We’ve discussed before how difficult it is to strip law enforcement officers of qualified immunity. Courts have been spectacularly unwilling to take this protection away from cops, even when confronted with horrendous rights violations. Even in cases where the court decides a rights violation has occurred, unless it has “clearly established” precedent to work with — something stating that this particular violation in this particular set of circumstances has resulted in the stripping of immunity before — the officer being sued usually remains shielded from liability.
So, if the court is unwilling to set the precedent, the violation can occur again and again and again until the presiding court decides it’s had enough. When a case comes through where immunity has been denied — or stripped away by a higher court — it’s immediately notable.
In this case [PDF] handled by the Eleventh Circuit Court of Appeals, the standard for losing qualified immunity is still high. It’s just that the law enforcement officer in this case went out of his way to be an abusive asshole. The court’s unwilling to let that slide.
Paul Stephens and his cousin, Roan Greenwood, were guests of Greenwood’s girlfriend at an apartment complex that sat atop a row of stores. They were both checking out Greenwood’s girlfriend’s car, attempting to track down the source of the “check engine” warning that came on right before it was parked.
Deputy Nick DeGiovanni decided the two might be planning to break into the shops below the apartments. He ignored Greenwood’s offer to take him up to his girlfriend’s apartment to prove he had permission to be there. While he was questioning Stephens (really just demanding he produce some ID), Stephens took a call on his phone using his Bluetooth headset. It all went downhill quickly from there.
When he answered the phone using the Bluetooth device on his right ear, Deputy DeGiovanni unexpectedly slapped the Bluetooth from Stephens’s ear and stated: “Who told you to answer the phone?” Stephens then asked Deputy DeGiovanni to get a field supervisor on the scene. Deputy DeGiovanni responded by saying: “Shut your damn mouth.” For no reason, Deputy DeGiovanni, using his full body weight, slugged Stephens hard in his chest, slamming him into the driver’s seat.
Stephens attempted to talk the deputy out of making this worse — both for him and for the deputy — by appealing to his conscience. Apparently, Deputy DeGiovanni didn’t have one.
Stephens stood up and asked Deputy DeGiovanni: “Why are you doing this?” Deputy DeGiovanni hit Stephens a second time with a blow to his chest, thrusting him into the driver’s seat. With the air knocked out of his lungs, Stephens got up and said to Deputy DeGiovanni: “The kids are upstairs looking at you. What kind of example are you setting for the kids?”
Deputy DeGiovanni battered Stephens a third time by stepping on Stephens’s left foot while simultaneously and forcefully grabbing him by the neck and slamming him backward, which threw Stephens against the car-door frame. Stephens’s head hit in the space between the open driver’s door and the car, and his head and neck slammed into the car-door jamb. Stephens, who was seriously injured, reached up with his right hand to grab the car door to lift himself up. Deputy DeGiovanni then grabbed Stephens’s right hand and twisted it so the palm of his hand faced up; he also forced the last three fingers on Stephens’s right hand backward toward his forearm, causing all of Stephens’s body weight to be placed on those three fingers of his right hand.
Then it somehow got worse for Stephens. DeGiovanni arrested Stephens and made it clear what he thought of black people. (Or immigrants. Stephens is originally from Jamaica.) Emphasis added by the court:
After Stephens was standing and while Deputy DeGiovanni still had those three fingers of Stephens’s right hand bent backwards, Deputy DeGiovanni told Stephens to turn around, and he handcuffed him. He did not tell Stephens he was under arrest or why he was arresting him. Because the handcuffs were quite tight, causing Stephens to lose the feeling in his hands, he asked Deputy DeGiovanni to loosen the handcuffs. Deputy DeGiovanni responded: “It’s punishment. You people come here and think you can do as you please.” Am. Compl. at 4 ¶ 15. Deputy DeGiovanni did not adjust the handcuffs on Stephens for almost three hours.
At no time did Stephens resist the arrest and throughout the painful experience he tried to be compliant. Deputy DeGiovanni was apparently in the mood to hurt someone, and Stephens ended up being in the wrong place at the wrong time despite being a guest at the apartments he was parked in front of.
Stephens was booked, denied a chance to use the restroom, and the vehicle was towed away. The jail refused to process Stephens because of his injuries, which were fairly extensive. This is from the physician’s report:
[A] cervical sprain/strain with multilevel disc herniations and resultant foraminal stenosis as a result of the described assault on February 16, 2009. The patient also sustained a left shoulder partial thickness articular-sided rotator cuff tear involving the infraspinatus tendon. He also sustained a sprain of the right wrist. Further electrodiagnostic workup is required to evaluate the radiating pain and little finger numbness to differentiate cervical radiculitis/radiculopathy and a peripheral nerve injury in the right upper extremity…
The patient may require arthroscopic rotator cuff debridement or repair due to his persistent and refractory left shoulder pain. He may require cervical epidural steroid injections or cervical disc decompression depending on the result of his electrodiagnostic studies.
Deputy DeGiovanni spun his night of excessive force into something else entirely, charging Stephens with resisting arrest and not having a valid Florida driver’s license.
The lower court found DeGiovanni’s use of force to be reasonable. (Unbelievably, it actually found the force used to be “de minimis.” WTF.) The Appeals Court disagrees. Instead of looking to see whether there was exact precedent that would make the deputy’s use of force a violation of Stephens’ rights, it uses the “obvious clarity” standard. In this case, the deputy’s actions were obviously unwarranted given the nature of the questioning and subsequent arrest.
The basic constitutional law governing excessive force in arrest situations was well established before Stephens’s arrest in February 2009. Qualified immunity is unavailable “if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff.” Harlow, 457 U.S. at 815, 102 S. Ct. at 2737 (citation, internal quotation marks, and alteration omitted); see Sheth v. Webster, 145 F.3d 1231, 1235-36 (11th Cir. 1998) (affirming denial of qualified immunity, “because of the absence of any justification for [the officer’s] use of force, application of the Fourth Amendment reasonableness standard would inevitably lead every reasonable officer . . . to conclude that the force was unlawful…”
Clearly, the court states, the amount of force used was disproportionate to the criminal acts Stephens was charged with — both misdemeanors. Furthermore, Stephens never once physically resisted the deputy during the interaction. And with that, away goes the deputy’s immunity.
There is no evidence Stephens attempted to resist Deputy DeGiovanni’s investigation ending in his arrest or to evade his arrest by fleeing. To the contrary, Stephens answered Deputy DeGiovanni’s questions, despite Deputy DeGiovanni’s harsh, threatening questioning and his forcefully hitting Stephens in his chest multiple times, ultimately causing his head to strike the door jamb, resulting in permanent injury as well as twisting Stephens’s right hand and three fingers backward, supporting his full body weight. Through it all, Stephens was compliant, even when Deputy DeGiovanni arrested and handcuffed him.
Stephens never attempted to flee the scene of his arrest. Consequently, none of the Graham factors applies to Stephens’s encounter with and seizure by Deputy DeGiovanni as to Stephens’s actions resulting in his seizure and arrest by Deputy DeGiovanni. “[Q]ualified immunity is not appropriate when the Graham analysis yields an answer that is clear beyond all doubt,” as in this case.
The case is kicked back to the lower court to return an opinion consistent with the Appeals Court’s decision. It also says the lower court is welcome to revive Stephens’ state law claims of excessive force in light of its decision.
That’s the bar that must be hit to lose immunity: to be so unreasonably forceful that the usual defensive ploys won’t work. Deputy DeGiovanni decided he’d pick on some foreigners and now he’s going to be paying Stephens for the injuries he caused and the career he ended (Stephens was an auto mechanic but lost his job after suffering the debilitating injuries). No one abuses their power this way unless they think there’s a good chance they’ll get away with it. DeGiovanni played the odds and lost.