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.
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.
