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April 11, 2013

What is “excessive force?” A look at Graham v. Connor

by WSBA
man being arrested
A look at 3 recent cases of excessive force verdicts and the Graham balancing test.

police woman arresting a manA jury in the Santa Ana Federal Court returned a verdict on April 4, 2013, after 10 days of evidence against two Long Beach officers who shot and killed 37-year-old Douglas Zerby in December 2010. The civil rights and wrongful death suit resulted in a $21.5 million award, finding that the officers were negligent and violated Zerby’s constitutional rights.

Zerby was seated on a landing and found a garden hose nozzle that had a pistol grip, but in no other respect resembled a weapon. Canadian renters nearby thought Zerby was holding a gun and called 911. Several cops showed up at the scene, surveyed Zerby for about 7 1/2 minutes, and shot him dead without warning, commands, or other efforts to communicate with him.

In September 2012, the City of Los Angeles was ordered to pay $5.7 million to Robert Contreras, who was shot and paralyzed by the LAPD. The officers chased Contreras into a dark driveway, where he allegedly turned toward them with an object in his hand. The officers opened fire, hitting him multiple times in the side and back. Contreras was holding a cellphone and no weapon turned up in the area.

In a pending Western District of Washington case in Seattle, May Day participant Maria Morales was pulled onto police bicycles by Officer Sonya Fry. Fry and the other officers flipped Morales over onto her stomach, pepper-sprayed the left side of her face and arm, and put her in two sets of handcuffs. Morales suffered from a swollen thumb and bruising on her arms and legs. She was arrested and charged with fourth-degree assault, later dismissed with prejudice by the prosecutor’s office. Fortunately for her, a passerby had the incident on video, showing a different story.

The Fourth Amendment protects citizens like you and me from excessive force during arrest. But what constitutes “excessive force?” The seminal U.S. Supreme Court case, Graham v. Connor,  stated that “whether the force used to effect to a particular seizure is ‘reasonable’… requires a careful balancing of the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” 490 U.S. 386, 396 (1989) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). This inquiry is an objective one, taking into account the facts and circumstances of the situation without regard to their underlying intent or motivation. (Graham, 490 U.S. at 397.)

In so deciding, the U.S. Supreme Court rejected the four-part Johnson v. Glick test, 481 F.2d 1028 (1973), requiring consideration of whether the individual officers acted in “good faith” or “maliciously and sadistically for the very purpose of causing harm.” (Graham, 490 U.S. at 397.)

So what exactly does this mean? Like many other cases and standards, it depends. While a push or a shove may not constitute excessive force, continued physical assault after a person has been detained or handcuffed, or even using force to intimidate someone to give a statement, may constitute excessive force and a civil rights violation. Let’s hope the U.S. Supreme Court sheds more light on this broad topic in the coming years.

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