According to District Attorney Tim McGinty, a reasonable cop in Cleveland jumps out of his car and murders a 12-year-old boy based upon misinformation from a dispatcher that he has a gun. Not that the cop actually saw a gun, but a reasonable cop wouldnt take the chance. Thats the baseline for a reasonable cop in Cleveland.
The Sixth Circuit, however, has a different, a higher, expectation of reasonableness for Cleveland cops.
On a summer day in 2010, two armed-robbery suspects were on the loose in Cleveland, Ohio. Officers Brian Kazimer and Dan Crisan were on the case. The officers learned from the dispatcher that the suspects had stolen a wallet at gunpoint and had run toward a nearby apartment complexthe same complex, the dispatcher said, where two men had just given a nearly empty wallet to the apartments manager. Coincidence? The officers thought not. After hearing that one of these men was wearing a red shirt and jeans, the officers drove to the apartments to investigate. As they pulled up, they saw someone who matched that description take off running. That gave them reasonable suspicion to detain the fleeing person, the district court held.
There is no discussion of how many people in the apartment complex wore a red shirt and jeans. That someone takes off running when the cops arrive is, unfortunately, normal, because young men are afraid of cops. They dont want to die. They dont want to be harmed. They dont want to be arrested. That might not be how you would react, but then, you probably dont live in their world.
What is missing from the courts recitation of fact is that the 15-year-old boy, wearing a red shirt and jeans, who took off running, had Down Syndrome. One might suspect that would be a tell-tale factor, but apparently not to the cops involved. Or the court. Reasonable suspicion is not, shall we say, a rigorous test.
Eyewitnesses saw a police officer chase down a sixteen-yearold boy with Down syndrome, take him from his mothers arms, slam him against an SUV, then pin his face against the car, all while ignoring pleas from standers-by that he was a harmless teenager. The officer admits that he saw (and felt) the boy surrender and heard him cry out in pain. Yet the officer, eyewitnesses say, kept him pinned down for fifteen minutes while another officer stood by.
He then handcuffed Juan and used his body weight205 pounds and twice Juans weightto pin Juan against the hot vehicle. Even though Juan was not making any effort to resist and was crying out in pain, and even after Kazimer gave an ALL OK signal to the dispatcher, Kazimer reportedly kept Juan pinned for around fifteen minutes. Many residents yelled at Kazimer that Juan had done nothing wrong. But Kazimer responded: I dont care, pushed the residents away, and cursed at them. He told Juans parents that they were lucky he didnt shoot [Juan]. That may be right.
The officers, Brian Kazimer and Dan Crisan, moved for summary judgment based on qualified immunity. The Circuit said no.
This use of force was clearly established as excessive before 2010. The just-cited cases support the point, as do many others saying that the gratuitous use of force against a suspect who has surrendered is excessive as a matter of law. And thats the case even when the suspect had originally resisted arrest (say by running from the police, as here).According to the plaintiffs, Kazimer used extreme force against someone who, by the officers own admission, looked like he was surrendering and who, by other eyewitness accounts, was not making any effort to resist and was crying out in pain.
This shouldnt be controversial, and indeed, the court held it wasnt.
A reasonable officer would have known better.
But the cops were not without their excuses.
Kazimer tries to counter this conclusion in several ways, each unconvincing. He first calls our attention to the reality that some suspects fake their surrenders, only to try to escape anew or to assault the officer after the officer relaxes his hold on the suspect.
The officer next submits that the chaotic nature of the scene made his use of force reasonable. The record, it is true, shows that ten or so people surrounded Kazimer, with many of them yelling at him and one or two reaching toward Juan. These facts may have justified the use of some force against Juan. But they do not justify the amount of force allegedly used here. Kazimers purported level of forceslamming Juan (rather than, say, grabbing him) and pressing Juan against the hot car for fifteen minutes (rather than, say, removing him from the scene)rises to the level of clearly excessive for summary-judgment purposes.
What makes the courts eminently reasonable assessment, for the purposes of qualified immunity, significant is how closely it tracks the same allegations and explanations offered in so many other cases where the ruling goes the other way. Does this reflect a shift in the courts perspective, a sudden and wonderful reluctance toaccept the usual litany of facile excuses for cops doing what cops do?
It is well to remember that the officers may not have done anything wrong. They may have diligently pursued an armed-robbery suspect, used a reasonable amount of force in a chaotic situation to detain him, and eased up seconds later once they found out he did not commit the robbery.
While it may not have occurred to Judge Jeffrey Sutton when considering whether Kazimer and Crisan had a reasonable suspicion as ateenager with Down Syndrome ran from them that this wasnt the person they were looking for, at least the panel recognized that ripping a kid with Down Syndrome from his mothers arms to slam him to the ground was more than their sensibilities could take.
But there is nothing about Kazimers and Crisans conduct that doesnt happen regularly, and nothing about their cop excuses that arent regularly accepted as being perfectly reasonable behavior by police. Aside from the fact that Juan had Down Syndrome.
One other thing stands out in the opinion.
He told Juans parents that they were lucky he didnt shoot [Juan]. That may be right.
Maybe the dead body ofTamir Rice lingers in the minds of the judges when they have to ask themselves what is reasonable for a copin Cleveland.
H/T Zoe Tillman