THE CALIFORNIA LEGAL UPDATE
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November 1, 2022
Author Ref. No:
Vol. 27 No. 10
November 1, 2022
Author Ref. No: Vol. 27 No. 10
Deputy District Attorney (Retired)
THIS EDITION’S WORDS OF WISDOM:
“I noticed the person in front of me at a gas station at pump #3, pumping $10 worth of gasoline into his car. I had to wonder where the hell he planned to go; Pump #4?”
Gang-Tackling an Arrestee and the Issue of Excessive Force; Qualified Immunity as it Relates to...
COURT CASE REFERENCE: Andrews v. City of Henderson (May 23, 9th Cir. 2022) 35 F.4th 710
LEGAL UPDATES REFERENCE NO. CAC00083
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.