Civil Rights – Search & Seizure – Excessive Force – Resisting a Public Officer

Birdsong v. Emory (Lawyers Weekly No. 002-024-17, 11 pp.) (Terrence Boyle, J.) 5:15-cv-00273; E.D.N.C.

Holding: Police officers conducting a “jump out” – a tactic in which a group of police officers quickly exit an unmarked vehicle and attempt to engage people in conversation – did not order plaintiff to stop; plaintiff initially ran when police started chasing him but – according to plaintiff – he stopped running and then complied with a command to put his hands over his head. Flight from a consensual encounter cannot be used as evidence of a violation of G.S. § 14-223, and, accepting plaintiff’s version of events, there is a question of fact as to whether a reasonable officer would have found probable cause to arrest plaintiff for resisting a public officer. At this stage of the proceedings, the court cannot determine whether qualified immunity applies.

Defendants’ motion for summary judgment is denied.

Plaintiff says that, after he had stopped running and had his hands raised above his head, he was struck from behind, lifted into the air, and slammed to the ground, injuring his right cheek (two days later, he was diagnosed with a fracture to his right orbital bone). The level of force allegedly employed to stop a stationary person who was not resisting was excessive. Again, the court cannot determine whether qualified immunity would apply.

Plaintiff also alleges that he was subjected to a strip search on the street in view of others. Strip searches of detainees are constitutionally constrained by due process requirements of reasonableness under the circumstances. Because the facts surrounding defendant’s strip search are inextricably intertwined with the facts surrounding his initial confrontation with the police and his arrest, it is impossible to isolate the inquiry into the constitutionality of the strip search from the other facts.

In support of his allegation that the officers’ conduct represented official policy or custom, plaintiff points to his repeated seizures a searches resulting from “jump outs” as well as evidence that Officer Snider was permitted to continue to work with the public in spite of personal problems and a recommendation that he seek mental health counseling. Plaintiff contends that the result of Officer Snider not receiving counseling was at least two incidents, plaintiff’s and another – a depiction of which plaintiff has proffered as video evidence, where an individual was unjustifiably slammed to the ground and detained. Plaintiff’s policy or custom claim may proceed.

Motion denied.