Excessive Force Verdict Contradicts Police Investigation

On Monday a jury awarded $306,000.00 to a man for damages sustained after police used excessive force when the man questioned their authority to arrest him for standing on a sidewalk.

Jurors found that police falsely arrested, battered and maliciously prosecuted Gallagher Smith after he quarreled with a doorman on Nov. 13, 2010. . . The doorman told Smith he’d have to wait at the end of a long line again even though he’d just been in the club and had gotten a stamp on his hand before stepping outside. The doorman eventually flagged down police.

Smith walked away from the club as police followed. Smith questioned police about what law prevented him from standing on a public sidewalk . . . As officers tried to handcuff Smith, he pulled his arms into his chest. Smith said he was immediately punched in the face. The scuffle that ensued was his attempt to protect himself, he said . . . Officer Patrick Johnson fired his Taser at Smith, but the probes didn’t pierce his skin. Officer Sean McFarland then used his Taser and hit his mark. Police said Smith was defying orders to stay on the ground.

Johnson pepper-sprayed Smith twice and police punched him in the back before half a dozen officers piled on top of him. Smith was handcuffed with his feet tied to his wrists and charged with criminal trespass, interfering with a police officer and resisting arrest.

A police investigation into use of excessive force cleared the officers of any wrong-doing, the City’s litigation strategy attempted to portray Smith as non-compliant with their orders, and the officers claimed that Smith was looking to pick a fight.  The verdict clearly indicates that the jury did not believe the officers’ account of what happened, and that excessive force was used in fact.

While there is no doubt that officers face tense and rapidly-changing situations, it is also true that overreaction by the police can actually create those situations.  The Fourth Amendment prohibits the police from acting in a reckless manner that creates a situation where the use of excessive force becomes necessary. See Medina v. Cram, 252 F. 3d 1124, 1132 (10th Cir.2001) ( “[W]e have considered whether the officers’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.”).

Was it reckless for the police to arrest Smith in response to his question?  In a word, yes. According to the U.S. Supreme Court, criticism of the police is not a crime and cannot support probable to arrest.  See Houston v. Hill, 482 U.S. 451, 461-63 (1987).  To demonstrate the latitude citizens have when interacting with police, consider this description of one person’s conduct:

[The police] rel[y] heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran’s conduct; it was boorish, crass and, initially at least, unjustified.

See Duran v. City of Douglas, 904 F. 2d 1372, 1377 (9th Cir. 1990).  The court ultimately concluded that this conduct did not support an arrest, and was further protected by the First Amendment. While public servants are generally hard-working and deserving of respect and gratitude, citizens have broad protection in how they verbally express themselves.

Given the expansive rights afforded to Smith, his decision to merely question police could not legitimately serve as a basis to arrest him.  The arresting officers likely knew this, but made the decision to arrest Smith any way.  For that reason, the amount of the award should come as no surprise.

More coverage here:  City of Portland must pay $306,000 to man in excessive force case