AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability
of Law Enforcement Agencies & Personnel


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Assault and Battery: Baton/Nightstick

     An arrestee claimed that three officers violated his constitutional right of access to the courts by refusing to disclose who used excessive force against him in the course of his arrest. He believed that one or more of six officers on the scene threw him to the ground and struck him several times in the back of his left thigh with a baton or flashlight. Because he was face-down on the ground, he could not identify the officer or officers responsible. He also argued that the city violated that same right by adopting a "conspiracy of silence" concerning such disclosure, preventing him from knowing who to sue. While the federal appeals court assumed, for purposes of the appeal, that the officers' alleged conduct was unconstitutional, it found that the issue of whether an evidentiary cover-up by officers could violate an individual's right of access to the courts was not clearly established. The officers, therefore, were entitled to qualified immunity, but the city was not entitled to summary judgment since the claims against it were not "inextricably intertwined" with the claims against the officers. Lynch v. Barrett, #12-1222, 2013 U.S. App. Lexis 290 (10th Circuit).
     Police stopped a motorist driving a stolen car. Police officers smashed the car's window and dragged the driver through it. The trial court found that this use of force was reasonable but allowed the issue of whether the officers used excessive force by allegedly beating him with batons after removing the arrestee from the car to go to the jury, which returned a verdict for the officers. The appeals court ruled that because of a factual dispute as to whether the arrestee's hands were on the steering wheel or making furtive gestures when the officers smashed the window, it had been erroneous to grant summary judgment on the initial use of force, since this was relevant to whether he then posed a threat to the officers. The erroneous jury instructions stating that the initial use of force was reasonable as a matter of law required reversal of the jury verdict also, since it prevented them from properly considering the totality of the circumstances. Coles v. Eagle, #11-16471, 2012 U.S. App. Lexis 24923 (9th Cir.).
     An officer's use of pepper spray and a baton against a motorist who disobeyed orders to get back in his vehicle was an "intermediate" use of force that "while less severe than deadly force, nonetheless present a significant intrusion upon an individual's liberty interests." It is "rarely necessary, if ever," a federal appeals court stated, "for a police officer to employ substantial force without warning against an individual who is suspected only of minor offenses, is not resisting arrest, and, most important, does not pose any apparent threat to officer or public safety." The motorist did not resist, but merely sat on the curb, so he could proceed with his excessive force claim. Young v. County of Los Angeles, #09-56372, 2011 U.S. App. Lexis 17829 (9th Cir.).
     Article, collapsible vs. fixed baton study: "Although the smaller batons may be easier to handle, these lighter batons simply cannot generate the force of larger, heavier batons. Consequently, this practice actually works against the smaller officers by reducing the force that they are capable of delivering. A baton that is too light or too small may cause an officer to strike a subject repeatedly to effectively control a suspect, which is perceived badly by both the media and the public. While a heavier baton is more likely to cause injury, this risk is reduced when strikes are properly delivered to an approved target area on the body and is more likely to be effective in a single strike. The most practical, less-than-lethal force option is one that incapacitates with the least number of applications." A Pilot Study of Kinetic Energy Transfer Based Upon Police Baton Designs, by K. Collie, B. Wargo, C. Berry, and C. Mesloh, 9 (1) Law Enforcement Executive Forum 121-128 (2009).
     If the facts were as the plaintiff alleged, the decedent was knee deep in water, unarmed, surrounded by police, and had ceased trying to escape arrest when he was shocked with a Taser five times, struck with a baton multiple times, and pushed into a position that submerged his head in water, causing him to drown. Under those circumstances, officers were not entitled to qualified immunity on an excessive force claim. The officers should have known that striking the arrestee with a baton after he was no longer resisting violated clearly established constitutional rights. Prior case law indicating that the unwarranted use of pepper spray was excessive force was sufficient to put officers on notice that improper use of a Taser could be excessive force. Additionally, the officers should have known that it is almost always an excessive use of force to restrain an arrestee in a manner that places his head under water for a long period of time. Landis v. Cardoza, Civil No. 05-74013, 2007 U.S. Dist. Lexis 74838 (E.D. Mich.).
     Dispute over whether an arrestee resisted arrest, or whether he only tried to take officers' nightsticks in self-defense when they hit him as he made no threatening motions, and then complied with an order to lie down made a trial court's grant of qualified immunity to the officers "premature." If the arrestee's version of the incident was true, the force used was excessive. A state law prohibiting the use of physical force to resist arrest did not prevent an arrestee from attempting to protect himself against an unjustified assault. McLaurin v. New Rochelle Police, No. 04-4849, 2007 U.S. App. Lexis 1839 (2nd Cir.). [N/R]
     In a lawsuit over the death of a man weighing almost 350 pounds with PCP and cocaine in his bloodstream who allegedly struggled with police and resisted their attempts to arrest him outside a fast food restaurant, the plaintiffs claimed that the officers used excessive force, unnecessarily striking him with metal batons and causing him to suffer respiratory failure from positional asphyxia when they sat on him, after spraying a chemical irritant (pepper spray) in his face. The trial court found that the plaintiffs sufficiently stated a claim that the officers who apprehended him used excessive force against him, as the confrontation began simply because firefighters who encountered him perceived him as creating a "nuisance," which is "not the type of crime" permitting officers to use a greater use of force. It was disputed whether the decedent subsequently was resisting arrest, or was simply trying to position himself so that he could breathe. Additionally, the plaintiffs in the case alleged that the officers used pepper spray against the decedent after he was already face down and was being handcuffed, which the court stated, if true, could also constitute an excessive use of force. The officers were not entitled to qualified immunity because a reasonable officer might have known that engaging in the alleged acts violated the decedent's right to be free from excessive force. The court granted a motion to dismiss claims by the plaintiffs against the firefighters, who left the scene before some of the incidents that resulted in the decedent's death, and against police supervisors and a fire chief. It denied a motion to dismiss claims against the police officers involved in the incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis 75430, 2006 WL 2987820 (S.D. Ohio). [N/R]
     Police officer was not entitled to summary judgment on claim that he used excessive force against arrestees when it was possible for a jury to find that he struck them with a baton after they surrendered, and there was a genuine issue of fact as to whether he acted with malice or bad faith in doing so. Baker v. City of Hamilton, No. 05-4390, 2006 U.S. App. Lexis 31056 (6th Cir.). [N/R]
     Officers were not entitled to qualified immunity on arrestee's claim that they used excessive force by using pepper spray against him and hitting him repeatedly with a baton while he was seated in his truck after a traffic stop. Arrestee claimed that he had not resisted the officers or tried to flee, and that he was "passive" and cooperative. Reed v. City of Lavonia, No. 3:03-CV-111, 390 F. Supp. 2d. 1347 (M.D. Ga. 2005). [N/R]
     Officer's use of baton against individual in the course of attempting to clear an intersection following receipt of an anonymous bomb threat was reasonable when individual failed to comply with orders to leave, and the baton was only used to push him away from the officer and in the direction of the leaving crowd . Zavala v. Parks, 124 Fed. Appx. 527 (9th Cir. 2005). [N/R]
     Officers did not use unreasonable force in employing swinging batons at waist level and then hitting striking workers who refused to disburse or move. Evidence showed that the crowd's violent behavior caused personal injuries and at least 91 incidents of property damage, and that the striking workers' behavior affected not only non-striking workers at the struck factory, but also persons on their way to work at another nearby business. Further, there was testimony that objects were being thrown at the officers as they started marching toward the strikers. Thurmond v. City of Huntsville, 904 So. 2d 314 (Ala. Civ. App. 2004). [N/R]
     314:19 Officers did not use excessive force in utilizing kubaton to force detainee to release another detainee's driver's license from his mouth; medical records did not support plaintiff's claim that officers forcefully shoved kubaton into his nose and mouth 8-10 times. Taylor v. McDuffie, #94-6808, 155 F.3d 479 (4th Cir. 1998).
     306:90 City and officer who allegedly hit another officer during baton training exercise, resulting in disabling injury, liable for $2.35 million in damages; suit claimed negligent supervision by city. Hamilton v. City of Brawley, Cal. Imperial County Super. Ct., No. 84701, Nov. 24, 1997, 41 ATLA L. Rptr. 94 (April 1998).
     Award of $135 million upheld for officers' beating of man, resulting in stitches and defecation in pants Janda v. City of Detroit, 437 N.W.2d 326 (Mich App. 1989).
     Court overturns $15 million award to transit passenger blinded in one eye by officer's nightstick; passenger's prior conviction for assault on officer was binding in civil case Chism v. New York City Transit Authority, 535 N.Y.S.2d 730 (A.D. 1988).
     The fact that an assault is committed by a police officer does not make it a constitutional violation Dandridge v. Police Dept of City of Richmond, 566 F.Supp. 152 (E.D. Va 1983).
     No liability to officer, chief of police, or city for alleged assault and battery of arrestee Rogers v. Rulo, 712 F.2d 363 (8th Cir. 1983).
     Troopers had cause for initial detainment but continued detainment and excessive force may result in liability Daniel v. State Thru Wash State Patrol, 671, P.2d 802 (Wash App. 1983).
     Officer cleared upon expert testimony on nightstick injuries Coleman v. DeMinico, 730 F.2d 42 (1st Cir. 1984).
     Officer's counter suit for assault and battery dismissed Ysaguirre v. Hummert, 667 S.W.2d 741 (Mo App. 1984).
     City could be liable for policy of issuing blackjacks to officers with inadequate training or supervision Hardeman v. Clark, 593 F.Supp. 1285 (DDC 1984).
     Court awards maximum amount of liability for nightstick injuries that left skull portions missing Belanger v. Cross, 488 A.2d, 410 (RU 1985).
     Court orders City to accept additur on new trial Bustamente v. City of Tucson, 701 P.2d 861 (Ariz App. 1985).
     Court may consider post-event situation in determining policy/custom Loza v. Lynch, 625 F.Supp. 850 (D.Conn 1986).
     Court dismisses claim alleging permanent deafness from nightstick injury Scarpa v. Murphy, 806 F.2d 326 (1st Cir. 1986).
     Officer did not use excessive force in using nightstick when he did not attempt to injure suspect Ball v. Tong, 677 F.Supp. 1177 (N.D.Ga 1988).
     City can be held liable for $500,000 in officer's alleged beating of suspect even if officer is held not liable in later lawsuit Daigle v. City of Portsmouth, 534 A.2d 689 (NH 1987).
     "Power chop" with baton to knee was not unreasonable force; exclusion of videotape evidence of baton training harmless error Fronk v. Meager, 417 N.W.2d 807 (N.D.1987).

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