The Robinsons sued the City of Dover, the county, the county sheriff, and the individual officers, including Trooper Stewart Condley, alleging the use of excessive force in violation of the Robinsons' constitutional rights. (64) Even though Condley had not personally applied force to Robinson, Robinson asserted Condley had a duty to intervene to stop another officer from excessively tasing Robinson. (65) Condley's motion for summary judgment on the basis of qualified immunity was denied by the district court. (66) The Eighth Circuit Court of Appeals reversed, finding that "a reasonable official, standing in Trooper Condley's shoes, would not understand that what he [was] doing--restraining a hysterical individual [Robinson's mother] on the scene and deciding not to leave the hysterical individual and intervene--violates clearly established law." (67)

         Circuit Judge Murphy dissented, asserting there were still disputed issues of facts within the case, including whether Condley breached a duty to intervene while other officers repeatedly tased Robinson. (68) Judge Murphy noted Robinson was tased 22 times and suffered scarring on "his face, chest, abdomen, and back, as well as a pilonidal cyst on his anus." (69) No drugs were ever found on Robinson. (70) Judge Murphy found summary judgment was not appropriate altogether. (71)

   2. CASES WHERE USE OF FORCE WAS EITHER REASONABLE OR SOMEWHAT UNCLEAR

1. De Boise v. Taser International, Inc. (72)

   Samuel De Boise "suffered from schizophrenia, which caused him to experience serious psychotic episodes." (73) On July 7, 2008, De Boise experienced an episode that caused him to become delusional and leave his home naked. (74) The next morning, neighbors saw De Boise wandering around, beating houses with a stick, and claiming to be God. (75) De Boise later returned home, held his mother's head down on the floor, and demanded that she worship him. (76) De Boise left his mother's presence, and his mother called 911 from a neighbor's home. (77) Officers Bret Lively and Joseph Percich were sent to the scene and informed by dispatch that De Boise was emotionally disturbed and...