by John E. Motylinski (Spring 2019)
The U.S. Court of Appeals for the Seventh Circuit recently dismissed a case against two police officers alleged to have used excessive force in using a taser against an uncooperative and hostile suspect. Specifically, the court in Dockery v. Blackburn, 911 F.3d 458 (7th Cir. 2018), found that the officers were entitled to “qualified immunity” from suit, thanks in part due to the availability of video footage of the incident.
By way of background, the doctrine of qualified immunity protects government officials from liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights of which a “reasonable person” would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009). In that sense, “qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Id.
In the Dockery case, Mr. Dockery barged into his girlfriend’s apartment in Joliet, Illinois, while high on phencyclidine (“PCP”). Dockery had previously been banned from the apartment complex due to a prior domestic incident but proceeded to cause a ruckus. Sergeant Sherrie Blackburn and Officer Terry Higgins responded to the scene and found Dockery sitting on a bed. Dockery was calm and cooperative until after he was taken to the police station for booking. There, the officers uncuffed Dockery and allowed him to make a phone call.
When Dockery was being fingerprinted, however, he grew confrontational. The officers told him that he needed to be handcuffed to a bench for the rest of the booking process. In response, Dockery noticed that Sergeant Blackburn unholstered her taser, abruptly moved towards her, and aggressively pointed his arm at her face. Other officers tried to handcuff Dockery, but he angrily pulled away, fell over, and kicked wildly at them.
Sergeant Blackburn activated her taser and fired, hitting and stunning Dockery for about two seconds. Dockery continued to struggle and pulled out one of the taser prongs. Sergeant Blackburn put the taser into a “stun gun” mode and shocked Dockery three additional times until he could be handcuffed. Surveillance footage from the police station and Sergeant Blackburn’s taser captured the entire incident.
Nearly two years after the event, Dockery sued Sergeant Blackburn and Officer Higgins, as well as the City of Joliet and other police officers. The trial court dismissed the bulk of the case, but allowed the charges against Blackburn and Higgins to proceed — finding they were not entitled to qualified immunity as they claimed.
The District Court ruled this way because it perceived there were disputed issues of fact that required a jury to resolve. For one, Dockery maintained he was not actively resisting when Sergeant Blackburn first used her taser. Additionally, Dockery asserted that he was not intentionally resisting the officers’ efforts to handcuff him; rather, he had lost his balance because he was overweight and inflexible.
He also argued that his conduct was explained by the fact that his handcuffs were too tight. Dockery also asserted that his behavior after the first taser shock was explained by involuntary reactions to the shock — not intentional acts of resistance. Because the District Court was bound to construe the record in a light most favorable to Dockery, the court found there was enough evidence to warrant a trial.
The officers appealed and won. The Seventh Circuit noted that although it is true that the record should have been construed in favor of Dockery, his explanations and testimony were not enough to overrule the “irrefutable facts preserved on the video.”
First, the initial taser shock on Dockery was justified. The video of the incident clearly showed that “Dockery was uncooperative and physically aggressive when the officers tried to handcuff him, rocking back and forth and twice escaping their grasp” and when he fell backward “he wildly kicked in their direction and immediately jumped to his feet.”
The court also found the successive taser shocks were reasonable. Thanks to the video, the court saw for itself that Dockery’s “combative demeanor never changed, and he did nothing to manifest submission to being handcuffed.” Because this hard video evidence took precedence over Dockery’s testimony, the court found no issue of fact, concluded that the officers enjoyed qualified immunity, and instructed the District Court to dismiss the case.
The Dockery decision highlights the power of hard data in litigation. Although courts are bound to accept factual assertions in a manner most favorable to the plaintiff in handling dispositive motions, that deference cannot overcome the hard-factual evidence that photos or video provide. This highlights the need to ensure records and potential evidence are properly preserved if a lawsuit is anticipated.
For questions about the preservation of photo and video recordings, contact an attorney.