Police Chokeholds and Nonviolent Suspects

Does this fact pattern sound familiar? During an arrest, the suspect is allegedly placed in a chokehold by police. Suspect dies. A federal civil suit follows. Roger Owensby Jr.? No, this is a case

Does this fact pattern sound familiar? During an arrest, the suspect is allegedly placed in a chokehold by police. Suspect dies. A federal civil suit follows.

Roger Owensby Jr.? No, this is a case from Michigan, and the January 2007 opinion from the U.S. Court of Appeals from the Sixth Circuit is instructive.

The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee. Its opinions are binding on lower federal courts in all these states. I am repeating the facts directly from the Sixth Circuit opinion.

Ethel Partee was concerned about her son Arthur's erratic behavior.

She thought he should be hospitalized and was looking for advice. She sought out the police to help her. That is one of the saddest aspects of this case, considering how it unfolded.

An officer named Tim Sutherland advised Partee that her son "could not be involuntarily committed for evaluation because he did not appear to be a danger to himself or others." But Officer Sutherland had an idea. He could look for an outstanding warrant on Arthur. If he found one, he could arrest Arthur so Arthur could be evaluated. Partee agreed with this plan. Sutherland found an old traffic warrant for driving without a license.

Sutherland and fellow officer William Bradshaw went to the Partee home. They found Arthur sitting on a couch watching TV. He refused to give the police the information they sought. He denied that the warrant was for him. He ignored them but didn't resist them. The officers moved some furniture away from the couch where Arthur was sitting. That started a struggle. According to the court's opinion, here's what happened next:

"At the end of the struggle, Partee lay handcuffed and face down on the ground. His mother, having witnessed the entire interaction, realized that her son was in trouble at that point and implored the officers to help him. In response, they told her that Partee was 'just faking' and 'playing possum.' The two officers finally turned Partee over and slapped him in the face, attempting to get him to respond. When he did not, they removed his handcuffs and initiated CPR, but without success. By the time medics were called and arrived at the residence, Partee was no longer breathing and had no detectable pulse. He was pronounced dead on arrival at a local hospital."

The medical examiner opined that the cause of Arthur Partee's death was "asphyxia associated with physical restraint."

As with Owensby's case, there were sharply different versions of what happened. According to Arthur's mother, Officer Sutherland "almost immediately and without provocation jumped on Arthur Partee and began choking him." The officers claimed that, after being unresponsive, Arthur rushed the officers. Sutherland claimed the struggling Partee tried to unsnap his gun holster and tried to grab his weapon; Officer Bradshaw did not back this up in his report. Neither officer mentioned a chokehold in their initial reports. However, Bradshaw later admitted seeing Sutherland use a neck restraint on Partee.

These events gave rise to a civil lawsuit filed by the Estate of Arthur Partee under 42 U.S.C. 1983. 1983 claims, as they are popularly called, are tort claims for money damages brought by a private citizen for violation of constitutional rights by a "state actor" (in contrast to a private person) acting under the color of state law. An on-duty police officer is a state actor acting under color of state law.

Section 1983 claims are complex and difficult, because they pit important principles against one another. Even if a citizen establishes such a claim, state actors are entitled to immunity from liability if the rights they violate are not "clearly established" rights. Immunity most often prevails in these cases because a court will find the particulars of the case are not literally identical to settled law. The trial court's decision in Partee's case is a typical example of what often happens.

Partee's representative argued that the police used excessive force in this case in violation of Partee's Fourth Amendment rights. The Fourth Amendment protects citizens from unreasonable searches and seizures. In a case alleging excess force, the legal question is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them" — meaning what did it look like at the scene rather than in hindsight. If objectively reasonable, the officer gets immunity.

The trial judge granted immunity to the officers involved, finding that, even if Partee's constitutional rights had been violated, "there simply was no clearly established law prohibiting the use of the vascular neck restraint under the circumstances of this case." But in a unanimous decision, the Sixth Circuit reversed, finding that since the case turned completely on which version of the facts was believed, a jury should decide this question. The appeals court found other facts very significant on the question of whether Sutherland's actions were reasonable.

The court found that Sutherland's actions had to be evaluated in light of his training in the use of neck restraints. According to the training manual, such restraints are to be used only when all lesser forms of control have failed. According to the trainer, "You wouldn't use this technique on someone who is just sitting there and saying, 'I'm not going.' ... You're going to use this for someone who is highly agitated, who is violent."

Additionally the court found Sutherland's prior knowledge of Arthur Partee's mental or emotional difficulty highly relevant. Taking into account both the training manual and Partee's metal state, the court concluded that a reasonable jury could find that Sutherland used excessive force. But that still only establishes the first part of a 1983 claim.

Unless a plaintiff can show that the constitutional right violated was clearly established, the police officer gets immunity and the case is over. The trial court found the plaintiff had failed to show "a sufficiently specific clearly established right." The court of appeals disagreed, finding "Partee posed no threat to the officers or anyone else. It follows that the use of the neck restraint in such circumstances violates a clearly established constitutional right to be free from gratuitous violence during arrest and is obviously inconsistent with a general prohibition on excessive force." So Partee's family will have its day in court.

I applaud this decision for allowing jurors, rather than judges, to decide these kinds of cases. This tragedy also underscores the importance of training police in the appropriate handling of people with mental health problems.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.

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