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Fourth Amendment

Dragging Out Protesters Disrupting City Council Meeting Isn't Excessive Force

The city was not "required to permit the 'organized lawlessness' conducted by the protestors."


From Judge Danielle Forrest's opinion in Williamson v. City of National City, joined by Judges Susan Graber and Consuelo Callahan, which strikes me as correct:

This excessive force case concerns how police officers responded to a protest that Plaintiff Tasha Williamson and others participated in during a National City, California, city council meeting. The protest prevented the city council meeting from continuing, and police officers warned the protesters that they had to leave the meeting room or they would be arrested. The protesters refused to leave and passively resisted being removed by going limp. Officers handcuffed the protesters and carried or pulled them by their arms from the meeting room.

Williamson sued under 42 U.S.C. § 1983, alleging that she suffered wrist and shoulder injuries when she was forcibly removed. We conclude that the officers did not use excessive force in violation of the Fourth Amendment ….

"In evaluating a Fourth Amendment claim of excessive force, we ask 'whether the officers' actions [wer]e "objectively reasonable" in light of the facts and circumstances confronting them.'" To determine whether an officer's actions were objectively reasonable, we consider: "(1) the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government's interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government's need for that intrusion." …

Even viewing the evidence in Williamson's favor, the type and amount of force used by the Officers in this case was minimal. The Officers did not strike Williamson, throw her to the ground, or use any compliance techniques or weapons for the purpose of inflicting pain on her. Rather, they held her by her arms and lifted her so they could pull her out of the meeting room after she went limp and refused to leave on her own or cooperate in being removed.

Moreover, the inherent risk of two officers pulling someone who has gone limp and refuses to move by her own power is not significant. It cannot reasonably be disputed that the force the Officers used in this case was less significant than "yanking, pulling, jerking, and twisting" a person whose legs are pinned underneath a car seat—which we have deemed a minimal intrusion….

Finally, Williamson's injuries—a sprained wrist, mild swelling, and a torn rotator cuff—though not trivial, are roughly equivalent to those in Forrester (bruises, pinched nerve, broken wrist) and much less severe than those in Johnson (rendered a paraplegic). And in both of those cases, we concluded that the intrusion at issue was minimal despite the injuries that occurred. We conclude the same here….

Next, we "evaluate the state's interests at stake by considering '(1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.'" "Among these considerations, the 'most important' is the second factor—whether the suspect posed an immediate threat to others." …

It is undisputed that Williamson's crime was minor, that she posed no threat to anyone, and that she was not actively resisting arrest. Nonetheless, the Officers argue that they had a legitimate interest in removing and arresting her, particularly where proper warnings were given before they used any physical force. They also argue that we should consider Williamson's "relative culpability" in refusing to get up. Williamson counters that the governmental interest was "about as low as it gets," even considering her relative culpability.

We conclude that National City's interest in forcibly removing Williamson from the city council meeting was low, but it was not nonexistent. Williamson's nonviolent disruption of the city council meeting was a minor offense. And where Williamson's actions did not pose any physical danger to others, we do not consider her relative culpability.

But even if the city's interest was low given the lack of exigency posed by threat of harm or other factors, this does not mean that the city was "required to permit the 'organized lawlessness' conducted by the protestors." "Even passive resistance may support the use of some degree of governmental force if necessary to attain compliance … depend[ing] on the factual circumstances underlying that resistance."

Moreover, the risk posed by the protesters was not zero. While the six who laid down near the podium were docile and merely refused to leave the area when directed, other protesters (or people sympathetic to the protesters' demonstration) who remained in the audience area were yelling at the officers and at times trying to push into the podium area. This is not the same strain of risk posed by the crowds in Forrester and Felarca, but it is nonetheless relevant in assessing the totality of circumstances that the officers faced when they decided to remove the protesters participating in the demonstration rather than allow the demonstration to continue.

It goes without saying that citizens have a right to express their disagreement and dissatisfaction with government at all levels. But they do not have a right to prevent duly installed government from performing its lawful functions. To conclude otherwise would undermine the very idea of ordered society.

Officers repeatedly warned the protesters that they had to leave the front of the meeting room or they would be arrested, and they refused to comply. Their demonstration disrupted the city council meeting, which was adjourned "for order to be restored." National City's choice was to allow the protesters to remain in the city council's meeting room until they chose to leave on their own—which the constitution does not require—or to forcibly remove them.

Williamson has not identified any less intrusive means available to the Officers for restoring order in the city council room so that the city's legitimate business could proceed. Other means of physically removing her when she refused to leave or cooperate with being moved, such as using more officers to carry her or pulling her by her legs instead of her arms, would not have involved an appreciably smaller risk of causing pain or injury. In sum, we conclude that, as in Forrester, National City had a legitimate interest in "dispersing and removing lawbreakers," but the extent of its interest was low because it was not facing a voluminous crowd acting with a "concerted effort to invade private property, obstruct business, and hinder law enforcement," as was the case in Forrester.

Williamson testified that she and the other protesters had decided in advance that they would not willingly leave the meeting room. The very purpose of their protest was to disrupt the city council meeting and interfere with the city conducting its business. Thus, they created a situation in which the city had to either succumb to the disruption or use some amount of force to remove the protesters from the meeting room. The city chose the latter, and the "undisputed evidence shows that the officers used only the force reasonably necessary to remove [Williamson] from the meeting."

Williamson could have avoided or reduced the pain and injury she alleges she suffered from the Officers' conduct by cooperating with them and leaving the room under her own power. She did not. But her choice does not render the Officers' conduct unreasonable. To conclude otherwise would be to discount entirely the City's legitimate interests in maintaining order and ensuring that the public's business is not circumvented by people engaging in disruptive, albeit nonviolent, conduct….

NEXT: The Right to Defy Criminal Demands: Possible Limits on the Right to Defy (Part II)

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  1. I'm often skeptical of qualified immunity as a doctrine, at least the way it's currently configured, but this strikes me as relevant and correct as well:

    "The panel reversed the district court’s denial of
    defendants’ summary judgment motion asserting qualified
    immunity in an action ... alleging that police officers used excessive
    force when they removed plaintiff from a city council
    meeting where she and others were protesting."

    1. I haven't read the opinion, but the post here does not indicate this to be a qualified immunity case. The ruling was that the force used was reasonable, hence no Fourth Amendment violation.

      1. If only the comment you are responding to had quoted language from the opinion indicating that it is a qualified immunity case.

      2. From the opinion:

        Because we conclude that the Officers did not use excessive force in violation of Williamson’s Fourth Amendment rights, they are entitled to qualified immunity as a matter of law.

        If the courts were going to find that there was no constitutional violation (as opposed to that the violation hadn't been clearly established) then the plaintiffs didn't have a case regardless of whether QI was a thing or not. All QI did in this case is make it eligible for interlocutory appeal, really. (Which isn't nothing; they'd otherwise be making this appeal after discovery and a trial.)

        As for my opinion, obviously they have the right to remove her - but was it really impossible to do so without using so much force that they tore her rotator cuff? The courts think that the cops could have gone way past that level of force, apparently:

        Finally, Williamson’s injuries—a sprained wrist, mild swelling, and a torn rotator cuff—though not trivial, are roughly equivalent to those in Forrester (bruises, pinched nerve, broken wrist) and much less severe than those in Johnson (rendered a paraplegic). And in both of those cases, we concluded that the intrusion at issue was minimal despite the injuries that occurred.

        If rendering someone a paraplegic is "minimal" I'd hate to see something that isn't.

  2. "Finally, Williamson's injuries—a sprained wrist, mild swelling, and a torn rotator cuff—though not trivial, are roughly equivalent to those in Forrester (bruises, pinched nerve, broken wrist) and much less severe than those in Johnson (rendered a paraplegic). And in both of those cases, we concluded that the intrusion at issue was minimal despite the injuries that occurred. We conclude the same here…."

    "And in both of those cases, we concluded that the intrusion at issue was minimal despite the injuries that occurred." !!!!

    1. I think the point is that those injuries are consistent with type and amount of force reasonable necessary to remove someone who has intentionally "gone limp." If Williamson had wanted to avoid any injury, she could have walked out when told to do so.

      1. Sure, it's hard to carry somebody who intentionally goes limp without doing them any injury at all, especially without laying yourself open to a crippling sucker punch. Though even a torn rotator cuff seems a bit excessive under the circumstances.

        But "rendered a paraplegic"? The Johnson cited was an armed robbery suspect, not a protester! And there were legal issues involved that caused the court to treat the reasonableness of the police actions as a given.

        1. Yet every day firefighters and EMTs manage to carry entirely unconscious subjects to safety without causing them further injury. Yes, it is harder to carry someone who is limp (whether intentionally or not). No, that is not sufficient justification to hurt them before they take offensive action.

          1. That's what I'm saying. Bruising and maybe strains are a common consequence of carrying a limp person. Rotator cuff tears? Not so much.

            1. " Rotator cuff tears? Not so much."

              The op says that the person was handcuffed and dragged by her arms. It's hard to have sympathy for someone who deliberately puts herself in that position, but it still seems excessive. This is what resisting arrest penalties are for.

              1. She put herself in a position to be dragged, which limits my sympathy. Twas the cops who decided to drag her by the arms.

                "Other means of physically removing her when she refused to leave or cooperate with being moved, such as using more officers to carry her or pulling her by her legs instead of her arms, would not have involved an appreciably smaller risk of causing pain or injury."

                This strikes me as factually implausible, extremely so.

                1. And the courts are supposed to construe all factual disputes in favor of the non-moving party. Yet they're deciding, without any expert testimony, that there was no better way to do this, rather than letting a jury decide.

    2. Only happens to conservatives. Leftist thugs may run rampant with impunity, according to the lawyer scumbag.

      1. The racist mentally challenged Behar apparently failed to read the opinion, and did not realize that this involved leftist protesters.

        1. Hi, David. Aren't you a lawyer. I do not read opinions. All are lawless garbage. You need to STFU. Nothing you say has the slightest validity save in rent seeking. You lawyers only speak rent.

          1. Hi, David. Those who call others racist are called race whores. Zero tolerance for any race whore.

      2. Plaintiff here is a leftist, Behar.

  3. I'm waiting for notguilty to show up and complain they shouldn't be coddling insurrectionists like that.

    1. He's busy checking their facebook profiles now. If they post drumpf memes they're peaceful protesting victims of jackbooted thugs. If they post antibiden memes they are dastardly insurrectionists.

    2. If January 6, The Darkest Day in American History, taught us anything, the police in this case should have just shot the protestors in the head and be hailed as heroes who bravely put down The Great National City Insurrection.

      1. After getting stomped in the culture war for decades, it appears most of Volokh Conspiracy's right-wing fans are mostly a pile of bruises, scars, disaffectedness, and bitterness.

      2. The capitol police should have recruited Kyle Rittenhaus and gave him a gun. When that boy gets scared he gets things done. All the corpses would be legitimate kills and Kyle lauded as a hero.

        1. I doubt clingers seeking to interfere with an election would get much leniency from their betters if they were dumb enough to try a next time.

    3. Dude, this is just a crappy little city council. Congress is **different**. The Capitol building is **different**. The country has its very own high priesthood and holy of holies. It's all so simple.

      If you would just take the time to try and understand, you'd put yourself at less risk from subversive comments like that.

      1. Also its different from a Courthouse even though its also a government building. Its okay to completely trash and firebomb a courthouse but walking through the capitol when you've been let in is a bridge too far.

        1. When I am in the market for the disaffected and bigoted right-wing perspective, AmosArch is a reliable source.

    4. He's probably hunting down all the members of the conspiracy behind this violent insurrection.

      1. Sadly, it turns out he was just too busy plotting his next stupendously successful self-own upthread.

        That probably took so much energy he couldn't manage to read this far.

  4. bAcK tHE BluE

    Commie enforcers is all they are

  5. They prevented the city council from meeting?!


    1. Well, yeah, technically it could have been charged as such.

  6. I'm glad the panel got to the merits and didn't invoke Qualified Immunity.

    I'm not sure posts here are a valid indicator but it seems to me Qualified Immunity is now being denied more often.

    1. If not for the appealability of an order denying qualified immunity, the officers who clearly did nothing wrong would have had to go to trial.

    2. "I'm glad the panel got to the merits and didn't invoke Qualified Immunity."

      They did. The panel found that the cops got QI for 1983, but there was a state law claim that required them to reach the merits, so they found no 4A violation as well.

  7. Only happens to conservatives. Leftist thugs may run rampant with impunity, according to the lawyer scumbag.

  8. But. . . isn't that what the panel decided?

    First the district court denied, ". . . defendants’ (i.e. cops') summary judgment motion asserting qualified immunity. . . ."

    Then the appellate panel "reversed the district court’s denial," thereby re-instating QI.

    Or am I reading that wrong?

    1. Sheesh, I'm having some kind of problem replying to people.

      This comment is a reply to rsteinmetz.

      1. I didn't read the whole case, but it looks like the panel held that the conduct did not violate the 4th amendment in the first place, so there would be no need to determine whether the violation was egregious enough to overcome QI.

        1. You're right.

          "The panel concluded that the Officers did not violate Williamson’s Fourth Amendment rights; therefore, there was no need to address the clearly-established prong of the qualified immunity analysis."

    2. To obtain relief against an official who has qualified immunity, the plaintiff has to show 1. that their rights were violated and 2. that the right was clearly established. Thee second part is what critics usually object to, both because the test to show that something was clearly established is too strict and because courts often decline to decide whether the conduct was a violation by ruling that even if it was, it wouldn't have been clearly established.

      In this case, the court ruled that the conduct wasn't unlawful at all. And all but the most ardent critics of qualified immunity don't think that police officers should be liable for not violating people's rights.

  9. I think I've seen cases going both ways, but the majority rule says one of the perks of being a police officer is wrecking the wrists of anybody who has a bad attitude, as long as you're allowed to cuff them in the first place.

  10. This seems like pretty motivated reasoning on the part of the court. It completely ignores that the amount of force used to lift a passive subject can vary quite widely. I can, for example, lift someone out of a bed gently. Or I can yank them up in a way likely to pull an arm out of the socket. The court here creates a categorical rule that the act of lifting a limp subject cannot be "excessive force" without any consideration for how that lifting was actually accomplished.

    Yes, the protestor was an active participant. Any yes, maybe her injuries are entirely made up or exaggerated. But the court didn't even get to that, declaring instead that no excessive force could have applied in this scenario. That sets too low a bar for the people that we trust with the monopoly on legal force.

    1. It also depends on the weight of the subject and their general physical condition, and what obstacles have to be negotiated.

    2. Dead weight. There is a difference between carrying someone who can consciously assist, someone who has no ability to decide to assist or not, and someone who is actively resisting. The first two are relatively easy, the last is decidedly more difficult.

      For a simple proof of concept, look for the "magic trick" wherein someone attempt to lift a person by their elbows or armpits or whatever, but the magician knows that he can actively resist being lifted or moved (

      1. Though, seeing the video below, it's clear that the officers picked just about the worst possible way to drag the protestors. I'm not sure that it's a clear case that the officer's actions were reasonable.

  11. The plaintiff's morbid obesity probably had something to do with it. In the clip she's screaming bloody murder like she had been dipped in acid. I really hate fake drama like that.

    1. If she had a torn rotator cuff, then it probably hurt a whole lot...

    2. Looking at that video, they had her arms behind her back while they were pulling her by them. Behind her back.

      You could drag somebody who was in fine shape and not at all obese that way, and damage their shoulders!

      I was a bit on the fence before seeing that. Now I'm persuaded that they intended to injure her.

      1. Brett, I'm glad to hear you side with the agitator/arrestee. They usually don't get a fair shake here. But this is one of those rare categories where I turn to speak. People that abuse process or get hyperbolically hysterical when they get removed just always seems to get me. I've seen too much of it my lifetime. It is always an act

        1. I'm cool with their dragging her out, and don't even mind the minor injuries which might ordinarily result from such dragging done properly, bruises, and perhaps minor strains. She set herself up for THOSE by deciding to force them to drag her.

          That doesn't mean the police are entitled to drag her away in an abusive manner. In a manner calculated to cause serious injuries.

          And that's what I saw in that video. You'd never drag somebody in that manner if you didn't mean to hurt them, perhaps badly. That rotator cuff was torn deliberately.

          The court excused it because it had previously been held that it was OK that an armed robbery suspect had ended up a paraplegic as a result of his handling after an auto accident. But that had been accidental, and the treatment he got wouldn't have done that to a person who wasn't already injured from such an accident.

          Here we have deliberate conduct, which would predictably injure person in ordinary good health. This wasn't any accident, it was extra-judicial punishment, even torture.

          The lady in question deserved to be dragged off, and to spend some time in jail. She didn't deserve torture and crippling, and I'm disgusted that the court made excuses for it.

          1. Having watched the video of the police dragging out the protesters, I have to ask - what do you think the "correct" way to carry those people out would have been?

            They won't walk, or even stand. Some of them are too fat to be carried even by four people, and God knows what the lawsuits would be if the protester was dropped.
            If you try to drag them by the legs, you are leaving the head - back or face, take your pick - to scrape along the ground, smacking into the floor with every bump up or down. Also there is the risk of clothing coming off, which would undoubtedly lead to accusations of sexual abuse.

            So yeah, what the police did was the cause of her injuries. But what should they have done instead?

            1. If you have somebody's arms cuffed behind their back, and you grab them by the wrists and pull, you are levering their arms in a direction the shoulder joint simply isn't made to move. At best you'll dislocate the shoulder.

              If you must drag somebody backwards whose arms are cuffed behind their back, you knife hand them under the arm pits. I was taught the technique in first aid class.

              1. One was carrying her by the arms, until she leaded forward and twisted to try to prevent them from moving her through the doorway. Is your suggestion that they should have stopped and repositioned? It's unfortunate the video cuts off there, as I'd like to know of the second cop grabs her arm again after passing through the doorway.

                Yeah, that's probably true. I don't think I would (criminally) blame the police, though, without more evidence.

        2. I mean, she had a torn rotator cuff. If she was screaming in pain then it wasn't just an act, even if it often is in those circumstances.

      2. I read the other day that a new paper failed to replicate the Dunning-Kruger effect.

        The authors obviously were unacquainted with Brett Bellmore.

  12. "Dragging Out Protesters Disrupting City Council Meeting Isn't Excessive Force"

    Poor headline (inappropriate unqualified assertion).

    This blog needs an editor, but that might conflict with the lack-of-virtue signaling, so . . .

  13. Eugene Volokh is a dishonest liar who supports the continued lack of regulation of the internet to harm cyberstalking victims.
    For years, Eugene Volokh has worked endlessly to strike down state, Federal laws and proposed legislation that would have cracked down on cyber-stalking, cyber-harassing, doxing, malicious cyber-bullying, invasions of privacy.

    Eugene’s First Amendment absolutist approach is extremely dangerous and dishonest. He fails to highlight that many of his papers have been funded by Google. He is likely being funded by Big Tech to spew an “absolutist” view of Free Speech so cyberstalkers, cyberharassers, and online criminals can continue to terrorize and ruin victims’ lives without repercussion, as Eugene gets paid behind the scenes by Google for working to strike down legislation.

    It is probably not a coincidence that Eugene Volokh’s analysis NEVER considers the impact to the victims who have NO legal recourse thanks in no small part to Eugene Volokh’s lobbying to strike down any laws that would protect victims, even if they hold online harassers accountable.

    Online harassment is a CRIME. It is malicious, intentional, and destroys lives. Online criminals should not be able to hide behind “free speech” while destroying people’s lives in the process. Eugene NEVER talks about the plight of the victims and the need to balance “Free Speech” with other rights, including the RIGHT TO BE FREE FROM HARASSMENT and RIGHT OF PRIVACY.
    Eugene is a dishonest “professor” who is actually being paid by Big Tech to keep the internet as unregulated as possible so Google can maximize its profits at the expense of innocent victims who have their lives ruined.

    Prove me wrong Eugene. Since when have you ever taken into consideration the impact to VICTIMS of cyberstalking? You purposely ignore this aspect of the crime because you are being bribed by Big Tech.

    Hypocritically, Eugene Volokh CENSORS my posts here while he fights for the FREE SPEECH rights of cyberstalkers and online criminals to harm their victims in whatever way they see fit.
    Eugene Volokh is a total hypocrite and totally dishonest person.

    1. "Online harassment is a CRIME."

      If that's the case then why are you doing it to us? You should be thankful that Volokh has made it possible for you to freely rave and jabber at us...and him.

  14. According to Eugene Volokh (EV), the USA would be a better nation if:

    1. People are allowed to post naked pictures of others online as a form of revenge, because Eugene Volokh views these postings as "valuable free speech."

    2. Stalkers should be able to post private information to torment victims and control their lives online, even when the victims have done nothing wrong to the stalkers, and the stalkers are stalking out of mental illness or desire for control. Eugene Volokh views the cyberstalker's crimes as "precious free speech."

    3. Maliciously doxing someone for the intent of harassing them online should be legal, and even celebrated, as Eugene Volokh views this as "precious free speech" that the "public just needs to know." No consideration to the victim or the malice of the harasser.

    Is this the world you want to live in? Where a total free-for-all occurs online with no legal accountability and no civility? Apparently, Eugene wants it. More likely than not, he is paid by Google to peddle this dangerous "neoliberalism" because he gets paid behind the scenes as a form of bribe by Big Tech.

  15. Why even use the word protestor in the headline. Certainly the the city council and police should not use that word, as it runs up against defining certain speech/action as unacceptable based on the content.
    Simply rather call it disorderly conduct. There was a prescribed decorum and rule of order for speech in that particular public forum. Some individuals were not adhering tho the rules, which was resulting in the rights of citizens following the prescribes rules-or-order from their right to speech and right to address the government.
    Give folks out of order a gentle reminder, then final reminder, then drag them out.

    Injuries? Whatever. I did not see any un-necessary force used. All participants are seen to be quite able to move fine on their own feet in the video; they could have walked out, but chose rather to be dragged out.

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