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  • Jim Chapman

Officers who pepper spray a subdued suspect are not immune from suit

Author: Jim Chapman


A little after midnight on February 5, 2017, three Tulsa, Oklahoma, Police Officers (Officers Will Mortensen, Angela Emberton, and Edel Rangel) were dispatched to a Tulsa car dealership parking lot. After arriving, Officer Rangel activated his body camera. Once there, the officers found Plaintiff/Appellant Ira Lee Wilkins asleep in the driver’s seat of his vehicle. Wilkins’ vehicle was running, and the radio was playing loudly.

In addition, the Officers testified that they smelled alcohol on Wilkins’ person. Wilkins denied that he had consumed any alcohol on that night. Officer Mortensen believed that Wilkins was committing the crime of actual physical control of a vehicle while intoxicated, and therefore, he ordered Wilkins to exit the vehicle. Wilkins complied, and Officer Mortensen handcuffed Wilkins’ arms behind his back.

Officer Mortensen then began to search Wilkins. He and Officer Emberton stood on each side of Wilkins with Wilkins’ back turned toward them. About one minute into the search, Officer Mortensen forced Wilkins against the vehicle. Wilkins asked what Officer Mortensen was doing and asked why Officer Mortensen was “bending [his] wrists.” Officer Mortensen laughed and said, “I’m going to bend a lot more if you keep acting like that.” Officers Emberton and Mortensen contend that, while he was standing and handcuffed, Wilkins “grabbed [Officer Mortensen’s] hand.”

Wilkins, then, leaned against the car, and Officer Mortensen grabbed Wilkins’ upper body and said, “Quit flexing up on me.” At this point, Officer Mortensen and Officer Emberton held Wilkins’ upper arms. Officer Rangel testified that he “could see the two officers . . . about to lose physical control of Ira Wilkins.” Accordingly, all three officers forced Wilkins to the ground.

Following the takedown, Wilkins was face down on his stomach on the ground. Officer Emberton testified that the officers were “on him” and that she held his legs. Wilkins said, “Okay, man. [Inaudible.] I’m not doing nothing to you. Please, man.” Wilkins repeatedly said, “Please, man,” and told the officers, “You’re breaking my f---ing wrists.” The officers contend that Wilkins continued to resist, attempted to stand, and grabbed Officer Mortensen’s hand. Wilkins denies resisting and grabbing Officer Mortensen’s hand.

Approximately 30 seconds after the officers forced Wilkins to the ground, Officer Rangel instructed Officer Mortensen to use pepper spray on Wilkins. Without warning, Officer Mortensen sprayed pepper spray in Wilkins’s face and stopped only when Officer Rangel said, “That’s enough.” Afterwards, Officer Mortensen continued to search Wilkins. Officer Rangel told Wilkins to “quit moving” and repeatedly asked, “You [want to] get some more spray?” Eventually, Officer Mortensen completed the search.

Wilkins was subsequently charged with assault and battery upon a police officer, actual physical control of a vehicle while intoxicated, and resisting arrest. All charges were later dismissed.

Thereafter, Wilkins filed a complaint in the United States District Court for the Northern District of Oklahoma against the Officers under 42 U.S.C. § 1983. In his Complaint, Wilkins alleged that the officers used excessive force in violation of his Fourth Amendment rights when they forced him to the ground, sat on top of him, and pepper sprayed him.

The Officers moved for summary judgment and argued that they were immune from Wilkins’ suit based upon the doctrine of qualified immunity. The Officers argued they did not violate Wilkins’s Fourth Amendment rights and that his rights were not clearly established at the relevant time. The District Court agreed with the Officers, granted summary judgment for the Officers, and dismissed the case. In ruling in the Officers’ favor, the District Court held that the Officers were entitled to protection from this suit based upon the doctrine of qualified immunity because they did not use excessive force on the night in question. The District Court determined that the Officers’ takedown of Wilkins was reasonable “in light of [his] failure to heed the officers’ commands that he stop flexing and moving around.” The District Court further concluded that the use of pepper spray was reasonable due to Wilkins’ “continued movement and resistance” on the ground.

Wilkins timely appealed the District Court’s grant of summary judgment in the Officers’ favor and against him to the United States Court of Appeals for the Tenth Circuit. On appeal, the Tenth Circuit held that the District Court committed reversible error in entering summary judgment in the Officers’ favor and against Wilkins. Wilkins v. City of Tulsa, Oklahoma, ___ 4th ____. 2022 WL 1310201 (10th Cir. May 3, 2022).

The Tenth Circuit began its Opinion reversing the District Court by explaining that a person who has been sued under 42 U.S.C. § 1983 in his individual capacity may invoke the defense of qualified immunity. Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or Constitutional rights. When a defendant asserts qualified immunity in a summary judgment motion, the plaintiff must show: (1) that a reasonable jury could find facts supporting a violation of a Constitutional right and (2) that the right was clearly established at the time of the violation.

A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. A decision from the United States Supreme Court or from the relevant Court of Appeals that is on point or the weight of authority from other courts can clearly establish a right. However, a case “directly on point” is not necessary if existing precedent has placed the statutory or Constitutional question beyond debate.

In the instant case, Wilkins sued the Officers for exerting excessive force in violation of his Fourth Amendment rights. In evaluating a claim of excessive force, courts consider whether an officer’s actions are “objectively reasonable” in light of the facts and circumstances confronting him. To assess objective reasonableness, courts evaluate whether the totality of the circumstances justified the use of force as judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

To assist courts in making this determination, the United States Supreme Court has identified three non-exclusive factors to evaluate whether a use of force was excessive: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.

Under the first factor, a minor offense supports only the use of minimal force. A misdemeanor committed in a particularly harmless manner reduces the level of force that is reasonable for the officer to use.

The second factor is undoubtedly the most important and is a fact intensive factor. Courts must look at whether the officer(s) or others was in danger at the precise moment that he or they used force. An officer may use increased force when a suspect is armed, repeatedly ignores police commands, or makes hostile motions towards the officer(s) or others.

As to the third factor, courts evaluate whether the suspect attempted to flee or actively resisted the arrest or search. Courts may consider any resistance during the suspect’s encounter with officers. However, courts have consistently concluded that a suspect’s initial resistance does not justify the continuation of force once the resistance ceases.

Here, the Tenth Circuit applied the three factors outlined above to conclude that, when the Officers pepper sprayed Wilkins, they violated his clearly established right to be free from the additional use of force after he was effectively subdued, and a reasonable jury could find that the Officers’ use of pepper spray was objectively unreasonable. Therefore, the Tenth Circuit concluded that the Officers were not entitled to qualified immunity.

The Tenth Circuit reviewed the evidence submitted to the District Court and found that only minimal force was necessary based upon the severity of the crime (a misdemeanor) allegedly committed by Wilkins. In addition, the Tenth Circuit concluded that Wilkins did not pose an immediate threat to the Officers after the takedown. After the takedown, Wilkins was face down on his stomach on the ground; he was in handcuffs; officers were on top of him; Officer Emberton held his legs; and he did not resist. Taking the facts in a light most favorable to Wilkins as the Tenth Circuit was required to do on summary judgment, the Tenth Circuit held that Wilkins did not present an immediate threat to the Officers after the Officers had subdued him.

As for the third factor, the Tenth Circuit held that no force was justified after the takedown based on any resistance or attempt to flee. Instead, Wilkins was on the ground in a prone position, secured by three Officers, and pleading with the Officers to stop. In sum, the Tenth Circuit concluded that the Officers’ use of pepper spray was unreasonable because Wilkins was not resisting, was not a threat to officer safety, and was under the Officers’ control. As a result, the Tenth Circuit opined that the District Court erred by adopting the Officers’ version of the events and that a reasonable jury could find that the use of pepper spray was unreasonable and was in violation of Wilkins’ Fourth Amendment rights.

As for the second prong of the qualified immunity test, the Tenth Circuit stated that the law was clearly established that the use of pepper spray on Wilkins was unconstitutional. In reaching this conclusion, the Tenth Circuit highlighted two cases—that had been issued before the Officers’ actions on the night in question—which held that an officer committed excessive force and violated a suspect’s Fourth Amendment rights when an officer uses or continues to use excessive force against the suspect after that the officer has effectively subdued and brought the suspect under the officer’s control. The Tenth Circuit held that, on February 5, 2017, a reasonable officer would have known that use of pepper spray on Wilkins when he was facedown, handcuffed, legs secured, and not resisting was unconstitutional because other, prior cases from the Tenth Circuit clearly established that force against such a subdued suspect who does not pose a threat violates the Fourth Amendment.

Accordingly, the Tenth Circuit held that the District Court erred in granting the Officers’ request for immunity from this suit based upon the doctrine of qualified immunity: (1) because a reasonable jury could find the Officers used excessive force on Wilkins and (2) because the Officers violated clearly established Fourth Amendment law. Because the Officers were not entitled to qualified immunity, the Tenth Circuit reversed summary judgment in the Officers’ favor and remanded the case to the District Court for further proceedings.

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