by Risa S. Christensen
A very recently decided case, Hooper v. County of San Diego, — F.3d —-, 2011 WL 9732 C.A.9 (Cal.),2011, reminds us that an officer’s use of force must be reasonable at all stages of an encounter with a suspect.
On May 9, 2006, Deborah Hooper was detained by a privately employed loss prevention officer at a Long’s Drugs store in Encinitas, California. The officer believed that Hooper had committed petty theft so he handcuffed her and held her in a second-floor office in the store. In response to a radio call, a San Diego Deputy Sheriff arrived at the store with his “department issue canine” in his patrol car.
Hooper was calm and compliant, so the deputy removed the handcuffs. The deputy then took statements from Hooper and the loss prevention officer and completed a Notice to Appear in criminal court for Hooper. The officer then informed Hooper that he was going to search her car. The deputy walked with Hooper outside to the parking lot, and Hooper gave him her car keys. Inside the car the deputy discovered a crystalline substance he believed to be methamphetamine. The deputy grabbed Hooper’s wrist, and told her she was under arrest for possession of methamphetamine. Hooper jerked her hand away from the deputy and a struggle ensued and resulted in Hooper ending up on the ground, lying on her stomach with the deputy on her back. The deputy called for backup using his hand-held radio.
Hooper claimed that she struggled briefly with the deputy, but stopped resisting after he instructed her to do so. At some point the deputy’s dog left the patrol unit and ran to assist the deputy and in doing so he bit Hooper on the head seriously injuring her and causing her to be permanently disfigured.
Hooper pled guilty to resisting a peace officer under California Penal Code § 148(a)(1). She did not dispute the lawfulness of her arrest, nor that she resisted arrest. She sued on the ground that the deputy’s employment of the canine constituted excessive force under the circumstances.
The district court granted the officer summary judgment as to Hooper’s excessive force claims brought under 42 U.S.C. § 1983, on the grounds that since Hooper was convicted of resisting arrest her claim was barred by the case of Heck v. Humphrey. Hooper filed an appeal and the court of appeals for the Ninth Circuit reversed the decision of the district court.
The court said that when a plaintiff who has been convicted of a crime under state law seeks damages in a § 1983 suit, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Citing to Heck v. Humphrey, 512 U.S. at 487. If the answer is yes, the suit is barred.
The court had to address whether success in Hooper’s § 1983 claim that excessive force was used during her arrest “would ‘necessarily imply’ or ‘demonstrate’ the invalidity” of her conviction under § 148(a)(1). The court held that in this case it would not.
The court said that the chain of events constituting Hooper’s arrest was “one continuous transaction.” Still, a holding in Hooper’s § 1983 case that the use of the dog was excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of Hooper’s attempt to resist it when she jerked her hand away from the deputy.
In conclusion, the court in Hooper found that a conviction under California Penal Code § 148(a)(1) does not bar a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim are based on different actions during “one continuous transaction.”
Moral of the Story
The lesson here is that the use of force must be reasonable at all stages of the encounter. If the subject is resisting arrest, only the amount of force reasonably necessary should be used. If at some point the subject is no longer resisting, there is no longer a need to use force, and especially the use of severe force such as a dog bite, would be difficult to justify.
The standard remains that all claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.