• The Use of Excessive Force and the Fourth Amendment
• Unlawful Public Protests and Law Enforcement’s Right to Use Reasonable Force

While individuals have the right to publicly protest, law enforcement has a right to arrest the protestors when they seek to prevent a duly installed government entity from performing its lawful functions.  The use of reasonable force in arresting protestors engaging in unlawful protests is constitutional

In July, 2018, Tasha Williamson and others participated in what was referred to as a “die-in” at a city council meeting in National City.  The purpose of this demonstration was to protest the death of one Earl McNeil; a black man who died while in police custody.  (See Note, below.)  The protestors in general disrupted the meeting by chanting from the audience.  Williamson and five others, however, took it a step further by moving up to the public speaker podium in front of the city council members where they laid down on the floor around the podium, showing their red-painted “bloody hands” while chanting; “I am Earl McNeil,” and, “You have blood on your hands.”  The protestors ignored the mayor’s call for order, so the council meeting was adjourned.  Meanwhile, National City police officers warned Williamson and the other protestors around the podium that they would be arrested if they didn’t back away.  (Getting arrested, of course, is exactly what they wanted.)  The six protestors around the podium all ignored the officers’ repeated requests to leave, acting as “dead weight” instead, refusing to cooperate with being physically removed.  The officers, therefore, pulled or carried them out, one by one.  National City Officers Lucky Nguyen and John McGough drew Williamson as the demonstrator they were responsible for removing.  Handcuffing her with her wrists behind her back, they brought her up to a seated position. Attempting to lift her to a standing position, they lost their grip and she rolled back to the ground, onto her stomach.  So the officers tried again, one officer on each arm, lifting her back to a standing position.  But because Williamson wouldn’t support her own weight, the officers had to pull her backwards by her arms and wrists while she remained in what resembled a seated position.  In the twelve seconds it took to drag her through the room to the exit, Williamson’s chanting reverted to a continuous scream.  At the exit door, Officer McGough released Williamson’s upper right arm, leaving Officer Nguyen to drag her by her left wrist and forearm through the doorway.  In the hallway outside the meeting room, Williamson complained that they had hurt her shoulder.  So the officers “double-cuffed” her to lessen the tension on her arms and make her more comfortable.  Given her complaints of pain, an ambulance was called, but she declined a trip to the hospital.  So she was taken to jail instead.  After her release the next morning, Williamson drove herself to the hospital where it was determined that she had suffered a sprained wrist, mild swelling, and a torn rotator cuff (although there was some question whether her rotator cuff had been injured here, or during a prior arrest, which was the subject of a different lawsuit). Williamson sued the officers in federal court under 42 U.S.C. § 1983 and California’s Tom Bane Civil Rights Act (Cal. Civ. Code § 52.1), alleging that the officers had used excessive force against her in violation of the Fourth Amendment.  When the district court denied the officers’ motion for summary judgment (i.e., to dismiss the lawsuit), the officers (and the City of National City) appealed.

The Ninth Circuit Court of Appeal reversed.  On appeal (as in the federal district court), Williamson argued that “pulling the full weight of her body by her hyperextended arms,” and thus causing her injuries, constituted the use of excessive force; a violation of the Fourth Amendment.  In evaluating Williamson’s claims, the basic rules are well-settled:  The Fourth Amendment protects against unreasonable seizures, which includes when law enforcement uses excessive force in making an arrest.  When the use of excessive force is alleged in a civil suit, a law enforcement officer can avoid liability by showing that he or she is entitled to “qualified immunity.” The qualified-immunity analysis involves two prongs; i.e., (1) whether the officer’s conduct violated a constitutional right, and, if so, (2) whether that right “was clearly established at the time of the events at issue.”  In this case, the Court concluded that the officers’ use of force was both justified and not excessive.  As such, they did not violate Williamson’s Fourth Amendment rights.  It was therefore not necessary to consider the second prong; i.e., whether the rights at issue were clearly established.  In concluding that Williamson was arrested (the lawfulness of the arrest itself not being contested) without the use of excessive force, the Court considered a whole bunch of interwoven rules, summarized as follows:  Whether or not an officer’s use of force was “objectively reasonable” (i.e., not excessive) is determined by examining the facts and circumstances confronting the officers at that time. These facts and circumstances include; “(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.”  The “government’s interest” requires an evaluation of the state’s interest at stake, including (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.)  Other rules guiding the Court include the fact that a court is to “judge the reasonableness of a particular use of force ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”  “It is also well-established that police officers ‘are not required to use the least intrusive degree of force possible.’” (Graham v. Connor (1989) 490 U.S. 386, 395, 397; Lowry v. City of San Diego (9th Cir. 2017) 858 F.3rd 1248, 1256 & 1259.)  In evaluating this particular case, the Court also considered the “specific factual circumstances” of the case in classifying the force used, the nature and degree of the physical contact at issue, as well as the “risk of harm and the actual harm experienced.” (Forrester v. City of San Diego (9th Cir. 1994) 25 F.3rd 804, 807; and Nelson v. City of Davis (9th Cir. 2012) 685 F.3rd 867, 879.)  With these guiding principles in mind, the Court noted that Williamson’s crime was minor—she posed no threat to anyone—and that she was not actively resisting arrest.  That’s all good for her.  But on the other side of this same coin, the Court noted that the officers had a legitimate interest in removing and arresting her.  Of particular note was that fact that proper warnings were given (repeatedly) before they used any force at all. Recognizing that citizens have a right to express their disagreement and dissatisfaction with the government, they do not have the right to prevent a duly installed government entity from performing its lawful functions.  “To conclude otherwise would undermine the very idea of ordered liberty.”  The Court thus found the officers’ actions in the way they handled Williamson to be not only reasonable, but as the use of force goes, “minimal.”  In so finding, it was noted that the officers did not strike Williamson, throw her to the ground, or use any pain compliance techniques or weapons for the purpose of inflicting pain on her.  Rather, they merely held her by her arms and lifted her so they could pull her out of the meeting room.  The fact that they had to use any force at all was necessitated by Williamson herself, going limp and refusing to leave on her own accord or to cooperate with being removed. Williamson failed to identify any less intrusive manner the officers could have used to accomplish what they had the right to do.  Also, the Court found that Williamson’s injuries, though not trivial, were relatively minor when compared to other cases cited in this written decision.  As such, the Court found the officers’ use of force to be constitutional as a matter of law.  As for Williamson’s Bane Act allegation, this California legislation (see Cal. Civ. Code § 52.1) is the state’s equivalent of the federal 42 U.S.C. 1983 civil liability legislation.  But in order for the Bane Act to apply, it must be shown that an underlying constitutional violation occurred.  There having been found to be no such violation in his case, the officers’ summary judgment motion relative to the Bane Act must also be granted.

If you’re not familiar with Earl McNeil and the circumstances of his death, he was a black man who, on the morning of May 26, 2018, showed up outside the headquarters of the National City Police Department saying there was an outstanding warrant for his arrest and that he wanted to turn himself in.  He also mentioned that he wanted to “kill Jesus,” indicating that there might be something else going on here.  Upon attempting to arrest McNeil, he apparently changed his mind and started to resist.  In order to subdue him, the officers used a restraint device called “The Wrap,” which is a system that binds a person’s legs and wrists while allowing him to sit upright, minimizing the likelihood of injury to both the suspect and the officers involved.  When McNeil began to spit, however, the officers put two “spit hoods” over his head.  Apparently, a t-shirt was also placed over the spit hoods (we don’ know why).  McNeil stopped breathing as a result, and died some days later.  Methamphetamine was later determined to be in his system, perhaps explaining the “kill Jesus” comment and his sudden need to resist. The San Diego County DA found no criminal culpability on the part of the officers, but this did not prevent McNeil’s family from suing.  The family’s civil case was eventually resolved with a $300,000 negotiated settlement.  Why Williamson (and the other demonstrators) got involved is unknown. We can only speculate that she got caught up in the movement to question any death at the hands of the police, particularly when the victim is black; not an unjust cause and certainly her right.  But if there’s a lesson to be learned by this case, it’s that in a free society governed by the rule of law, a person’s right to protest has to be balanced with the government’s right to conduct the People’s business.  When protestors unlawfully challenge government’s right to conduct its business, arrests will be made.  Resisting those arrests, whether overtly or by simple passive resistance, injuries are likely to occur.  Williamson learned this (if she learned anything) the hard way.