From: SFGate
By Bob Egelko 10/3/14
Henry Davis is a black man who was arrested while driving through Ferguson, Mo., five years ago, beaten by police in jail and charged with destroying government property by bleeding on officers’ uniforms. But that’s not the reason his case could soon establish new boundaries for police conduct in the tinderbox Midwest town.
Davis’ case raises two central questions: How much force is too much in a police arrest? And how much deference should courts give police? The answers could have national as well as local significance.
Davis, a welder in his 50s, has sued police for excessive force. He says the beating by four officers, including a blow to the head with handcuffs and a kick in the forehead, left him with a concussion, bruises all over his body, a permanent scar on his face and headaches that continue to this day.
The officers, all of them white, argue that Davis was belligerent, struck the first blow and failed to establish the extent of his injuries. But even if Davis was non-resisting and obedient, a federal magistrate ruled, the injuries he claimed were too insignificant — “de minimis,” in legal terminology — to amount to a clear-cut case of excessive force. In short, assuming Davis told the truth and the officers didn’t, there still wasn’t enough evidence, according to the magistrate, to let a jury decide his case.
“As unreasonable as it may sound, a reasonable officer could have believed that beating a subdued and compliant Mr. Davis while causing only a concussion, scalp laceration, and bruising with almost no permanent damage did not violate the Constitution,” U.S. Magistrate Nanette Baker said in a Dec. 31 ruling dismissing the central claims in the suit.
Davis has asked the Eighth U.S. Circuit Court of Appeals in St. Louis to reinstate his case. His appeal, which may be argued by the end of this year, challenges the magistrate’s description of his injuries and asks a fundamental question: How far should courts go in giving police the benefit of the doubt?
The law as interpreted by most U.S. courts, including Baker’s, gives “double deference to the police,” said Robert Weisberg, a Stanford criminal law professor. Judges, he said, won’t second-guess officers’ judgment that they had to use force, or that the force they used was reasonable under the circumstances.
That standard comes from some overly protective rulings by the U.S. Supreme Court, saidErwin Chemerinsky, the law school dean at UC Irvine, who has argued cases before the high court.
The watershed ruling was in 1982, when the court gave police and other government employees “qualified immunity” from civil rights suits, saying they were liable for damages only for violating rights that were clearly established at the time.
In a 1989 decision, Chief Justice William Rehnquist said the “reasonableness” of an officer’s use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
That ruling encouraged judges to look at confrontations through the officers’ eyes, and made pro-police decisions difficult to overturn on appeal. Courts have used the same perspective in weighing criminal charges against police officers such as Darren Wilson, the white Ferguson patrolman who fatally shot black teenager Michael Brown on Aug. 9. A county grand jury is looking into Wilson’s case.
“I believe that the Supreme Court has gone much too far in protecting officers and not nearly far enough in protecting those whose constitutional rights have been violated,” Chemerinsky said.
He said the court’s precedents pose an obstacle for a plaintiff like Davis, who must prove that the officers knew — or that any reasonable officer would have known — that they were using excessive force. But Chemerinsky said the appeals court could make an important statement for police accountability by reinstating the lawsuit.
A similar assessment came from Michael Rains, a Walnut Creek attorney who has defended police in court for 30 years and trains officers on use-of-force standards. His clients have included Johannes Mehserle, the BART policeman who was convicted of involuntary manslaughter for fatally shooting unarmed passenger Oscar Grant on Oakland’s Fruitvale Station platform on New Year’s Day 2009.
“Officers have to make split-second decisions about the amount of force to use,” and the courts properly defer to their judgment, Rains said. But he said dismissing Davis’ suit on the grounds that his injuries were insignificant “may be carrying qualified immunity way too far.”
Davis, who lived in nearby St. Charles, Mo., was arrested in Ferguson in September 2009 on suspicion of drunken driving. He was booked into jail but refused to enter a cell because someone was already in it and officers would not give him a mat to lie down on.
At that point, Davis said, the officers, three men and a woman, threw him into the cell and started beating him. The officers said Davis slugged one of them, breaking the officer’s nose, and they merely did what was necessary to restrain him.
Davis was released after two days in jail, was examined at a hospital, and later pleaded guilty to careless driving, speeding, failure to obey an officer and two counts of “destruction of city property” — the police uniforms that he bled on. He was fined $3,000.
Ruling on his damage suit against the officers and the city of Ferguson, Baker cited other suits dismissed by the Eighth Circuit, which oversees federal courts in Missouri, on the grounds that the injuries were “de minimis.” One plaintiff suffered bruised ribs, a sore shoulder, and scrapes to the head and face that took six weeks to heal, while another had terrible headaches and aggravation of a previous mental condition.
Even if other plaintiffs with injuries like those Davis suffered were allowed to proceed with their suits, the magistrate said, “officers are still allowed reasonable mistakes of law” and can’t be held to account unless their conduct was clearly unconstitutional.
The Eighth Circuit changed course in 2011 and said officers could be sued for excessive force even if the injuries they inflicted were relatively minor. Davis’ case, which arose in 2009, will be judged by the previous standard, which allowed judges to decide whether the injuries were too insignificant to reflect excessive force.
But the central questions are largely unchanged: What is the dividing line between the force that police need to do their jobs and the violence that private citizens should not suffer from government agents? What is the proper role of the courts?
A broad application of legal immunity “reduces the risks that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties,” Peter Dunne, a lawyer for the Ferguson officers, said in a Sept. 9 legal filing, quoting a Supreme Court ruling.
On the other side, Davis’ lawyer, James Schottel, said in an interview that a ruling absolving the officers who beat his client “sends a bad message that they can get away with it.”
