Deputy’s Failure to Allow Time for Suspect to Comply Defeats Claim of Qualified Immunity

by | January 23, 2024

Bagley v. Guillen, 2024 WL 107888 (5th Cir. 2024)

Constables issued parking citations to vehicles parked near a railway, including Akeem Bagley’s vehicle. Shortly after receiving a parking ticket, Bagley encountered several deputy constables at a gas station. Bagley and a deputy constable got into a heated exchange about the parking ticket, and Bagley started to record the exchange on his phone. He shouted at the deputy and questioned the legitimacy of the parking citation.

The deputy and his companions left the gas station. Bagley kept recording as he drove in the same direction. After a short time, the constables turned left. Bagley also turned left, commenting about the deputies’ failure to signal. The cell phone recording captured a sound like a turn signal clicking in Bagley’s car.

As one of the deputies pulled into an adjoining lane, Bagley drove ahead and the deputy pulled Bagley over. The deputy told Bagley to put his hands on the steering wheel and Bagley complied. When the deputy demanded Bagley’s driver’s license, Bagley asked: “For—could I ask what’s the reason?” The deputy responded, “Let me see your driver’s license, sir, that’s all I’m asking you. You better comply with me.” Bagley again asked for the reason and the deputy told him that, if he did not comply, he would arrest Bagley.

Bagley reached for his pocket to retrieve his license, continuing to ask the deputy why he needed to provide it. After a very brief argument about turn signal use, the deputy opened Bagley’s car door and instructed him to get out of the car. The trial court noted the deputy “delivered his orders at a rapid pace and did not wait for a response.” As Bagley was unfastening his seatbelt, the deputy aimed a TASER at him.

Bagley got out of the car and turned away from the deputy as instructed but did not place his hands behind his back. The deputy knocked the phone from Bagley’s hand and fired the TASER into Bagley’s back; Bagley fell to the ground. His phone recording stopped, but the deputy’s body-worn camera captured the rest of the encounter.

The deputy called a prosecutor to ask what charges might be brought against Bagley. After some discussion, the prosecutor concluded there really “wasn’t anything.” The deputies discussed among themselves their frustration with the particular prosecutor and listed potential charges they thought could apply. The deputy spoke with the prosecutor’s supervisor and related a story the trial court found to be inconsistent with the video recording. Ultimately, Bagley was arrested for the misdemeanor of interference with public duties. The prosecuting attorney asked the state court trial judge to dismiss the matter due to lack of probable cause.

The court held it was clearly established that the deputy could not lawfully use force on a suspect who was complying with his commands.

Bagley sued, alleging excessive force, unlawful arrest and illegal detention. The deputy asked the trial court to grant qualified immunity; the court refused. The deputy appealed and the appellate court upheld the denial of qualified immunity.

The court held it was clearly established that the deputy could not lawfully use force on a suspect who was complying with his commands. The court found Bagley had presented sufficient evidence of excessive force to defeat qualified immunity. Several of the court’s observations are instructive for officers in similar situations. First, Bagley was stopped for an alleged turn signal violation, “at most, a minor traffic violation.” (The appellate court also noted the car noise heard on video when Bagley made the turn could permit a jury to infer he did use a turn signal.) Second, Bagley complied with the rapid-fire orders to get out of his car and turn toward it. Even so, the deputy “tased him anyway—at first unsuccessfully while Bagley’s seatbelt was retracting, and again successfully as Bagley was turned toward the car.”

The court observed the deputy appeared to have used the TASER before giving Bagley a reasonable opportunity to comply. Courts consistently assess whether an officer’s command is followed by a reasonable amount of time and a reasonable ability to comply with the command. In a time where many officers are equipped with body-worn cameras (such as in this case), officers should narrate for the video and be sure the command given is something the subject can actually perform, and that the officer allows sufficient time before turning to force to gain compliance.

Patience is a virtue, and especially so when it is tactically smart. No doubt Bagley was agitated, as perhaps was the deputy, but the deputy’s impatience makes Bagley the winner here. Finally, it didn’t help the deputy’s case that the court ruled his statements to the prosecutors were “inconsistent with both videos,” and that the deputy’s account “contrasts with what the video shows.”

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 three 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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