Detailed Facts Support Use of Force in Misdemeanor Arrest

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Fischer v. Hoven, 2019 (8th Circuit 2019)

Two intoxicated women walked into a bar. The bar owner recognized one of the women, Susan Clynick, as someone who had been previously banned from the bar. The bar owner asked her to leave and she refused. Not surprisingly, the bar owner called the police.

The lone officer who arrived asked Clynick to leave. She went outside with the officer, but asked him to tell her friend, Kathy Fischer, she was leaving. Fischer came outside, yelled at the officer, and went back into the bar to berate the owner. The owner stepped outside and asked the officer to remove Fischer from the bar, to which Fischer yelled she would not leave. The officer asked Fischer to leave again, but Fischer still refused.

The commendably patient officer took Fischer’s arm in an “escort” position and walked her outside. Fischer and Clynick began walking away from the bar, but then Fischer turned around and walked back to the officer, “flailing” her arms and yelling at him. When she was within arm’s reach, Fischer put her hand on the officer’s shoulder. The officer then placed her in an arm hold and arrested her for disorderly conduct.

As the officer reached for his handcuffs, Fischer turned to toward him. The officer performed an arm-bar takedown and Fischer landed face-first. She suffered a facial cut, broken nose, broken tooth, and broken bones in her right arm and hand. She sued, alleging the officer used excessive force to effect a misdemeanor arrest.

Officers should remember: Every small detail about the suspect’s behavior and the officer’s responsive actions must be preserved on the record.

The court applied the test of Graham v. Connor (490 U.S. 386 (1989)), which considers “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Fischer claimed she was not resisting arrest or attempting to flee, had not committed a violent or serious crime, and did not pose a threat to the safety of the officer or others. She was, in her view, merely a non-violent misdemeanant. Fischer did acknowledge she couldn’t remember much of what happened or what she said and did.

The court held “a reasonable officer could have believed Fischer was resisting arrest and posed a threat to his safety.” The officer was presented with the tense, unpredictable situation of being a sole officer confronting two hostile drunks. The court stated the officer reasonably perceived Fischer’s turning away, as he held her in a control hold and reached for his handcuffs, as resistance and a threat to his safety, justifying the use of force.

Though Fischer sustained serious injuries, the court held the amount of force was objectively reasonable. The court acknowledged the arm-bar takedown is a “common technique to restrain individuals” and held it was objectively reasonable for the officer to use the technique to overcome Fischer’s resistance.

Officers should remember: Every small detail about the suspect’s behavior and the officer’s responsive actions must be preserved on the record. Here, the court had a detailed recitation of the threat factors assessed by the officer in his interaction with the two drunk women. The factual details helped the court approve of the use of force against what Fischer claimed to be a “non-violent misdemeanant.”

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 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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