Police Abuse

The 5th Circuit Approves a Cop's Violent Response to a Dispute Over a 7-Year-Old's Littering

The officer used a "pain compliance maneuver" to force information from the boy's sister, who was recording the encounter.

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A 2016 dispute between neighbors that began when a 7-year-old boy was accused of littering escalated into a violent confrontation with Fort Worth police officer William Martin, who arrested the boy's mother, Jacqueline Craig, and three of his sisters. Craig says Martin, in addition to forcing her to the ground with a taser to her back, kicked her 15-year-old daughter ("J.H."), hit her 14-year-old daughter ("K.H.") in the throat, and, after handcuffing her 19-year-old daughter, Brea Hymond, "hyper-extended her handcuffed arms by flexing them above her head in order to cause pain." Martin's body camera video suggests all this happened because he was irked when Craig angrily berated him for condoning an assault on her son and criticizing her parenting.

Because the legal justification for Martin's use of force was unclear, a federal judge ruled that Craig could proceed with her lawsuit against him. But last month, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit concluded that Martin had done nothing illegal. That assessment seems highly dubious even based on the undisputed facts of the case.

Martin was responding to two 911 calls. One call was from Craig's neighbor, Itamar Vardi, who according to the 5th Circuit reported that "several people were on his property arguing, had refused to leave, and were intentionally throwing trash in his yard." The other call was from Craig, who reported that Vardi had admitted to grabbing her son by the neck, supposedly because he refused to pick up his litter.

From the outset, Martin did not take Craig's complaint seriously. "Why don't you teach your son not to litter?" he asked her. According to Craig, who is asking the 5th Circuit to rehear her case, her son had "accidentally dropp[ed] raisins on the sidewalk in front of Vardi's home." But even if the boy had deliberately littered, Craig told Martin, that did not give Vardi the right to lay hands on him. "Why not?" Martin asked. "Because it don't!" Craig replied. "What do you mean?"

Angered by Martin's blasé attitude and his presumptuous criticism, Craig raised her voice, castigating him for his response. "Why are you yelling at me?" Martin said. "If you keep yelling at me, you're going to piss me off, and I'm going to take you to jail."

Things quickly got worse from there. But by Craig's account, neither she nor her daughters did anything to justify Martin's violent response. Martin's body camera video suggests he lost his temper because he did not like Craig's attitude.

U.S. District Judge John McBryde concluded that the record, which includes Hymond's cellphone video as well as the body camera footage, "is too uncertain to discount the plaintiff's version of what transpired." McBryde rejected Martin's motion for qualified immunity, which shields police officers from liability when their alleged misconduct did not violate "clearly established" law. While "it may well be that a jury would determine that Martin did not use excessive force," he said, "the court is unable to determine as a matter of law that Martin is entitled to qualified immunity."

When Martin appealed, however, the 5th Circuit accepted his version of events, which it was not supposed to do at this stage unless the existing evidence "blatantly contradicted" Craig's claims. McBryde thought it did not. But the appeals court, for reasons that are not entirely clear, disagreed. In a decision written by Chief Judge Priscilla Owen, the 5th Circuit concluded that Martin's manhandling of Craig et al. "was not objectively unreasonable." In any case, the court added, his conduct did not violate "clearly established" law.

In their petition for an en banc rehearing, Craig and Hymond argue that the 5th Circuit panel improperly discounted their claims and improperly substituted its assessment of the evidence for McBryde's. They also argue that the panel erred by determining that Martin's use of force did not violate "clearly established" constitutional rights, since case law makes it clear that the Fourth Amendment prohibits using force against a nonresistant arrestee.

The Institute for Justice (I.J.), in a brief supporting Craig's petition, zeroes in on Martin's decision to use a "pain control maneuver" on Hymond after he handcuffed her because she "did not immediately answer" when he asked for her name and age:

After Martin secured Hymond's mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone's safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymond—who had been recording the incident from a distance and yelling at the officer that she was doing so—grabbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for "interfering." But Martin's display of authority did not end there.

While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin "kick her," referring to J.H. In response, Martin started questioning Hymond: "How old are you? What is your name?" Hymond did not immediately answer his questions. So, with Hymond's hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow, purposeful staccato: "What. Is. Your. Name?"

The 5th Circuit dismissed that use of force as "relatively minimal," adding that Martin jerked Hymond's arms "only after Hymond refused to provide Martin with her name." But deliberately inflicting pain on a nonresistant arrestee to obtain information is "obviously unconstitutional," I.J. says, and the appeals court's alarming acceptance of that practice needs to be corrected.

While the 5th Circuit described Hymond as "resisting," its basis for that characterization is thin. "Hymond was shouting at Martin throughout the entire confrontation," Judge Owen wrote. "She did not comply with any of Martin's commands or instructions….Hymond continued to verbally deride Martin while Martin was lifting her arms and immediately after he put her arms down. Given Hymond's continued resistance, Martin's use of force against Hymond was not objectively unreasonable."

Hymond's "shouting" was understandable given what was happening to her family, and criticizing a police officer, even loudly, is not a crime. Her alleged failure to comply with Martin's commands is likewise understandable given that he seemed to be arresting her because he was irked by her filming and her criticism. But notably missing from the 5th Circuit's summary is any allegation that Hymond assaulted or physically resisted Martin. And by the court's own account, the justification for the pain control maneuver was that Hymond refused to give Martin her name.

"Every reasonable officer would have known that inflicting pain to compel someone
to answer questions offends the Constitution," says the I.J. brief, which was joined by the American Civil Liberties Union. "If this decision stands, the law in this circuit is that an officer can purposefully inflict pain on a restrained, non-resisting person to compel her to speak, as long as, in the court's subjective opinion, the force was 'relatively minimal.'"

In reaching that conclusion, the 5th Circuit contrasted Martin's treatment of Hymond with cases in which police officers had inflicted more serious injuries. "The plaintiffs point to a case from this court in which the officer slammed a nonresistant suspect's face into a nearby vehicle, breaking two of her teeth," Owen wrote. "They point to a decision from another circuit in which multiple officers punched, kneed, and kicked a suspect—while he was handcuffed on the ground—severely enough to fracture the suspect's neck." Martin's use of force against Hymond, the panel said, was "far less severe."

But the Supreme Court has warned that alleging a violation of "clearly established" law does not require locating a precedent with identical facts. The issue, it explained in the 2002 case Hope v. Pelzer, is not whether the "very action in question has previously been held unlawful" but whether officials had "fair warning that their alleged [misconduct] was unconstitutional." In Hope, the Court deemed it "obvious" that handcuffing a shirtless prisoner to a hitching post for seven hours in the hot sun violated the Eighth Amendment's ban on "cruel and unusual" punishment.

In two recent decisions that overruled the 5th Circuit, the Court reiterated that a constitutional violation can be obvious even when there is no precedent involving closely similar conduct. In the 2020 case Taylor v. Riojas, I.J. notes, "the Court reaffirmed that precedent was not necessary to fairly notify officials that forcing a prisoner to sleep in a cell teeming with excrement is unconstitutional; it was obvious that the 'conditions of confinement offended the Constitution.'" In the 2021 case McCoy v. Alamu, "the Court reversed this Court's grant of qualified immunity to an official who pepper-sprayed a prisoner in the face 'for no reason at all.'"

These rulings, I.J. says, establish that "obviousness can provide fair warning of unconstitutionality," which means Hymond need not locate "a factually identical case on point—one where an officer used a pain control maneuver on a restrained, non-resisting suspect to force her to answer his questions." Even without such a precedent, "every officer was on notice that he could not strike a non-resisting suspect, and it is well-established in this circuit that 'qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.'"

While the issue for the 5th Circuit was whether Martin used excessive force while arresting Craig and her daughters, the arrests themselves seem utterly gratuitous. The circumstances suggest that Martin decided to punish Craig et al. because they were loudly questioning his demeanor, competence, and behavior.

Craig's initial offense supposedly was interfering with Martin's duties, but her interference consisted of yelling at him after he suggested that assaulting her son was a justified response to littering and faulted her for not raising him properly. The two other charges against her, resisting arrest and failing to identify herself, were contingent on Martin's hotheaded decision to arrest her in the first place.

Hymond likewise was charged with interference, which again was limited to yelling at Martin. As with Craig, Martin tacked on resisting arrest and failure to identify.

J.H., the 15-year-old, was handcuffed and forced into Martin's police car, but she was not charged with anything. K.H., the 14-year-old, was taken to a juvenile detention facility, where she was released without charges.

All the charges against Craig and Hymond were dropped. Whatever you make of the excessive force claims, it seems clear that the whole incident could have been avoided if Martin had not been so keen to assert his authority and protect his bruised ego.

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  1. Damned Democrat cities. Fort Worth. Sheesh.

    1. To be fair, had it been a blue city, they'd all be dead.

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  2. Without a free and open discussion of skin tones, it is difficult to determine if the ruling is correct.

    1. "Because it don't!" Craig replied.

      I think we all know.

  3. "PO clearly used excessive force and abused his authority.

  4. In a decision written by Chief Judge Priscilla Owen

    This is why we need more women on the court.

    1. Do we know for sure that's a woman? What, are you a fucking biologist or something?!

      1. Do jails employ biologists to determine if suspects and convicts are male or female so they can be put in the correct facility?

  5. This “Qualified Immunity” business is something whose time has come and gone. That being the case, how come it still haunts the populace, providing an unending opportunity for abuse?

    1. agreed sir. The whole basis for it is delusional fabrication. There is no constitutional foundation for it.

      1. It is clearly in the constitution, right beside the asset forfeiture without charges and requiring permits for the second amendment.
        Something about due interstate commerce process or something.
        But it's there!

    2. Without qualified immunity, police will no longer be able to efficiently and immediately dispense justice for the offense of "contempt of cop" or "aggravated (with a camera) contempt of cop".
      However, once Officer Neckvein begins to get red in the face and his eyes begin to bulge, be aware that continuing to provoke him can and likely will: (1) get you hurt or even shot and (2) you will have no recourse for your injury because (3) you were either "resisting" or "obstructing", and (4) there isn't a damn thing within the law that you can do about it.
      If a dog is snarling and showing his teeth, the owner of the bitten hand that was extended toward him that gets munched should not be surprised. 'Nuff said.

  6. Failure to identify is not a crime unless one has been lawfully arrested. As Hymond was not lawfully arrested. She had no obligation to comply. Not lawfully arrested? Correct, filming and criticizing are both legal first amendment protected activities. Neither rises to the level of interfering. The thug, Martin, never should have accosted Hymond in the first place. Martin should be fired, arrested and jailed with lots
    Of people has has previously wronged. I have a half dozen pizzas that says the list is long.

    1. Corrupt people passing corrupt laws putting corrupt people in place to adjudicate those laws means no accountability, or selective accountability.

  7. We just need cops to treat judges the way they treat everyone else.

    1. I would pay tens of thousands of dollars to get a copy of that footage. (4K, of course. 😉 ) And the reaction footage when they're told that the cop got QI because it was just a little torture.

  8. The 5th Circuit is notorious for not having a policy of 'qualified immunity' for police, they have a de facto policy of applying the standards for *absolutely* immunity like enjoyed by judges and prosecutors to police as well. Even when qualified immunity decisions are so unreasonable to start with, the 5th Circuit makes the rest seem downright reasonable with it.

    Every now and again you hear of a QI decision from the 5th that wasn't batshit insane; that party hit the panel lottery, getting Judge Willett and one of maybe two others on the whole court that are sometimes reasonable about it.

    1. I also wish the Fifth Circuit would back away from many of its QI precedents, but unfortunately those precedents are out there and one panel cannot overrule them. Perhaps this will be the case where the Fifth Circuit en banc cleans up the law. (Of course, what we *really* need is SCOTUS to abolish or severely limit the whole QI doctrine, but right now the votes for that aren't there.)

      But I think another reality about this case is being missed. Do a little research on McBryde. He's one of those (thankfully few) district judges that trigger a "what did he do this time?" response from the Fifth Circuit whenever they see an appeal from him.

      Had the ruling been from a district judge who enjoys the respect of Fifth Circuit judges, I suspect the outcome might have been different.

  9. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  10. The best way to encourage vigilantism is for the judicial system continue demonstrating that it is unable to police itself. Police leaders keep saying that this is required for "officer safety" but it is creating an environment that's going to get them killed.

    1. I'm frankly astonished it hasn't happened already.

      1. Every now and then I read a heartwarming story of a cop being shot in the head while sitting in his patrol car. I can only assume that when that happens, justice is being served.

  11. The job of the court is to protect the government from the people.

  12. It's a pity that they teach "pain control measures" , but don't hire human beings.

  13. Yikes, that body cam is pretty bad for the cop. What a stupid thing to escalate. The law is an ass.

    1. You are correct, though to clarify for any readers you are referring to Texas law. It is different in some states. None would justify this, but they don't all require arrest.

  14. Thank God for cops. Thank God for qualified immunity.
    If one of my kids litters in the neighbor's yard, I'll personally make them clean up. If a police officer saying something to me I find "presumptuous," I'll bite my tongue. I sure as hell won't escalate things, creating a totally unnecessary confrontation.
    If you act stupid & irresponsible, don't complain about the consequences.

    1. "If you act stupid & irresponsible", piss off a cop who exceeds his authority, violating rights and common decency, is the cop acting stupid and irresponsible? That was the issue. The 5th Circuit was splitting hairs, avoiding the right's principle, and approving small acts of violence. This decision is tantamount to officially granting tyranny, if it's not too overt.

    2. A police officer's authority comes from their duty to enforce the law. Problem is, they don't enforce the law. They couldn't give two shits about the law. The only thing they enforce is their will. They routinely step outside their limited authority and abuse their power, especially when someone pisses them off.

      Show me someone who thinks police help people and I'll show you someone who never asked the police for help.

    3. If you act stupid & irresponsible, don't complain about the consequences.

      Indeed, Ed. Remember that sentiment every time you open your mouth. With luck, you'll open it less.

    4. People like Ed never get tired of the taste of boot polish.

  15. At some point a judge and a cop will be killed because the cop illegally assaulted the wrong person and the judge said there is no judicial remedy. I can't wait for that. All public servants need to fear the public they are charged to serve. Until vigilante justice against cops and judges is a common occurrence we will be stuck with QI.

    1. I used to think that as well until I thought about what would happen. Would this result in public officials doing their job? Would this result in unjust laws being repealed? No. The likely result would be a combination of gun control, harsher sentences, QI turning into absolute immunity, and cops killing anyone who looks at them sideways.

  16. Generally the term for using torture to elicit information is torture.

    1. Crap. Pain to elicit information...

      1. The first one works as a wry comment.

        1. The trouble with wry comments, like sarcasm, is that by the time you type it and hit submit, it has become prophesy.

  17. I'm mostly baffled by the idea that in Fort Worth you can apparently get police to show up for suspected trespassing and littering. I couldn't get police to investigate a break-in at my house after I told them that I estimated stolen items and property damage was less than $5000 and there were no physical injuries. (Broken door and some random stuff grabbed from a desk before the thief took off, presumably due to the burglar alarm.)

  18. Rogue cops, rogue judges, and the mistreatment and torture reek of racist hatred. The pompous gentrified cracker 5th circus judges stink with racist hatred.

  19. Obviously the author didn't bother to read the decision; he was the only officer on the scene and the body camera shows him talking in a calm voice asking polite questions which were not answered but instead he was attacked and interfered with repeatedly by the family who time and again failed to obey common sense lawful orders issued by the officer on the scene. All of his actions were reactions to unlawful conduct. The Court had no choice but to dismiss.

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