Wright has produced enough evidence such that a reasonable jury could find that the City’s custom surrounding use of force is so settled so as to have the force of law and that it was the moving force behind violations of Wright’s constitutional rights.

Wright v. Euclid,

No. 19 – 3452

Sixth Circuit Appellate Court

June 18, 2020

On Monday April 11, 2016 at 5:30 p.m. Euclid plain clothes Police Officers Kyle Flagg and Vashon Williams initially detained Mr. Lamar Wright in his vehicle on suspicion of drug possession.  At the inception of the detention the officers used both a taser and mace.  No drugs were found on Mr. Wright but he was arrested and criminally charged with Fail to Signal, Obstructing Official Business, Resisting Arrest and Criminal Trespass.  But for purpose of this case the City of Euclid maintained only the Obstructing Official Business and Resisting Arrest.

Officers Flagg and Williams observed Mr. Wright pull up to a house they were surveilling that was involved in drug transactions.  Mr. Wright rolled down his window and engaged in conversation with a person on the porch of the home who did not approach the vehicle and Mr. Wright did not exit.  The officers decided to follow the vehicle and conducted a pre-textual stop.  The officers stated Mr. Wright did not use his turn signal twice as he traveled from this house on East 207th Street to 780 East 212th Street.  The plain clothes officers were in an unmarked car and stopped behind Mr. Wright as he pulled into the driveway of 780 East 212th Street.

The detainment, force and arrest of Mr. Wright occurred in the driveway of 780 East 212th Street, Euclid, Ohio.

The officers approached, identified themselves and ordered Mr. Wright out of his car.  Mr. Wright opined that since the officers were in plain clothes he did not know who was approaching him with firearms.  As the officers approached the car, Mr. Wright closed the center console with his right hand.  Officer Flagg believed that Mr. Wright was reaching for a weapon with his right hand, so he and Officer Williams maced and tasered Mr. Wright.  At that moment they pulled Mr. Wright out of the car, placed him on the ground and handcuffed him.  Unbeknownst to the officers, Mr. Wright recently had a colostomy bag which was aggravated by the detainment and some of his colostomy bag staples loosened causing pain and bleeding.  Mr. Wright posted bond at the Euclid Jail, then was transferred to the Cuyahoga County Jail.  At the Cuyahoga County Jail, Mr. Wright was given a full body scan which did not result in any narcotics.  Finally, Mr. Wright was released from jail at 3:55 a.m.

Mr. Wright sued the City of Euclid and the officers for the following claims: 42 U.S.C. §1983 of unconstitutional excessive force, false arrest, malicious prosecution, and municipal liability, along with state-law claims.  On Wednesday May 8, 2019 Federal Judge Donald Nugent of the Northern District dismissed all of the claims under Summary Judgment.  Mr. Wright appealed and the Sixth Circuit reversed some of the  claims sending the case back to the Norther District Federal Court for trial.

What the Sixth Circuit specifically held is very detailed; here are the primary points:

Excessive Force:

Pointing firearms at Mr. Wright: “Flagg and Williams at most had a suspicion that Wright had briefly visited with a suspected drug dealer, but given that the officers had not identified Wright himself as a drug dealer or sought any corroboration of their suspicions of criminal activity, there is a genuine dispute as to whether the officers were justified in brandishing their firearms upon approach. Thus, a jury must determine whether their decision to do so was unconstitutionally excessive.” Id at 11-12.

Taser: “[A]n officer may not tase a citizen not under arrest merely for failure to follow the officer’s orders when the officer has no reasonable fear for his or her safety. Whether the tasering in this instance was constitutionally permissible must be decided by the jury, given the genuine factual disputes described above concerning the circumstances of Wright’s encounter with the officers.” Id at 15.

Mace: “[I]t remains genuinely disputed whether Wright had committed a crime, whether he posed a threat to officers, and whether he was actively resisting arrest. See, e.g.,Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (“An officer has used excessive force when he pepper sprays a suspect who has not been told she is under arrest and is not resisting arrest.”).” … This testimony [Mr. Wright’s expert] and the other proof present a jury question as to whether Williams’s use of the pepper spray constituted excessive force in violation of Wright’s constitutional rights. Id at 18 and 19.

Criminal Charges:

Obstructing Official Business: “But viewing the facts in the light most favorable to Wright, a reasonable jury could find that he did not engage in an affirmative act such as to give rise to probable cause that he was obstructing official business.” Id at 22.

Resisting Arrest: “Because a reasonable jury could find that Flagg and Williams did not have probable cause to arrest Wright prior to his alleged resistance, they are not entitled to summary judgment that the arrest was justified.” Id at 23.

Extended Detention: “Despite the officers’ having no information that would give them probable cause, Wright was seized for four hours after he should have been free to go. A jury could find that this detention violated Wright’s right to be free from unreasonable seizures.” Id at 25.

Illegal Official Policy: “Wright has produced enough evidence such that a reasonable jury could find that the City’s custom surrounding use of force is so settled so as to have the force of law and that it was the moving force behind violations of Wright’s constitutional rights.” Id at 32.

As part of the Defensive Tactics Training Sgt. Craig Murowsky included a Chris Rock Video titled “How not to get your ass kicked by the police!”, a graphic of an officer hitting a supine suspect with a baton and captioned “Protecting and Serving the Poop Out of You.” and another image with two officers firearms pointed at something and captioned “Bed bug, bed bug on my shoe.”. Id at 6 and 7.

Failure to Train or Supervise: “A reasonable jury could find that the City’s excessive-force training regimen and practices gave rise to a culture that encouraged, permitted, or acquiesced to the use of unconstitutional excessive force, and that, as a result, such force was used on Wright.” Id at 34.

Ratification by Decision Maker: “A reasonable jury could likewise find that [Chief] Meyer and [Sgt.] Murowsky’s seeming failure to ever meaningfully investigate excessive force complaints rises to the level of a ratification of use of force by a policymaker.” Id at 35.

Lessons Learned:

  1. The force can be viewed through this link: https://www.cleveland.com/court-justice/2019/05/euclid-police-did-not-use-excessive-force-during-arrest-of-man-with-colostomy-bag-federal-judge-rules.html

The force was the result of a tense, fast evolving situation.  What is unclear is why the officers did not wait for a marked unit to conduct the traffic stop, which may have prevented Mr. Wright from initially challenging who had approached his vehicle.

  1. There was not enough information in the appeal to determine what the officers knew to establish Reasonable Suspicion or Probable Cause for the narcotics investigation. Wright was driving a rental car and had four cell phones in the car of which he was the only occupant. The number of cell phones and rental car are often indicative of the narcotics trade.

The Sixth Circuit made it very clear that the court did not believe there was enough Reasonable Suspicion or Probable Cause it but the information on the narcotics investigation is sparse.

  1. The most troubling part of the case is the lack of oversight by the chain of command or lack of intervention, specific to the training. The graphic that was part of an official training document should NEVER have been part of the document.

Graphic that was part of the training manual for Euclid Police Defensive Tactics Training.

The court also opined “The City also engages in some sort of practical training exercise in which officers are given scenarios in which they may use force. But according to [Sgt.] Murowsky, who implemented these scenario-based trainings, the scenarios never changed, and the officers’ performances were never evaluated.”. Id at 34.  Law enforcement trainers must always keep training up to date with the ever-changing landscape of criminal behavior.  Additionally, following scenario-based training officers have to be evaluated, critiqued and in some cases remediated.  Because the graphic was used, the substance of the material contained inside the handout was not evaluated by the Sixth Circuit.  The information contained inside may have been of high quality but the graphic prevented any further evaluation.

  1. In light of the nationwide protests against law enforcement, calls for defunding law enforcement based on some reprehensible acts by law enforcement, I believe the court made a statement that provides direction as to where not only the Sixth Circuit court is headed but also many others. Specific to the Fail to Signal charges the court opined “The officers maintain that at both turns, Wright failed to use his turn signal, but there is no dash-cam footage or other evidence to confirm the officers’ word. Wright insists that he did use his turn signal in both instances.”.  This is critical wording because the court clearly does not believe the officers because there is no video to support the claims.  This is disturbing and hopefully this is not a trend.  The best way to combat this belief is for officers to continue to be as we have always been; highly professional.

Does your agency train on use of force?

Don’t fail your training – don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.