Qualified immunity denied when speed to force not justified and results in death of subject


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Armando Frank, a mentally ill, disabled veteran, was a lifelong resident of Marksville, Louisiana. In this town of approximately 5,000 people, Frank was known as “the man on the tractor” because he drove his red tractor around town. On October 20, 2017, Frank drove his tractor to Walmart for a personal errand. As he sat on the tractor in the parking lot, he was approached by Deputies Brandon Spillman and Alexander Daniel of the Avoyelles Parish Sheriff’s Office, where Marksville is located. They parked their vehicles directly in front of Frank’s tractor to prevent the tractor from being used as a means of escape or a weapon. Around the same time, Officer Kenneth Parnell of the Marksville Police Department arrived at the scene.

Immediately after arriving, Daniel approached Frank, identified himself as an Avoyelles Sherriff’s Office Deputy, and asked for identification from Frank. Frank promptly handed Daniel his identification. Spillman and Daniel told Frank that they had an outstanding warrant for his arrest and wanted Frank to come with them. Frank repeatedly asked to see the arrest warrant, and Daniel informed him that he could see it at the police station. When Frank asked what the charges were, Daniel, Spillman, and Parnell refused to tell him. At this point, the encounter became tense. Frank declared that he was not leaving the tractor, and Parnell quickly resorted to force, reaching in from the right to pull Frank off the tractor. Frank provided some resistance and tried to keep Parnell off the tractor.

Approximately 30 seconds later, Parnell deployed his taser into Frank’s chest for a five second cycle. Frank removed one of the taser probes. A few seconds later, Spillman jumped onto the tractor and put Frank into a chokehold while screaming “get off the g**damned tractor.” Then, while Frank was being choked, Daniel deployed his taser and hit Frank in the leg. Shortly after, Parnell performed a drive stun where he physically stunned Frank on his leg with the taser for pain compliance. Spillman continued to choke Frank while Parnell twisted Frank’s left arm far behind his back. Daniel performed two drive stuns with his taser. Parnell then performed two more drive stuns with his taser. In total, Frank was tased 7 times in less than a minute.

Within only minutes of his encounter with the officers, Frank was rendered unconscious, and, according to the forensic pathologist, was “for all intents and purposes, dead.” Frank was pronounced dead less than an hour after the incident began.

The forensic pathologist, Dr. Tape, listed Frank’s cause of death as asphyxia due to respiratory compromise due to law enforcement arrest with contribution of hypertensive atherosclerotic cardiovascular disease, obesity (BMI=37), and electronic control device shocks. Dr. Tape detailed a timeline of the asphyxiation: in total 6 minutes and 42 seconds of respiratory compromise, which included 15 seconds of a carotid sleeper hold and bar hold, 6 seconds of bar hold, 165 seconds of compressional asphyxia being pressed against the tractor, 27 seconds of compressional asphyxia being face down on the ground with his hands on his back, 41 seconds of positional asphyxia while loading, as well as 148 seconds of positional asphyxia in the back of the SUV. Frank’s physical autopsy also showed injuries consistent with evidence of a manual strangulation.

According to Dr. Tape, it seems that the law enforcement arrest was the intervening factor that led to the death, and for medicolegal purposes such as the death certificate, the manner of death should be classified as a homicide.

The family of Frank brought a §1983 case for excessive force. The district court dismissed the case. The 5th remanded (the 5th tells the lower court to hear the case, or part of the case, again).


The situation before the court is aided by video evidence from multiple angles of the interaction.

A. Graham Factors {SCOTUS Graham v. Connor, 490 U.S. 386 (1989)}

i. Threat-of-harm

The district court held that this factor weighed in favor of Frank as the tractor, which could have been viewed by a reasonable officer on the scene as a threat to safety, was not turned on; was blocked by at least one patrol car; and had a farming implement attached to the rear. We agree. Frank posed no immediate threat to the safety of the officers or the public. Frank was clearly unarmed, had no ability to and never attempted to flee, and was an obese, disabled veteran.

Additionally, this Court considers the speed with which an officer resorts to force where officers deliberately, and rapidly, eschew lesser responses when such means are plainly available and obviously recommended by the situation. See Crane. It is clear from Daniel’s body camera footage that the officers made no attempt to deescalate the situation, but rather deliberately and rapidly eschewed lesser responses. It took approximately 80 seconds from when Frank handed his ID to Daniel until the officers initiated physical contact with Frank.

Parnell fired a taser probe into Frank’s chest only 32 seconds later. A mere 8 seconds later, Spillman put Frank in a chokehold. Within the next 45 seconds, Frank was shot or stunned with a taser six separate times and put in another chokehold. A jury could conclude that reasonable officers would have been keenly aware that this level of force should not have been used in this situation.

ii. Severity of the crime

While the remaining two factors do not weigh as heavily upon our analysis, they yet demand attention. The district court held that the Graham severity of the crime factor weighs in favor of the officers as they were attempting to execute a felony arrest warrant.

Parnell testified that he was advised that the open warrant for Frank was a felony warrant, but that he did not recall if he knew what the warrant was about. Neither Daniel nor Spillman knew or inquired into the nature of the felony warrant. The warrant was for simple criminal trespass and attempted unauthorized entry of an inhabited dwelling. Simple criminal trespass is a misdemeanor, and unauthorized entry of an inhabited dwelling is a felony. LA. STAT. §§ 14:63, 14:62.3.2

Daniel’s incident report does not state that the warrant was for a felony or any type of violent crime, but rather says that he was aware of the existence of a warrant. None of the officers arrived at the scene with their weapons drawn or appearing alarmed by the severity of the violation. Any felony warrant does not automatically tip the severity of the crime at issue prong to weigh in the officers’ favor, and, in fact, prior case law implicitly recognizes that a felony warrant is not automatically dispositive of this factor. See Crane.

None of the officers felt the need to be particularly cautious of Frank or take a protective position. The conversation was relaxed and friendly at first. This factor is, at best, neutral.

iii. Actively resisting arrest or attempting to evade arrest by flight

Officers may consider a suspect’s refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect’s compliance. See Deville. However, officers must assess not only the need for force, but also the relationship between the need and the amount of force used.

Here, there was no attempt at any negotiation. Frank asked what the warrant was for or to see the warrant, and the officers only replied that he would find out after he was arrested and at the station. Daniel agreed that Frank asking why he was being arrested was a reasonable question, he was not aware of any downside to calling the station and finding out the nature of the arrest warrant, that he could have easily found out the reason, and that telling Frank the full information about why he was initiating contact with him was a reasonable request. This is not to say that the officers were required to show Frank the warrant in this situation. They should have, however, engaged in some other de-escalatory action before resorting to violence in this circumstance, since such means were plainly available given that Frank was sitting unarmed and not able to flee on a blocked-in tractor.

Here, the district court held that it could not say that Frank was only passively resisting arrest. A jury could conclude, however, that reasonable officers would have been aware that they should not have been repeatedly tasing and choking an unarmed, disabled man sitting in a blocked-in tractor. The district court held that Frank reached for the taser, Parnell grabbed his wrist, and Frank pulled his arm away. From the video evidence, there is, at a minimum, a factual dispute about whether Frank was reaching for Parnell’s taser or was simply pulling his arm away to avoid being grabbed and tased.

In Trammell, the court held that there was a factual dispute as to whether Trammel was actively resisting arrest throughout his encounter with the police officers. There, the court held that it appears that Trammel’s only physical resistance prior to being tackled was his attempt to pull his arm away. Even if Trammel’s decision to pull his arm away from the officers can be characterized as some degree of resistance that would justify an officer’s use of force, the quickness with which the officers resorted to tackling Trammel to the ground militates against a finding of reasonableness. This Court has several times found that the speed with which an officer resorts to force is relevant in determining whether that force was excessive to the need.

This situation is similar to Trammell. A reasonable jury could infer that the officers used very little, if any, negotiation before resorting to physical violence, and that the officers’ conduct did not constitute the required measured and ascending actions calibrated to Frank’s conduct.

Frank has shown that there is a factual dispute about whether the officers’ use of force in this situation was unreasonable and violated his Fourth Amendment rights.

B. Clearly established right

In Newman, Officers pulled over a vehicle for a traffic stop and noticed that a passenger, Mario Cole, had a warrant out for his arrest. Cole got out of the car and began struggling with the police. Against police warnings, Newman also exited the vehicle to talk with Cole. Backup officers arrived with their tasers out, and instructed Newman to go to the rear of the vehicle. During a search of his person, the police officer contended that Newman grabbed his hand and placed it on Newman’s privates. The officer pushed Newman towards the car, and another officer came to the scene, struck Newman with his baton, and then tased him three times. The court held that no reasonable police officer would have found Newman to be armed or trying to flee. Therefore, the court held that the police used unconstitutional excessive force that violated a clearly established right. The Newman court held that it was relevant that the officers immediately resorted to taser and nightstick without attempting to use physical skill, negotiation, or even commands.

In Deville, we said when considering a suspect’s refusal to comply with instructions, officers must assess not only the need for force, but also the relationship between the need and the amount of force used.

Here, the officers used commands, but failed to attempt any other action to effectuate compliance short of tasing, twisting, and choking Frank. Furthermore, the Supreme Court held that in an obvious case, the Graham excessive-force factors themselves can clearly establish the answer, even without a body of relevant case law. See SCOTUS Brosseau v. Haugen, 543 U.S. 194 (2004).

None of the Graham factors justify the officers’ actions against Frank. Even without Newman or Deville, a jury could conclude that the officers used excessive force and that they had reasonable warning their conduct violated Frank’s clearly established Fourth Amendment rights.