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If a suspect can talk, does that mean he’s breathing?

Let’s be clear, the myth that talking equals breathing has been debunked over and over again

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King v. City of Rockford, 2024 WL 1321259 (6th Cir. 2024)

A law enforcement officer saw Thurman King driving late one evening as King passed the officer’s patrol car. The officer drove behind King and noticed King’s license plate light wasn’t working. The officer saw King roll through a stop sign, though he saw “no evidence of King driving erratically.” As King turned onto his street, the officer activated his emergency lights to conduct a traffic stop. King turned into his driveway, stopped and got out of his car.

As King got out, the officer shouted at him to show his hands, and King complied. The officer told King he had failed to stop at the stop sign and said that he smelled marijuana on King’s breath. King asserted he had come to a stop at the sign. He also admitted he had smoked several hours earlier and could not possibly smell like marijuana. The officer asked King to submit to a chemical test and King refused.

The officer reported King walked away from him multiple times, and that he grabbed King’s arm to “maintain control and prevent him from fleeing.” King denied walking away, saying only that he may have taken “a step towards the house” while shouting to his fiancée, who was inside. The officer commanded King to step toward the rear of the car and put his hands behind his back, and King complied. When King turned again and called out to his fiancée, the officer pulled King back around and took him to the ground.

Another officer arrived and assisted in holding King to the ground. King reported both officers knelt on his back and that he cried out that he was having difficulty with breathing. One of the officers replied that “if King can talk, he can breathe.” A search of King’s car produced an open container of alcohol. King was charged with obstructing a police officer, operating a vehicle while intoxicated and possessing an open container of alcohol in a vehicle. A blood test revealed no alcohol and a negligible amount of THC. A prosecutor dismissed the charges. After his release, King examined the license plate light. He testified that it was working.

King sued, alleging that the officers lacked a reason to stop him, and that they used unreasonable force in detaining and arresting him. The trial court denied the officers’ motion to grant qualified immunity and summary judgment. The officers appealed.

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The court began its analysis by noting the dispute in the factual claims. Remember that courts considering a request for qualified immunity must assume the facts most favorable to the non-moving party (usually the plaintiff suing the officers). Though the officer claimed to observe King commit two traffic violations before he initiated the stop — the license plate light and stop sign violations — the trial judge found “a reasonable juror could conclude that neither observation is supported by the dashboard camera footage.” If King did not commit a traffic violation and the officer “lacked any objective basis” for the traffic stop, then a reasonable jury could conclude there was no probable cause or reasonable suspicion justifying the stop, thus rendering the stop unconstitutional.

The court next turned to analysis of the factors discussed in Graham v. Connor (490 U.S. 386 (1989)) (explained in the companion discussion of Lewis v. Carabello in this issue). The court considered the takedown maneuver separately from King’s complaint about kneeling on his back. “The first Graham factor (the severity of the crime) weighs against the reasonableness of the takedown maneuver even assuming that, in addition to the minor traffic violations, probable cause emerged during the stop to believe that King drove under the influence and otherwise resisted arrest.” The court noted “minimal, if any” indication of any violence in King’s behavior. Because the crimes were not particularly serious, and King was not violent, the court considered the first Graham factor in King’s favor.

The court also held that the “second Graham factor (whether King posed an immediate threat to the officers or others) also weighs in favor of King.” “Although King may have been loud and argumentative, a reasonable jury could otherwise find him ‘non-threatening,’ indicating that the takedown was unreasonable to maintain control of the situation.” King did not threaten the officers, nor was there any indication he was armed. Even so, the court acknowledged the contrary factors that the officers could not be sure that King was actually calling out to his fiancée or some confederate who might pose a threat, and the fact that 13 seconds passed from the time the officer turned on his emergency lights and King came to a stop in his driveway.

The final factor, whether King was actively resisting or attempting to evade arrest, was sharply contested by the parties. The court defined “active resistance” as “characterized by physical force, a show of force, or verbal hostility coupled with failure to comply with police orders,” contrasted with passive resistance characterized by a “lack of physical resistance or verbal antagonism.” The court’s earlier decisions illustrated the distinction between active and passive resistance to an officer’s efforts to handcuff a subject. For example, in Jackson v. Washtenaw County, (15-1250 (6th Cir. 2017) emphasis added), the 6th Circuit found “that a failure to present one’s arms to an officer upon request without more constitutes at most passive resistance, but that a physical struggle to maintain control of one’s limbs while being placed in handcuffs can be active resistance.” The court also cited several cases in which judges had agreed with the use of TASER devices, knee strikes and other force to control suspects who repeatedly refused to comply and physically resisted arrest.

The court held that a reasonable jury viewing the dash camera recording of the takedown maneuver could find that King did not actively resist arrest. Though King was “argumentative” and noncompliant, he was not verbally “hostile” toward the officers. To be sure, King was more than merely non-compliant. He not only failed to present his hands for handcuffing but also refused to comply with commands to stand at the rear of the car. The recording showed King “pulling away” from the officer’s grasp and stepping toward his house, attempting to free his arm and turning his body away from the officer trying to grab him.

The court held that “King’s conduct runs close to the line distinguishing passive resistance from active.” “We cannot say that ‘every reasonable official would have understood’ that King’s behavior did not rise to active resistance.” (Remember the discussion the Lewis case — the standard is that every reasonable officer would recognize his actions were improper under clearly established law.) Just as the facts disputed by a plaintiff must be resolved in favor of the plaintiff, close calls on questions of clearly established law must be resolved in favor of the officer. Accordingly, the court reversed the trial court’s denial of qualified immunity for the officer on the use of a takedown maneuver.

Turning to the force applied when King was on the ground, the appellate court upheld the trial court decision that the officers were not entitled to qualified immunity for kneeling on King’s back. Assuming that King’s claim was true that he was “nonresistant, and potentially already handcuffed on the driveway” as the officers knelt on his back, prior cases put officers on notice that the force was constitutionally unreasonable. The court had previously held that “applying pressure to the back of a prone suspect who no longer resists arrest and poses no flight risk is an objectively unreasonable use of force.”

The court noted “King repeatedly warned officers that he was having trouble breathing.” One officer told King that if he could talk, he could breathe. Don’t make that mistake: The myth that talking equals breathing has been debunked over and over again. Dr. John Peters, Executive Director of the Institute for the Prevention of In-Custody Death, noted, “If a person says, ‘I can’t breathe,’ it may indicate the individual cannot properly exchange gasses contained in air (respiration) and may actually be ‘suffocating’ from the increase of carbon dioxide.” (Casillas R and Peters J, How to Recognize the Signs of Abnormal Breathing.) Sergeant Brian Casey, who spent 20 years as a paramedic, said it best: “I cringe when I hear officers say, if you can talk, you can breathe.” He published an excellent explanation about breathing with an accompanying video illustration. (Casey B, I Can’t Breathe: What It Means for Law Enforcement.) Take 10 minutes and check out these resources. It may save someone’s life and save your career.

Read more Ken Wallentine case reviews here.

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.