Deputy Wants Immunity After Breaking Bones, Tearing Ligaments Of Suspect During Arrest; Appeals Court Quickly Shuts Him Down

from the officer-still-believes-no-'excess'-in-this-use-of-force dept

This was an extraordinarily-fast resolution to an excessive force lawsuit, especially considering it took a trip to the appeals court.

The culprit here is Polk County Sheriff's Deputy Anthony Burgess (presumably no relation except for the ultraviolence). Burgess works for Techdirt favorite Sheriff Grady Judd, a man who's more showboat than sheriff and who has frequently mistaken his Florida office for an episode of "To Catch a Predator."

Burgess helped "effect" the arrest of a man who was peacefully going about the business of being arrested. The suspect was ordered to spit out the cigarette he was smoking while he was being cuffed. He turned his head and did so, and the spit cigarette allegedly grazed the sleeve of Deputy Burgess -- whom the suspect hadn't seen approaching from behind him.

This didn't sit well with Burgess, who then interrupted the handcuffing of the suspect by throwing him to the ground in an extremely violent manner.

Deputy Burgess then grabbed Mr. Ramirez by his torso and took Mr. Ramirez to the ground, severely injuring Mr. Ramirez’s right leg and scraping Mr. Ramirez’s face on the road. Mr. Ramirez’s hands were in the air when he was thrown to the ground. Mr. Ramirez testified that the gun was in his face throughout the incident, until he was taken down. Deputy Burgess held Mr. Ramirez on the ground, with his knee on Mr. Ramirez’s spine, and handcuffed Mr. Ramirez. Deputy McLeod then put his foot on Mr. Ramirez’s head. Mr. Ramirez was held on the ground until a police vehicle was brought to the scene. Mr. Ramirez’s tibia was shattered by the takedown, and his face was bleeding, bruised and swollen. Additionally, Mr. Ramirez has tendons and ligaments in his leg that are torn beyond repair as a result of this incident.
Burgess tried for immunity, claiming the use of force was justified and not excessive given the circumstances. The court disagreed.
When Deputy Burgess used force to effectuate the arrest here, Mr. Ramirez had already stopped moving, had surrendered, was obeying the deputies' commands, and posed no threat to the safety of the officers. In fact, by taking Ramirez to the ground, Deputy Burgess interrupted another officer, Deputy McLeod, who was handcuffing Mr. Ramirez. Ramirez was being arrested for a misdemeanor offense, domestic violence – battery. The undisputed facts show that Ramirez followed every command the deputies gave him, including the command to spit the cigarette out. Ramirez could not use his hands to take the cigarette out of his mouth because his hands were either in the air or being held behind his back from the time he was initially stopped until the takedown. There are no allegations that Mr. Ramirez was actively resisting arrest or attempting to flee. Ramirez did not attempt to fight, kick, hit, or swing at the deputies. He was compliant with the deputies’ commands. The evidence, in the light most favorable to Ramirez, indicates that Ramirez did not pose a threat to the safety of the officers or others.

A reasonable law enforcement officer in this situation would not believe that anything more than de minimis force was warranted. Yet, Deputy Burgess used force sufficient to break bones and tear ligaments. That force was excessive.
And because the court found the force excessive, away went Burgess' immunity.
The right to be free of excessive force by law enforcement officers during an arrest is clearly established. Because Deputy Burgess’ conduct violated a clearly established constitutional right of which a reasonable person would have known, he is not entitled to qualified immunity.

Viewing the facts in the light most favorable to the Plaintiff, the cigarette grazed the sleeve of Deputy Burgess’ uniform. Deputy Burgess was not injured by the cigarette and there is no evidence that this action amounted to a level of resistance that made breaking Mr. Ramirez’s leg reasonable – particularly in light of the fact that it was Deputy Burgess who instructed Mr. Ramirez to spit out the cigarette in the first place.
Judd's office appealed the decision. This appeal was swiftly dismissed by the 11th Circuit Court.
This appeal stems from a citizen-police encounter. Defendant Burgess, an officer in the Polk County, Florida, Sheriff’s Office, contends that the District Court erred in denying him qualified immunity as to plaintiff Carlos Ramirez’s claim, brought under 42 U.S.C. § 1983, that Burgess used excessive force in violation of the Fourth Amendment in arresting him on the night of July 28, 2010. We disagree. Taking the evidence in the record in the light most favorable to Ramirez, we conclude that a reasonable jury could find that Burgess used excessive force as Ramirez contends. AFFIRMED.
This is the entirety of the opinion. Very few unpublished opinions run more than a couple of pages at the most, but this unpublished opinion runs only four sentences, and that's if you include "AFFIRMED." This is a swift booting that defines the term "dismissive." One almost can see the eyeroll that accompanied this quick review of the facts. Being an appeals court judge means spending time on the weakest of appeals, simply because every appeal must be looked at. There's nothing in this one, though, and the court only wastes the number of words it absolutely has to in order to send it back where it came from.

Filed Under: anthony burgess, florida, grady judd, immunity, police brutality

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  1. identicon
    pcdec, 5 Aug 2015 @ 10:54am

    Re: Re: Re:

    Won't even get into the either see it or you don't.

    But there unlimited examples of spitting being domestic violence/battery. of-domestic-violence-laws-in-nevada omeone-co-147616.htm e/oklahoma-domestic-violence-laws-charges-penalt itting-boyfriend-gets-just-deserts/

    A jury found Hobbs guilty of domestic battery and injury to other property. With his priors, the trial judge enhanced his sentence and sent Hobbs to High Desert State Prison for a maximum of 25 years.
    Before the Nevada Supreme Court, Hobbs argued that spitting did not constitute the use of force or violence required for a battery under the state’s domestic violence law.
    Thursday, the state high court removed any doubt on that question.
    The court found that the language and meaning of Nevada’s domestic battery statute is clear and that battery is the intentional and unwanted exertion of force upon another, however slight.
    “Because the record clearly demonstrates that Hobbs intentionally spat on McClain and because spitting on another amounts to the use of force or violence as contemplated by [the statute], we conclude that Hobbs was properly convicted of domestic battery,” the court said. (Hobbs v. Nevada)

    Use google much?

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