Court Grants Qualified Immunity for Use of Force to Subdue Ketamine-Induced Violence

O’Brien v. Town of Bellingham, (1st Cir. 2019)

A woman heard shouting in the woods behind her home and saw Joe O’Brien sitting in a ravine. She called out to him, but he didn’t respond beyond trying to stand, then lying down. She walked to her home and called police.

An officer went with the woman and found O’Brien in the ravine, now lying down with his pants undone. O’Brien stood when the officer spoke with him. The officer told him to get back down and put his hands behind his back. The officer sprayed O’Brien with pepper spray. O’Brien’s pants fell down and he stumbled to the ground. About that time, two other officers arrived. They, too, began to douse O’Brien in pepper spray. The woman later stated O’Brien had not made any aggressive or combative moves prior to being sprayed.

The officers talked to O’Brien for about 15 minutes, attempting to persuade him to put his hands in a position for handcuffing. An officer secured one of O’Brien’s wrists in a handcuff. As the officer held onto the other end of the handcuffs, O’Brien began to swing the officer off the ground like a rag doll. Other officers struck O’Brien with batons, but multiple strikes seemed to have no effect. One or two of the officers struck O’Brien in the head with their batons, knocking him to the ground. Only then were they able to handcuff him.

Officers took O’Brien to the police station and called for medics to treat his apparent drug overdose craze. The officer initially handcuffed O’Brien to a bar in the booking area, leaving his right hand free. O’Brien began screaming, arguing and cursing at the medics. They gave up trying to treat him and retreated. O’Brien then turned to the officers, cursing and threatening them with violence. He said he would “kick the sh** out of” and “beat the fu** out of” them, called them “pussies” and growled at them. He continued to scream, growl, and threaten to commit graphic acts of violence against the officers. O’Brien told them he had “a lot of fight left in him.”

From the incident summary in the ruling: “O’Brien spat on the floor, growled, wiped mucus on the walls, and tore down a window covering. He then grabbed the handset of a telephone and attempted to smash a glass window with it, while taunting the officers to shoot him. , using a baton, struck O’Brien in the leg once to stop him from breaking the window. O’Brien squared off and swung the phone handset at the officers. Another officer also deployed a baton. O’Brien hit the officers, and they struck him with batons before retreating. O’Brien continued to swing at the officers, telling them to shoot him.”

O’Brien struck a glass window multiple times, then picked up a metal chair. An officer pepper sprayed him with no apparent effect. O’Brien struck the window with the chair, dropped it, and picked up a different chair. He then grabbed the phone handset, swung it around, and used it to smash the glass window. O’Brien taunted the officers, saying, “Where’s your gun?” He tore up the window blind and struck at the broken window with his free right hand and arm. He told an officer, “Give me your gun,” and picked up a printer and tossed it across the room. Another burst of pepper spray also produced no apparent effect.

O’Brien kept hitting the broken window with his right hand and arm, cutting himself on the broken panes. One officer, then another, struck O’Brien’s leg with a baton; another officer tried pepper spray again. They told him to back away from the window. More pepper spray was directed at O’Brien, while an officer struck him with a fist. More baton blows followed, all in an effort to keep O’Brien away from the window. Nothing worked. O’Brien tried to pull glass shards from the broken window.

An officer from a neighboring town arrived with a TASER® device. After 20 minutes of warning and cajoling O’Brien to stop fighting and allow medical treatment, the officer deployed the TASER device. O’Brien called the officer a “pussy” and asked him to “give another one.” A second deployment had no significant effect. O’Brien told the officers he would keep the barbed probe as evidence and swallow it. He grabbed a clock off the wall and appeared to swallow the probe.

O’Brien asked the officers if they were going to burn down the police station, as “that only option.” After several minutes, an officer fired a rubber projectile at O’Brien. O’Brien grabbed the clock from the floor where he’d thrown it and began using it as a shield. When officers told him repeatedly to get down on the ground, O’Brien repeatedly responded, “Fu** you.” After the officer fired two more rubber projectiles, O’Brien shouted “You’re gonna have to kill me and you’re gonna have to do murder right here.”

(Getting tired yet? The officers had been struggling with O’Brien for one hour. But wait, there’s more!)

O’Brien spat on the floor, growled, wiped mucus on the walls, and tore down a window covering. He then grabbed the handset of a telephone and attempted to smash a glass window with it, while taunting the officers to shoot him.

O’Brien held up the clock and said, “I’ll smash it right in your face.” When an officer asked him to put it down, then tried to grab the clock, O’Brien swung the clock at him. Two officers struck O’Brien with batons as he struck them multiple times. An officer was able to snatch the clock away. O’Brien again transitioned to swinging the phone handset. An officer used a longer baton to strike at the phone (batter up!), An officer commanding O’Brien to drop the phone, yet O’Brien refused In the ensuing scuffle, O’Brien dropped the phone and an officer was able to knock it out of O’Brien’s reach with the baton.

Next, the officers brought in a police service dog. O’Brien simply said, “I like dogs.” The dog was never released. Shortly thereafter, O’Brien asked for water, which he was quickly given. A few minutes later, he gave up and got on the ground. He was handcuffed, placed on a stretcher, and taken to the hospital. The entire episode lasted nearly two hours.

O’Brien pleaded guilty to assault and battery by means of a dangerous weapon (assaulting an officer with handcuffs and another with a tree branch), resisting arrest, assault and battery on an officer, assault and battery by means of a dangerous weapon (the phone handset), malicious destruction of property (the window, chairs, ceiling tiles and the Breathalyzer machine printer).

After pleading guilty to the criminal charges, still claiming he could not remember the incident, O’Brien sued the officer for excessive force involved in the multiple events. The defendant officers requested dismissal of the lawsuit on the basis that the Supreme Court rule of Heck v. Humphrey (512 U.S. 477 (1994)), barred O’Brien’s excessive force claims. In Heck v. Humphrey, the Supreme Court held that where a plaintiff’s civil rights claim for excessive force “would necessarily imply the invalidity of” the plaintiff’s criminal conviction or sentence resulting from the same operative facts, a civil rights lawsuit is generally barred. In greatly simplified terms, O’Brien couldn’t plead guilty to attacking and assaulting the officers, then turn around and claim they were not justified in the use of force to arrest and control him. The court held several of O’Brien’s allegations of excessive force must be dismissed under the doctrine of Heck v. Humphrey. ‘

The court held the officers were entitled to qualified immunity and dismissal of the remaining claims noting,, “the undisputed evidence established that the did not use excessive force against O’Brien. … The video of the incident show that no force used against O’Brien until after he start acting irrationally, cursing and threatening the officers, and trying to smash a glass window.” Moreover, the officers did not “‘employ force that was unreasonable under the circumstances,’ given O’Brien’s unpredictable and violent actions.”

O’Brien asserted that because he was chained to a bar and likely could not “escape, attack or physically resist at all,” the officers should have just left him alone. Presumably, the ketamine would eventually wear off and he would calm down, lose consciousness or die. The court made quick work of that claim, noting, “the length of the chain attached to the bar was long enough that every time the officers retreated, O’Brien responded by attempting to use items in the booking room as weapons or by destroying property.” The court also observed he “attempted to escape from the handcuffs on several occasions,” he “was causing a major security issue,” and he “was bleeding profusely from injuries he appear to have sustained from breaking a glass window and the officers needed to subdue him in order to transport him for medical attention.” Enough said.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

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.

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