Skip to Content
By PORAC | May 1, 2020 | Posted in PORAC LDF News

“NON-TRIVIAL” FORCE FOUND UNLAWFUL AGAINST PERSON ENGAGED IN PASSIVE RESISTANCE

ROBERT RABE

Associate
MUNA BUSAILAH
Partner
Stone Busailah, LLP

 

Rice v. Morehouse, et al, No. 18-35459 (9th Cir. March 8, 2021)
In the early morning of December 26, 2011, Lee Rice, while traveling with his family, was stopped by Officer Murakami for failing to signal for a full five seconds before changing lanes. Because he believed that there was no basis for the stop, Rice showed Murakami his license through the car window, but refused to give her the license and car registration. The officer then called for “Code 3” backup. While assistance was on the way, Murakami opened the driver’s side car door, instructed Rice to exit and announced that he was under arrest for “obstruction and delay.” Rice refused to get out of the car. Murakami returned to her vehicle and, hearing sirens coming from everywhere, radioed a “Code 4” update that she was not in danger and only needed two to three units. The responding officers were on a different frequency and didn’t hear the update. Ultimately, 17 officers responded to the scene. Murakami spoke to the arriving officers, including Dale Morehouse and Nick Shaffer, and explained the driver was not cooperating with instructions, was advised he was under arrest and that she needed somebody to help get him out of the car.

The Removal
Murakami approached the driver’s side of the car, with Morehouse directly behind her. Murakami repeatedly instructed Rice to get out of the car and threatened to break his window if he did not. Rice refused and asked to speak to a supervisor, but did roll down his window and unlock the car door. Murakami opened the door, and together with Morehouse, pulled Rice out of the car.

The Takedown
After Murakami and Morehouse pulled Rice from the car, they attempted to hold Rice in a “police lead” position, grabbing his wrist with one hand and triceps with the other. Morehouse grabbed the right arm, while Murakami grabbed his left. Murakami was soon replaced by Shaffer. As they approached the rear of the car, Shaffer and Morehouse forcibly took Rice to the ground using a “take-down” maneuver. Rice landed face-first on the pavement.

The Scrum
While Rice was on the ground, it was alleged that a number of officers struck and kneed him, wrenched his arms and shoulders and twisted his fingers. Eventually, Rice was placed in handcuffs, picked up off the pavement and placed in a patrol unit. Rice claimed to have suffered long-term physical injuries and emotional distress as a result of the encounter.
Criminal misdemeanor charges were filed against Rice but were dismissed after the state court concluded Murakami lacked reasonable suspicion or probable cause to stop the car Rice was driving. Rice sued the officers involved in the arrest in federal court for excessive force. The court denied Morehouse and Shaffer qualified immunity for their involvement in the scrum but granted qualified immunity as to the takedown. The case proceeded to trial against the officers for their alleged use of excessive force. The result was in favor of the defense and Rice appealed.

Grant of Qualified Immunity Reversed
In excessive force claims, the court evaluates whether the officers’ actions are “objectively reasonable” in light of the “facts and circumstances confronting them” and judges the reasonableness of the force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” (Graham v. Connor [1989] 490 U.S. 386).

The Court of Appeal found Morehouse and Shaffer’s take-down maneuver while holding Rice in a “police lead” position involved a “substantial” use of force because it resulted in forcibly throwing Rice face-first to the pavement. A takedown, like any other use of force, “must be justified by the need for the specific level of force employed.” The most important factor to consider is whether the suspect posed an immediate threat to others. When Rice rolled down his window and repeatedly asked to speak to Murakami’s supervisor, he made his requests calmly, without raising his voice and using the words “please” and “ma’am.” Although Rice was not cooperating, he did not yell or use profanity, attempt to flee or to harm the officers or reach for any sort of weapon.

The court noted that cases had long distinguished between a suspect’s passive and active resistance. Here, the court likened Rice’s refusals to exit his car to “the purely passive protester who simply refused to stand,” as opposed to “minor” or even “truly active” forms of resistance.

On appeal, the court had to determine if the law in this area was sufficiently clear that a reasonable officer could understand what he was doing would violate that right.
Long before Rice’s arrest, the Ninth Circuit “clearly established one’s right to be free from the application of non-trivial force for engaging in mere passive resistance.” Cases dating back to 2001 established that failing to fully or immediately comply with an officer’s orders neither rises to the level of active resistance, nor justifies the application of a non-trivial force. In one case, the Ninth Circuit held an officer’s tasing of a bystander to an arrest, who did not retreat despite the officer’s orders, violated clearly established law. The court in that case stated that because the individual did not make any threats or resist the officer, “the use of non-trivial force of any kind was unreasonable.” In another case, the Ninth Circuit denied qualified immunity to an officer who physically struck and pepper sprayed an arrestee who refused to get back in his car, finding that the law involving the use of significant force against a suspect who was suspected of a minor crime, posed no apparent threat to officer safety and could not be found to have resisted arrest, was well established. The court, here, remarked that Rice was “perfectly passive” and “engaged in no resistance.” The court decided that these cases formed a body of law that together placed the officers’ use of substantial force against a passively resisting person “beyond debate.” Accordingly, qualified immunity was denied and the lower court’s grant of immunity was reversed. The civil case has been returned to the lower court for trial.  

The Takeaway
While the circumstances involved a traffic stop in this case, the same analysis applies to protests. Protesters often engage in passive resistance. One can assume, because of body cams and cellphone videos, that any action an officer takes against a “passive” protester will be recorded, posted on the internet and subject to review and possible criticism. Some of these videos become “viral” on the internet. As the court stated in this case, when evaluating an incident under Graham, a court must examine the totality of the circumstances. In a case where an individual or group is engaged in passive resistance, these considerations will include whether proper warnings were given, and if less intrusive alternatives to the force employed were available, or even considered. Always, but especially in a case involving passive resistance, be sure to justify the need for the specific level of force employed. Remember, officers who become a meme or a “star” in a viral video frequently suffer administrative, civil or even criminal consequences.

About the Authors
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.
Muna Busailah has been a partner in the firm since 1994 and has represented peace officers in police law and litigation cases, administrative, state and federal venues for over 27 years.