MARTINSBURG – A Martinsburg police officer won his motion for summary judgment in the excessive force lawsuit filed against him in the U.S. District Court for the Northern District of West Virginia.

Judge Gina M. Groh dismissed Plaintiff William E. Hale’s lawsuit against Officer Erin P. Gibbons of the Martinsburg Police Department on Jan. 3.

According to the opinion, on May 6, 2011, Hale was involved in a dispute with the manager of an Enterprise-Rent-A-Car in Martinsburg and he refused to leave after being asked to.

Gibbons arrived in response to a call placed by Enterprise and found Hale talking on the phone in the Enterprise lobby. Gibbons asked Hale to leave the rental agency and Hale responded that he would leave after he finished his phone call to Enterprise’s customer service department.

The opinion states, “The Plaintiff alleges the Defendant became agitated and told the Plaintiff to leave the rental agency again. The Plaintiff continued his call. At that point, the Defendant allegedly began tasing the Plaintiff on the neck, shoulders, and upper back.

“According to the Plaintiff, even though he advised the Defendant he had a defibrillator, the Defendant continued to administer repeated shocks to the Plaintiff’s neck, shoulders, and back.”

At this point, another police officer, Officer Jones, responded and they were able to subdue Hale, remove him from Enterprise, and place him in the back of a patrol car.

Hale alleged that he began to experience chest pains during the incident, and at some point after his release from the Martinsburg City Police Department later that day, he was carried to a local hospital by his daughter. He was released on May 9, 2011.

“The Plaintiff alleges the Defendant and Officer Jones’ use of force resulted in more than thirty burn wounds on his neck, shoulders, and back,” the opinion states.

The version of events described by the officers, and mostly backed by other witnesses on the scene, was decidedly different from the plaintiff’s.

“According to the Defendant,” when defendant arrived, “the Plaintiff was ‘speaking in circles,’ holding the telephone up to his ear without talking into it, then putting it down in his lap. Therefore, the Defendant concluded the Plaintiff might be mentally impaired," the opinion says.

“When the Plaintiff commented he was calling his daughter or wife to pick him up, the Defendant offered to give the Plaintiff a ride to a nearby 7-Eleven store to wait for his ride. The Defendant testified based on the Plaintiff’s behavior, he feared the Plaintiff might be ‘buying time,’ and ‘on the brink of exploding.’

“Thus, the Defendant alleges he gave the Plaintiff several more orders to leave and placed a call for backup. At this point, the Plaintiff stated “the only way I’m leaving is by physical force.”

Gibbons claimed that after grabbing Hale by his arm, Hale pulled away from him and Gibbons then administered a five-second burst to Hale’s back. After it appeared that the initial burst did not faze Hale, Gibbons tased Hale again several times in an effort to get Hale to lie on the floor and stay there.

“During the scuffle, Officer Jones arrived on the scene in response to the Defendant’s call for backup. Officer Jones testified at his deposition that when he arrived at the scene, he saw the physical altercation inside through Enterprise’s large glass windows," the opinion says.

“When Officer Jones entered the building, he found the Defendant backed up against a wall with the Plaintiff between the Defendant and Officer Jones. Officer Jones observed the Plaintiff’s hand on either the Defendant’s shirt or gun belt.

“Therefore, Officer Jones alleges he commanded the Plaintiff to place his hands behind his back, but the Plaintiff did not comply. Thus, Officer Jones discharged his taser, striking the Plaintiff in the back. Afterward, the Defendant was able to subdue the Plaintiff on the ground.”

Hale filed suit against Gibbons, Jones and the City of Martinsburg, alleging excessive force in violation of the Fourth Amendment and various state law claims.

“On December 7, 2012, the Court approved and entered an Agreed Order of Voluntary Partial Dismissal, dismissing Officer Jones and the City of Martinsburg as parties defendant to this action and further dismissing the Plaintiff’s state law claims," the opinion says.

The only claim remaining at this point was the excessive force claim against Officer Gibbons and he moved for summary judgment “on the basis that he did not employ excessive force against the Plaintiff as a matter of law and is furthermore entitled to qualified immunity.”

Judge Gina Groh wrote, “In addressing an excessive force claim brought under §1983, the analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” In this case the right is the “prohibition against unreasonable seizures of the person."

“Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion of the individual’s Fourth Amendment interests against the countervailing governmental interests at stake," Groh wrote.

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.

“The factors annunciated by the Supreme Court in Graham were adopted and applied by the Fourth Circuit in Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996), wherein the Court of Appeals held that ‘[i]n judging the reasonableness of a seizure, we consider three factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade by flight.’

“Considering the Graham/Lowery factors in the instant case, the Court finds that the Plaintiff was trespassing on Enterprise’s property once he refused their request to leave and the Plaintiff disobeyed a law enforcement officer more than once when commanded to leave. Moreover, the Defendant had reason to believe, based upon the Plaintiff’s behavior and demeanor, that the Plaintiff posed an immediate threat to the safety of the Defendant and others.

“Finally, the Defendant had reason to believe the Plaintiff was resisting arrest when he did not comply with the Defendant’s commands after he was initially tased. Therefore, the Defendant’s conduct in further tasing the Plaintiff in order to subdue him was objectively reasonable pursuant to Graham and Lowery.

“The Defendant did not club, hit, kick, or shoot the Plaintiff, nor did he tase the Plaintiff in an overly-sensitive area. The Plaintiff was not already restrained by handcuffs or otherwise confined at the time of the Defendant’s use of force. In fact, it is uncontested that Officer Jones, upon his arrival, also determined based upon his observations to tase the Plaintiff in order to subdue him.

“In the case at bar, the Court finds based upon the uncontested material facts that the Defendant’s use of force to subdue the Plaintiff was objectively reasonable under the circumstances."

Although the granting of summary judgment on excessive force had effectively exonerated Gibbons, Groh then turned to the qualified immunity claim, presumably for appeal purposes.

“In Saucier, the Supreme Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Saucier, 533 U.S. at 201," she wrote.

“Second, if the plaintiff has satisfied the first step, the court must decide whether the right at issue was 'clearly established' at the time of the defendant’s alleged misconduct.

“With regard to the first Saucier/Pearson factor, for the same reason that the Defendant is entitled to summary judgment on the Plaintiff’s claim of excessive force, the Plaintiff cannot demonstrate that his constitutional rights have been violated.

“Moreover, even if the Plaintiff could demonstrate deprivation of a constitutional right, he would not be able to satisfy the second Saucier/Pearson factor by demonstrating that such right was 'clearly established.'

“It is uncontested that the Plaintiff disobeyed lawful orders to leave the premises, obstructed a law enforcement officer, stated that he would only comply if taken by force, and when shown the taser stated 'you do what you’ve got to do.'

“Viewing the situation through the lens of information actually possessed and observed by the Defendant at the time of the use of force in question, the Defendant had reason to believe that the Plaintiff posed an immediate threat to the safety of the Defendant and others.

“The Defendant’s initial use of force was met with resistance by the Plaintiff and, in response, more force was used in order to subdue the Plaintiff. Such conduct was neither 'plainly incompetent,' nor was it in 'knowing violation' of the law."

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