CAROTID HOLD ON NON-RESISTING RESTRAINED PERSON VIOLATES FOURTH AMENDMENT

ROBERT RABE

Associate
Stone Busailah, LLP

The death of a suspect during an arrest takes an emotional toll on the arresting officers, and the recent climate of our nation has led to an increased chance that officers will be denied qualified immunity. The following case (Martinez, et al. v. City of Pittsburg, No. 19-15550, Ninth Circuit Court of Appeals, filed June 18, 2020 — Not for Publication)1 exemplifies recent decisions coming from our courts.

Humberto Martinez died during his arrest by City of Pittsburg police officers. Martinez had fled during a traffic stop for an expired registration, and later engaged in a physical struggle with officers that resulted in his death.2

Martinez ran from his vehicle after a short pursuit, and ran back into the house he had come from. Two officers gave chase and a struggle ensued inside an enclosed kitchen space. Martinez was tackled and put in a face-down, prone position. One officer put his arm around Martinez’s neck. That officer was on top of Martinez’s upper half, and the other was on top of his lower half. During their attempt to subdue him, the officers punched Martinez in the face and torso, and used elbow and knee strikes to his abdomen and torso. Three other officers arrived and saw the suspect with just one handcuff on; two punched and kneed Martinez, and one repeatedly Tased him. At that moment, and for some time afterward, he had the weight of five officers on his body. Finally, Martinez was handcuffed. Martinez then turned blue and became unresponsive. Martinez was taken to the hospital, where he was pronounced dead.

The coroner found evidence of blunt-force injuries to Martinez’s head, neck, torso and extremities. The coroner concluded the cause of death was mechanical obstruction of respiration, complicated by carotid sinus reflex stimulation due to the use of a carotid hold.

The district court denied qualified immunity to the peace officers who were involved in the altercation with Martinez. The court of appeal reviewed whether the plaintiff’s rights were clearly established at the time of the alleged violation.

Under the Fourth Amendment, law enforcement officers may use only such force as is objectively reasonable under the totality of the circumstances (Graham v. Connor, 490 U.S. 386, 397 [1989]). A court will evaluate the objective reasonableness of the force used by considering (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others” and (3) “whether he is actively resisting or attempting to evade arrest by flight.” The court concluded that a reasonable jury could conclude that the combined force used by the officers against Martinez was unreasonable.

The officers contended that the district court erred because it did not determine a jury could find each of their actions, independently, rose to the level of a constitutional violation. In response, the court referenced the “integral participant rule,” which extends liability to those actors who were integral participants in the constitutional violation, even if they did not directly engage in the unconstitutional conduct themselves. The court then explained that, viewing the evidence in the light most favorable to Martinez, “all the officers named in this suit were actively involved in the struggle to restrain Martinez,” and thus each officer had “some fundamental involvement in the conduct that allegedly caused the violation.” The court held that clearly established law put each officer on notice that his actions made him an integral participant in the use of excessive force against Martinez, citing Tuuamalemalo v. Green, 946 F.3d 471, 477 (9th Cir. 2019) (it is “clearly established that the use of a chokehold on a non-resisting, restrained person violates the Fourth Amendment’s prohibition on the use of excessive force”) and Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003) (“squeezing the breath from a compliant, prone, and handcuffed individual, despite his pleas for air, involves a degree of force that is greater than reasonable”).

Now, the estate of Martinez can continue to pursue the lawsuit against all the officers involved in the physical struggle that resulted in his death.

Considering recent events in our nation, we can expect significant changes to department policies and procedures. On June 5, Governor Newsom ordered that all POST training courses that include any instruction in the use of a carotid control restraint be discontinued. The governor also promoted AB 1196, which would prohibit a law enforcement agency from authorizing its employees to use a carotid control or chokehold to subdue or control a person.

AB 1196 was passed by the Legislature with only one “No” vote. The bill has been sent to the governor. Since the governor has already stated he would sign the bill if it were passed, those who are reading this article can assume this new law will go into effect on January 1, 2021.

Peace officers will no longer be trained in the use of a carotid control restraint, and no department will authorize its employees to use it. Since department policies can be an indicator of what a reasonable officer would consider, or not consider, to be a constitutional use of force, it could be argued that any peace officer will now be on notice that the use of a carotid control restraint or chokehold on a person would not be “reasonable” under any circumstances. If any officer were to continue using these holds to subdue or control a person, it would be a violation of policy and they could expect to be disciplined.

Stay safe and healthy!

About the Author
Robert Rabe is Stone Busailah, LLP’s writs and appeals specialist. His 41 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England. 

1  While this case was not published, it does give insight into how the court would rule in similar matters.
2  The facts are taken from the district court opinion.