Tuesday, March 13, 2018
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Ninth Circuit:
Punching Disabled 76-Year-Old Man Who Resisted Handcuffing Was Unjustified
By a MetNews Staff Writer
There was no justification for a California Highway Patrol officer to punch a 76-year-old disabled man who was posing no threat, a Ninth U.S. Circuit Court of Appeals opinion declared yesterday.
The memorandum opinion was signed by Circuit Judge Jacqueline Nguyen and District Judge Sarah S. Vance of the Eastern District of Louisiana, sitting by designation. Circuit Judge Johnnie B. Rawlinson concurred in the result.
Yesterday’s opinion rejects the contention of officer Terrence Plumb that he was entitled to judgment as a matter of law, and remands for a recalculation of the attorney fees claimed by plaintiff Harrison Orr. At the time of a $125,000 jury verdict in his favor in June, 2015, Orr expressed disappointment in the scantiness of the award.
He was stopped by CHP officer Jay Brame on Aug. 6, 2013, because he was driving too slowly and “drifting.” Brame assumed that Orr was driving under the influence, but the motorist insisted he was a tea-totaller and that his driving was the result of a stroke.
Brame was also a defendant in Orr’s subsequent lawsuit, but it was Plume who, upon arriving at the scene, insisted that Orr be handcuffed and punched him.
Pleaded With Officers
The opinion declares:
“Here, the officers were dealing with a 76-year-old disabled man who could barely stand without a cane. Orr posed no immediate threat to the officers or anyone else. He had agreed to accompany them to the station. He pleaded with the officers not to handcuff him and told them that he needed control of his arms for balance due to a stroke. While Orr passively resisted by folding his arms across his chest and twisting his torso from side to side, the suspected crime, driving under the influence of drugs, was nonviolent and based on a minor driving infraction. A punch that caused Orr to fall to the ground was clearly not justified under these circumstances.”
Plume wrongfully arrested Orr for resisting arrest in light of his own wrongful conduct, the opinion says. He was correctly denied qualified immunity, it continued, because the wrongfulness of his conduct was well established by case law.
Attorney Fees
Nguyen and Vance wrote that District Judge William B. Shubb of the Eastern District of California erred in parsing attorney fees based on his perception that there was a “lack of a tangible public benefit from the verdict,” basing the conclusion on a law review article by . Joanna C. Schwartz.
The opinion says:
“[W]hatever the merits of Schwartz s academic findings and recommendations, the district court was not free to disregard judicial precedent in order to adopt them. Just as the court could not have imposed vicarious liability on the state or refused to consider defendants” qualified immunity defense, the court should not have assumed, contrary to a long line of cases, that a fee award would have no deterrence effect.”
The case is Orr v. Brame, No. 15-16514.
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