Police Force: When Does Reasonable Become Unreasonable


Nearly three decades ago the U.S. Supreme Court, in Graham v. Conner, held that the police may use reasonable force when making an arrest. The Court said, “The ‘reasonableness’ of a particular 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.”


No National Database for Police Use of Force


There is no national database for tracking the use of force by the police in this country. The Bureau of Justice Statistics has found that in large police departments with more than 100 officers, the citizen complaint rate about excessive force was 6.6 per 100 officer., Internal police investigations determined that only 8 percent of these complaints merited disciplinary action against the accused officers.


Because the nation’s police departments historically have not done a very good job at policing their rogue officers, the courts have become the primary venue where excessive force claims are resolved.


Police Not Good and Policing Themselves


On May 30, 2017, the Eighth Circuit Court of Appeals, in Tatum v. Robinson, issued a mixed opinion in an excessive force case. The facts of this case are a blend of accusations and counter-accusations between Ricky Barnard Tatum and Willie Robinson.


Robinson is a corporal with the Arkansas State Police. In April 2014, he was working as a security officer at Park Plaza Mall in Little Rock.


On April 29, a security camera operator in a Dillard’s department store located in the mall observed Tatum remove eight pairs of shorts from a display table and walk toward a nearly exit door. The camera operator responded by remotely locking the doors. Tatum tried to exit the store without paying. He immediately put the shorts back at the display and informed store staff that the doors were locked. He then returned to the display area.


In the meantime, the camera operator alerted an assistant store manager and mall security. The operator then called Robinson, informing him about Tatum’s actions in the store. The off-duty officer said he would come to the store. Robinson found another mall security officer and two Dillard staff members waiting for him at the store.


Under Arrest for Shoplifting


In plain clothes, Robinson walked up “to the smaller Tatum” and identified himself as a law enforcement officer. He informed Tatum that he was under arrest, ordering the shoplifting suspect to place his hands on the display table.


According the Eighth Circuit, Tatum did not comply with Robinson’s demand and, in fact, began to argue with the officer. That verbal resistance escalated the arrest confrontation. According to witnesses, Robinson told Tatum that he would pepper spray him if the misdemeanor suspect did not calm down.


Pepper Sprayed


Within 15 seconds of having approached Tatum, Robinson pepper sprayed Tatum in the face for “one second.” The appeals court explained what happened next:


“The two then crashed into a display table. Tatum said he did not fight or resist. Robinson, however, says Tatum ‘began wrestling and fighting with him into the table.’ They struggled, and Robinson’s hand got injured. With the other security officer’s assistance, Robinson handcuffed Tatum.”


That should have ended the matter.


It did not.


The officer, according to Tatum, began choking the suspect after handcuffing him. Robinson then escorted Tatum to a security officer with his arm wrapped tightly around the suspect’s neck. Tatum said the officer choked him the entire away. Robinson said the choking did not happen. Once in the security office, Tatum said Robinson repeatedly “stomped, kicked, and slammed him, and called him ‘n****r motherfucker.” Robinson denied this physical abuse.


Civil Rights Lawsuit


After pleading guilty to felony robbery and misdemeanor resisting arrest and theft of property, Tatum filed a civil rights lawsuit against Robinson and others. The lawsuit charged that Robinson’s use of the pepper spray and choking Tatum violated the defendant’s Fourth Amendment protection against the use of excessive police force.


Robinson defended against the lawsuit, saying he was entitled to qualified immunity on both charges related to the claim of excessive force.


Qualified Immunity


A law enforcement officer is entitled to qualified immunity if his or her use of force actions in making an arrest do not violate a “clearly established right” of a suspect. The suspect’s right must be “sufficiently definite” to the extent that the officer clearly understands that he or she is violating it.


The lower federal court denied Robinson’s claim that he was entitled to qualified immunity. The officer appealed to the Eighth Circuit.


Use of Pepper Spray on Misdemeanor Suspect, Did Not Resist, is Unreasonable


The appeals court found that Robinson’s use of the pepper spray was unreasonable. The court found that Tatum did not pose a threat to Robinson; that the offense he was accused of committing was a misdemeanor; that the suspect did not resist arrest; or attempt to evade arrest. The fact that Tatum was verbally non-compliant with his arguing and cursing did not justify Robinson’s immediate use of pepper spray.


The appeals court, however, found that Robinson was entitled to qualified immunity because the law on the use of pepper spray in making an arrest as it existed in April 2014 in the Eighth Circuit was not sufficiently definite to inform the officer that he was violating a clearly established right. The court put it this way:


“Tatum’s right to be free from the use of pepper spray under these circumstances was not sufficiently definite. A reasonable officer in Robinson’s shoes could have believed he was not violating Tatum’s rights by pepper spraying him because Tatum was angrily arguing and was warned before the pepper spray was used. The district court erred in concluding Tatum’s right to not be pepper sprayed was clearly established.”


No Justification for Choking a Restrained, Non-Fighting, Non-Resisting Suspect


The Eight Circuit, however, did not let Robinson walk away scot free. The court found that under Graham v. Connor the officer was not entitled to qualified immunity for his use of choking force on Tatum. “After Robinson used pepper spray,” the court said, “there was no justification for choking a restrained, non-fighting, non-resisting Tatum.”


The court said that a restrained, non-fighting, non-resisting suspect has a clearly established constitutional right not to be choked, kicked or punched by law enforcement officers. The three-judge panel remanded the case back to the district court for a civil rights trial on the merits on Robinson’s use of choking force.


Because of the ruling in Tatum’s case, it will now be unreasonable for a law enforcement officer in the Eighth Circuit to immediately use pepper spray on a verbally non-compliant misdemeanor suspect.


Law enforcement officers, like Willie Robinson, believe that any verbal disagreement with an arrest order is tantamount to physical, threatening resistance deserving an immediate and unreasonable use of physical force to produce utter compliance. Individuals facing arrest have a right to be angry and a First Amendment guarantee to verbally express that anger—and the exercise of that right does not permit the arresting officer to respond with immediate physical force.


The constitutional rule of law is simple: the police do not enjoy an unfettered license to physically abuse citizens facing arrest.