Police Had Qualified Immunity for Use of Wristlock on Capitol Sit-In Protester

From Zorn v. Linton, decided today in an unsigned per curiam opinion:

On the Governor’s inauguration day in Vermont, protesters staged a sit-in at the state capitol. When the capitol closed for the day, police officers told them that they would be arrested for trespassing. They refused to leave. As officers removed the protesters one by one, Sergeant Jacob Zorn asked Shela Linton to stand up and warned her that he would eventually have to use force to remove her. She refused to stand.

Zorn took Linton’s arm, put it behind her back, placed pressure on her wrist, and lifted her to her feet. Linton sued Zorn for using excessive force, claiming that the arrest left her with arm injuries and psychological disorders. The Second Circuit held that Zorn was not entitled to qualified immunity. We reverse….

Government officials enjoy qualified immunity from suit under § 1983 unless their conduct violates clearly established law. “A right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” A right is not clearly established if existing precedent does not place the constitutional question “‘beyond debate.'”

To find that a right is clearly established, courts generally “need to identify a case where an officer acting under similar circumstances … was held to have violated” the Constitution. The relevant precedent must define the right with a “high degree of specificity,” so that “every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Principles stated generally, such as that “an officer may not use unreasonable and excessive force,” do not suffice. In short, officers receive qualified immunity unless they could have “read” the relevant precedent beforehand and “know[n]” that it proscribed their specific conduct.

The Second Circuit contravened these principles. {It held that its decision in Amnesty America v. West Hartford (2d Cir. 2004), clearly established that the “gratuitous” use of a rear wristlock on a protester passively resisting arrest constitutes excessive force.} [But] Amnesty America did not clearly establish that Zorn’s specific conduct violated the Fourth Amendment. Whether any particular use of force violates the Fourth Amendment depends on “the facts and circumstances of each particular case,” including whether the officer gave “warnings” before using force. In Amnesty America, the court considered a wide range of allegations of excessive force. The officers rammed a protester’s head into a wall, dragged another protester across the ground, and used rear wristlocks on two more protesters to lift them up before throwing one of them to the ground. Nothing indicated that the officers gave the protesters any warning that they would use such force.

Amnesty America did not hold that any of those actions violated the Fourth Amendment, let alone all of them. Instead, it remanded for a jury trial because, while a “reasonable jury could … find that the officers gratuitously inflicted pain,” it was also “entirely possible that a reasonable jury would find … that the police officers’ use of force was objectively reasonable given the circumstances.” Relevant here, Amnesty America even relied on a decision approving the practice of warning protesters and then using wristlocks to move them. (citing Forrester v. San Diego (9th Cir. 1994)).

Reasonable officials would not “interpret [Amnesty America] to establish” that using a routine wristlock to move a resistant protester after warning her, without more, violates the Constitution. Zorn repeatedly warned Linton that he would have to use more force if she did not stand up, and when she did not do so, he used a wristlock to bring Linton to her feet….

The Second Circuit concluded otherwise by reading Amnesty America to establish the general principle “that the gratuitous use of pain compliance techniques—such as a rear-wristlock—on a protestor who is passively resisting arrest constitutes excessive force.” But that principle, even assuming Amnesty America established it, lacks the “high degree of specificity” needed to make it “clear” to officers which actions violate the law. It does not “obviously resolve” whether using a rear wristlock to move a noncompliant protester after repeated warnings violates the Fourth Amendment, as it fails to specify which circumstances make the use of force “gratuitous.”

Because the Second Circuit failed to identify a case where an officer taking similar actions in similar circumstances “was held to have violated” the Constitution, Zorn was entitled to qualified immunity….

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented:

Given that this case is at the summary judgment stage, the Court must “view the evidence … in the light most favorable to” Linton, the nonmovant, “with respect to the central facts of the case.” Before Sergeant Zorn’s interaction with Linton, officers had arrested 15 or 16 demonstrators: The “officers tapp[ed] some of the demonstrators’ shoulders or sp[oke] briefly with them before the officers placed them under arrest.” “Some of the arrestees voluntarily stood up after officers approached them,” while the “[o]fficers lifted the demonstrators who did not stand up voluntarily and escorted, dragged, or carried them out of the chamber.” “Consistent with the concept of a nonviolent sit-in protest, … none of [the demonstrators] attacked the officers or used any form of violence.” One officer, Trooper Richardson, described the “level of safety threat in the environment [as] ‘[v]ery low.'”

When Zorn and Richardson first approached Linton, they “did not issue any ‘clear request or command,'” and the “video evidence appears to indicate that” one of them said only, “‘ma’am?'”About five seconds later, Zorn and Richardson unlinked Linton’s arms from the other demonstrators’ arms. Without any warning—indeed, without saying another word to Linton—Zorn placed Linton’s left arm into a rear wristlock by twisting her arm and shoulder, “snapp[ing]” her wrist, and “‘forc[ing] it down and to the rear.'”Linton immediately exclaimed, “‘ow, ow, ow!'” App. 47. Only then did Zorn instruct Linton to “‘please stand up.'”

Linton did not stand up, at which point Zorn further twisted Linton’s arm. “Linton’s face contorted in pain as she stated, ‘my arm!’ or ‘don’t twist my arm!'” Zorn asked Linton to stand up several more times. Linton refused and replied: “‘You’re hurting me.'” Zorn then warned Linton: “‘I’m going to ask you one more time … and then I will use more pain compliance.'” Linton repeated that Zorn was “‘hurting'” her and did not move to stand up. Zorn then applied pressure to Linton’s wrist and lifted her upward, causing Linton to “contor[t] her face in pain and … scream very loudly.” Zorn whispered to her that “she should have called her legislator.”

After being hauled to her feet, Linton collapsed back onto the floor “due to pain and feeling weak.” Zorn, Richardson, and a third officer “lifted” her “by her arms and legs and carried her out of the House chamber” without further use of a rear wristlock or any other pain-compliance technique. As a result of this event, Linton “suffered permanent damage to her left wrist and shoulder” and has been “diagnosed with post-traumatic stress disorder, depression, and anxiety.” …

Officers are not entitled to qualified immunity if “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.'” …

Starting with the first prong of the qualified immunity analysis, Linton contends that Zorn violated her Fourth Amendment rights by using excessive force during her arrest. Determining whether a given use of force is excessive requires a “careful balancing of ‘”the nature and quality of the intrusion on the individual’s Fourth Amendment interests”‘ against the countervailing governmental interests at stake.” The inquiry depends on the “‘totality of the circumstances,'” “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, … whether [s]he is actively resisting arrest or attempting to evade arrest by flight,”, the “relationship between the need for the use of force and the amount of force used[, and] the extent of [her] injury.”

Here, the Second Circuit rightly concluded that a reasonable jury could find that Zorn’s use of force was excessive in violation of the Fourth Amendment. First, the crime of trespass for which Linton was arrested is not “‘particularly severe.'” Second, it is undisputed that the threat to safety posed by Linton was relatively low. Trooper Richardson described the level of safety risk as “‘[v]ery low.'” The protestors also “passed through security (and therefore must have been considered to be unarmed), did not significantly outnumber police,” and were “not accused of being volatile or violent.”

Third, it is also undisputed that Linton “suffered permanent loss of motion in her left wrist and shoulder as a result of the incident.” Fourth, there is a material dispute of fact as to whether Linton was actively resisting arrest, and a jury reasonably could conclude that Linton was only passively resisting and that her failure to comply was because she was “in too much pain to do so.”

Finally, a jury also reasonably could conclude that the use of pain compliance was not “reasonably related to any need to use force.” The officers purportedly “did not use pain compliance techniques in the arrests of … fellow protestors,” and Linton contends that “the Vermont State Police use-of-force policy does not suggest … us[ing] pain compliance techniques in response to passive resistance.” Further, Zorn’s own expert stated that “the general police practice in response to passive resistance is ‘low level physical contact … with little or no pain.'” Taken together, a jury could reasonably conclude that Zorn used excessive force in violation of Linton’s Fourth Amendment rights….

The second prong of the qualified immunity analysis asks whether the “unlawfulness of [the official’s] conduct was ‘clearly established at the time,'”which requires assessing whether the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” … In addition to the long-established principle that officers may use only the “amount of force that is necessary in a particular situation,” the Second Circuit’s prior case, Amnesty America, “clearly establish[ed] that the gratuitous use of pain compliance techniques—such as a rear-wristlock—on a protestor who is passively resisting arrest constitutes excessive force.” … [For more details, see the full opinion. -EV]

For the foregoing reasons, the Second Circuit did not err in holding that Zorn is not entitled to qualified immunity at this stage. At the very least, the decision below was not so wrong as to warrant the “extraordinary remedy of a summary reversal.” Relying on disputed facts, the Court today simply disagrees with how the Second Circuit applied a correctly stated legal standard (the requirement that law be established to “‘a high degree of specificity'” in the qualified immunity analysis) to this particular set of facts. That is a routine, and nowhere near extraordinary, dispute that did not require the Court’s intervention.

In the past, I have noted the “troubling asymmetry” in this Court’s “unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely interven[ing] where courts wrongly afford officers the benefit of qualified immunity.'” This case unfortunately represents a resurgence and perpetuation of this “one-sided approach to qualified immunity” that “transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”

The majority today gives officers license to inflict gratuitous pain on a nonviolent protestor even where there is no threat to officer safety or any other reason to do so. That is plainly inconsistent with the Fourth Amendment’s fundamental guarantee that officers may only use “the amount of force that is necessary” under the circumstances….