It Takes Time to Start Force, It Takes Time to Stop Force

by | June 27, 2024

Brumitt v. Smith, 2024 WL 2269489 (7th Cir. 2024)

Sergeant Sam Smith of the Evansville Police Department saw Charles Brumitt sprawled over a utility box in the parking lot of a bar at 0300 hrs. After stopping his car, Smith got out to check on Brumitt’s well-being and to see if he had any outstanding arrest warrants. The sergeant asked Brumitt if he was okay and Brumitt mumbled, “No,” and stopped talking. Smith identified himself as a police officer and said that he wanted to make sure Brumitt was okay. Brumitt mumbled that he could be “passed out wherever he wants.” When Smith responded that he could take Brumitt to jail, Brumitt said, “Take me, mother____. Take me.”

Smith thought he saw a card sticking out of Brumitt’s pocket that might have provided identification. Telling Brumitt, “Let’s see your ID,” Smith reached for the card. Brumitt began to get up as he said, “Don’t you reach in my butt, damn it. God damn it, don’t reach in my butt.” Brumitt struck the sergeant in the face and said, “Get the f#$k off me, mother_____.” The sucker punch momentarily disoriented Smith.

Colonel John Boyd developed the OODA (Observe, Orient, Decide, Act) loop or cycle based on his experience as a fighter pilot. The OODA loop model posits that law enforcement officers — and suspects — make decisions in a dynamic situation through observing circumstances, orientating to the perceived threat and forming a mental image of the unfolding circumstances, deciding on an action script and executing the selected action. (Spend a few minutes with legendary trainer Lt. (Ret.) Dennis Tueller as he explains the OODA cycle as it relates to the 21-foot principle.)

Though it took a nanosecond for Sergeant Smith to enter and execute his own OODA loop, Smith grabbed Brumitt’s shirt and punched his face four times over (at most) four seconds. Smith described his response as “purely instinctual” and likely based on his martial arts training. (The officer possessed multiple black belts.) Sometime during those four seconds, Brumitt lost consciousness. However, the officer did not recognize that Brumitt was unconscious until after the fourth and final punch. Brumitt had a fractured eye socket, broken nose and deep lacerations to his face.

Brumitt sued Smith under 42 U.S.C. § 1983, alleging Smith used force that was grossly disproportionate to subdue the drunk Brumitt and needlessly continued force after Brumitt was unconscious. The sergeant asked the trial court for summary judgment, arguing his force was reasonable and he was entitled to qualified immunity because no clearly established precedent put him on notice that his actions were unlawful. The trial court denied the request for qualified immunity, ruling a jury could decide the officer’s force was unreasonable because Brumitt was drunk, drowsy and uncoordinated and there was no indication he was armed. The trial judge also stated a jury could also find that a “reasonable officer would have perceived him as unconscious and had time to recalibrate his use of force” before the fourth and final blow at the end of the four seconds.

On appeal, Sergeant Smith argued the trial judge wrongly assumed that clearly established law requires reasonable police officers to repeatedly reconsider the use of force throughout “an encounter lasting only a few seconds to guarantee that officers know and react to the precise moment that a suspect becomes unconscious.”

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Applying the facts in the light most favorable to Brumitt, the appellate court noted that as the officer approached an apparently drunk Brumitt, the officer asked whether he was okay and asked for identification. In response, Brumitt dared the officer to take him to jail, just before punching the officer in the face. The court acknowledged the officer delivered four quick punches in four seconds, force the court characterized as “substantial.” The court assumed the officer could have interrupted his punches and seen that Brumitt appeared limp.

Notwithstanding those facts, the appellate court held that it would need to assume a reasonable officer would know instantaneously that Brumitt was unconscious and react accordingly within less than four seconds. Brumitt failed to cite any case “establishing that an officer must do so and must cease force at the precise second a suspect acquiesces.” The court of appeals restated the clearly established principle that “an officer should not continue using force after a suspect is subdued.” Though an officer’s force should be proportionate to the suspect’s threat, Brumitt failed to cite cases notifying an officer “that four fast punches in response to a suspect’s unprovoked blow to an officer’s face is disproportionate to that blow.” Moreover, “no case clearly establishes that a reasonable officer must reassess his force that quickly.”

The takeaways for suspects: Don’t sucker punch a cop who is trying to be helpful. And if you do, don’t let it be a cop with multiple black belts. The takeaways for officers: Remember that when an officer has “sufficient time to comprehend that a suspect was subdued,” continued force is unreasonable. Even so, officers “are entitled to reasonable leeway to permit them time to perceive that the threat level has diminished.”

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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