• Gang-Tackling an Arrestee and the Issue of Excessive Force:
• Qualified Immunity as it Relates to the Use of Excessive Force:

The use of force to make an arrest, such as by “gang-tackling” a suspect, is potentially unconstitutional absent some articulable justification for doing so.  A law enforcement officer, however, may be protected from civil liability via the theory of “qualified immunity” unless the circumstances under which the force used have previously been found to be unconstitutional under “clearly established” appellate court case law.

Henderson Police detectives suspected Daniel Andrews of committing a series of armed robberies at various businesses in Henderson, Nevada.  On January 3, 2017, the detectives were surveilling a woman suspected of assisting in those robberies.  The detectives followed her while in the company of a man—later determined to be Andrews—to the Henderson Municipal Courthouse and watched as they entered the building.  To enter the Courthouse, they had to pass through a security checkpoint that included a metal detector and x-ray scanner.  The plan was to arrest the couple when they came out.  Twenty minutes after entering the Courthouse, Andrews and the woman reemerged.  Detectives Phillip Watford and Karl Ippisch—both in plain clothes—walked nonchalantly up to Andrews. Without identifying themselves, they “gang-tackled” Andrews, knocking him to the ground.  Detective Watford led the charge with Detective Lippisch piling on top of the two of them while Watford handcuffed Andrews.  This surprise attack on Andrews fractured his hip, causing him “excruciating pain.” The injury eventually required two surgeries to repair.  (The fracture was described as an “acetabular fracture,” which is a fracture that is caused by a “high-energy impact to the bone.”)  There was no indication in the record that Andrews resisted in any way or attempted to escape.  A “use of force” report was later submitted by Detective Watford to his supervisors, detailing the circumstances of Andrews’ arrest.  Video footage (from an unknown source; likely to be a nearby observer using his or her cellphone camera) also showed the arrest.  After reviewing the circumstances of the takedown and arrest, including watching the video, Henderson P.D. supervisors determined that Andrews’ arrest was accomplished in compliance with Henderson P.D.’s policies and required no further action.  (The case decision did not tell us whether Andrews was ever charged with any criminal offenses.)  Andrews subsequently sued both detectives and the City of Henderson in federal court under authority of 42 U.S.C. § 1983, asserting a Fourth Amendment excessive force claim.  As for the City’s liability, Andrews alleged three theories; (1) failure to train; (2) an unconstitutional custom, practice, or policy; and (3) ratification.  The detectives filed a motion for summary judgment (i.e., asking the trial court to dismiss the case), claiming “qualified immunity.”  The federal district (trial) court denied that motion.  As for the City’s liability, the trial court partially denied the City’s motion for summary judgment, finding that whether or not the City had “ratified” the detectives’ actions (theory #3, above) was an issue for a jury to decide.  Both the detectives and the City appealed.

The Ninth Circuit Court of Appeal affirmed.  “Qualified immunity” from civil liability is actually a backup theory to the corresponding issue of whether or not a law enforcement officer did in fact violate a plaintiff’s constitutional rights, such as (as in this case) by using excessive force.  Courts (and civil defendants) will often skip straight to the issue of qualified immunity for the simple reason that if officers accused of using excessive force are eligible for qualified immunity, then it is irrelevant whether or not they did in fact violate a plaintiff’s constitutional rights.  Law enforcement officers are entitled to qualified immunity from civil liability any time the rule they violated is not already “clearly established” in the law. In other words, law enforcement officers are not required to guess where to draw the line between a lawful use of force and the use of excessive force absent prior judicial guidance that clearly establishes where that line is.  In this case, skipping straight to the “qualified immunity” issue, the Court assumed, without deciding, that “gang-tackling” Andrews under these circumstances constituted an excessive use of force—and thus a Fourth Amendment violation—leaving only the question of whether the officers should have known this (i.e., whether the rule has already been “clearly established”).  The Ninth Circuit has previously discussed the issue of “gang-tackling” an arrestee, holding that: “Neither tackling nor punching a suspect to make an arrest necessarily constitutes excessive force.”  (Italics added; Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3rd 463, 477.)  While the term “gang-tackling” has never been officially defined, the Blandenhorn Court referred to it as being when “more than one officer uses bodily force to bring an individual ‘to the ground.’” (at p. 478.)  However, as the Court hinted, gang tackling does not always constitute an excessive use of force. Whether or not a constitutional violation has occurred when a suspect is gang-tackled depends upon a consideration of three factors; “(1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.”  (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.)  In applying these standards to this case, the Court determined (under factor #1) “that this use of force by the detectives was ‘substantial’ and, therefore, ‘must be justified by the need for the specific level of force employed.’”  As for factor #2 (the government’s interest), a court is to consider the severity of the crime at issue and whether the suspect posed an immediate threat to the safety of the officers or others or was actively resisting arrest or attempting to evade arrest by flight.  While Andrews’ alleged crimes were indeed serious (i.e., armed robberies), the Court determined that the detectives should have known that he did not pose an immediate threat to their safety, having just passed through a metal detector that indicated he was not armed at the time.  Also, there was no evidence that plaintiff actively resisted or was attempting to escape.  Under these circumstances, the Court determined that the government's interest in using substantial force was minimal.  It was also noted that the detectives failed to present any evidence to the effect that “tackling [Andrews] was the only option available to them.”  Taking these two factors into account (as required under factor #3, above), and the fact that prior case law has clearly discussed these issues, the Court determined that the detectives were adequately put on notice that tackling an unarmed, unresisting suspect, despite the seriousness of his alleged crimes, could well be considered excessive force under the Fourth Amendment. The rules for determining this having been clearly established, the officers should have known this.  Thus, the district court properly denied the detective’s summary judgment motion, leaving the issue of whether the force used by the detectives’ was unconstitutionally excessive for a jury to decide. 

The moral of this story is that if you’re going to pile onto an arrestee’s body, make sure you have some reason for doing so over and above the fact that he “might” try to resist, or that his crime was serious.  Especially since the Minneapolis/George Floyd debacle, you have to know that the public is watching you now with a lot more interest, and is not nearly so likely to just accept your word that the force used was necessary.  You also have to expect that your actions are more likely to be videotaped, what with everyone and his uncle owning, and just itching to use, a cellphone camera.  To avoid civil liability for damaging an arrestee’s body, you’re going to have explain the reasons for your perceived need to use force, and why you thought it was necessary under the circumstances.  As for the City’s liability (i.e., whether the City is civilly liable for having “ratified” the detectives’ actions), the City suggested to the Court that it could use a court’s “pendant jurisdiction” and decide the issue.  “Pendent jurisdiction,” per the Court, refers to the power of an appellate court to review an otherwise non-appealable ruling, at least when it is factually “inextricably intertwined” with an order that is properly before the appellate court.  Again per the Court, a trial court’s ruling on a summary judgment motion that a City is potentially liable for its employees’ constitutional violations under a “ratification theory” is not appealable as a rule, it having previously been held that “a municipality is not entitled to assert the defense of qualified immunity” when ratification is the issue. (citing Hernandez v. City of San Jose (9th Cir. 2000) 204 F.3rd 893, 902.)  The Court declined to use its “pendant jurisdiction” authority here, leaving the district court’s decision (denying the City’s summary judgment motion) undisturbed.  Because (1) this whole concept is irrelevant to the issue of whether gang-tackling a suspect is constitutional, (2) the Court didn’t see fit to elaborate any more on this theory, and (3) I really have no idea what the heck they’re talking about anyway, we need not go any deeper into this issue.