The 4th Amendment and Excessive Force: A case that helps our clients!

The threshold to overcome by Plaintiffs in civil actions against Police Officers for "excessive force" is that, the force utilized on the date in question has to be excessive and not reasonable under the circumstances.

In all cases, 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. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split–second judgments–in circumstances that are tense, uncertain, and rapidly revolving–about the amount of force that is necessary in a particular situation. The "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

This case bellow has been used by our law firm to time and time again to help our client's cases in federal court against police officers who used "excessive force." This is a 5th Circuit case.

Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004)

 A police officer sought to detain a sixteen (16) year old woman because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. The woman did not respond to the officer’s repeated commands that she stop and instead drove away. The officer shot her car to prevent her escape. The officer’s shot entered the car’s bumper just above the tailpipe and ultimately lodged in the back of the muffler. The minor suffered no immediate physical injury, though her car was damaged.

When the woman stopped, the officer arrested her for evading detention. It was determined that the sixteen years old was in violation of a weeknight curfew for minors. Later investigation revealed alcohol in the area surrounding where the car was parked, though no evidence suggested she had been drinking. The woman sued the officer and the city pursuant to 42 U.S.C. § 1983 claiming excessive use of force.

On appeal, the court held that the district court properly denied summary judgment on the excessive force claim. The officer used physical force by shooting at her car, and the termination of her freedom of movement was accomplished by the shot to her car. The suspect’s perception of her detention is not considered when it is accomplished by means of physical force. It was clearly established that shooting toward a person is a use of physical force. It was also clearly established that a use of physical force that succeeds in stopping a fleeing suspect constitutes a seizure. It was clearly established that stopping a moving car by intentionally shooting it constitutes a seizure.

It was clearly established at the time that psychological injuries can be sufficient to state a 4th Amendment excessive force claim. The officer was on notice that using force carrying with it a substantial risk of causing death or serious bodily harm is "deadly force." The officer was also on notice that deadly force would only be justified by a reasonable belief that he or the public was in imminent danger. The officer reasonably should have known that his action caused a substantial risk of death or serious bodily harm. As such, the officer is not protected by qualified immunity as to the minor’s Fourth Amendment excessive force claim.

Police Officers should not be deterred from using force, if necessary, while effectuating an arrest, but only when–the force utilized–is "objectively reasonable" under the circumstances and not "excessive." It is the burden of the Plaintiff to prove and show that the Police Officer was not entitled to Qualified Immunity on the particular date.

If you, or someone you know has been injured by a police officer, and you believe that the force was excessive give us a call (210) 979-9777. The Baez Law Firm has been helping people with their police brutality cases and has been successful in bringing great results.

How to obtain a judgment on the Pleadings in Federal Court

Our Law Firm has been representing victims of police violence in Federal Court with great success. Many times, our lawyers obtain judgments on the pleadings before going to a trial.

Our San Antonio Lawyers are here to help the victims of police brutality, specially when the victim is dead. Bellow is an example of pleading filed in Federal Court to help practitioners obtain a judgment on the pleadings pursuant the Federal Rules of Civil Procedure.

PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Plaintiffs, Movants herein, and request the Court to enter Judgment on the Pleadings in favor of Movants on the claims set forth herein, and against Defendants (hereinafter Non-Movants), and in support thereof, show the Court the following:

After the pleadings are closed but within such time as not to delay the trial, any party my move for judgment on the pleadings. Federal Rules of Civil Procedure 12(c).The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss.

The court "accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007), petition for cert. filed, (U.S. Nov. 26, 2007) (No. 07-713).

The plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1974 (2007).

"Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Id. at 1965.

Averments in a pleading which a responsive pleasing is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Federal Rules of Civil Procedure 8(d).

When the facts of the case are such that a judgment on the pleadings can be obtain, practitioners need to be aware of them.

If you, or someone you know has been a victim of police brutality, give us a call at (210) 979-9777. We care about your legal needs!

Why does the police in Texas uses excesive force?

In Texas, the law allows a great deal of discretion to police officers simply because it has to. The concept of "qualify immunity" is a very powerful one. Since, officers deal with great danger on daily basis, the law allows them to use discretion when dealing with situations; however, many officers take this authority to a different level. The use of excessive force.

Public officials acting within the scope of their official duties are shielded from civil liability by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). Qualified immunity “serves to shield a governmental official from civil liability for damages based upon performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law.” Thompson v. Upshur County, Tex., 245 F3d 447, 456 (5th Cir. 2001).

A “defendant’s acts are objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.”

This creates an atmosphere of panic to the public, when officers can enter your house, shoot your child, and make all kinds of wrongful acts, knowing that they are mostly protected. That is why officers may use excessive force.

When you (or some one you love) are faced with acts done by police that are excessive, such as shootings, killings, broken bones, bleeding and others, contact our law firm.

Although the use of force by police is permitted in Texas, the use of "excessive force" or police brutality is not!Give us a call (210) 979-9777.

Abuse of authority by police

According to the bible, everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Romans 13:1. However, what happens when people in power abuse that authority? From this abuse of authority, comes the infamous "police brutality."

Police brutality is a term used to describe any excessive and unnecessary physical force, assault, or battery used by law enforcement officials when dealing with the public. Section 42 of The United States Code states that "... any person working under the authority of a state law enforcement body who violates the civil rights of individuals in the U.S. is liable to pay for any damages they cause."

Police agencies have been given a new way to express their aggressions towards the public, without the fear of killing so many, or so they thought. The invention of the taser has created a new way for the police to over power the public, and the use of taser is increasing in alarming numbers.

The name Taser is an acronym for "Thomas A. Swift’s Electric Rifle". Arizona inventor Jack Cover designed it in 1969; naming it for the science fiction teenage inventor and adventurer character Tom Swift.

Modern taser-type weapons fire small dart-like electrodes with attached metal wires that connect to the gun, propelled by small gas charges similar to some air rifle propellants. The maximum range is up to 10 meters (30 feet). Earlier models of Taser needed the dart-like electrodes to embed in the skin and superficial muscle tissues layers; newer versions of the projectiles use a shaped pulse/arc of electricity which disrupt nerve and muscle function without needing the metal prongs on the projectile to penetrate the skin. Early models had difficulty in penetrating thick clothing, but the ‘pulse’ models are designed to bring down a subject wearing up to a Level III body armor vest.

There are some widely known cases of police brutality, but there are thousands more that never receive nationwide media attention. Any time a police officer abuses his or her authority and inflicts undue suffering on any person it is an affront to not only the victim of the pain, but to society as a whole.

Our latest client was so proud that he was going to fix his son’s car, that he decided to go to a 24 hour auto part store, in retrospect, this was a mistake. He was eventually tased several times and he had to be hospitalized because he developed a fatal cardiac condition, atrial fibrillation. From a proud moment to shameful and fatal consequences, his case is one of thousands that teaches us a lesson: the people we depend on to protect us from criminal aggressors should never become the aggressors themselves.

If you or some one you know has been a victim of police brutality, please contact The Baez Law Firm, P.C. We have experienced police brutality lawyers that will handle your case with respect and dignity. Please contact us at our websites: http://www.thebaezlawfirm.com http://www.sanantoniopersonalinjurytriallawyers.com http://www.baezlaw.com or call us at (210) 979-9777 for a free initial consultation.