Resisting Arrest vs Excessive Force, need advice

[jennova]

What is the name of your state? Arizona

My friend was charged with two felonies of resisting arrest with physical force; we think excessive force was used by the officers and would like to know what steps to properly take (if we have a case at all).

First count: My friend's brother and the sheriff were arguing over a lost rental inner tube. The brother then made a kissing motion at the sheriff (he did not kiss the sheriff, but he simply puckered up his lips and was a foot away from the sheriff), and the sheriff proceeded to choke the brother. My friend saw this choking happening (without knowing what had transpired) and intervened by separating the two--trying to take the sheriff's hands off his brother's throat. This is his first charge (resisting his brother's arrest with physical force).

Second: The sheriff and 3 other officers and 1 civilian then proceeded to slam my friend onto the ground a few times. They held his left arm behind him and asked for his right arm. His right arm was stuck under his body and he was yelling that he couldn't get it out, but because the other officers (and civilian) were all yelling, they couldn't hear him. He tried to get up to free his arm, and was slammed down again (his face and shoulder was bleeding from the force). They then tasered him. This is the second charge of resisting arrest.

I witnessed these events, this is a first time offense for him, and he had served in the military. We didn't get any names of other witnesses (other than our friends) and are not sure what steps to take that won't cost too much. He's been assigned a public defender but many have told us to get a private attorney. He may not be able to afford one (the ones he went to wanted to charge ~$7500), but maybe it's our lack of knowledge in this situation that is interfering with our ability to find a good lawyer.

Any advice?

 

[xylene]

Any advice?

Testify honestly.

Other than that your friend is an adult facing serious criminal charges.

The best way to help consists of truthful testimony, and being a supportive friend.

 

[jennova]

Testify honestly.

Other than that your friend is an adult facing serious criminal charges.

The best way to help consists of truthful testimony, and being a supportive friend.

Thanks Xylene. I am definitely going to do the above.

However, I am hoping to find some advice for him on this forum -- not for me.

(He does not have that much time to do research due to his job, so I am helping him get some advice, as a concerned, caring girlfriend would. If it is preferred, I can have him post the question instead--I am new to this forum so I'm not sure what the protocol is.)

 

[moburkes]

Not to be rude, but the advice he needed was BEFORE he intervened. He NEEDS an attorney, so he should start asking for overtime immediately.

 

[xylene]

Count 1 - The defense is that the officer was assaulting his brother? Maybe. Was the officer not in uniform? What was the deal?

Count 2 - You do not get Tasered 'just like that' for getting up. Is it possible the officers conduct was improper, yes. But their will be a second side to this.

Key questions:

Was your friend drunk? (consumed any alcohol)
How about the brother, you, etc.

Why did the verbal confrontation erupt?

Why were the police on scene for a lost tube?

 

[Ozark_Sophist]

Count 2 - You do not get Tasered 'just like that' for getting up.

A local woman was tasered in the holding cell. She was detained for her own protection due to suicidal idealation. She was cuffed and shackled. The local police officers and deputies placed her in a holding cell cuffed, shackled, and hogtied. She continued to bang her head against the floor, so they tasered her. Just like that.

 

[tranquility]

Get an attorney is the only possible advice. These are serious charges. There is nothing which can be done by laymen in this type of situation. While the excessive force issue is not dependent on if the friend is convicted of the charges or not, being convicted of a felony will seriously disrupt your friend's life. Public defenders are fine, but are very busy. Mid-or low-level criminal attorneys will not be as knowledgeable, but they can spend more time on the case. Get all the pennies together and put up the best defense possible. Anything which has been saved for a rainy day--well, the skies have opened up with a downpour.

Even though many excessive force actions are covered up by the police by overcharging, that does not mean there is not serious problems in your friend's life. Once you see an attorney you may ask for advice regarding the filing of a claim for the excessive force issue.

 

[xylene]

A local woman was tasered in the holding cell. She was detained for her own protection due to suicidal idealation. She was cuffed and shackled. The local police officers and deputies placed her in a holding cell cuffed, shackled, and hogtied. She continued to bang her head against the floor, so they tasered her. Just like that.

Well that's a lovely story. PS I wasn't saying I don't hate the police for BS like that.

I think my point still stands that in the posters scenario one person's "getting up" is another persons (the officers) "extremely combative suspect threw off the restraining force of 4 persons during handcuff procedure, resulting in escalation of force."

 

[jennova]

Thanks for all the advice everyone. It's good to understand the seriousness of the situation as tranquility noted, and it sounds like the mid or low level attorney may be the route he'll have to take. He may also file a separate claim for excessive force, but there's the additional expense (that's what one law firm said), time, and stress. What is the benefit of filing a claim -- can it help reduce the felony charges? Does this happen after the criminal case?

As I am very unfamiliar with the court / legal world and have not have any previous dealings with it, I apologize for any confusion (and misuse of terms) I have over all this.

For Xylene's questions, the brother, who had been drinking, was arguing over the return of rental tubes with a woman at the counter, who said one was missing. The woman then waved over the sheriff. There are a lot of sheriffs about because this place is near a sheriff station and because there are usually a lot of drunk people in that area. The officer's uniform looks similar to the employees and security people there (brown shirt and shorts). None of us understand why the tasering happened, other than everything happened so fast and was chaotic.

Get an attorney is the only possible advice. These are serious charges. There is nothing which can be done by laymen in this type of situation. While the excessive force issue is not dependent on if the friend is convicted of the charges or not, being convicted of a felony will seriously disrupt your friend's life. Public defenders are fine, but are very busy. Mid-or low-level criminal attorneys will not be as knowledgeable, but they can spend more time on the case. Get all the pennies together and put up the best defense possible. Anything which has been saved for a rainy day--well, the skies have opened up with a downpour.

Even though many excessive force actions are covered up by the police by overcharging, that does not mean there is not serious problems in your friend's life. Once you see an attorney you may ask for advice regarding the filing of a claim for the excessive force issue.

 

[tranquility]

Think of the crime charged as be completely seperate from the excessive force. Your friend is charged with a crime and, even if there was found to be excessive force, it would not directly help with that. However, it is true one cannot "resist" an illegal action and if the actions bringing rise to the charges were found to be in response to excessive force, your friend may have a defense.

It is possible the DA will deal the charge down to a misdemeanor. If he does, he will probably want you to drop any claim against the officers for excessive force. There is no guarantee of a deal to that level and I can't even guess as to the possibilities based on the facts.

The force issue is a tort by the police against your friend. There is no guarantee it is a winner. As xylene wrote, it would be very easy to claim the force was reasonable for the situation. However, if your friend thinks he can win, he should file a claim against the governmental agency within the statutory period. This claim is basically asking for permission to the government to sue them. It is required by statute before governmental immunity is waived.

 

[CdwJava]

My friend was charged with two felonies of resisting arrest with physical force; we think excessive force was used by the officers and would like to know what steps to properly take (if we have a case at all).

Your friend can consult an attorney that handles these matters.

My friend saw this choking happening (without knowing what had transpired) and intervened by separating the two--trying to take the sheriff's hands off his brother's throat. This is his first charge (resisting his brother's arrest with physical force).

Chances are the officer's account will be different. In any event, your friend had no real legal right to intervene.

And what do you mean by "choking"? Two hands around the throat like Homer Simpson to Bart? An arm around the throat from behind? Some other takedown? It could well be that what your friend thought was "choking" was something else.

Ultimately, that will come out in a trial (criminal or civil).

He tried to get up to free his arm, and was slammed down again (his face and shoulder was bleeding from the force). They then tasered him. This is the second charge of resisting arrest.

Sounds like he has an argument for reasonable doubt in the second offense. IF the jury buys what he tells over what the officers and the civilian tell.

I witnessed these events, this is a first time offense for him, and he had served in the military. We didn't get any names of other witnesses (other than our friends) and are not sure what steps to take that won't cost too much.

An attorney for a civil suit will likely cost him money. If he has significant injuries or other damages, an attorney might take the matter on a contingency basis (where he gets a portion of the award), but this is likely only if there is good chance that the attorney can prevail in court.

However, his first order of business is to prevail in his criminal trial. If he loses there, then no civil suit is likely to go anywhere.

He's been assigned a public defender but many have told us to get a private attorney. He may not be able to afford one (the ones he went to wanted to charge ~$7500), but maybe it's our lack of knowledge in this situation that is interfering with our ability to find a good lawyer.

The price of a lawyer is not the sole determinant as to whether he is "good". Lawyers can be expensive. If he has a public defender, it's likely he does not make a lot of money and thus qualified for one.

You and your friends can always pool your money to pay for one for him, but that's up to you. And paying a lot for a criminal defense attorney is no guarantee of victory.

Oh ... was alcohol involved? Dollars to donuts there was ample alcohol intake by your friend and his brother, but I could be wrong.

- Carl

 

[CdwJava]

A local woman was tasered in the holding cell. She was detained for her own protection due to suicidal idealation. She was cuffed and shackled. The local police officers and deputies placed her in a holding cell cuffed, shackled, and hogtied. She continued to bang her head against the floor, so they tasered her. Just like that.

Then the question becomes: Why did they apply the Taser?

Our jail staff have been in very similar situations and had to Taser a subject ... there ARE circumstances where that is an applicable use of force to gain compliance even from someone who is shackled. I'm not saying it was in this case you describe, but there are circumstances where it could be a proper application.

Another option (like the one that happened here) would be to let the person keep pounding their head until they crack their skull or their spine ... then they come back and sue everyone!

- Carl

 

[Ozark_Sophist]

A local woman was tasered in the holding cell. She was detained for her own protection due to suicidal idealation. She was cuffed and shackled. The local police officers and deputies placed her in a holding cell cuffed, shackled, and hogtied. She continued to bang her head against the floor, so they tasered her. Just like that.

There were six law enforcement officers present in the room. The woman was detained at the request of medical personnel after she walked out AMA from the emergency room, but before they could commit her for a 96 hour hold. It is still being determined why she was taken to holding instead of jail (last I heard, something to do with less paperwork).

And in a seperate jurisdiction yesterday, an officer tasered a suicidal man who was holding a handgun to his own head with his finger on the trigger. Upon application of the taser, the subject was killed when the gun went off.

Then there was the tasering of the father in Texas while he was holding a newborn infant on a secure floor (elevator would not operate because of procedures designed to prevent kidnapping). In this case, I would have felt like tasering him after persuading him to relinquish the newborn to the mother or staff.

I recognize tasers are an effective non-lethal (normally) force to control a combative suspect but application of taser devices in smaller jurisdictions which tend to have less oversight seems overly aggressive.

In the OP's case, I think alcohol played a contributing role. The situation escalated but one could not fault backup officers from acting to control a combative subject.

 

[tranquility]

Back when I was a cop, I had a sergant who used to be a deputy sheriff. He had been in the county jails as part of his service. The tales he'd tell would curl your hair. Combative people in small spaces are *dangerous*. Although things are different today, they had entry teams trained on getting people out of their cells. The two front entry people would wrap themselves up in mattresses and try to pin the person against an object while the others would swarm the limbs. Even with six-man teams, the injury rate of the officers was high.

From my posts, I'm pretty sure it's clear I'm no apologist for the cops. I think it is healthy to have a certain skepticism of them especially when you look at questionable actions from an individual. However, that does not mean the job is not difficult and dangerous. Tasering a handcuffed person doesn't make me cringe so much as wait to hear all the facts. The police should track and deal with cops who enjoy stick time too much. Most departments are doing much better in this regard. Rouge police violence, while not in the past, seems on a downward path. There will always be some. Just like there will always be violence in society as a whole. It isn't fair to focus on the violence of those who have to deal with the violent. We have to look at the whole picture of an event to see if the actions were reasonable at the time.

 

[jennova]

Thanks again everyone. Learning a lot here!

CdwJava -- by choking it was two hands around the throat like Homer to Bart. The brother's face was turning red and his mouth was open wide so the tounge was sticking out from the pressure. As I mentioned earlier, alcohol was involved.

It's good to know about doing the criminal suit before the civil. As there are no external injuries on my friend other than the burn/scratches on his head and shoulder and the taser burn marks (though he is waiting for lab results from his doctor, I think he did a cat scan for the tasering), I don't think it is worth a civil suit. However, this is not my decision to make -- he is fairly adamant about filing a civil suit. I've been presenting him with reasons why this may not be worth his time, but was never sure if I could back up what I was saying, so this forum has helped.

I'm hoping we can do something that tranquility said, where the DA can deal the charge down to a misdemeanor in exchange for dropping any claim against the officers for excessive force. Does he need to file the civil suit in order for this to happen, or is this something his public defender or (if he gets one) private attorney can do?