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BETTS V. BRENNAN, 2022 WL 101316 (5th Cir. 2022)
This case provides an unusual opportunity for you to decide what should happen. A traffic stop with a non-compliant subject quickly turned into a use of force incident – and there’s clear video evidence to review. Don’t fast forward to the end. Instead, watch the first few minutes of this Axon video recording. If you want a second view, a security camera outside the building where the stop took place also captured the incident.
Did you watch the body camera video recording? Would you have used a TASER device? The incident resulted in a lawsuit against the officer: How would you defend the officer (or yourself if you were sued after a similar incident)? The trial judge said Betts’ resistance was “at most passive.” Do you agree? An understanding of the background, as recited in the court record, can help us answer these questions.
The officer stopped Timothy Betts for speeding 13 mph over the speed limit. The officer asked Betts to get out of his truck and Betts complied for a moment. When the officer told Betts why he had stopped him, Betts immediately began to argue. He sat back down in the truck with the door open, his body angled outward. As he continued to argue, Betts said: “That’s fine, I ain’t going to argue with you.” The officer asked Betts for his license, insurance and registration.
Still arguing, Betts handed over the documents. The officer stepped back and asked Betts to exit the vehicle and stand at the back of the truck. Betts refused, saying: “I’m fine. I’m not causing you no threat.” The officer then told Betts to “go walk to the back of the truck or I’m going to make you walk to the back of the truck.” Betts said the officer had no reason or authority to order him to do so. The officer told Betts several times to walk to the back of the truck and Betts refused. As he disobeyed the officer’s command, Betts said, “I’m not disobeying. I’m not causing you no threat. I’ve done this before.” The officer replied to Betts, “For my safety and your safety, I’m asking you to step to the back of the truck.”
In 1977, the United States Supreme Court laid down a bright-line rule that an officer may always require a driver to get out of a lawfully stopped vehicle (Pennsylvania v. Mimms, 434 U.S. 106 (1977)). The Court balanced the privacy interests of the driver and the safety interests of the officer in reaching this conclusion. The officer need not hold any particular suspicion or fear to require the driver to get out of the vehicle. Twenty years later, the Court extended its ruling to all passengers in a lawfully stopped car in Maryland v. Wilson (519 U.S. 408 (1997)), although, a handful of states have rejected the Mimms/Wilson rule on state constitutional grounds. In a similar vein, the Supreme Court, in Arizona v. Johnson (555 U.S. 323 (2009)), held that all occupants of a lawfully stopped vehicle may be lawfully detained for the duration of the stop.
Betts began shouting that the officer was lying and threatened, “If you tase me, I’m going to sue you.” The officer grasped Betts’ arm while again ordering him to exit. Betts jerked his arm away and told the officer not to touch him. Betts repeated his claim (which you all know to be incorrect) that he did not have get out of the truck. Betts kicked his foot out, stood up to exit, clenched his fist and told the officer that he “might want to call [his] people.”
The officer commanded Betts to turn around and put his hands behind his back. Betts stood near the truck door, angled away from the officer, and raised his hands over his head. The officer repeatedly ordered Betts to put his hands behind his back, and after several commands Betts complied. The officer told Betts to turn, but Betts kept his body at an angle. The officer repeated this command several more times, warning Betts he would use a TASER device if Betts did not comply. The officer then fired the TASER device into Betts, striking his upper leg.
Betts screamed and fell to the ground. The officer handcuffed Betts, warning that if he continued to resist, the officer would “tase him” again. Betts began shouting profanities: “You just damn shot me for f—— nothing. You owe me, you f—— up. I’m getting something out of this.” Betts later pleaded guilty to resisting arrest, then filed the lawsuit to “get something.”
The trial court denied qualified immunity to the officer. If you’ve been reading Xiphos for even just the last six months, you know the test for qualified immunity. Many lawsuits alleging excessive force are dismissed after the court rules that qualified immunity should be applied to the officer. An officer merits qualified immunity unless:
- He “violated a statutory or constitutional right of the plaintiff,” and
- “The right was clearly established at the time of the violation.”
Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments” and “protects all but the plainly incompetent or those who knowingly violate the law” (Ashcroft v. al-Kidd, 563 U.S. 731 (2011)). The Supreme Court has frequently instructed lower courts to refrain from applying the “clearly established law” component of qualified immunity analysis at “too high a level of generality.” In other words, unless the lower court can point to a controlling court precedent that precisely and clearly gives notice to officers of how to act, the court should grant qualified immunity.
In this case, the trial court looked to a prior case from the 5th Circuit Court of Appeals in which the court denied qualified immunity when an officer stopped a man and ordered him out of vehicle and to the rear of the car. After a brief argument the man complied. Standing behind the man with a TASER device drawn, the officer then ordered the man to go to his knees. When the man asked whether he was under arrest, the officer only repeated his command. The officer suddenly rushed forward and hit the man’s back, knocking him onto the trunk and to the ground. A police investigation determined the man was “compliant,” that the officer failed to tell him whether he was under arrest, and that the blow to the back was “not objectively reasonable” because of the lack of resistance. Seeing a strong similarity to that case, the trial court denied qualified immunity in this case.
The appellate court, with the benefit of two video recordings, held that the trial court got both questions in the qualified immunity analysis dead wrong. First, the court applied the factors from Graham v. Connor (490 U.S. 386 (1989)). The Graham factors consider:
- The severity of the crime at issue
- Whether the suspect poses an immediate threat to the safety of the officers or others; and
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Applying these factors, the appellate court observed:
- Betts was stopped for only a minor traffic offense. However, the officer was alone and lacked backup.
- Betts’ persistently confrontational manner created some threat to the officer’s safety.
- Betts did not just argue, ignore just one order or just move away from the officer’s grasp.
- Betts adopted a confrontational stance at the outset and things escalated from there. Betts repeatedly contested the reason for the stop, ignored dozens of the officer’s commands, disputed the officer’s authority to stop him and order him out of the truck, claimed the officer was lying, batted away his hand, warned the officer to call “his people,” and dared the officer to use a TASER device, threatening to sue.
- The officer told Betts he wanted him to move to the rear of the truck “for my safety and for your safety.”
- The officer did not use the TASER device as a first resort.
- The officer “properly used measured and ascending actions that corresponded to Betts’ escalating verbal and physical resistance.”
- The officer tried to get Betts to stand behind the truck first by invitation, then by explanation, then by command and finally by grasping his arm.
- The officer warned Betts more than once that he would use a TASER device if Betts did not comply with his orders.
- Only when all those lesser options appeared to have failed did the officer use a TASER device.
- The officer used only a single TASER device energy cycle to control and handcuff Betts.
The appellate court held the force was not unconstitutionally excessive. The court also held the trial court erred in ruling that Betts’ situation presented a “clearly established” violation. Finding “some similarities” with the case relied upon by the trial court, the appellate court held that “there are significant differences.”
Did the court take the path you predicted? Did you cite all the factors that prompted the court to conclude the officer acted reasonably and should have been granted qualified immunity? Whether you did or not, take note of the appellate court’s reasoning and consider whether your traffic stop practices could benefit from a tune-up to be more consistent with clearly established law.