Wednesday, December 10, 2014

Hands Up, Don't Spray: Peterson v. Kopp

One of the key legal doctrines that makes it nearly impossible to effectively police the police is the doctrine of qualified immunity.  Last week we discussed  Plumhoff v. Rickard, a recent United States Supreme Court Case that upheld this doctrine.  There is another recent case out of the federal 8th Circuit Court of Appeals (Ferguson, along with the rest of Missouri, falls within the 8th Circuit) that deals with this same issue.  This case is called Peterson v. Kopp, and its language and facts show exactly how far qualified immunity has gone. In this case the Court recognized that, even where officers use unreasonable force, qualified immunity can shield them from responsibility for their brutality.

How it Began in Peterson v. Kopp

In its written decision the 8th Circuit describe the facts of the case.  On a spring day in 2011 Robert Peterson and his friend Brianna Bloom were waiting for a bus in St. Paul, Minnesota.  They sat on some bicycle lockers.  Three men approached them and asked Peterson about a hookah that was sticking out of his backpack.  Peterson and Bloom agreed to smoke the hookah with the men.

Along comes Officer Kopp.  Yes.  The cop involved is named Kopp.  Sometimes life is fun.

Kopp was on duty and he saw the five folks at the bus stop from his car.    He noticed that the group did not board any of several buses that came and went.  He approached them and asked which buses they were waiting for.  Because the buses the five mentioned had already come and gone, Kopp told them all to leave.  Several walked a few feet away at that point, but one man stood his ground and stated that he was entitled to wait at a public bus stop.  Kopp and this man argued for a minute to a minute and a half, at which point the man who stood his ground walked away.

Throughout this whole situation, Peterson remained on the lockers as he took apart the hookah.  He then told Kopp, "We are leaving.  You don't have to be rude."  Peterson took out his phone and asked Kopp for his badge number.  Kopp retorted, "You have no right to have my badge number" and Peterson told Kopp, "I have every right."

Hands Up, Don't Spray--The Situation Escalates 

According to the Court's decision, this is all that has happened at this point.  This is where Kopp decides to use force.  After Peterson asserted that he had a right to know Kopp's badge number, Kopp grabbed Peterson by the arm and pulled him off of the lockers, which were about four feet tall.  Kopp originally stated under oath that he pulled Peterson off of the lockers to get him going.  Then, in that same deposition, Kopp changed his story and said he pulled Peterson down to place him under arrest.

Once Kopp pulled Peterson off of the lockers he released Peterson's arm.  Peterson took a few steps backward, put his hands up, and said, "You can't handle me like that."  Immediately after Peterson made this statement, Kopp pepper-sprayed Peterson directly in the face for two full seconds.

That's right, Peterson put his hands up and made a comment and in response Kopp pepper-sprayed him in the face.  Apparently, "Hand Up, Don't Spray" would be another accurate catchphrase for protesters to use.

After being pepper-sprayed in the face, Peterson stumbled around and yelled, "What the fuck?  What the fuck? What did I do?  I didn't' do anything!  Police brutality!"  Kopp then responded, "You want to see police brutality?" and he pushed Peterson into the lockers.  Kopp then handcuffed Peterson and put him in the back of his cop car.  The officer cited Peterson with the piddly offense of misdemeanor trespassing.  Prosecutors later dismissed the charge, and Peterson proceeded to sue Kopp.  Kopp asked the trial court to dismiss the case because of qualified immunity, which it did.

Unreasonable Use of Force Gets a Pass Under Qualified Immunity

The 8th Circuit explained that cops are shielded from liability by qualified immunity unless their official conduct violates a clearly established constitutional or statutory right.  Peterson first argued that his Fourth Amendment right to be from unreasonable seizures was violated when Kopp arrested him without probable cause.  The phrase "probable cause" may ring a bell--it is the same level of evidence that was required for the grand jury in the death of Eric Garner to be able to indict the officer who killed him.  While the grand jury faced with a video of the killing did not find probable cause to charge the killer, the 8th Circuit determined that Kopp did have probable cause to arrest Peterson for trespassing.

Peterson also argued that Kopp violated his Fourth Amendment right to be free from unreasonable seizures by using excessive force during the arrest.  Now this one seems like a slam dunk.  Kopp pepper-sprayed Peterson for no good reason whatsoever.

The relevant case on this issue is a United States Supreme Court case called Graham v. Connor.  That case says that an officer's use of force violates the Fourth Amendment if it is not "objectively reasonable."  Courts are supposed to look at the specific circumstances of the case in deciding whether the officer's actions are objectively reasonable.  There are three particular factors courts are supposed to consider:

  1. the severity of the crime at issue (here, the crime was one of the most minor crimes there is)
  2. whether the suspect poses an immediate threat to the safety of the officers or other (here that was not the case--Peterson had not done anything threatening in any way)
  3. whether the suspect is actively resisting arrest or attempting to evade arrest be flight (also, did not happen here).

This is not just my analysis.  In Peterson's case, the 8th Circuit said:

All three of these factors identified in Graham weigh against Kopp and in favor of finding excessive use of force:  Peterson was a non-fleeing, non-resisting, non-violent misdemeanant.

Unfortunately, thanks to qualified immunity, the fact that Kopp used unreasonable force is not enough for him to be held responsible.  While the 8th Circuit agreed that Kopp violated a constitutional right, it did not find that the right was clearly established at the time of the violation.

Given that Graham Exists, How Can the Court Say the Right Was Not Established?

Citing its previous decisions, the 8th Circuit wrote that "Peterson can succeed only if earlier cases give Kopp fair warning that his alleged treatment of Peterson was unconstitutional."  Now, it may seem obvious to you and I that the ridiculous over use of force here was unconstitutional.  But technically, in the 8th Circuit, the Court did not hold that unreasonable use of force by police that results in de minimis (minor) injury violates the Fourth Amendment until two months after Kopp attacked Peterson.  There were laws on the book like Graham that said unreasonable force resulting in more serious injury violates the Constitution.  But since Peterson only suffered "pain, discomfort, and peeling under his eyes for several days" Kopp got away with the Fourth Amendment Violations.

Fortunately, Not all is Lost For Peterson

Peterson did succeed on appeal regarding another claim, however.  Peterson claimed that Kopp violated his First Amendment rights when he pepper-sprayed Peterson for asking for his badge number.  The 8th Circuit determined that on this First Amendment claim Kopp was not entitled to have the case dismissed, so that portion of Peterson's case will proceed.

We Need to Fix These Broken Laws

Peterson got lucky, in a sense, because he had a First Amendment claim in addition to his Fourth Amendment claim.  Obviously he was unlucky in that he had not one but two constitutional rights violated, but at least he will be able to continue to pursue a suit against the officer who pepper-sprayed him.  If he had only had the Fourth Amendment claim, he would not have that opportunity.  And its not because the Court did anything wrong.  On the contrary, the 8th Circuit followed the law of qualified immunity and did exactly what the law required it to do, no matter how distasteful that may be.  So the only way to fix this problem is to fix the law by limiting or eliminating qualified immunity for cops.  Until we do that there will be no effective way to police the police.

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