Article from: www.thenewspaper.com/news/36/3682.asp
1/6/2012Arkansas: Passenger Gets $1 After Excessive Cop Tasering
Federal judge gives an Arkansas car passenger $1 after he was tasered by cops, even though he committed no crime.
A passenger who walked away from a traffic stop in Barling, Arkansas was tasered and beaten by local police. Though the force used was excessive, a federal judge ruled on December 27 that Derrol Dee Kirby III should only get $1 for his pain and suffering.
Prior to a 2010 US Supreme Court ruling (view case), some courts argued that passengers were not seized and that they could "walk away" from a traffic stop because they were not under arrest. In this case, Kirby was riding in a vehicle that allegedly ran a stop sign and had no license tags on November 8, 2005. Kirby's girlfriend, Danielle Ingram, had been driving the car and was arrested because she had what appeared to be methamphetamine in her purse. Police performed field sobriety tests and a breathalyzer test on Kirby, even though he was not driving. He was found to have a blood alcohol content of 0.04 -- under the legal limit. His mother was called to the scene so that she could take Kirby home.
About forty minutes had elapsed during which police agreed Kirby had been cooperative. He was not under arrest and the four officers had no reason to fear for their safety. Nonetheless, they asked Kirby to consent to a pat-down search; he declined. When Kirby's mother arrived, he began walking to her. One officer ordered him to "comply or be tased." Kirby kept on walking and was hit by a taser, causing him to fall face first onto the pavement. A federal judge found this excessive.
"Plaintiff by backing away or beginning to leave was not evading or resisting an arrest at that point, because there was no evidence of a crime or other basis for any arrest of plaintiff to be made," Chief US Magistrate Judge James R. Marschewski ruled. "At most the evidence established that the severity of plaintiff's conduct was the failure to comply with a command of an officer. While this may be a crime, defendants offered no proof of any such crime or its severity, and plaintiff was never charged with any such crime."
Once on the ground, Kirby struggled against the officers and rolled down a hill. He was blasted simultaneously by two tasers, handcuffed and -- by Kirby's account -- kicked several times. The court ruled this treatment was Kirby's fault.
"The court also finds that the majority of plaintiff's injuries were incurred when he resisted the police officers after this first incident," Marschewski wrote. "The resistance by plaintiff to the commands of the officers also is an intervening cause of his injuries, and the court does not find that all of plaintiff's injuries were proximately caused by the initial constitutional violation."
The judge found payment in full of Kirby's $167 in medical bills covered his actual damages. The judge also ordered the city of Barling to revise its unconstitutional taser policy that allowed use of tasers against individuals passively resisting officer commands. On the question of pain and suffering, the judge found Kirby was only entitled to $1 in compensation.
"Although I concluded excessive force was used on plaintiff, I do not believe the evidence elicited shows the conduct was motivated by evil motive or intent or involved reckless or callous indifference to plaintiff's federally protected rights," Marschewski wrote. "At most, the evidence established that the defendants, in reacting to plaintiff's desire to leave the scene and failure to submit to their commands, failed to meet the situation at hand with an appropriate degree of force."
A copy of the judgment is available in a 40k PDF at the source link below.
Source: Kirby v. Roth (US District Court, Western District Arkansas, 12/27/2011)
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