Appellate Law

CA1: the limits of Scott v. Harris

By S. COTUS

Parker v. Gerrish, No. 08-1045 affirms a jury verdict in a 1983 case where a cop tased someone on video.  That?s a surprise.  So, there must be some important law here.  Actually, the facts are very important in light of the Supreme Court?s recent qualified immunity decisions regarding qualified immunity and summary judgment based on video simply because people move in and out of the frame of the video.  See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).

On the excessive force claim (where the plaintiff had expert testimony) the First points out that DWI doesn?t pose that much of a risk to the officer, and the arrestee wasn?t meaningfully engaged in the practice of ?resisting arrest? and a jury could have found that some hand motion during cuffing was ?de minimis in light of the circumstances.?  The First goes on to say that Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) doesn?t change the standard of review regarding videtape evidence, but rather Scott just governs how a court assesses whether a jury could reasonably have found something.    Moreover, reasonable officers don?t taze people just because they are ?insolent? and insulting.  (This is something that officers and members of the non-barred class need to understand.  However, a lot of lay people and some summer associates think that insolence is grounds for tazing a poor person.)

As to a qualified immunity defense, the officer didn?t actually use the words ?qualified immunity.? The First says that because the defendant-officer only addressed the question of whether there was a constitutional violation (and seemingly in the wrong way), they are not going to undo the bad litigating by the officer.

Damages are affirmed based mainly on the facts. However, the First explains that just because summary judgment was granted to the officers on one issue doesn?t mean that the officers are immune from all damages from a given injury, because there might have been two causes.

Full post as published by Appellate Law and Practice on November 05, 2008 (boomark / email).