(1) The officer observed or had reason to know that excessive force would be or was being used, and
(2) The officer had both the opportunity and the means to prevent the harm from occurring.
Grinnell v. City of Taylor
No. 21 – 2748
Sixth Circuit
May 18, 2022
This was a very long and intricate excessive use of force case that included many legal claims and appeals. This article only reviews one of the claims – a law enforcement officer’s legal duty to intervene to stop another officer from using excessive force.
Facts
Late in the evening of Sunday August 31, 2014, Plaintiff Leslee Grinnell was at his home in Taylor, Michigan, when he called his adult daughter, Ms. Brittany Ingram, to find out the location of Mr. Grinnell’s two-year-old son (i.e., Ms. Ingram’s brother). At first, Ms. Ingram said the boy was with her, but then admitted that her mother had taken the child with her on a date with a man she met online. Ms. Ingram could tell over the phone that Mr. Grinnell was becoming increasingly agitated. Mr. Grinnell and Ms. Ingram had a number of heated phone exchanges, and eventually Mr. Grinnell said to Ms. Ingram, “what does it take for you people to leave me alone? Do I have to kill myself or pay somebody to come over here and off me?“.
On Sunday August 31, 2014 an incident occurred in Taylor, Michigan that led to a use of force and a civil lawsuit. One of the legal issues litigated is whether officers had a legal duty to intervene during an alleged use of excessive force.
At some point in the night, Mr. Grinnell invited some of his friends over and vented to them. In the midst of the contentious calls between Mr. Grinnell and Ms. Ingram, the friends left Mr. Grinnell’s home to get something to eat, leaving Mr. Grinnell home alone. Around the same time, Ms. Ingram called the City of Taylor Police Department because she was worried Mr. Grinnell would harm himself. Ms. Ingram told the dispatcher that Mr. Grinnell was formerly a member of the military and had firearms inside his home. Several officers were dispatched to Mr. Grinnell’s home.
Eventually Mr. Grinnell’s friends returned to his trailer, and they informed Mr. Grinnell that the Taylor Police were outside his home. Mr. Grinnell asked his friends to convey to the police that he would not be leaving but invited the officers into his trailer. The officers declined.
Mr. Grinnell eventually answered a phone call from Corporal William Brinker, who was located at the police station. Brinker assured Mr. Grinnell he had not broken any laws and asked him to exit his trailer and talk with the police. Mr. Grinnell was adamant that he did not want to be handcuffed or forcibly taken to the ground, and he expressed fear that he would be beaten by the police. After speaking with Corporal Brinker for several minutes, Brinker assured Mr. Grinnell that no one would lay a hand on him. Mr. Grinnell reluctantly agreed to go outside.
While remaining on the phone, Mr. Grinnell exited his trailer and stepped onto his front porch. Officers on scene immediately began telling Mr. Grinnell to put his hands up. An audio recording seems to suggest that Mr. Grinnell at least partially complied by putting one hand up while using his other hand to stay on the phone with Corporal Brinker. A few seconds after Mr. Grinnell exited his trailer, Corporal Brinker asked Mr. Grinnell, “where ya at, on the porch?” Mr. Grinnell replied, “yeah, I’m walking on the porch.” For nearly one minute after exiting his trailer, Mr. Grinnell remained on the phone with Corporal Brinker.
According to Mr. Grinnell, as soon as he stepped off the porch, an officer ran from around the corner of his trailer and punched him in the face. A group of officers threw Mr. Grinnell onto the ground, held him facedown, and began hitting, kicking, and choking him. A “blonde” female officer stood off to the side watching. While he was on the ground, Mr. Grinnell alleges several officers punched and kicked Mr. Grinnell to get him handcuffed. Eventually, the officers succeeded in handcuffing Mr. Grinnell. One of the officers gave Mr. Grinnell a final kick in the ribs and said, “ha, ha, motherf**ker.” In total, Mr. Grinnell estimates that the entire assault lasted for “a minute to a minute and a half.” Mr. Grinnell was then transported to the hospital for evaluation.
Mr. Grinnell has consistently maintained that he could not see the officers involved in the assault because his face was held in the dirt. Although Mr. Grinnell was not able to identify any of the officers or how many officers were specifically involved in the assault, he estimates that “nine of them were standing there” and that six or seven of them were kicking or punching him.
On April 27, 2017, Mr. Grinnell commenced this lawsuit in the U.S. District Court for the Eastern District of Michigan against the City of Taylor and several unnamed officers. He alleged violations of the Fourth, Eighth, and Fourteenth Amendments under 42 U.S.C. §1983, and he asserted state law claims alleging assault and battery, intentional infliction of emotional distress, and gross negligence.
After discovery, all the defendants moved for summary judgment. The district court granted in part and denied in part their motion.
The district court denied the defendants qualified immunity on the third act of force – the kick to ribs with the overlayed profanity.
Defendants filed a motion for reconsideration, which the district court granted in part. The court concluded that it erred by considering together the allegations that Mr. Grinnell was kicked and punched while being handcuffed and the allegation that one officer delivered a final kick and said, “ha, ha, motherf**ker” after Mr. Grinnell was handcuffed. It held that the final kick was spontaneous and unexpected; and therefore, no defendant could be liable under a failure to intervene theory. The district court then altered its holding to grant summary judgment as to the final kick. With this alteration to the order, the only claim to survive summary judgment was that defendants used excessive force by punching and kicking Mr. Grinnell only from the time Mr. Grinnell was taken to the ground until he was handcuffed.
Failure to Intervene Legal Standard
An officer may be liable for failing to intervene when two prongs are met:
(1) The officer observed or had reason to know that excessive force would be or was being used, and
(2) The officer had both the opportunity and the means to prevent the harm from occurring.
Floyd v. City of Detroit, 518 F.3d 398 406 (6th Cir. 2008); quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)
Holding
Besides the argument that the events unfolded rapidly, defendants offer no reason that they could not intervene during the prolonged use of excessive force. One-and-a-half minutes is surely enough time to perceive the use of excessive force and intervene. Thus, accepting Mr. Grinnell’s theory of events, and even accounting for the undisputed audio recording, defendants may be liable for failing to intervene.
This case was issued by the Sixth Circuit, Court of Appeals and is binding in Kentucky, Michigan, Ohio and Tennessee.
Information for this article was obtained from Grinnell v. City of Taylor, 21 – 2748.
Lessons Learned:
- In this case, the Sixth Circuit Appellate Court determined that there may be an actionable claim for Failure to Intervene. Consequently, the case was sent back to the District Court [entry level] for further litigation.
- There has been many high profile excessive use of force incidents where other officers at scene could have prevented a civil suit and in some cases criminal prosecution of officers. For these reasons, I have crafted and posted this article.
- Both prongs for a Failure to Intervene claim must be proven to sustain the claim. These two prongs were established in Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). Lessons Learned will examine each prong in turn.
- The first prong: “The officer observed or had reason to know that excessive force would be or was being used.”. The officer must evaluate a use of force as excessive, and that evaluation would be based on what a reasonable officer should have done in the same situation. In this case, the allegation was that the suspect was handcuffed and then an officer kicked him in the ribs and made a statement that indicated that the force was gratuitous [unwarranted/unreasonable].
- The second prong: “The officer had both the opportunity and the means to prevent the harm from occurring.”. This prong has two separate elements. Opportunity – The officer must have enough time to evaluate the use of force and be free from other physical barriers to engage the officer who is allegedly using excessive force. A physical barrier may be a cruiser, fence, too much distance, etcetera. Means – The officer must have the physical ability to intervene the officer allegedly using excessive force, to include loud verbal commands to stop or cease fire.
- Clearly, this can be a very complicated matter and fraught with physical and perception challenges. Depending on an officer’s viewpoint he may not see why an officer is using force thereby making an intervention to stop the officer challenging. Because of cameras, all angles will be viewed from the confines of temperature-controlled offices and not in real time under limited lighting and environments that are very distinguishable. However, there are times that an officer may intervene and save a suspect from being harmed, an officer and agency from civil liability, the officer from criminal prosecution and subsequent civil unrest. Law enforcement agencies must deliver scenario-based training that includes a duty to intervene role-play, to include a debrief of each officer’s response.
Does your agency train on use of force investigations?
Contact me at https://www.objectivelyreasonable.com/contact/
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!