Editorial: Excessive Force and Common Sense
By Robert Phillips
Deputy District Attorney (ret.) 

Hot-stopping an elderly, unarmed, compliant female suspected of auto theft may well constitute excessive force. 

Picture your 83-year-old, 5-foot-2, 117-pound grandmother driving her car down some random county road, minding her own business, when she suddenly sees a police car’s red and blue emergency lights turned on behind her. Wondering what she might have done wrong, she obediently pulls to the side of the road and stops, expecting some (hopefully) good-looking young officer to contact her and explain to her what is going on.  

Instead, she hears over the patrol car’s loudspeaker a not so pleasant officer ordering her to “show (her) hands and slowly “get out of (her) car!” Suddenly scared to the point of a near cardiac arrest, she complies, only to be told to get down on her knees, raise her hands and interlace her fingers – indeed, likely a challenging physical feat in itself for someone her age. 

Two officers (presumably at gunpoint) then approach her, handcuffing her before helping her back to her feet, since she cannot physically stand up on her own). Within about three minutes, she is unhandcuffed As she is told after the fact, the officers suspected that the car she was driving was stolen, a suspicion that was quickly dispelled when it was determined the car was hers. 

Analyzing this incident, we must ask ourselves:  

• Was her detention lawful?  
• More importantly, was it really necessary to order her to her knees and handcuff her – an “excessive force” issue?  

These two issues were to be determined in the 42 U.S.C.§1983 civil suit Elise Brown filed in federal court in 2020. While I admittedly embellished a bit on the facts above, I did so knowing how so-called “vehicle hot stops” are typically performed.  

When her case finally got its hearing, the federal district (trial) court granted the officers’ motion for summary judgment, ruling that they were entitled to “qualified immunity” from civil liability as to both the detention and excessive force claims, there being insufficient case law precedent to put the officers on notice that what they did might have been a bit extreme. 

The Ninth Circuit upheld the trial court’s ruling as to the “detention” issue, noting that the officers had information that the car Grandma Brown was driving was stolen. However, as to the “excessive force” claim, two justices held (and one dissented) that the officers were not entitled to qualified immunity, ruling that case law precedent “clearly established” that the force used in this case might have been excessive, and that a reasonable jury might so find under the circumstances. (See Brown v. County of San Bernardino (9th Cir. Feb. 7, 2023) __F.4th __ [2023 U.S.App. LEXIS 2941]. 

The petition for a hearing was denied by the U.S. Supreme Court; Dec. 11, 2023, 2023 U.S. LEXIS 4763.) This means that Ms. Brown’s lawsuit can proceed. 

The precedent cited by the court is the U.S. Supreme Court landmark case decision of Graham v. Connor (1989) 490 U.S. 386, 396. Graham held that the factors to be considered include, but are not necessarily limited to, “whether the suspect poses an immediate threat to the safety of the officers or others,” “the severity of the crime at issue” and “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”? 

Per the Ninth Circuit, the “severity” of the crime of “auto theft” was sufficient to warrant the detention, at gunpoint, of an auto theft suspect, but not necessarily of the handcuffing and putting on the ground the suspect after it is discovered that the suspect is an elderly, compliant, unarmed female. 

The dissenting opinion argued that there was insufficient prior case law precedent to put the officers on notice that handcuffing an 83-year-old, unarmed, compliant female might be excessive. 

A news article I read concerning this case indicated that the officers were merely following their department’s policies to the effect that they are required to hot-stop auto theft suspects. But my immediate reaction to this defense is something along the lines of: “Come on. Are you kidding me?” 

I find it hard to believe that any law enforcement agency’s written policies require officers to leave their common sense in their locker when they go out into the field for the day’s work shift. 

The ability to effectively and consistently exercise common sense in the field is to me the hallmark of a good cop. I say this admitting that I wasn’t there when Grandma Brown was hot-stopped, and fully admit that there may have been circumstances to which I may not be privy. But on its face, I can see this to be a situation that’s going to provide Ms. Brown with a lot of money to support her when she finds it necessary to move into a retirement home.