How Much Force Can Be Used to Remove a Person From a Car?

A recurring theme in videos of policing is the individual who refuses a law enforcement order to get out of a car. Often, these situations end with the use of force, even when the individual in the car isn’t doing anything affirmatively threatening to the officer.

The Sharp End of the Stick: A San Diego Police canine officer prepares to use the dog against a driver who refuses to get out of a car.

Sometimes this force tends, to the casual observer, to seem unnecessary or gratuitous. But is it “excessive” as a legal matter?

It depends.

The basic framework for this kind of question, as this blog has discussed before, comes from a multi-factor test set out in the 1989 case Graham v. Connor. To oversimplify somewhat, the standard for finding force to be “excessive” is a sliding scale. More force is appropriate when an officer is responding to a more dangerous crime and set of behaviors, while less is appropriate when these factors are absent.

The “getting out of a car” scenario is a subset of a larger group of cases that have to do with law enforcement officers ordering a person to come or go from some particular area and then using force when the person doesn’t comply, with other frequently seen examples including ordering inmates out of cells, ordering individuals to exit a room or a house, and ordering protestors to disperse from some particular area.

At least in theory, the mere act of passive “noncompliance” with a law enforcement order, in itself, does not warrant the use of “significant” force. Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012); Banks v. Mortimer, 620 F.Supp.3d 902, 925 (N.D. Cal. 2022). Therefore, the use of “intermediate” forms of force under those circumstances — with “intermediate” meaning things like baton blows or pepper spray — can be “excessive.” Sometimes the use of force against nonviolent protestors can be excessive for this reason, at least as long as the protestors really are in a mode of merely passively refusing to move and that noncompliance is the only crime at issue. The infamous UC Davis pepper spray incident, which was so over-the-top that it quickly became a meme (and which led to a $1 million settlement and policy reforms) is one such example of excessive force used against passive noncompliance.

Hot Ones: This 2011 use of pepper spray against merely passively noncompliant peaceful protestors at UC Davis during the Occupy Wall Street movement became famous because of the remarkably casual approach of the officer to the use of excessive force. Photo by Louise Macabitas.

But when it comes to individuals refusing to get out of vehicles, there are often other factors at play. In particular, these sorts of situations can sometimes occur in the context of traffic stops where the person in the car is suspected of having committed some other crime, up to and including a felony. That can change the force calculus significantly under Graham since felony traffic stops are treated as a high-risk situation for officers.

In the incident shown in the still above, officers used a police dog against a man who refused to get out of a stolen car on the side of a freeway after the use of verbal commands and pepper balls had already failed to produce any compliance. The entire freeway was shut down in one direction for about half an hour while officers tried to resolve the situation. The dog ultimately bit and injured the man, who was then pulled out of the car. The use of a canine is at least “intermediate” force and has been described as the most severe force authorized short of deadly force. Police dog bites can sometimes be incredibly damaging, in part because officers do not always have that much control over the animal once it is released. Fortunately, the man’s injuries, though significant, were not too extreme in this case.

In this situation, it is possible to Monday morning quarterback and think of other ways the man could potentially have been removed from the car. However, the fact that a serious degree of force was used was not necessarily “excessive” under the circumstances. The more iffy scenarios occur, typically, when the underlying offense leading to the interaction at the car is quite minor and there are alternatives available to the officer short of using a significant degree of force.

Bodyweight Compression, Asphyxia, and Excessive Force

Can it be excessive force for police simply to put bodyweight on an unresistant person? It absolutely can, and it can be lethal.

Crushed: Bodyweight compression leading to asphyxia, as seen in officer bodycam in Scott v. Smith.

The most recent decision in this area from the Ninth Circuit just came out this week in Scott v. Smith, 23-15480, which denied qualified immunity to Las Vegas police officers who killed an unarmed, unresistant mentally ill man via compression asphyxia.

The Ninth Circuit panel notes that the use of bodyweight can amount to a very high degree of force, even if it is not, in the popular imagination, on a level of violence akin to shootings or dog bites:

Our precedent establishes that the use of bodyweight compression on a prone individual can cause compression asphyxia. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003). In Drummond, for example, officers “press[ed] their weight on [the plaintiff’s] neck and torso as he lay handcuffed on the ground.” Id. at 1056. This force was “severe and, under the circumstances, capable of causing death or serious injury.” Id. Drawing all reasonable inferences in Plaintiffs’ favor, a jury could find Smith and Huntsman’s conduct was similar deadly force.

Compression asphyxia also factored into the murder of George Floyd by Minneapolis police officers in 2020, an incident that galvanized the Black Lives Matter protests of that year.

Why People Apologize for the Police

It never fails: a video is posted of police brutality and a chorus of knuckleheads in the comments chime in to blame the person harmed.

“Why didn’t they just comply?”

“They had it coming!”

And so on. Endless deference to the officer. Contempt and ridicule for the person who is being mistreated by an agent of state power.

The latest version of this is the video posted by daygotv of a San Diego police officer abruptly pushing a person to the ground merely because the person walked up to the officer’s bicycle at the perimeter of a detention. The victim does nothing remotely aggressive. It looks like they simply want to ask a question.

Blame the Victim: Instagram commenters pile on to defend law enforcement use of excessive force.

No matter: the commenters pile on, blaming the victim for the officer’s push. Monday morning quarterbacking a use of force that was not even vaguely justified by the circumstances.

This deep instinct of many members of the public to apologize for police brutality is a reality that we have to recognize in civil rights litigation. It’s frankly not that different from the way people normalize abusive personal relationships, telling themselves over and over that their partner/parent/etc. is fundamentally good despite the fact that they do awful things.

The psychological phenomenon that’s going on here is internalized violence. When a person has been abused long enough, they begin to accept the abuse as justified and normal, even if people who live under different, more humane conditions would be stunned and horrified to be subjected to the same treatment.

There is also more than a little cowardice behind such comments. Folks make themselves feel safer and more secure by siding with the abuser and blaming the person who was harmed, since taking that stance implies that they themselves wouldn’t ever be abused in the same situation. If they actually were harmed, they would of course want sympathy and outrage. But since it didn’t happen to them in this case, they prefer to side with the person causing the harm.

Psychological distortions are not the same thing as objective reality, and in situations like this they also don’t have any connection to the real state of the law. Any degree of force that is used where there is no need for force is, by definition and as a matter of settled precedent, excessive, and should be called out. No amount of blather from confused anons on Instagram changes that fact.

Related Post: When Is Force Excessive?, Oct. 9, 2023

Can the Use of an LRAD "Sound Cannon" Be Excessive Force?

A tool that law enforcement agencies sometimes use in the context of demonstrations and crowd control is the “long range acoustic device” (LRAD) or “sound cannon.” In a nutshell, an LRAD emits extremely loud, focused sound that is painful — and perhaps even damaging to the hearing — for the listener. Several southern California law enforcement agencies have been documented as having these devices, including the police departments of Los Angeles and San Diego.

In some documented cases, these devices have been employed fairly indiscriminately against groups of people for the purpose of denying access to areas, in essentially the way that tear gas or baton strikes might be used on a more individualized basis. Since the devices are physically uncomfortable and potentially even physically harmful to the listener, their use in this manner raises concerns about excessive force. When there is no specific basis for the use of force, even a somewhat restrained use of force, as the LRAD might seem to be, may nevertheless be “excessive.” New York City and Pittsburgh have both settled lawsuits filed by individuals who asserted that the use of LRAD caused them hearing injuries (see footage of the Pittsburgh use in the YouTube video posted above).

To my mind, the litigation around LRADs also raises interesting questions around practices such as playing extremely loud classical music in transit stations, as has been seen for example in some Los Angeles metro stations. Loud or extremely repetitive music, of course, has also been used as a means of torture in some situations. When sound is being used to intentionally inflict pain or discomfort on individuals who are not actually breaking any law, and when the actor using that sound is the state, questions of excessive force are always potentially relevant.

Related Post: When Is Force Excessive?, Oct. 9, 2023

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

When is Force Excessive?

As surprising it as it may seem, law enforcement use of force does not become “excessive” merely because an individual is seriously injured, or even killed, by that force. Instead, the legal analysis looks to a cluster of circumstances that describe the context in which the force is used.

Lethal Force: The fact that law enforcement force is serious or even deadly does not necessarily mean it is “excessive.” The analysis depends on the circumstances.

Under Graham v. Connor, 490 U.S. 386 (1989), courts look to several factors in deciding whether a particular use of force is “excessive.” Those factors are

(1) the severity of the crime being investigated,

(2) whether the suspect poses an immediate threat to officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to flee.

In short, the “excessive force” analysis is a sliding scale, with more serious or risky situations generally justifying a faster, more dramatic use of force. On the other hand, the law — at least in the Ninth Circuit — is clear that when there is no call for the use of force, any use of force, even relatively minimal force, is “excessive.” See, for example, Headwaters Forest Defense v. County of Humbolt, 240 F.3d 1185, 1199 (9th Cir. 2000) and Lolli v. County of Orange 351 F.3d 410, 417 (9th Cir. 2003). What might be reasonable in one context can amount to police brutality in another context.

In the wake of a use of force by law enforcement, agencies whose officers have used force frequently put out press releases emphasizing whatever facts supported the officers’ action. However, that information is nearly always incomplete, and sometimes downright misleading. Since the “excessive” quality of force depends on the facts, an informed assessment of whether force was “excessive” requires an aggressive effort to learn all the facts — not simply the facts that law enforcement agencies wish to highlight.

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

AVOIDING A HECK BAR: Preserving Excessive Force Claims in “Resisting arrest” Cases After Lemos v. County of Sonoma.

A recurring theme in California criminal defense is the “resisting” charge – either simple resistance under § 148 or “forcible” resistance under § 69 – filed against individuals who are themselves victims of excessive force by law enforcement. A conviction for such a charge has the potential to act as a barrier to civil liability for the officer under the doctrine of Heck v. Humphrey (1994) 512 U.S. 477. But not all “resisting” cases are created equal, in terms of their effect on civil liability for an aggressive officer. Some fact patterns, and some tactics in handling the criminal case, are more likely to preserve causes of action for excessive force.

Heck holds that a claim under 42 U.S.C. § 1983 will be barred if success in that action would “necessarily require” the plaintiff to show the unlawfulness of his or her criminal conviction. (512 U.S. at p. 486.) But as explained in the recent en banc opinion in Lemos v. County of Sonoma (9th Cir. July 19, 2022) No. 19-15222, determining whether a conviction creates a barrier to liability requires close attention to what the bases could have been for the conviction and what was actually determined in the criminal case. As the Lemos dissent puts it, there is an “escape hatch to Heck” in the ambiguities of some cases. (Slip opn. at * 16.)

The “escape hatch” is that an allegation of excessive force will not be Heck barred if the problematic conduct of the officer is distinct temporally or spatially from the factual basis for the resisting conviction, such that success in the 1983 action does not “necessarily” require showing that the conviction was improper. This scenario is most likely to arise when there is a series of interactions between the defendant and the officer that could potentially give rise to the resisting charge, and where the officer’s use of excessive force did not necessarily occur at the same time and place as the resisting.

For example, in Lemos, the jury was instructed that four different actions by the defendant could be the basis for “resisting.” The jury’s general verdict of guilt did not make clear which of the bases it adopted, and success on the subsequent excessive force claim, which relied on the officer’s handling of only one of the four bases, therefore did not “necessarily” require invalidating that verdict. (Slip opn. at * 11.) No contradiction had to exist, after all, between the idea that Lemos resisted or obstructed the officer in his duties by blocking him from opening a truck door and the idea that the officer used excessive force when he tackled Lemos minutes later. (Id. at * 11-12.) (In reaching this conclusion, Lemos disapproved language in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 and Beets v. County of Los Angeles (9th Cir. 2012) 669 F.3d 1038 stating that a jury’s verdict in a resisting case that could be based on multiple acts “necessarily determines the lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct.”)

Lemos drew support from the California Supreme Court’s conclusions in Yount v. City of Sacramento (2008) 43 Cal.4th 885, where the defendant resisted officers by struggling and kicking. Some minutes later, as Yount continued to resist, an officer accidentally shot him. Yount pled to a count of 148, stipulating to a factual basis for the plea “without any explicit recitation of what those facts were.” (43 Cal.4th at p. 895.) Such a plea did not create a Heck bar to an excessive force claim because there were “two isolated factual contexts” involved in the case, and success on the claim related to the use of force would not necessarily invalidate Yount’s guilt related to the initial struggle with police. (43 Cal.4th at p. 899, internal quotations omitted; see also Sanford v. Motts (9th Cir. 2001) 258 F.3d 1117, 1119 [no Heck bar to excessive force claim where several incidents could have given rise to resisting conviction and “nothing in the record informs us what the factual basis was for Sanford’s plea”].)

The takeaway message of Lemos is that liability for excessive force is more likely to be preserved after a resisting conviction if (1) the facts suggest multiple bases for the conviction, (2) those bases are separated from each other temporally or spatially, and (3) the record either leaves it unclear which basis was adopted or makes it apparent that that the basis for the criminal conviction is not directly intertwined with the conduct that gives rise to the excessive force claim.

Therefore, in a jury trial on resisting, it may be worth considering whether the jury can be instructed with multiple factual bases for the charge, as occurred in Lemos, at least if doing so does not undermine an otherwise defensible case; or, alternatively, whether the factual basis can be omitted altogether from the instructions so that the record will leave the jury’s factual determination vague.

In a plea bargain situation, defense counsel should consider whether it is possible to keep the factual basis strategically vague or, alternatively, to specify a basis for the plea that is temporally and physically distinct from the actions that could be the basis of a later excessive force claim. In stipulating to factual bases for pleas, defense counsel should avoid blanket adoption of entire documents, such as police reports or preliminary hearing transcripts, since adopting the entire document will tend to suggest that there is no conceivable excessive force claim that wouldn’t “necessarily” invalidate the resisting plea.

Related Post: When Is Force Excessive?, Oct. 9, 2023

A Template for California Public Records Act Requests in Cases Where Law Enforcement Has Inflicted Great Bodily Injury

UPDATE: Please note that the CPRA has been statutorily renumbered. Please do your own research and don’t just copy this language without looking up the relevant laws.

Law Enforcement Agency

Attn: Public Records Requests

[Date]

To whom it may concern:

I am writing to make a request under the California Public Records Act for records related to a [date] use-of-force incident in which [law enforcement agency] caused [victim] to suffer great bodily injury.

In this incident, members of the [law enforcement agency] used force against [victim].  As a result, [victim’s injuries go here]. These injuries were “great bodily injury” under any interpretation of that term, and thus implicate the language of Penal Code section  832.7, subd. (b)(1)(A)(ii) and Government Code section 6254, subd. (f)(4)(c)(ii).

With these factors in mind, I respectfully request to be provided (1) any use of force report that was generated, (2) any bodycamera or surveillance footage of the use of force, (3) any other documentation that was created to describe why and how force was used against [victim].

Thank you for your assistance with this request, and please let me know if you need any clarification.

Sincerely,

The Sergeant's Taser Trophy, and What It Says About Excessive Force

A San Diego Sheriff’s Sergeant who received a bizarre “trophy” for deploying his taser 25 times has resigned while under investigation for creating a hostile work environment for his colleagues, the San Diego Union reported yesterday. The newspaper quotes University of South Carolina law Professor Seth Stoughton, who points out that giving such a trophy for using force repeatedly “explicitly communicates that an officer’s use of force is something to be celebrated rather than avoided to the extent it is possible to do so.”

The taser “trophy” received by the sergeant. Photo by San Diego Union-Tribune.