No Qualified Immunity–Only Finger Wagging from America’s Grandmas–for Handcuffing Elderly Woman

by | January 18, 2024

Brown v. County of San Bernardino, 2023 WL 1793464 (9th Cir. 2023), cert. denied sub nom. Gregory v. Brown, 2023 WL 8531877 (U.S. Dec. 11, 2023)

Elise Brown owns two cars, a cream-colored 2001 Oldsmobile Aurora and a dark blue 1991 Oldsmobile Sedan. Brown reported the cream-colored 2001 Olds as stolen. Brown was driving the dark blue car near a state prison when an automated license plate reader (ALPR) read the license plate and found it correlated with a reported stolen vehicle. A dispatcher confirmed the ALPR hit in the state stolen vehicle database and then with the sheriff’s department, which was the original agency that entered the report. The dispatcher broadcast this information to officers.

Officers located the car and conducted a felony/high-risk stop. Officers ordered Brown to step out of her car, show that she was unarmed and kneel so she could be handcuffed. Brown was on her knees for less than 20 seconds and complied with all commands. At least three officers aimed their firearms at Brown; she was in handcuffs for about two-and-a-half minutes. The officers quickly figured out Brown was not in a stolen vehicle. They gave her advice on clearing up the confusion with the reporting agency and released her.

Brown sued, alleging false arrest and excessive force. The trial court granted summary judgment for the officers, ruling they were entitled to qualified immunity; Brown appealed. The court of appeals reversed the trial court’s grant of qualified immunity. The officers petitioned the Supreme Court, but the Court denied certiorari, meaning the Court would allow the appellate decision to stand.

The appellate court stated the officers initially acted reasonably by removing Brown from her car and ascertaining whether she was armed or posed a threat. However, the court held the case should go to a jury to determine whether, due to Brown’s quick compliance with all instructions, the officers could tell she was not armed and did not pose an immediate threat to the officers or others. The jury would also determine whether the officers’ force (pointing guns, requiring her to kneel for 20 seconds and handcuffing for under three minutes) was excessive. Though the officers initially perceived Brown was in her fifties, she was actually an 83-year-old, 5’2”, 117-pound woman.

The court held that, assuming Brown’s detention rose to the level of a de facto arrest, and even if the officers lacked probable cause to arrest her, the officers did not violate a clearly established right.

The appellate court affirmed the grant of qualified immunity on Brown’s unlawful arrest claim. The court held that, assuming Brown’s detention rose to the level of a de facto arrest, and even if the officers lacked probable cause to arrest her, the officers did not violate a clearly established right. Whether an alleged unlawful arrest violates clearly established law depends on “whether it is reasonably arguable that there was probable cause for arrest—that is, whether reasonable officers could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified immunity.” The confusion over whether Brown was in a stolen car could lead officers to reasonably disagree about the basis for an arrest.

There was a sharp dissent by one of the appellate judges. The dissent criticized the majority claim that “it is clearly established that police who encounter an unarmed grand theft auto suspect of small stature are forbidden from instructing the suspect to kneel for a few seconds and placing the suspect in handcuffs for a couple minutes while they verify automobile ownership and confirm nobody else is in the vehicle.” Such a result could deter future police enforcement and investigation of stolen vehicles. The dissent noted, “Handcuffing a well-behaved, unarmed, 83-year-old woman who complied with police direction may violate standards of societal decorum. In hindsight, it seems unnecessary. And grandmas around the country may rightfully wag an experienced finger chastising the police action here. But that is not the standard for establishing a violation of the United States Constitution.” The dissent noted there was no precedent telling officers that “instructing a grand theft auto suspect to kneel for a few seconds and handcuffing her for just three minutes while her ownership of the vehicle was verified and the vehicle was cleared constitutes excessive force under the Fourth Amendment.”

What do officers learn from this case? First, the Supreme Court isn’t as anxious to reinforce the doctrine of qualified immunity as some critics claim. However, it may be the Court thought the majority appellate opinion struck the “Really, are you serious?” standard, and such an outcome was unlikely to be repeated. Second, at least two of the 29 judges of the 9th Circuit seem to believe officers can use no force at all—even commanding the suspect to kneel and briefly handcuffing them—in detaining an apparently compliant unarmed suspected car thief. Third, be as nice as possible to grandmas, even if they may be driving a stolen car.

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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