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Reasonable response, even if not perfect, entitles officers to judgement

The court framed its task as determining not whether officers used best police practices but whether they violated the subject’s rights under the Fourth Amendment

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Turner v. City of Champaign, 979 F.3d 563 (7th Cir. 2020)

A caller reported that Richard Turner was pawing through trash cans and speaking unintelligibly to persons on the sidewalk. Turner was a homeless man whom the police had dealt with many times over the years, including several encounters in which officers transported him to a mental health treatment facility.

When the first officer arrived, he found Turner rolling on the ground with his pants down, flailing his arms and babbling unintelligibly. Turner then got up and walked back and forth across the street.

The officers called out to Turner, but he responded incoherently. They decided to detain Turner and take him in for mental health treatment. The officers called for an ambulance and asked Turner to sit on the curb. Turner ran away and the officers chased him, shouting at him to stop. An officer caught up to Turner and grabbed his shoulder. A struggle ensued, with Turner grabbing at both the officers trying to control him. The officers took Turner to the ground, turned him on his stomach and handcuffed him. At this point, Turner was still kicking at the officers.

A sergeant familiar with Turner had heard the radio traffic and decided to help. When he arrived, the officers called out for him to bring a hobble. The officers hobbled Turner with some difficulty, at which point the sergeant asked whether Turner was breathing: He was not. The officers grabbed a portable defibrillator. Just then, paramedics arrived and took Turner to the hospital, but he never regained a pulse. An autopsy later determined Turner died from cardiac arrhythmia, likely caused by the pre-existing underlying condition of an enlarged heart. The autopsy showed no signs of suffocation or injuries to Turner’s body.

Turner’s sister sued, arguing that Turner was well known to the police as a non-violent homeless man suffering from mental illness and that officers had previously placed him in ambulances at least 11 times without incident. She also claimed the officers failed to call for Crisis Intervention Team-trained officers and failed to follow department policies on de-escalating situations with known mentally ill persons. The sister questioned why the officers chased Turner, rather than following him from a distance. She also alleged the second officer and the sergeant not only failed to de-escalate but failed to intervene in the first officer’s alleged unreasonable use of force.

The court began its opinion noting, “With hindsight, we can say that [Turner’s] death might have been avoided.” The court’s duty, however, is to determine whether the police conduct was objectively reasonable, “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” (Graham v. Connor, 490 U.S. 386 (1989)). The court framed its task as determining “not whether officers used best police practices but whether they violated his rights under the Fourth Amendment.”

The court held that it was reasonable, first, for the officer to grab Turner’s shoulder to seize him, and second, to take Turner to the ground to detain him. Even though there was little traffic as Turner jaywalked back and forth across the street, the sense that Turner was even more disoriented than usual, coupled with his unintelligible speech, gave the officers probable cause to detain him for his own safety and that of others.

The court held the officers did not use excessive force. Turner grabbed and kicked at the officers and “actively resisted” their efforts to detain him. The court stated: “The escalating force against Mr. Turner was a constitutionally permissible response to his continued resistance.” Because there was no excessive force, the sergeant and second officer could not be liable for failure to intervene.

It is possible the officers violated some provision of department policy. Or not. But federal court civil rights litigation doesn’t involve that issue. Quoting United States v. Brown (871 F.3d 532, 536–37 (7th Cir. 2017)), the court underscored the difference: “The excessive-force inquiry is governed by constitutional principles, not police-department regulations. Put another way, a police officer’s compliance with the rules of his department is neither sufficient nor necessary to satisfy the Fourth Amendment’s reasonableness requirement.”

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.