What Appeals Court Says Cops Should Know About Prone Positioning

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The issue of prone positioning of resistant suspects, which we reported on in a previous article, is back in the news–this time with a US appellate court weighing in with comments on what officers are expected to know about the subject.

The case, Bolick v. City of East Grand Rapids (MI), is a civil rights action against police, alleging the use of excessive force in the excited delirium death of a mentally ill and highly combative 30-year-old who had been “freaking out” and threatening to kill his father.

When a sergeant and an officer arrived at the scene in response to the father’s 911 call for help, the “out of control” son quickly became a veritable poster child for resistance.

He punched the officer in the face, ran off, “sucker punched” him again when caught, promptly stood up unfazed after being Tasered, refused to follow directives, broke off the Taser wires after being zapped again, ran off again, withstood more Taser deployments by both the sergeant and the officer, ended up in the kitchen of his home where he “crouched into a fighting position” within easy access to a set of knives, charged at the officer and punched him in the chest, was drive-stunned, and finally, despite “significant resistance,” was wrestled to the floor and handcuffed.

The suspect, incidentally, was 5’4″ and weighed 128 lbs.

Despite police statements to the contrary, family members who witnessed the extended confrontation and the suspect’s on-scene death soon after EMS arrived claimed that once he was handcuffed in the prone position he no longer offered active resistance. Yet, they insisted, the sergeant continued to apply “pressure to [his] back with both knees and the full weight of his body” and the patrol officer drive-stunned him again in his back.

In the civil suit brought by the suspect’s father, the district court ruled against summary judgment for the officers and stated that “genuine issues of material fact” regarding the back pressure and the final Tasering require a trial.

The federal appellate court for the 6th circuit, considering the defendants’ appeal, agreed. In a written decision last September, Judge Edmund Sargus Jr. noted that a jury “could find that the officers’ conduct was unreasonable” under the circumstances.

He wrote that a reasonable officer would know that it was well-established at the time of the occurrence that “it was excessive…to apply the weight of his body to the back of a handcuffed suspect who did not resist, all while the suspect lay on his stomach with another officer controlling his legs…. [P]utting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force….”

Likewise, the Tasering “under substantially similar conditions was also excessive.”

The court ordered the case returned to the district level for further proceedings.

Sargus mentioned in a footnote that video of the incident might have clarified the dispute “as to whether and what extent” the suspect continued to struggle after being handcuffed. The camera on the officer’s Taser was recording but “much of the video came from the vantage point of the Taser placed on the floor next to [the suspect’s] body [and] does not resolve” the issue, he wrote.

The appellate decision can be accessed in full, free of charge, by clicking here.

Our thanks to Atty. Michael Brave, member/manager of LAAW International LLC, for keeping us updated on judicial developments law enforcement and use of force.

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