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Does Kneeling on a Suspect’s Back During an Arrest Automatically Constitute Excessive Force in a Post George Floyd Society? A Louisiana Jury Says, No.

On May 5, 2018, around 4:00 a.m., police officers in Lafayette, Louisiana were dispatched to a convenience store in reference to a vehicle that had reportedly crashed into an ice machine.  Officers found the driver asleep in his vehicle and he was asked to produce a driver’s license. The driver failed to comply and a statement was made by one of the officers that he had encountered the “wrong effing crew”.  The driver was forcibly removed from his vehicle and taken to the ground where he was handcuffed.  One officer remained kneeling on the driver’s back for some 90 seconds after he was handcuffed as other officers watched.  The officers stated that even though in handcuffs, the driver continued to be irate and physically resisted. Even though the driver later pled guilty to DWI and battery, he filed a lawsuit for excessive force, failure to intervene, and outrageous officer conduct claiming the arrest led to a spine injury, dislocated shoulder, and PTSD.

Use of force claims are evaluated through a Fourth Amendment analysis and an “objective reasonableness” standard.  The question to be answered by the jury is whether a reasonable police officer in the same situation would have used a similar amount of force in response to a subject’s resistive behavior.  Notably, an officer’s subjective evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.  If a jury finds the officers either did not violate a civil right or that right was not clearly established so that the officers should have been on notice that their conduct was illegal, the officers are entitled qualified immunity, which protects the officers from civil liability.

In a post George Floyd world, much has been made of officers kneeling on suspects while taking them into custody and the duty of other officers to intervene in such situations.  For example, only a few years ago in Baton Rouge, Louisiana, officers engaged in a pursuit of a stolen vehicle and the passenger was subsequently handcuffed while the officer appeared to be kneeling on the arrestee’s neck.  As it turns out, the arrestee was a minor and public outrage ensued. Despite the calls for justice, video later confirmed the officer was merely hoovering above the upper shoulders/back of the arrestee and was not kneeling on his back at all. The public perception that the officer's conduct was dangerous and excessive was certainly prevalent at that time.

This leads to the question of why officers find themselves in this kneeling position that draws such scrutiny?  The answer is twofold.  First, through formal training and, second, in an effort to control resistive subjects in real life, officers learn to use their own body weight to assist in handcuffing.  Because both hands are generally needed to effectuate handcuffing, other physical means are sometimes necessary to keep the subject on the ground and in a cuffing position.  This is often accomplished by kneeling on the upper back while holding one of the subject’s arms between the officer’s legs in an upward position, which gives a clear workspace to allow for handcuffing and the ability to control the hand/wrist.  Even after in handcuffs, subjects may still pose a threat to officers and their continued resistance is generally most easily and safely controlled while the subject is still prone. However, once the subject is under control, officers are trained to roll the subject to their side and have them sit or stand.  In my experience, when the technique is applied in this manner, there is little to no risk of the officer’s weight causing injury or death to the subject. 

So has the public perception and sentiment of police officers’ attempts to handcuff resistive suspects changed so much that merely kneeling on the back amounts to excessive force?  A federal jury recently said, no.  The Lafayette driver’s case made it to trial in the Eastern District of Louisiana in late December 2023.  After only 90 minutes of deliberation, the jury returned a verdict in the officers’ favor because they found that the officers’ actions and use of force were in response to the driver’s resistive behavior and were not objectively unreasonable.  Because the kneeling officer did not violate the rights of the driver, the failure to intervene claim did not have merit.  The jury also rejected the idea that the statements made by the officers should have been interpreted that the officers subjectively intended to harm or punish the driver.  Accordingly, the third claim for outrageous conduct was dismissed.  



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