Excessive-force claims against an off-duty McCrory police officer and Woodruff County sheriff's deputies who questioned, searched, knocked down and restrained a man as he washed his car one night in 2009 must be heard by a federal jury, a federal appellate court said Monday.
The three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis affirmed a June 27 order by Chief U.S. District Judge Brian Miller, who refused to throw out the claims that Norris Perry brought against the officers in a 2014 lawsuit.
The McCrory officer, Margo Wolfe, appealed Miller's order that she wasn't entitled to qualified immunity, which led to the written opinion issued Monday. The ruling clears the way for the case, filed in Helena-West Helena, to be set for a jury trial. It had been put on hold while the appeal was pending.
According to the opinion, written by U.S. Circuit Judge Raymond Gruender of St. Louis, and joined by fellow Circuit Judges Diana Murphy of Minneapolis and Jane Kelly of Cedar Rapids, Iowa, the lawsuit revolves around the night of Aug. 30, 2009, when Perry drove his truck to the local carwash.
Wolfe, who was off-duty and at her nearby apartment, saw Perry from her back steps and called dispatchers to report that he was acting suspiciously, the opinion said. City officers were busy, so Woodruff County Deputy Bruce Golden responded, parking behind Perry's truck at the carwash. Perry asked Golden if everything was all right and, when told that it was, returned to his truck.
As Perry prepared to leave the carwash, however, Golden asked him for his license and registration, which Perry handed over. The opinion said Golden then checked for outstanding warrants on Perry and found none but directed Perry to wait to talk with another officer.
Lt. Booker Pennington of the McCrory Police Department soon arrived with Wolfe and another sheriff's deputy, Rowland Clark, according to the opinion. Clark asked Golden if he had searched Perry for weapons, prompting Golden to conduct a pat-down search, during which he found a multitool knife.
Clark then ordered Perry to "spread eagle" for another pat-down. Perry complied but questioned Clark about the reason for the search.
Perry contends that without any provocation, Clark stepped behind him, wrapped his arm around Perry's neck, lifted Perry off his feet and knocked Perry to the ground, face-first. Wolfe has said that before Clark knocked Perry to the ground, she saw Perry turn toward Clark as if about to swing at him.
The opinion says that Wolfe then ran to the men, held down Perry's arm and forced her knee into Perry's back to subdue him while Golden handcuffed him. Pennington, who was Wolfe's supervisor, told the other officers that Perry wasn't a threat, but when he tried to remove the handcuffs, Clark stopped him, saying it was "a county thing now."
Perry has testified that throughout the ordeal, he cried out for help and asked why he was being arrested, but didn't resist arrest or threaten the officers. He was charged with several crimes, including possessing a weapon, resisting arrest and disorderly conduct, all of which were eventually dismissed.
"As a result of the incident, Perry suffered lacerated tendons in his knees, a bulged disc in his neck, constant back problems, nerve damage and post-traumatic stress disorder," the opinion notes. It says that Miller denied the officers' requests to throw out the case and left most of Perry's claims intact for a jury to resolve.
In her appeal, Wolfe argued that she was entitled to qualified immunity, which protects law enforcement officers from liability for civil damages when their conduct doesn't violate clearly established constitutional or statutory rights that are known to a reasonable person. The panel noted that an officer loses the shield of immunity when the allegations, taken in the light most favorable to the plaintiff, show the officer's conduct violated an established right.
The three-judge panel questioned whether Wolfe's use of force was "objectively reasonable under the circumstances," and, as did Miller, found that it was not. The panel noted that Perry "did not commit any crimes on the night of August 30, 2009," and didn't act aggressively.
Wolfe argued in her appeal that "it was entirely reasonable for her to fear for Clark's safety and use force against Perry" after hearing the scuffle. But the panel said, "unfortunately for Wolfe, the record does not support her contention."
The opinion notes that the record demonstrates that Wolfe observed the entire encounter and understood that Perry didn't pose a threat before pinning down his arm and forcing her knee into his back. That could be determined by a jury to be a Fourth Amendment violation, the panel said.
The 8th Circuit panel didn't address Miller's refusal to grant qualified immunity to Golden or Clark, since they didn't appeal. Miller dismissed some of Perry's claims against the county and the city. Pennington was not named as a defendant.
Metro on 06/06/2017