• The Eighth Amendment and the Excessive Use of Force on a Jail Escapee
• Civil Liability for the Use of Excessive Force
• The Value of Bodycams in Excessive Force Cases
• The Use of a Police Dog in Making an Arrest
• Duty to Intercede in the Excessive Use of Force

In a motion for summary judgment in a civil suit, a court is to assume that the non-moving party’s version of the facts is true.  An exception to this rule is when evidence exists that “blatantly contradicts” the non-moving party’s evidence.  A duty to intercede in the use of excessive force does not apply when an officer has no opportunity to do so.

Plaintiff Corey Hughes was merely 10 days into his six month jail sentence being served at the San Joaquin County Jail when he decided he had better things to do with his life.  So while working on a highway work crew, he decided to just take some time off—going over the fence, . . . literally.  A California Department of Corrections Fugitive Apprehension Team—led by Agent Chris Rodriguez—and other local agencies began an immediate search for Hughes.  Three weeks after his escape, Agent Rodriguez developed information (the informant being the mother of Hughes’ children.) to the effect that Hughes was hiding at the Stockton home of a friend.  What the agents knew of Hughes at the time was that he (1) had prior convictions for possession of a stolen vehicle, weapons possession, and evading a peace officer with a disregard for safety, (2) was affiliated with a violent street gang, (3) had training in mixed martial arts, and (4) abused methamphetamine. These facts led Agent Rodriguez to conclude that Hughes was potentially a dangerous person. So, on December 21, 2017, when they went to check the house where he was allegedly hiding, the officers took the appropriate measures to insure their safety. This included the use of a trained police dog; “Cain.”  At 10:30 a.m., with the entire neighborhood cordoned off by officers from various agencies, agents knocked on the door, but initially got no response.  Soon, however, the resident of the house came out and told the agents that Hughes was inside.  He gave the agents his house keys and permission to enter his home.  A loudspeaker was used to urge Hughes to come out of the house.  This being unsuccessful, Agent Rodriquez, accompanied by several Stockton police officers including Officer Michael Rodriguez (apparently no relation to Agent Chris Rodriguez), and Cain the K-9, all entered the house via the front door.  With the bodycams from several of the Stockton P.D. officers recording the events, Officer Rodriguez is seen and heard twice shouting: “Stockton P.D., come on out or you’re going to get bit by a police dog!”  The bodycam shows an empty hallway from the front door towards the back of the house. The bodycam also fails to pick up any audible response to Officer Rodriquez’s commands.  But when Cain is then released, the dog finds Hughes around a corner of the hallway and immediately bites onto him.  Hughes and Cain are shown on a bodycam “tumbling” into the hallway.  The officers immediately move in to assist the dog.  In the ensuing struggle, Officer Rodriquez’s bodycam gets kicked off of his chest and “suddenly” goes dark at the same time.  During the struggle, Officer Rodriguez later admitted to punching Hughes in the head as Hughes was grabbing for Rodriguez’s gun.  The punch apparently ended the fight, with Hughes being handcuffed.  The bodycam on another officer fails to show the struggle (being pointed elsewhere), but does record the sounds of the officers’ attempts to handcuff Hughes.  This bodycam substantiates the officers’ later testimony that “no more than a single minute elapses” between when Cain is first released, up until the clicking of the handcuffs is heard along with an officer’s verbal announcement that Hughes is in custody.  The Court notes, however, that this second officer’s bodycam footage “does not clearly and unmistakably depict whether punches were thrown before or after Hughes was handcuffed.” This is important because contrary to what was recorded by Officer Rodriguez’s bodycam before it went dark, Hughes later testified that when Officer Rodriguez first demanded that he come out, he did in fact shout back repeatedly in a loud voice: “Hold on, I’m coming out!”  Hughes also claimed to have come out into the hallway, visible to the officers at the front door, and that he had his hands raised in submission.  Hughes further alleged that it was only after he made eye contact with Officer Rodriguez as he showed his empty hands that the officer released Cain.  Hughes also claimed that after he was handcuffed, the officers continued to punch him in the head and face, as Cain continued to bite him, for an additional “two minutes, if not more.”  After being arrested, Hughes was treated at a hospital for dog bites, abrasions, and bruising.  He claimed that the dog bites caused scarring and residual soreness in his left leg.  Hughes later sued the officers involved in his arrest (including Officer Michael Rodriguez and Agent Chris Rodriguez) in federal court—under 42 U.S.C. § 1983—for the use of excessive force (an Eighth Amendment “cruel and unusual” violation instead of a Fourth Amendment violation, he being considered a state prisoner despite his escape) in taking him into custody.  The federal district (trial) court granted the officers’ motion for summary judgment on all claims.  Hughes appealed.

In a split (2-to-1) decision, the Ninth Circuit Court of Appeal affirmed in part and reversed in part.  The main issue here is a procedural one:  When a civil plaintiff’s version of the facts differ from the civil defendant’s version, and a motion for summary judgment is filed (by the civil defendants, in this case), whose version of the facts is the court to believe    In this case, if you believe Hughes’ interpretation of the facts, then clearly he was the victim of excessive force.  If you believe the officers’ version, then he was not.  Making it easy on the courts is the rule that in a motion for summary judgment (i.e., to dismiss the plaintiff’s lawsuit in this case), it must be assumed that the non-moving party’s (the plaintiff Hughes here) version of the facts is true, letting a civil jury ultimately determine who they believe. There is a major exception to this rule, however.  The U.S. Supreme Court has held that when there is evidence that “blatantly contradicts” the non-moving party’s (i.e., Hughes’) evidence, “so that no reasonable jury could believe it,” a court may take into consideration that contradicting evidence for purposes of ruling on a summary judgment motion. (Scott v. Harris (2007) 550 U.S. 372, 378.)  Hughes’ evidence alleged that, as the victim of excessive force, his Eighth Amendment rights were violated. The Court held, however, at least up until the point where he was subdued and handcuffed, Officer Rodriguez’s bodycam visual and auditory evidence “blatantly contradicted” Hughes’ version of what had happened. Taking the bodycam evidence into account, the Court found the officers’ actions—including the use of the police dog—to be a reasonable use of force, given Hughes’ refusal to peaceably submit.  This also included Officer Rodriquez’s single punch to Hughes’ head when Hughes attempted to reach for the officer’s gun.  The district court ruled accordingly, and the Ninth Circuit agreed.  However, from that point in time when Hughes was handcuffed, occurring after Rodriquez’s bodycam had been turned off, the only objective evidence of what occurred was the auditory evidence from another officer’s bodycam.  Hughes alleged that the officers continued to beat him while allowing Cain to bite him despite the fact that he had been handcuffed and physically subdued.  The Officers denied that this occurred.  The Court ruled that the auditory-only evidence available via the second bodycam—it being difficult to interpret the sounds that were made—did not “blatantly contradict” Hughes on this issue.  The Court therefore overruled the district court’s granting of the officers’ summary judgment motion as to this aspect of the case, finding that the court must view the facts “in the light most favorable to Hughes (as the non-moving party) on this issue.”  After finding that if such excessive force had in fact been used, the unconstitutionality of using excessive force on a handcuffed and subdued prisoner was firmly established in the law.  As such, the officers were not entitled to qualified immunity.  The case was therefore remanded back to the trial court for a jury trial on this issue only.  As one last issue, Hughes included in his lawsuit an allegation that a number of officers who were present, but not necessarily directly involved in the physical altercation, failed to intercede as Officer Rodriguez (allegedly) beat him unnecessarily.  It is a rule that “(o)fficers can be held liable for failing to intercede in situations where excessive force is claimed to be employed by other officers, (but) only if ‘they had an opportunity to intercede.’” (Italics added; Cunningham v. Gates (9th Cir. 2000) 229 F.3rd 1271, 1289-1290.)  The Court noted that the whole incident lasted less than a minute, taking “place during the rapidly unfolding chaos of the physical struggle to apprehend Hughes.” It was further noted that some of the officers were at different locations around the house and not immediately present at the scene of Hughes’ arrest.  As such, the Court held that none of the other officers had the opportunity to intercede.  Therefore, this aspect of Hughes’ lawsuit was also properly dismissed as a part of the summary judgment ruling. 

This case is obviously more important to attorneys who handle civil cases than to police officers on the street, other than to forewarn cops to the potential consequences of using excessive force (not to say that these officers did that here).  But there is at least one aspect to this case with which police officers need to be familiar, and that’s the duty to intercede when you witness other officers administering what we used to call “a little street justice.”  Since the murder of George Floyd by Minneapolis police officers in May of 2020, and the subsequent prosecution of not only former police officer Derek Chauvin who personally committed the acts leading to Floyd’s death, but also the other officers who merely stood around watching, law enforcement agencies across the nation (not to mention the public in general) have become sensitized to the issue of an officer’s failure to intercede when the use of excessive force is observed.  Effective as of January, 2021, all California law enforcment agencies are to have established a written policy that provides a minimum standard on the use of force.  This policy must include a requirement that an officer intercede when he or she sees another officer use “excessive force.” (Defined loosely as “force that the (observing) officer believes to be beyond that which is necessary.” (Subd. (b)(3) of Gov’t. Code § 7286.  See also subd. (a)(2).)  Subdivision (a)(4) defines “Intercede” as “includ(ing),  but . . .  not limited to, physically stopping the excessive use of force, recording the excessive force, if equipped with a body-worn camera, and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time, and situation, in order to establish a duty for that officer to intervene.”  So if you weren’t already aware of your agency’s policy on this issue, be forewarned:  The days of ignoring observed excessive force in the field—if you were ever prone to do that—are over.