Watson v. Dyersburg City Police Department et al
Filing
188
FINDINGS OF FACT AND CONCLUSIONS OF LAW, VERDICT FOR DEFENDANTS, ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH and ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL, signed by Judge Samuel H. Mays, Jr. on 09/20/2013. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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TIMOTHY C. WATSON,
Plaintiff,
vs.
DYERSBURG CITY POLICE
DEPARTMENT, et al.,
Defendants.
No. 08-2718-SHM-tmp
FINDINGS OF FACT AND CONCLUSIONS OF LAW
VERDICT FOR DEFENDANTS
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
A bench trial was held on December 17, 2012, and December 18,
2012, on Plaintiff Timothy C. Watson’s § 1983 claims of excessive
force against Officers Christopher Clements and Russell Burrow. For
the reasons stated below, a verdict will be entered for Defendants
on Plaintiff’s claims.
I.
BACKGROUND
A.
Procedural History
On October 15, 2008, Plaintiff Timothy C. Watson, Tennessee
Department of Correction prisoner number 221443, who is currently
an
inmate
at
the
Hardeman
County
Correctional
Facility
in
Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 against the City of Dyersburg, Tennessee, and
Dyersburg
Police
Officers
Mason
(Joe)
McDowell,
Christopher
Clements (whose last name was misspelled as “Clemmons” in the
Complaint), Russell Burrow, and Sterlin Wright. (Docket Entry
(“D.E.”) 1.) The complaint alleged, inter alia, that Dyersburg
Police officers used excessive force while arresting Plaintiff on
October 13, 2007, and February 20, 2008. Plaintiff filed an
amendment to his complaint on November 4, 2008. (D.E. 3.) On April
28, 2009, the Court issued an order that, inter alia, granted leave
to proceed in forma pauperis and assessed the civil filing fee,
granted
in
part
and
denied
in
part
leave
to
amend,
denied
appointment of counsel, and directed the Clerk to issue process
for, and the marshal to effect service on, the Defendants. (D.E.
6.) Defendants filed an Answer on July 8, 2009. (D.E. 20.)
On November 24, 2010, Defendants filed a motion for summary
judgment. (D.E. 87.) Plaintiff filed a response to the summary
judgment motion on April 4, 2011 (D.E. 117 & 118), and Defendants
filed a reply on April 21, 2011 (D.E. 122). On May 16, 2011,
Plaintiff
filed
a
document
entitled
Plaintiff
Request
Leave
(Permission) to Reply And Amend Plaintiff’s Response to Defendants
Summary
Judgment.
(D.E.
124.)
Defendants
filed
a
reply
in
opposition to the motion on May 31, 2011. (D.E. 125.) In an order
issued on July 8, 2011, the Court granted Plaintiff’s motion for
leave to file a sur-reply and to amend his response to the summary
judgment motion, granted Defendants’ motion to dismiss Plaintiff’s
claims arising from the October 13, 2007 arrest as time barred
(which included all claims against McDonald and Wright), granted
summary
judgment
on
Plaintiff’s
2
claims
against
the
City
of
Dyersburg, denied the motion to dismiss Plaintiff’s claims against
the individual defendants in their individual capacities, dismissed
the false arrest claim arising from the arrest on February 20,
2008, denied summary judgment on the excessive force claim arising
from the arrest on February 20, 2008, and denied summary judgment
on the basis of qualified immunity. (D.E. 137.) The only remaining
claims were those against Defendants Burrow and Clements arising
from the alleged used of excessive force on February 20, 2008. (Id.
at 27-28.)
Defendants
Burrow
and
Clements
appealed
the
denial
of
qualified immunity on the February 20, 2008 arrest, and Plaintiff
filed a cross-appeal. (D.E. 138 & 141.) In an order issued on
September 29, 2011, the Sixth Circuit Court of Appeals dismissed
Plaintiff’s appeal because it was taken from a non-final order.
Watson v. City of Dyersburg, Nos. 11-5842 & 11-5920 (6th Cir. Sept.
29, 2011). On May 23, 2012, the Court of Appeals affirmed the
Court’s denial of qualified immunity to Defendants Burrow and
Clements. Watson v. City of Dyersburg, No. 11-5842 (6th Cir. May
23, 2012). The mandate issued on June 20, 2012. (D.E. 149.)
A bench trial was set for December 17, 2012. (D.E. 155.) On
December 7, 2012, Defendants Burrow and Clements filed their Trial
Brief. (D.E. 164.) The Pre-Trial Order was entered on December 17,
2012. (D.E. 176.) The case was tried on December 17, 2012, and
December
18,
2012.
(D.E.
177
&
178.)
On
January
16,
2013,
Defendants Burrow and Clements filed their Proposed Findings of
Fact and Conclusions of Law. (D.E. 180.) Plaintiff filed his
3
Proposed Findings of Fact and Conclusions of Law on June 7, 2013.
(D.E. 185.)
B.
Proof at Trial
At the bench trial on December 17, 2012 and December 18, 2012,
Plaintiff called Defendant Burrow in his case in chief. Russell
Burrow was employed by the Dyersburg Police Department (“DPD”) at
the time of trial and on February 20, 2008. (Tr. 18.)1 On February
20, 2008, Burrow was “on patrol” (id.) and was “a K9” officer (id.
at 19).
Burrow testified that, on February 20, 2008, he and Officer
Clement initiated a traffic stop of Watson because “[w]e observed
[him] driving a — operating a motor vehicle and knew [his] license
to be revoked.” (Id.) Burrow knew Watson’s license was revoked
because “I had checked it probably a week prior.” (Id.) Burrow had
“no idea” how long it took to get a license reinstated, and he did
not run Watson’s license immediately before initiating the stop.
(Id.) Burrow explained that “[w]e didn’t have time.” (Id.) Watson
was stopped on reasonable suspicion of driving on a suspended or
revoked driver’s license. (Id. at 19-20.)
Burrow
was
asked
when
he
ran
Watson’s
license,
and
he
responded, “It was probably around a week before. I saw [him]
operating the same vehicle.” (Id. at 20.) Burrow could not recall
why he did not stop Watson immediately after running his license,
and he testified, “I couldn’t tell you that. I might have been
1
References to the trial transcript, which is found at D.E. 186 and
187, are designated as “Tr. __” or by the name of the witness, e.g., “Burrow __.”
4
doing something else, on the way to a call. I don’t remember.”
(Id.) Burrow denied having any personal, hard feelings toward
Watson. (Id. at 20-21.)
Burrow recalled that there was a small child in Watson’s
vehicle on February 20, 2008. (Id. at 21.) Burrow testified that he
had no knowledge that Watson had previously been shot. (Id.) Burrow
did not believe there was a dash camera in the police cruiser.
(Id.)
Watson was not the target of an ongoing investigation. (Id.)
In response to why he took the initiative to run Watson’s license,
Burrow testified, “I saw [him] operating a motor vehicle. I’ve did
that to a lot of people, check their licenses that I believe to be
revoked.” (Id.) Burrow denied that he randomly ran the licenses of
motorists, stating that he only investigated “[p]eople that I . . .
have knowledge or suspect to be revoked.” (Id. at 22.) Usually,
after confirming that a motorist’s license has been suspended or
revoked,
Burrow
initiates
a
traffic
stop
“unless
I’m
doing
something else.” (Id.)
Burrow ran Watson’s license again on February 20, 2008, after
Watson had been taken into custody. (Id.) Burrow reiterated that he
had reasonable suspicion to stop the vehicle “based on the prior
week.” (Id.; see also id. at 23.)
Once Watson’s vehicle had stopped, Officer Burrow did not
immediately get out of the cruiser and approach the vehicle. (Id.
at 23.) He remained in his cruiser while “[g]iving our location and
status to dispatch, calling out the stop.” (Id.) Once that had been
5
completed, Burrow exited his cruiser. (Id.) Burrow testified that,
“[a]fter I called dispatch, I saw [Watson] moving around quite a
bit in the vehicle; and Officer [Clements] was yelling orders to
[him]. I came to his location.” (Id.)2 Clements was on the driver’s
side of Watson’s truck. (Id.) Clements told Burrow “that [Watson]
had marijuana in [his] mouth, said [he] had weed in [his] mouth,
and he was trying to remove [Watson] from the vehicle.” (Id.)
Burrow could not recall whether the door was locked. (Id. at 2324.) He believed that the window “may have been partially down.”
(Id. at 24.) The driver’s side door was open, and Clements was
attempting to pull Watson out of the vehicle and was “[g]iving
[him] orders to exit the vehicle. Spit it out.” (Id.) Once [Watson]
exited the vehicle, the officers “attempted to take [him] into
custody, to get [him] on the ground and get [him] handcuffed.”
(Id.) Burrow did not recall Watson raising his hands and stating,
“I’m not resisting.” (Id.) He also did not hear Watson ask Clements
not to spray inside the vehicle because a small child was present.
(Id.)
Burrow testified that Clements had to physically pull Watson
out of the vehicle. (Id. at 24-25.) Watson was standing after being
pulled out of his truck. (Id. at 25.) The officers “tried to get
[him] handcuffed, and [he] stiffened up and was thrashing around.
Wouldn’t let us get [him] handcuffed. [He] wouldn’t obey our orders
to stop resisting. [He] wouldn’t allow us to handcuff [him].” (Id.)
2
The trial transcript consistently misspells Officer Clements’ last
name as “Clemmons.”
6
At that point, Burrow “sprayed [Watson] with Freeze per policy”
while [Watson] was standing up and “refusing orders.” (Id.)
The burst of Freeze “helped get [Watson] on the ground.” (Id.)
The officers were still unable to handcuff [Watson] because he
“continued to resist and thrash around.” (Id.) Burrow did not
recall his physical position, but stated that “I guess I was behind
[Watson].” (Id.) Burrow recalled that Watson was facedown and
thrashing around. (Id. at 26-27.) Burrow testified that he did not
recall being on Watson’s back. (Id. at 27.) Burrow was behind
Watson, meaning that “I would have been trying to get [his] arms
behind [his] back. So, I would have been behind [Watson], trying to
pull [his] arms back to get [him] handcuffed.” (Id.) Burrow did not
recall specifically where Clements was at that time, but Burrow
remembered that Clements was assisting in securing Watson. (Id.)
Because the officers were unable to handcuff Watson, Officer
Clements sprayed him. (Id.) At that point, Burrow testified that
Watson “spit out a bag of marijuana, and [he] allowed us to
handcuff [him]. At that point [he] stopped resisting.” (Id.) Burrow
denied that Watson was sprayed again after he was handcuffed. He
testified, “You were only sprayed twice, once by me and once by
Officer [Clements].” (Id.)
Burrow testified that he believed his conduct during the stop
was objectively reasonable. (Id. at 27-28.) Burrow acknowledged
that there had been no high-speed chase and that Watson did not
attempt to flee. (Id. at 28.) He acknowledged that “[y]ou were
sitting in the vehicle. You didn’t try to run.” (Id.) Burrow
7
testified that he did not have any type of combat training,
although he had the training in “defense tactics” that was required
by the police department. (Id. at 29.) The training in defense
tactics includes “just takedowns like arm bars. We do have some
pressure points.” (Id.) The training does not include “grapplings.”
(Id.) Burrow reiterated that he had no prior knowledge that Watson
had been shot. (Id.)
Burrow was asked whether a simple possession of marijuana
charge
warranted
the
amount
of
force
that
was
used,
and
he
responded, “If you would have complied, it’s possible you could
have got a misdemeanor citation; but you failed to comply with our
orders and resisted.” (Id. at 30.) Burrow did not attempt to obtain
a video from the store where the incident occurred. He stated that
“I don’t even know if they have video.” (Id.) Burrow disagreed that
Watson had pulled over once the officers activated their blue
lights. He testified that Watson had already parked before the
lights were activated. “You had pulled into the parking lot of that
store when we turned around. Then we pulled in behind you and
turned our lights on, letting you know you’re being detained, that
you couldn’t leave.” (Id.) Burrow did not recall that Watson stated
he was not resisting or holding his hands up in submission. (Id. at
30-31.)
Burrow testified that Watson was the only citizen who ever
filed a complaint against him. (Id. at 31.) Watson’s complaint was
filed before the arrest at issue. (Id.) Exhibit 1, an Employee
Complaint Report against Burrow, dated August 8, 2007, was admitted
8
to show the motivation for Burrow’s actions on February 20, 2008.
(Trial
Tr.
31-33.)3
Burrow
denied
that
he
was
following
too
closely. He testified that “I don’t recall getting right next to
[Watson] and following [him]. I was sitting in the store in the
parking lot, over beside it just like I usually do. I’ve done it on
many occasions.” (Id. at 34.) Burrow testified that he pulled out
of the gas station at the same time as the car in which Watson was
riding and proceeded “probably five or six car lengths behind
[him]. [Watson] went up the bypass. I went back north on the
bypass.” (Id. at 35.) Burrow testified that it was coincidental
that he and Watson were traveling in the same direction. (Id.)
Burrow testified that he had prior knowledge of criminal
activity by Watson because he “had two prior encounters with” him.
(Id. at 38.) The first occurred in 2004, when Burrow arrested
Watson in response to “a call that a black male and black female
had passed a counterfeit 100-dollar bill at a local business.”
(Id.) Burrow recalled that “I believe I had charged you with
possession
of
marijuana,
criminal
simulation,
criminal
impersonation, and evading arrest. I believe you — it went to a
jury
trial
and
you
were
found
3
guilty
of
the
possession
of
The citizen complaint states that, “[o]n 8-7-07 Rusty Burrows [sic]
seen me at Dodgers pumping gas[. B]efore I could get off the lot he was right on
the rear bumper of my friends car[. W]e were affraid [sic] for our safety we
thought he was gonna run us off the road he was so close. About 2 wks ago he
arrested me and told me that: I told you I was gonna get you. Back in 2005 he
arrested me and I went to trial and was acquitted and he told me then that he was
gonna get me. . . .” (Ex. 1 at 1-2.) The Chief of Police checked a box labeled
“No Further Action Required.” (Id. at 2.)
9
marijuana.”
(Id.
at
39.)
The
remaining
charges
were
either
dismissed or Watson was acquitted. (Id.)
The second incident, which occurred in 2007, involved a
traffic stop. (Id.) Burrow testified that “I issued you a citation
for registration law which was the initial reason for the stop and
you had no insurance and then I would up searching the vehicle. I
utilized my K9. Gave a positive response for narcotic odor, and I
wound up searching the vehicle.” (Id.) Burrow “found residue,
marijuana residue and loose tobacco which is common with smoking a
blunt.” (Id.) Burrow did not charge Watson with possession of
marijuana. (Id. at 40.) Watson was charged with theft of property
because he “had a stolen weapon under the driver’s seat beneath
[him].” (Id.) Burrow did not recall the disposition of the charge.
He stated that “I believe you were charged with felon in possession
. . . .” (Id.)
Burrow testified that he did not take Watson’s acquittal on
the 2004 criminal simulation charge personally. (Id. at 41.) Burrow
denied telling Watson after his acquittal that he was going to get
him. (Id. at 41-42.)
Burrow did not recognize Watson before he
initiated the stop in 2007. (Id. at 42.) In response to why he ran
the tags on that vehicle, Burrow testified that “I had seen that
vehicle probably a week or two earlier at your mother’s house.”
(Id.) He stated that “[i]t was parked behind the residence like it
was being hid.” (Id.) Burrow was in the area because “[a]t that
time we had warrants on one of your relatives, felony warrants.”
10
(Id.) When Burrow ran the tags, “[i]t came back to a different
vehicle.” (Id. at 43.)4
Burrow denied that he takes his job personally. (Id. at 44.)
He denied that he had “any harsh feelings” because he arrested
Watson on two separate occasions and, on each occasion, Watson was
acquitted or the charges were dismissed. (Id. at 45.) Burrow
testified that “[t]hat’s part of my job. I don’t take it personal.”
(Id.)
After Watson filed a “formal complaint” about Burrow, his
superior officers did not instruct him to stay away from Watson or
to leave him alone. (Id.) Burrow does not recall discussing
Watson’s citizen complaint with Clements or any other officer.
(Id.)
Christopher Clements testified that, at the time of trial, he
was employed by the DPD, where he had worked for the previous
twelve years. (Id. at 47.) At the time of trial, Clements was a
narcotics officer. (Id.) He denied that he was racist. (Id.)
Clements testified that he and Officer Burrow decided to
initiate the traffic stop on February 20, 2008. (Id. at 49.)
Clements testified as follows:
We pulled behind your vehicle at T&B parking lot.
I approached the vehicle while Officer Burrow called
in the stop; and while I was approaching, I could see you
pull something out of the console and stick it in your
mouth.
4
It is unclear whether Burrow ran the tag on the day of the 2007 stop
or the previous week, when he saw the vehicle at Watson’s mother’s house. He
testified that “[i]t’s based on the way it was parked, like it was being hid.”
(Id.)
11
And I got a little closer and you had this look of
concentration on your face and you were chewing.
While you were chewing, I could see glimpses of a
green, leafy substance I believed to be marijuana and a
plastic baggie in your mouth.
I immediately started telling you to spit it out.
(Id. at 49.) Clements did not recall that the windows were tinted.
He testified that the window “was halfway down.” (Id.) In response
to whether Plaintiff was chewing with his mouth open, Clements
replied, “You were chomping, you know. Like I couldn’t see every
detail inside, but you were trying to chew as much as you could.
So, I could see the marijuana in your mouth and the plastic bag.”
(Id. at 49-50.) Clements observed the drugs while “[s]tanding in
front of you, kind of like an angle” from “about where the mirror
was at.” (Id. at 50.) At that time, Clements “had already opened up
the doors, telling [Watson] to spit it out.” (Id.) Clements
recalled that a little girl was in the front passenger seat of the
vehicle. (Id. at 50-51.)
Clements denied brandishing his Freeze at Watson before he got
out of the vehicle. (Id. at 51.) He stated that
I was just trying to — I kept on ordering you to spit it
out. Spit it out. You kept on chewing on it. Had this
look of concentration.
Told you to get out of the vehicle. You refused.
Then I attempted to pull you from the vehicle. You
was holding onto the seat.
(Id.) Clements reiterated that he never drew his Freeze, explaining
that “[w]e couldn’t ‘cause there was a small child in there.” (Id.)
Clements denied that Watson asked him not to spray because there
12
was a child in the vehicle. He testified that Watson did not say
anything until after he was handcuffed. (Id.)
In response to whether he had combat training or martial arts
training, Clements testified that “[w]e just do defense tactics,
police defense tactics.” (Id.) Clements received the same training
Burrow received. (Id. at 51-52.) At the time of Watson’s arrest on
February
20,
2008,
Clements
was
not
aware
that
Watson
had
previously been shot multiple times. (Id.)
Clements testified that he had to physically remove Watson
from his truck after he would not comply with verbal instructions.
(Id.) Clements was able to physically remove Watson from the truck
“[a]fter two attempts.” (Id.) He testified that “I grabbed your
arm, trying to pull you from [the vehicle].” (Id.) Clements used
the same technique a second time, which was successful. (Id. at 5253.) He testified: “But you were still standing on your feet and I
was still ordering you to spit it out, put your hands behind your
back, and you would not comply.” (Id. at 53.) Clements denied that
Watson raised his hands and stated that he was not resisting. (Id.)
On
further
questioning,
Clements
testified
that
he
partially
removed Watson from the truck and, when there was room, Burrow
assisted in getting him entirely out of the truck. (Id. at 55-56.)
During that time, Clements kept holding onto Watson’s arm.
(Id.
at 53.) Clements recalled that Burrow was holding onto
Watson’s other arm or attempting to do so. (Id.) According to
Clements, “You were pulling your arms away. We could not get
control over you.” (Id.) Clements elaborated: “We were attempting
13
to grab an arm. You know, we would lose it certain times when you
were pulling away; and then you was still also chewing your dope
and trying to swallow it.” (Id. at 54.) Clements recalled that
“[i]t was a fight. You were pulling away.” (Id.) He explained that
“[y]ou were definitely being, you know, aggressive. You were
pulling away. You would not obey our orders.” (Id.)
Clements was worried “[t]hat you may have some weapons on your
person. We didn’t have control over you.” (Id.) Clements denied
that he was frustrated. (Id. at 56.) He testified that “I was
worried about our safety.” (Id.) Clements stated that “I had been
aware of prior encounters where you’d been arrested with weapons,
handguns.” (Id. at 58.) In response to whether Watson had any
firearm convictions, Clements replied, “I work with guys in the
police department and over the years I’ve heard people talk about
your history, how combative you are and you are known to carry
firearms on your person.” (Id.) By “combative,” Clements meant that
Watson would run and would fight officers. (Id. at 58-59.) Clements
testified that “[o]fficers communicate with each other about people
who are maybe a danger to us, and you’re one of those persons.”
(Id.
at
59.)
Watson
was
considered
by
some
officers
to
be
potentially dangerous “[‘c]ause anytime that we have any dealing
with you, you run. You fight. Sometimes have a firearm.” (Id. at
59.)
Clements also testified that he was worried about Watson’s
safety. He stated: “And also you choking on the marijuana or at
that time I figured there was going to be some cocaine in the bag.”
14
(Id. at 56.) Clements assumed there would be some cocaine in the
baggie because “that’s something very common of people who carry
narcotics to put cocaine and marijuana in the same baggie and I
couldn’t understand why you were attempting to destroy a bag of
marijuana. You were so dead set on that.” (Id. at 57.) Clements
acknowledged his previous testimony that he saw a green leafy
substance in Watson’s mouth, but stated that “cocaine is smaller.”
(Id.) He was concerned that Watson might choke on the marijuana or
overdose on the cocaine. (Id.)
Clements testified that the marked police car the officers
were driving did not have a dash camera. (Id. at 59.) He did not
attempt to obtain any video from the grocery store. (Id. at 59-60.)
Clements denied that he acted aggressively because he was
concerned about the risk to the officers’ safety. (Id. at 60.) He
responded, “I was concerned. We used very minimal force on you.”
(Id.) Clements testified that “we had first to gain control over
you, your arms. We ended up able to do that after Officer Burrow
sprayed you in the face with Pepper Spray. Then I was able to take
you onto ground.” (Id. at 61.) According to Clements, “[w]e used
only the amount of force necessary to effect the arrest.” (Id.)
As the officers were struggling to gain control over Watson’s
arms, Burrow sprayed Freeze+P to his “facial area.” (Id. at 62.) At
that time, Clements “was able to get behind [Watson] and take [him]
down to the ground.” (Id.) Watson was “on [his] knees, on [his]
side, attempting to get up on [his] knees.” (Id.) He was “all over
the place.” (Id.) Watson noted that Burrow had testified that
15
Watson was on his stomach, and Clements responded: “At certain
times, at the very end you were, yes, but you were attempting to
get up on your knees and, you know, I was thinking that you were
probably going to — the fight was going to be on again and —” (Id.
at 62-63.) Clements testified that, “[a]fter repeated commands of
telling you to spit out the dope, put your hands behind your back,
[I] pepper sprayed you in the face, and the second time the Pepper
Spray had the desired effect. The first one did not. Then you spit
it out, the marijuana.” (Id. at 63.) At that time, Watson was on
the ground and, “[a]fter the second burst, [he] quit resisting.”
(Id.)
Clements could not recall whether Watson was positioned on his
side or his stomach after the second burst. (Id. at 64.) Clements
testified that “[y]ou was either on your side or on your stomach,
and [Officer Burrow] was able to handcuff you.” (Id.) Clements
stated that “you can be on your side and technically be partially
on your belly.” (Id. at 65.) Clements denied being on Watson’s back
while he was on the ground. (Id.) Clements testified that the
officers did not put their knees into Watson’s neck. (Id. at 6566.) Clements explained that “[w]e don’t put knees in the neck” but
“[i]t’s very common to put our body weight on somebody’s back to
control them . . . .” (Id. at 65.)
Clements denied that he was angry or agitated during the
encounter. (Id. at 66.) He denied calling Watson a “nigger” during
that encounter or at any other time. (Id. at 67.)
16
Watson was not the target of a police investigation at that
point. (Id.) Clements knew who Watson was from seeing him around
“and from officers telling about [his] history.” (Id.) Clements
testified that he would be able to identify Watson if he saw him in
the street from “[s]eeing mugshots of [him]. I’ve seen [him] on the
street before. Seen [him] at 1821 Whitney Young,” which was the
address of Watson’s mother, Sadie Powell. (Id. at 68.) Before
February 20, 2008, Clements had encountered Watson at 1821 Whitney
Young when Clements was looking for Joseph Caldwell at that
address. (Id.) The officers who spoke about Watson did not show
Clements mugshots. Clements testified that “it’s my duty to, you
know, if they’re telling me about someone who’s a threat to
officers, you know, I’m going to follow up on that and figure out
who they are . . . .” (Id. at 69.)
Plaintiff asked how he could be considered a threat to
officers when he has never been convicted of assaulting an officer,
and Clements replied, “I know there were several incidents where
you were caught with handguns and resisted arrest and run.” (Id. at
70.) Clements “was aware of the October 13th [2007] incident where
you resisted Officer McDowell and Officer Wright.” (Id.) Plaintiff
asserted that the charges were dismissed, and Clements replied,
“Sometimes they may get dismissed to dispose of a felony. If you
had several prior, if you had several felonies, they may dismiss
the misdemeanors for a plea bargain. So, that’s very common.” (Id.)
Clements
denied
that
charges
might
arresting officer lied. (Id.)
17
be
dismissed
because
the
Clements recalled that Watson had spoken to him previously
when Clements was trying to execute a fugitive warrant at 1821
Whitney Young. (Id. at 71.) According to Clements, Watson was on
the porch and “I believe [he was] mouthing to us, trying to
instigate officers while we were on the street.” (Id.) Clements did
not recall the year this incident occurred. (Id. at 72.) He denied
feeling resentment because of that encounter. (Id.) Clements stated
that “I’m not saying that was the very first time I ever met you.
. . . That’s the only incident I can think of offhand right now
before this incident occurred.” (Id. at 79.)
Clements testified that some citizen complaints have been
filed against him while he was employed with the DPD. (Id. at 72.)
He was unsure of the number, but stated that “it’s not that many.”
(Id.; see also id. at 74 (same).) Clements said that “we may get
one and never be aware of it.” (Id. at 73.) Clements has never been
placed on desk duty because of a citizen complaint (id.), and his
duties have never been restricted in response to a complaint (id.
at 74). Clements could not recall the issues raised in any citizen
complaint, and he emphasized that “I never have been found doing
any wrongdoing.” (Id.) Clements testified that he did not keep
track of citizen complaints filed against him: “It’s not relevant
to me on how I do my job, no. So, I’m not interested in it; but if
you’re trying to say I’ve had a lot of them, no, I have not had a
lot of complaints.” (Id. at 75.) Clements explained: “Sometimes
when you’re — you put someone, you know, a felony charge on
someone, they’re going to go to prison, that may be a tactic to
18
combat their charge, trying to make a complaint. So, that’s why I’m
not concerned with them.” (Id.)
Clements was not aware that any of the citizen complaints
against him involved excessive force or racism. (Id. at 76.)
Vincent Taylor did not accuse Clements of excessive force or
racism. (Id.) The only encounter Clements had with Cory Thornton
was during the execution of a search warrant, when Thornton “ran
off the porch and that’s the only incident I ever had with Mr.
Thornton and he wasn’t even caught. I was inside the house.” (Id.)
Joseph Caldwell, Watson’s nephew, did not make either a formal or
an informal complaint about Clements. (Id. at 76-77.)
Clements did not know how many people he arrested each year,
but he guessed it was well over a hundred. (Id. at 77.) Clements
was asked how many of those arrestees were black, and he stated,
“It depends on what side of town you’re on.” (Id.) He elaborated:
“I’ll say it’s about 50/50. Just last week we indicted 38 people;
and out of that 38, probably 30 of them were whites. So, race has
nothing to do with how I do my job.” (Id.) Clements was not aware
that any black arrestee had ever accused him, either formally or
informally, of using excessive force. (Id. at 77-78.)
Clements denied ever “overhand strik[ing]” Watson. (Id. at
78.) Clements denied meeting Judge Dean Dedmon in his private
chambers to tell him that Watson’s bond should be set high. (Id. at
78-79.) Clements also denied having any personal feelings about
Watson. (Id. at 79.)
19
Clements was asked whether he had any conversations with other
police officers about Watson between October 2007 and the events at
issue, and he responded that he was aware of the incident in
October 2007 when Watson “resisted Officer McDowell and Officer
Wright.” (Id. at 79-80.) Clements related that McDowell and Wright
“thought they were going to lose [the fight]. They wasn’t for sure
whether they was going to lose and we’re in a position — a
profession where we can’t lose.” (Id. at 80.) Clements testified
that “[y]ou was resisting. They were telling me about this. Officer
Wright, he does not usually say stuff like that ‘cause he’s a big
fella.” (Id.) As a result of this information, “[a]s far as officer
safety, [Clements] was more alert with [Watson] than with other
people.” (Id. at 81.) Clements denied that he was more aggressive
or more assertive than he might ordinarily be. (Id.) Clements was
asked about the effect of adrenaline, and he stated, “Sometimes you
have adrenaline, of course. That’s human nature but, no, the only
— only amount of force necessary was used in your incident.” (Id.)
Clements stated that “[t]here was not loud music playing” when he
was instructing Watson to spit out the drugs. (Id. at 81-82.) The
radio “was not in violation of a noise ordinance.” (Id. at 82.)
Dyersburg police officers use Freeze+P pepper spray “to gain
control of someone who’s not listening, someone who’s resisting.”
(Id.) The spray is “an irritant, as far as eyes and nasal.” (Id.)
“It can make someone close their eyes and irritate them.” (Id.)
During his training at the Dyer County Jail in 1999, Clements was
sprayed with Freeze+P pepper spray. (Id. at 83.) He acknowledged
20
that the spray “burns” and “don’t feel good,” but he also stated
that “[i]t’s not the worst pain I’ve ever had in my life, no.”
(Id.) Clements also testified that the effects of the spray wore
off after about fifteen minutes. (Id. at 83-84.)
Watson concluded his case in chief by testifying on his own
behalf. Watson stated that, on February 20, 2008, he was in a
vehicle with his daughter, “E.M.”, and another passenger named
Terry Mitchell. (Id. at 86.)
According to Watson:
I was stopped by Officer Burrow and Officer
[Clements]. During the traffic stop — well, actually, I
pulled into the gas — to a store parking lot. The
officers pulled in behind me, activated their overhead
lights.
The officer — Officer [Clements] approached the
driver’s side of the vehicle where myself was occupied.
I was in the driver’s seat. My daughter was in the
passenger’s seat. Mr. Mitchell was in the back seat.
Mr. [Clements] approached the driver’s side of the
vehicle where I rolled the window down. He was talking.
The music was up, not extremely loud but a little louder
than what — where I could understand — where I could
actually hear what he was saying. So, like I say, I
rolled the window down in an attempt to better hear what
he was saying.
You know, it was a lot of between the music and his,
you know, his barking, I was — wasn’t really able to
fully understand exactly what he was saying. He snatched
the door open. He grabbed me. He pulled out his Freeze.
He was about to spray in the vehicle.
I begged Mr. [Clements], “Please don’t spray in the
car. You know, I have a child in here.”
He actually did take notice. He looked at my child,
told me to exit the vehicle. I exited the vehicle.
I voluntarily put my hands in the air and said, “I
am not resisting.”
21
At this point Mr. [Clements], Mr. Burrow started a
series of — I don’t — you know, I felt like they were
marshal [sic] art moves or something, you know, arm bars
and arm twists and pulled, both pulling me in their
direction. One was to my left. One was to my right. They
were both pulling on me, twisting on me.
Whole time I’m saying, “I’m not resisting. I’m not
resisting.”
That’s when I was actually — I don’t know which — I
didn’t know until this morning which one actually sprayed
me in the face. One of them sprayed me in my face with
some Freeze spray.
At this point, you know, some more of these
combative moves were executed. I was taken down to the
ground, face fist, pretty hard. I was sprayed again in
the face. My arms were twisted behind my back.
One of the officers put his knee in my neck with
body weight and pressed down on my neck, pinned me to
ground. The other officer, I assume, was handcuffing
After I was handcuffed, I was sprayed again, not once
at least twice.
his
the
me.
but
And, you know, throughout all of this Officer
[Clements] used very inappropriate racial slurs like
“nigger” this, “nigger” that, you know, “Stop moving,
nigger.”
And I was taken to jail.
(Id. at 86-89.)
Plaintiff contends that “some of my jewelry, really expensive
jewelry, nice jewelry was destroyed” in the February 20, 2008
encounter. (Id. at 91.) “Like, you know, a Breitling watch was
broke. Never worked again after that day. A necklace was broke, you
know, disappeared.” (Id.)
Watson asserts that the incident on February 20, 2008 was not
isolated but “it was a series of events that led up to this.” (Id.
at 89.) Watson contends that “all these [prior] events in my
22
opinion are very relevant because it actually shows the motive for
why these assaults had taken place.” (Id.) According to Watson,
other police officers did not treat him as a threat but were,
instead, “always pretty cordial and respectful.” (Id.) Burrow and
Clements, on the other hand, “every time they see me, it doesn’t
matter if I’m in front of my children, in front of other people
children, in front of old women, right next door to a church, these
people are jumping on me; and they beating me up.” (Id. at 89-90.)5
Watson acknowledged that he has “always been, I don’t know, a
little more forward, I suppose, in voicing my opinion about
things.” (Id. at 90.) According to Watson:
[T]here’s a series of events that — different run-ins
that I had with Mr. Burrows, Mr. [Clements], a couple of
the other officers that were actually named who were
released from this 1983, you know. There were just
multiple run-ins with these guys; and, you know, every
time I see these guys, like I said, these guys, you know,
were, as Mr. [Clements] said, they were ready to fight.
Every time they see me, they viewed it like a fight was
about to unfold; and, you know, the worst thing that
happened to me, you know, throughout all these fights or
whatever is that I’ve got charged and found guilty of
simple possession of marijuana. Simple possession of
marijuana in my opinion doesn’t warrant this type of
viciousness, this type of aggressiveness.
(Id. at 90-91.)
Watson testified that, after his arrest on February 20, 2008,
he was charged with possession of marijuana, resisting arrest,
tampering with evidence, and driving on a suspended license. (Id.
5
This testimony appears to be inconsistent with an objection made by
Watson to Clements’ testimony that he knew of Watson before February 20, 2008.
At that point, Watson stated, “Well, Mr. [Clements], prior to you beating me up,
I didn’t remember you. So, I don’t understand how you remember me so well. How
do you know me if I don’t know you?” (Id. at 72.)
23
at 91.) “[T]he worst charge was a Class E felony,” and the other
charges were misdemeanors. (Id.) Watson’s bond was set at $350,000,
which he contends was excessive. (Id.)
By way of background, on April 17, 2007, Watson was shot five
times in his head and spine. He was left temporarily paralyzed and
blind. (Id. at 92.) At some point, Watson was unable to carry his
daughter “because [his] equilibrium was so messed up.” (Id.) This
testimony was offered to show that Watson was “physically incapable
of putting up a fight” when he was arrested in October 2007. (Id.)
Watson also testified as follows:
You know — these same officers had, after knowing
that I had been shot, they simulated with their fingers
a gun and pointed at me and pulled the trigger and I take
that to be a threat on my life.
They knew I’d been shot; and if it wasn’t a threat
on my life, it was done in very poor taste, very poor
humor, you know. I had been shot in my head, you know, in
front of my children.
(Id.
at
93.)
It
is
unclear
when
Watson
claims
the
officers
simulated this conduct.
Plaintiff contends that it was unfair for officers to perceive
him as a threat because he had never been convicted of resisting
arrest. (Id. at 93-94.)
On cross examination, Watson admitted that, on February 20,
2008, he was violating the law by driving on a suspended license.
(Id. at 95.) He understood at the time that he was breaking the
law. (Id.) When the officers activated their blue lights, Watson
knew that he was being detained. (Id.) He had previously been
24
pulled over by law enforcement officers and, because of that
experience, he understood what was happening. (Id.)
Watson also admitted that he had marijuana in his possession
on February 20, 2008. (Id. at 96.) Watson pled guilty to a charge
of possession of marijuana that resulted from his arrest on
February 20, 2008. (Id.)6 At the time, it was Watson’s practice to
store marijuana in his mouth. (Id.) He routinely stored marijuana
in his mouth when he was out in his car. (Id.) Watson knew that
possession of marijuana was illegal. (Id.) He also knew that
Officers Burrow and Clements could arrest him for possession of
marijuana. (Id. at 96-97.)
Watson had previous convictions for possession of illegal
drugs. (Id. at 97.) In August 2005, Watson was indicted in the Dyer
County Circuit Court for sale of cocaine over 0.5 grams. He was
later convicted of that offense. (Id.)7 Watson was convicted in the
Dyer County Circuit Court of possession of marijuana arising from
an incident on October 13, 2007. (Id. at 97-98.) That charge was
pending on February 20, 2008. (Id. at 97-98, 99.)8
Watson admitted that he had marijuana in his mouth when
Officer Clements approached his vehicle on February 20, 2008. (Id.
at 99.) He also admitted that his music was turned up loud. (Id.)
6
Plaintiff’s Dyer County conviction for simple possession of marijuana
arising from the February 20, 2008 incident was admitted as Exhibit 2. (Id. at
138-39.)
7
Plaintiff’s Dyer County felony conviction for Sale of Cocaine Over
.5 Grams was admitted as Exhbit 3. (Id. at 139.)
8
Plaintiff’s Dyer County conviction for Simple Possession of Marijuana
arising from the October 17, 2007 incident was admitted as Exhibit 4. (Id.)
25
Because of the loud music, he could hear the officers but could not
understand what they were saying. (Id.) Watson testified that “I
couldn’t say just exactly what they were saying; but, you know, I
could just assume.” (Id.)
Watson assumed the officers were asking for his driver’s
license. He did not assume that they were asking him to get out of
the vehicle. (Id.) At his deposition on July 30, 2010, Watson
testified that he assumed that Clements was telling him to get out
of the vehicle. (Id. at 99-101, 103.)9 The marijuana was in
Watson’s mouth until after he was on the ground. (Id. at 103-04.)
Watson testified that he was handcuffed when Officer Clements
sprayed him with Freeze. (Id. at 104.) At his deposition, Watson
testified that he did not recall when he was placed in handcuffs
(id. at 104-06), although he did say that “I’m sure they restrained
me immediately. They cuffed me immediately” (id. at 106). In his
interrogatory answers, which covered both the October 13, 2007 and
February 20, 2008 incidents, Watson listed the use of pepper spray
after he had been handcuffed as one basis for his claim of
excessive force. (Id. at 106-08.)10 At his deposition, Watson
testified that that interrogatory answer referred only to the
9
Watson testified that he was unable to recall everything that
happened at his deposition because “[t]hat was a while back and I do have brain
damage and I try to write everything down and keep everything fresh and crisp.”
(Id. at 100; see also id. at 101 (“I have some issues with my memory.”).) Watson
testified that he truthfully answered the questions asked at his deposition. (Id.
at 101-02.)
10
Plaintiff’s responses to Defendant’s First Set of Interrogatories and
Requests for Production of Documents to Plaintiff was admitted as Exhibit 8. (Id.
at 145.)
26
October 13, 2007 incident. (Id. at 108-10.) In his complaint, which
was sworn to under penalty of perjury, Plaintiff did not allege
that he was handcuffed during the February 20, 2008 incident. (Id.
at 111-13.)
Watson testified at trial that he voluntarily exited his
vehicle with his hands in the air and told the officers that he was
not resisting. (Id. at 113.) In his complaint, which was sworn to
under penalty of perjury, Plaintiff stated that Burrow and Clements
pulled him out of the vehicle. (Id.
at 113-14.) Plaintiff’s
complaint was signed four month after the events at issue. (Id. at
114.)
Watson agreed that he had previously informed the Court about
the disability caused by his having been shot in 2007. (Id. at 11415.) Watson previously estimated that he is only functioning at 85%
of capacity. (Id. at 115.) The injury affects Watson’s ability to
retrieve memories. (Id.) He has episodes of bad memory almost every
day. (Id.) Plaintiff takes psychotropic drugs that affect his
mental
functioning.
(Id.
at
115-16;
see
also
id.
at
11-12
(Plaintiff’s opening statement).)
Watson was transported to the Dyer County Jail after his
arrest on February 20, 2008. (Id. at 116.) An Inmate Medical Form
completed by Jail staff at about 4:49 p.m. on February 20, 2008,
stated “Inmate appears to be in good health. Has been sprayed with
Freeze by D.P.D.” (Id. at 118-19.) The only property listed on an
27
Inmate Personal Property Form was two earrings. (Id. at 119-20.)11
Watson claimed that a Brietling watch was broken during the
incident on February 20, 2008. (Id. at 120.) In his interrogatory
answers, Plaintiff listed the damages he claimed to have suffered
from the incidents of October 17, 2007 and February 20, 2008. Those
damages included a Breitling watch valued at $3500. (Id. at 12123.) At his deposition, Plaintiff testified that the items lost in
the February 20, 2008 arrest were a yellow gold necklace valued at
$1000, a diamond medallion valued at $1000, and a pair of diamond
earrings valued at $2000. (Id. at 123-24.)12
Watson was previously convicted by guilty plea in the Circuit
Court for Weakley County, Tennessee, of aggravated assault with a
weapon. The date of the offense was June 5, 2005. (Id. at 128.)13
Watson pled guilty to TennCare fraud in Dyer County, Tennessee, and
was sentenced to a term of imprisonment of two years. The date of
that offense was January 2, 2008. (Id. at 132-33.) Watson gave
11
These documents were not offered or admitted into evidence.
12
At his deposition, Watson was not asked about the Breitling watch,
which was identified as (E) in the interrogatory answer. The watch was not
included in Plaintiff’s property when he checked into the Jail. He apparently had
earrings when he was booked.
13
Plaintiff’s Weakley County conviction for Aggravated Assault was
admitted as Exhibit 5. (Id. at 142.)
Plaintiff later stated, after his testimony had concluded, that he
was not the aggressor in that incident. He was visiting a cousin in Martin,
Tennessee. “These guys attempted to rob my cousin. They shot him; and, you know,
I defended us from that position. I didn’t hurt anybody.” (Id. at 141.) “The
judge explained that there was no a self-defense law in Tennessee and that’s why
my charge was reduced to aggravated assault and I was only given three years
probation on it.” (Id.)
28
false information to an agency of the State of Tennessee to obtain
medical benefits. (Id. at 133.)14
Plaintiff has no law enforcement training. (Id. at 134.)
On
redirect,
Watson
addressed
the
circumstances
of
his
conviction for TennCare fraud. He stated that “I admit I really did
deceive TennCare; and it’s because I didn’t have any insurance. I
was shot. I couldn’t get any medical treatment. I didn’t have any
money to pay for it.” (Id. at 135.) “I felt like I didn’t have any
options at the time to obtain any type of medical treatment.” (Id.)
Plaintiff explained that, when he drafted his complaint, the
instructions said to keep it short. He focused on the October 17,
2007 incident because he sustained the most damage from that
encounter. (Id. at 135-36.) According to Watson, “I maybe just
barely grazed over the February incident because I really didn’t
think that they were going to ultimately end up separated and the
form, as I say, did say keep it short.” (Id. at 136.)
Plaintiff also testified that he has four holes in his ears.
(Id.)
Officer Burrow’s letter of resignation from the SRT team,
dated October 19, 2000, was admitted as Exhibit 7. (Id. at 14344.)15 A photograph that purports to show Plaintiff’s damaged
Breitling watch was admitted as Exhibit 9. (Id. at 146-47.)
14
Plaintiff’s Dyer County conviction for TennCare fraud was admitted
as Exhibit 6. (Id.)
15
The term “SRT” was not defined in the exhibit or at trial.
29
Officer Clements was called to testify for the defense.
Clements testified that he had lived in Dyersburg his entire life
and had been employed by the DPD for twelve years. (Id. at 154.)
Clements had “[a]bout 13” years of law enforcement experience.
(Id.) At the time of trial, Clements’ rank was narcotics officer.
(Id.)
Clements
attended
the
Donelson
Academy
in
Nashville,
Tennessee, in 2001. (Id. at 155.) Donelson is “an eight-week police
academy. You have criminal law. You also have a week of defense
tactics, a week of shooting, and also a week of operating motor
vehicles.” (Id.)
Clements has received additional law enforcement training. In
2012, he went to a school in Meridian, Mississippi to learn about
“drug interdiction [and] working informants.” (Id.) He has also
been to “supervisors schools before and numerous drug schools.”
(Id.)
Clements is a certified police officer. (Id.) He is required
to have 40 in-service hours each year that are devoted to training.
(Id. at 155-56.) That training includes “eight hours of defensive
tactics.” (Id. at 156.) Clements has also received use of force
training. (Id.)
Clements has received training appropriate to his current
assignment as a narcotics officer. Clements attended a basic
narcotics school in Meridian, Mississippi, for two weeks. Earlier
in 2012, Clements attended an advanced narcotics school and also
30
received training on technical surveillance. (Id.) Clements was
also trained in the detection of drugs. (Id. at 156-57.)
While working as a law enforcement officer, Clements has
frequently
encountered
illegal
drugs.
(Id.
at
157.)
Clements
explained:
Well, I would say 2007, from 2007 until November,
2011, I worked full time with the bike patrol/street
crimes. Our main goal was partly narcotics-related gangs
and also we got involved with the community, play
basketball with kids and stuff but for the last year
participation in numerous undercover buys.
Part of my job in the past five years have [sic]
been search warrants, getting information from informants
of houses that’s supposed to have narcotics inside, and
vehicle stops also that were the — usually we find
narcotics. We, you know, get information from an
informant that, you know, it’s in a vehicle or a house.
(Id.) During his work as police officer, Clements had seen and
smelled marijuana before February 20, 2008. (Id. at 157-58.)
Clements was familiar with raw marijuana, which he described as “a
green, leafy substance.” (Id. at 158.) Prior to February 20, 2008,
Clements had encountered raw marijuana “[w]ell over 500 [times] or
I’d say probably 800 or more. That’s just a guesstimate.” (Id.)
Clements also has experience with arresting suspects who are
attempting to conceal illegal drugs. (Id.) He stated that “[w]e’ve
had people run from us, throw it, eat it, try to eat it, grind it
up in their hands, if it’s crack cocaine, several times with just
people hiding items or trying to eat it.” (Id. at 158-59.) It is
“very common” for a suspect to try to ingest an illegal substance
because “[t]hey don’t want to get caught with it.” (Id. at 159.)
Raw marijuana is usually stored in a plastic baggie. (Id.) A
31
suspect who ingests an illegal drug “can overdose” or could choke
on the plastic bag or on the drugs themselves. (Id.) Marijuana may
sometimes “be laced with some kind of PCP or anything.” (Id.) It is
also “very common” for other drugs, such as “pills or crack cocaine
or cocaine,” to be stored in a bag containing marijuana. (Id. at
159-60.) These additional substances can pose a danger if swallowed
by a suspect. (Id. at 160.) Clements testified that
I’ve had numerous stops where the suspect would be
successful after swallowing it; and you notice that if
it’s marijuana not in the bag, you know, it’s green
residue in their mouth. I’ve had incidents where
somebody, we arrested someone and they later complained
that their stomach was hurting them and turns out they
ate some meth during the traffic stop.
(Id.)
Clements was trained in the use of force at the police academy
and during annual in-service training. (Id.) Clements testified
that “[w]e just go over officer defense techniques, handcuffing
technical information, soft-hand control. Now we have tasers. We go
over tasers and just how to gain compliance from the suspect.” (Id.
at 161.) The DPD trains officers, including Clements, on a use-offorce continuum. (Id.)
The DPD has a policy on the use of force. (Id.) Clements
identified the DPD General Order on the use of force, which was in
place on February 20, 2008. (Id. at 161-62.) Clements was trained
on the policy in “either January or February” of 2012. (Id. at
162.) A copy of the policy was admitted as Exhibit 10. (Id.) The
policy states that “[a] typical escalation of force pattern is as
follows:
Cooperative
Controls,
32
Contract
Controls,
Compliance
Techniques, Defensive Tactics, and Deadly Force.” (Ex. 10 at 1.)
Clements testified that that sentence describes a use of force
continuum. (Tr. 163.) A use of force continuum is
like cooperative controls. We start out verbal. Someone’s
being compliant and that would be just officer presence
and instructing someone to, you know, ordering someone to
do something and they respond.
The contacts controls, that has to do with
somebody’s being passively resistant, not active, and it
could be you could persuade someone into complying or you
could use a soft-hand control to, you know, make them be
compliant.
The compliance techniques, that’s when somebody’s
being actively resisting; and that’s when you can use
soft-hand control, Pepper Spray, or taser.
Defense tactics, that’s when somebody’s being
actively aggressive and might be some injury to the
officer and that could be also hard-hand control.
Then deadly force, of course, is when you feel like
there’s a danger to you as an officer or someone else in
society, being physically harmed, being physically harmed
that would incur great bodily injury.
(Id. at 163-64.)
The use of force policy recommends contact controls when a
suspect is demonstrating resistant behavior. (Id. at 165; see Ex.
10 at 2 (“When confronted with a suspect demonstrating resistant
behavior, the officer uses low level physical tactics to gain
control and cooperation. These tactics can be psychologically
manipulative as well as physical, and can include additional verbal
persuasion
skills,
relative
positioning
strategies,
escort
positions, and touch pressure points.”).) Contact can include lowlevel physical contact. (Tr. 164-65.) One example of a contact
33
control is pulling someone out of a vehicle who is not responding
to verbal commands. (Id. at 165.)
Clements testified that the term “cooperative controls,” as
used in the use of force policy, means “officer presence. It
includes methods of officer safety, survival, officer presence,
verbal
commands,
communication
skills,
restraint
techniques,
positions, and strategies. It can all — it can all be used. It can
be used at all levels of the Use of Force Continuum.” (Id.)
Cooperative controls are the lowest level of the continuum. (Id.)
If a suspect does not comply with verbal directives, other levels
of force are recommended and may be required, depending on the
circumstances. (Id. at 165-66.) Compliance techniques, including
physical contact controls, may be required if a suspect becomes
actively resistant. “These tactics should be sufficient force to
overcome the active resistance of the subject, and the officer
should remain vigilant for more aggressive behavior from the
subject.” (Id. at 166.) Examples of physical controls “include OC,
CS spray, taser, takedowns, presure point application, joint locks,
come-along holds, and head demobilization, head stimulation.” (Id.)
OC spray is the same as Freeze. (Id.) The use of a chemical weapon,
such as Freeze, is a compliance technique under the use of force
policy
that
may
be
appropriate
when
a
subject
is
actively
resisting. (Id.)
Exhibit 11 is the DPD’s use of force continuum model, which is
part of the use of force policy. (Id. at 167.) Clements was trained
on that continuum, which is consistent with the procedures in the
34
use of force policy. (Id.) This continuum model was in place prior
to February 20, 2008. (Id.)
On February 20, 2008, Clements was assigned to the DPD’s
street
crimes
and
bike
patrol
unit.
(Id.
at
168.)
Clements
testified that street crimes and bike patrol is a specialized unit.
(Id.)
We didn’t have to answer calls. We just, if it was
a warm and pretty day, we go on bicycle. If there was a
lot of people out on the street, we — I played games with
kids. That’s part of it. That’s a fun part of it. When
we’re on bicycle, you hear a lot more as far as loud
music. You can smell a lot more as far as somebody
smoking marijuana. So, you’re able to catch a lot, catch
things a lot better.
Another job function we have is that we, you know,
stop people, sometimes finding narcotics, sometimes not,
just issuing traffic citations.
We also provide a phone for us, the police does. You
may have several informants that would call you and may
be able to get information for a search warrant or
someone who’s got narcotics on their persons, get
information for that, or someone’s got narcotics in a
vehicle.
(Id. at 168-69.) The purpose of the unit is “to deter the narcotics
and gang activity.” (Id. at 169.) Clements testified that “[w]e
would stay where we was having the most problems, and the majority
of time it was more of your economically deprived neighborhoods,”
which tend to have higher concentrations of drug trafficking and
gang activity. (Id.)
The T&B Grocery in the Finley Street area of Dyersburg is in
a high crime area. (Id.) The office of the Bike Patrol Unit was in
a housing project a quarter mile from the store. (Id.) Clements was
assigned to Bike Patrol full time beginning on April 20, 2007. (Id.
35
at 169-70.) Since Clements was hired in 2001, the police department
has divided Dyersburg into four zones, and the officers rotate from
one zone to another. (Id. at 170.) As part of his duties, Clements
became familiar with the residents in the area of the grocery
store, including residents who were known for criminal activity.
(Id.)
Clements recalled learning about an arrest of Plaintiff on
October 20, 2007. (Id.) Clements arrived on the scene after Watson
had been placed in the patrol car. (Id.) At that time, Clements
testified that “Officer Wright and Officer McDowell was telling me
about what happened. I worked with them 40 hours a week.” (Id. at
171.) It was common for officers to share information about
suspects “[i]n case you may encounter them, if someone was, you
know, known for resisting or fighting, just for your safety.” (Id.)
Clements was aware of Watson’s reputation when he encountered
him on February 20, 2008. (Id.) Clements was asked how that
knowledge affected his behavior, and he responded, “Just more
alert, just more alert when I approached the vehicle. I just was
making sure he wasn’t — like when he went to the glove box, you
know, I was trying to see if he got any weapons or anything. I was
concerned about that.” (Id.)
On February 20, 2008, Clements was “assisting the sergeant in
a narcotics roundup where they had conducted undercover street buys
and later that there was indictments that come out and we were
picking them up. It started at 1:00 o’clock.” (Id. at 172.)
Clements and Burrow encountered Watson at 2:59 p.m. (Id.) They were
36
in a marked police car, and Clements was driving. (Id.) When he
approached the vehicle, Watson was seated in the driver’s seat.
(Id.) According to Clements:
When I first approached, saw him get something out
of the console. I approached the vehicle and I was — got
right beside him and noticed he had a look of
concentration on his face and got around to the mirror
and I could see him chomping, chewing on something, and
could see glimpses of a green, leafy substance that I
believed to be marijuana in a plastic baggie.
(Id.
at
173.)
Clements’
identification
of
the
substance
as
marijuana was based on his “years of experience, seeing it on the
streets.” (Id.) Clements testified that he was standing at the
driver’s side mirror: “I could basically — I may have been touching
it.” (Id.) Clements believed that Watson “was trying to tamper with
evidence by trying to get rid of it before he got arrested and
charged with it.” (Id.)
Clements testified that he gave Watson several verbal commands
to spit out the marijuana. (Id. at 173-74.) “I did numerous times.
I opened up his door, told him to spit it out. He wouldn’t do it.
He wouldn’t — just totally ignoring me. Told him to get out of the
vehicle numerous times. He wouldn’t.” (Id. at 174.) Under the DPD
Use of Force Policy, a subject’s failure to comply with verbal
commands
is
classified
as
“[r]esistant/passive.”
(Id.)
The
appropriate response is a contact control, which is one level above
cooperative controls or verbal commands. (Id.)
Clements testified that
I attempted to pull him out the first
unsuccessful. He was holding onto the seat.
37
time.
Was
The second time we got him out; and we kept
telling him, we told him several times to get out.
wouldn’t do it. Told him to spit it out. He wouldn’t
it. Told him to put his hands behind his back.
wouldn’t.
on
He
do
He
That’s when Officer Burrow sprayed him in the facial
area with some Freeze Plus P.
(Id. at 175.) Before Burrow sprayed Watson, Clements had attempted
a “straight arm bar takedown. I attempted to take him down but
couldn’t. His arm movements, he was resisting both of us.” (Id.) A
straight arm bar takedown is “where you grab somebody’s wrists and
around their elbow and you lean your weight, your body weight, down
to the ground and try to have the momentum take them with you but
it didn’t work out” because “[h]e’s too strong.” (Id. at 175-76.)
A straight arm bar takedown is a compliance technique on the use of
force continuum. (Id. at 176.)
Watson was handcuffed “[a]fter he spit out the marijuana.”
(Id.) Clements explained:
After Officer Burrow pepper sprayed him, I was able
to get behind him and trip him up and he still, when we
got him on the ground, he was still trying to get to his
knees and we were trying to put some of our body weight
on him and that’s when I pepper sprayed him.
The whole time we’re telling him to put his hands
behind his back. He never said anything. He wasn’t
talking at all. He was still trying to chew up the
marijuana and swallow it.
After I pepper sprayed him, it was effective. The
first one was not effective that Officer Burrow sprayed.
It was effective enough to have him spit out the
marijuana. Then we placed handcuffs on him.
(Id.) The use of force ceased “[w]hen he spit out the marijuana and
was handcuffed and he quit resisting.” (Id. at 177.) Clements
38
denied
that
any
force
was
used
against
Watson
after
he
was
handcuffed. (Id. at 176-77.)
At no time during the encounter did Watson say or do anything
that led Clements to perceive that he was going to stop resisting
and comply with the officers’ commands. (Id. at 177.) Clements
testified that Watson “just had one goal, swallow the marijuana and
chewing
the
marijuana
up.
He
never
said
anything.
He
never
complied. He was pulling away from us and wouldn’t listen to a word
we said.” (Id.) Clements testified that, at the time, Watson “was
quite a bit bigger than me. I would say he’s probably about 250,
260 on that day.” (Id.) Watson had a muscular build, whereas
Clements was “average. I’m not muscular. I don’t work out, but he
was stronger than us.” (Id.)
After Watson was handcuffed, the officers “sat him up, and
somebody had some water. He was asking for some water and somebody
had some water in their trunk and I poured it over his eyes to help
decontaminate him.” (Id. at 178.) After that, Clements and Burrow
“transported him to booking and then in booking we had some kind of
wipes there for Pepper Spray to relieve it and he wiped it with the
wipe then at the booking.” (Id.) Clements testified that Watson
“was cooperative and as nice as he could be after he’s placed in
cuffs.” (Id.) Clements believed that, after the incident, Watson
“was fine. He — he talked before about how he was handicapped. To
me he was more like an athlete. He was perfectly fine. He never
complained about anything besides his eyes and we took care of that
and he was pleasant during the booking process.” (Id. at 181.)
39
Watson did not make any complaints about his physical condition.
(Id.)
Clements did not notice any jewelry or personal accessories
lying about at the scene. (Id.) If the officers had found any such
items, Clements testified that, “[i]f we believed it was his, we
would have put his property, put it in his lap, in his pocket.”
(Id. at 182.) Watson did not make any complaints about missing or
broken items. (Id.)
Watson was booked at the DPD and, when that was completed,
Clements and Burrow transported him to the Dyer County Jail. (Id.
at 178.) In addition to the charge of possession of marijuana, to
which he pled guilty, Watson was also charged with tampering with
evidence, driving on a suspended license, and resisting arrest.
(Id.)
During the encounter with Watson on February 20, 2008, the
officers first used cooperative controls without success. Contact
controls were then used unsuccessfully. The officers finally used
compliance techniques, which were eventually successful. (Id. at
179.) The purpose of Freeze is “[t]o prevent injury to the officer
and the suspect when someone’s actively resisting, to take the
fight out of them.” (Id. at 180.) In this case, Watson ceased
resisting after the spray was used. (Id.) Clements believes that
the actions taken by Officer Burrow and himself complied with the
DPD’s use of force policy and use of force continuum. (Id.)
Clements does not believe that the force used by Officer Burrow and
himself was unlawful. (Id. at 180-81.) He also does not believe
40
that
either
he
unreasonable
or
under
Officer
the
Burrow
took
circumstances.
any
(Id.
action
at
that
181.)
was
Watson
physically resisted the officers when they tried to arrest him.
(Id. at 182.) He tried to swallow marijuana despite Clements’
verbal command to spit it out. (Id.) Clements believed he did not
use any greater force than was necessary under the circumstances.
(Id.)
On cross examination, Clements stated that he was thirty-four
years old. (Id.) He testified that he had not played basketball
with neighborhood children recently but, when he was on bike
patrol, he used to play basketball at the Bruce Community Center or
“at the future city rec center . . . .” (Id.) Clements said that he
“like[s] playing basketball” and he is “pretty good at basketball
. . . .” (Id.)
Soft-hand control is “[j]ust grabbing hold of someone, like
trying to get you out of the vehicle.” (Id.) Hard-hand control
“could
be
strikes.”
(Id.)
Clements
testified
that
soft-hand
controls were used on Watson. (Id. at 184.) Head destabilizing is
“hold[ing] someone’s head in case they try and spit on you.” (Id.)
Watson asked whether putting a knee on someone’s neck or head was
another technique for head destabilizing, and Clements responded,
“We didn’t do that to you. That’s not true.” (Id. at 184-85.)
Clements denied that he was confined to black communities
while on bike patrol. (Id. at 185.) He stated that “[w]e’ll go all
over town” and also stated that “we are normally in the high-crime
areas.”
(Id.)
Clements
denied
that
41
the
high-crime
areas
are
normally black areas, stating that “we also spend a lot of time in
Milltown and that’s mostly . . . white.” (Id. at 185-86.) Clements
denied that members of the black community are afraid of him. (Id.
at 188.) He stated: “The only people we ever have problems with are
the
ones
who
are
doing
illegal
activities
like
selling
narcotics . . . .” (Id.)
Clements was unsure whether he knew that Watson had not been
in Tennessee from the end of 2005 until late 2007. (Id. at 189.) He
testified that “I remember after we arrested you the first time or
Officer Wright arrested you the first time that you had been out of
town, but I don’t know how long.” (Id.) Clements denied striking
Watson during the arrest on October 17, 2007. (Id. at 190.) He
testified, “I was not even in the house. That is not true. I was
not there until after you was in the vehicle.” (Id.)
Clements clarified that Watson was reaching into the console
or armrest, not the glove box, when he approached the vehicle. (Id.
at 190-91.)
Clements could not recall the details of a single citizen
complaint that had been filed about him. (Id. at 191.) He testified
that “I don’t have access to them. Our administrative lieutenant
has them.” (Id.) Clements has “sometimes” been addressed by police
department administrators about citizen complaints that have been
received. (Id. at 191-92.) He stated that “I’ve had them for
someone saying they ran a — didn’t run a stop sign when I believed
they did or I saw they did, you know . . . .” (Id. at 192.)
42
Clements confirmed that Watson was passive/resistant while
inside his vehicle. (Id.) Clements stated that, if he had used
force on Watson after he was handcuffed, he would not lie about it.
(Id. at 193-94.) Clements also denied that that happened. (Id.)
Clements denied that he was ever physically abusive while
arresting Maurice Ward. (Id. at 195.)
On
redirect,
Clements
testified
that
citizen
complaints
against police officers are common: “It happens a lot, especially
when you’re doing — I’m bragging but doing a good job and getting
some of the right people off the street, that’s, like I said
earlier, that’s one way to combat. They think that if you — they
come up there and complain on an officer that the bosses will tell
us to, you know, stay out of that area; or don’t pull people over.”
(Id. at 203.)
The DPD has an Internal Affairs investigation department.
(Id.) Clements believes that the chief of police is responsible for
determining whether a complaint is valid. (Id. at 203-04.) Clements
has no role in deciding whether citizen complaints are pursued
through the internal affairs process. (Id. at 204.) An officer is
made aware when Internal Affairs finds that he acted improperly.
(Id.) If Internal Affairs is investigating a complaint, the officer
will
learn
the
results
whether
the
complaint
is
founded
or
unfounded. (Id.) Clements was not certain when an internal affairs
investigation would be triggered. (Id.) An officer may never learn
of a citizen complaint that does not result in an investigation by
Internal Affairs. (Id. at 204-05.)
43
Watson’s booking photograph for the arrest on February 20,
2008
was
admitted
as
Exhibit
12.
(Id.
at
205-06.)
Clements
testified that the photograph was consistent with Watson’s build
and appearance on that date. (Id. at 205.)
On recross examination, Clements testified that he weighs 202
pounds. (Id. at 207.) Exhibit 12 reflects that Watson weighed 225
pounds when he was booked. (Id.)
Clements reiterated his belief that people sometimes file
citizen complaints because an officer is effective and they hope he
will be ordered to lay off. (Id. at 208-09.) Clements did not know
whether copies of citizen complaints go in an officer’s personnel
file. (Id. at 209.) He stated that “I never have done anything
wrong in law enforcement as far as illegal, any criminal activity.”
(Id. at 209-10.) Watson asked Clements whether the fact that Burrow
had only received one complaint meant that he was not doing a good
job, and he responded that Burrow “had to answer calls. We were —
we didn’t have to answer calls. Our only job was to ride around on
bicycles and make traffic stops. So, we didn’t have to answer
calls.” (Id. at 211.)
The defense called Officer Burrow, who testified that he had
lived in Dyersburg his entire life and had been employed by the DPD
for “[a] little over 15” years. (Id. at 214.) His position at the
time of trial was patrolman. (Id.) He is also a certified K9
officer. (Id.) Burrow was a K9 officer on February 20, 2008. (Id.
at
215.)
He
had
almost
nineteen
years
of
experience
in
law
enforcement. (Id.) Prior to his employment with the DPD, Burrow was
44
employed by the Lake County Sheriff’s Department in Tiptonville,
Tennessee. (Id.)
Burrow received his law enforcement training at the Donelson
Academy in Nashville in 1995. (Id. at 215-16.) The Academy provides
“an eight-week basic police course. It deals with police history,
laws, emergency vehicle operation, firearms, physical/defensive
tactics, use of force, such as that.” (Id. at 216.) Burrow also
receives forty hours of in-service training annually and has
attended “a few schools.” (Id.) Burrow has “been to numerous [drug]
interdiction
schools,
highway
interdictions,
criminal
interdictions, as well as SWAT schools.” (Id.)
In
the
course
of
his
training
and
experience
as
a
law
enforcement officer, Burrow has encountered marijuana “numerous”
times. (Id.) Prior to February 20, 2008, Burrow had encountered
marijuana hundreds of times. (Id.) Raw marijuana is “a green, leafy
substance.”
(Id.
at
217.)
Burrow
has
previously
encountered
suspects with marijuana in their possession and suspects who tried
to
conceal
marijuana.
(Id.)
Suspects
may
“keep
it
in
their
clothing, in their socks, shoes. A lot of times they’ll have it in
their pockets.” (Id.) Marijuana is usually stored in a clear
plastic bag. (Id.) Burrow has encountered suspects who tried to
ingest drugs, including marijuana. (Id.) That has occurred “[q]uite
a few [times]. I don’t know an exact number.” (Id.) That practice
can present risks to the subject, including the risk of overdose,
depending on the drug that is ingested. (Id. at 218.) A subject
could also choke on the marijuana. (Id.) It is possible that
45
marijuana might be laced with other substances, although Burrow has
never encountered that situation. (Id.) Ingesting the drugs is one
way in which a suspect may try to conceal evidence “[t]o keep from
being
caught
with
it,
arrested.”
(Id.)
Suspects
will
also
frequently throw the drugs to distance themselves from them. (Id.)
The DPD provides its officers with forty hours of in-service
training every year. (Id. at 219.) That training includes training
in the use of force, “[l]ike handcuffing techniques, dealing with
suspects, how to defend against being attacked, things such as
that.” (Id.) The DPD has a use of force continuum and trains its
officers on that continuum during in-service hours. (Id.) Officers
are trained using various scenarios that might or might not call
for the use of force. (Id. at 219-20.) Officers are also trained to
spray Freeze+P at a target. (Id. at 220.) The DPD has a policy on
the use of force that addresses the situations in which use of
chemical spray is appropriate. (Id.) According to the policy, use
of a chemical spray is appropriate “[w]hen they resist your efforts
to place them into custody, place them under arrest.” (Id.) Use of
a chemical spray is also appropriate when a suspect refuses verbal
commands. (Id. at 220-21.) The advantage to using chemical spray is
that “[i]t’s not as bad a side effect as getting struck with a
baton.” (Id. at 221.) Use of chemical spray usually helps get the
suspect under control and prevents the situation from escalating.
(Id.) Use of the spray can prevent both suspects and officers from
getting hurt. (Id.) Chemical spray is a compliance technique on the
use of force continuum. (Id.)
46
Prior to February 20, 2008, Burrow was familiar with the area
around the T&B Grocery. (Id.) Burrow had previously been assigned
to that zone a a K9 officer and as a patrol officer. (Id.) Officers
are assigned to zones for a month at a time, and Burrow had been
assigned to the zone where the T&B Grocery is located at different
times during his career with the DPD. (Id. at 222.) Burrow knew
that the zone was “a high-crime area, drugs and gangs.” (Id.)
Burrow was also familiar with residents of the area who engaqe in
criminal activity. (Id.)
Burrow testified that he had problems with Watson during
previous arrests. According to Burrow, “during the arrest in 2004
he did evade. I had — I had taken a counterfeit hundred dollar bill
off of him and he grabbed it out of my hand and took off running.”
(Id.) Burrow perceived that as Watson “not wanting to get arrested.
You know, he began to evade. I perceived that he knew the bill — I
knew the bill was fake. He knew it was fake. So, he was getting rid
of the evidence.” (Id. at 224-25.)
During
the
same
incident,
Watson
attempted
to
destroy
marijuana. Burrow testified that, “[a]t the end of the chase, I
located him in a business inside a bathroom and he was flushing the
commode and when I took him into custody, another officer arrived.
I looked in the commode, and it was marijuana and a blunt spinning
around.” (Id. at 225.) Burrow also knew of a prior incident in 2007
in which Watson had a weapon. (Id.)
Burrow recalled these prior incidents when he encountered
Watson on February 20, 2008. (Id. at 225-26.) Those experiences
47
“made us a little more cautious since I had found a weapon on him
before.” (Id. at 226.) Because Watson had previously been found to
have a weapon, the officers wanted to ensure that he would not have
access to any weapon on that occasion. (Id.) Burrow testified that
“[i]f you have them out of the vehicle, you don’t want them back in
the vehicle. You want to try to maintain control of them.” (Id.)
Burrow also testified that it is important to gain control of
a suspect who is resisting arrest as quickly as possible “[t]o keep
you from getting hurt, other officers or the suspect.” (Id. at
227.)
On February 20, 2008, Burrow was “participating in a narcotics
roundup where people had been indicted.” (Id. at 227.) The officers
encountered Watson at approximately 3:00 p.m., near the end of the
roundup. (Id.) Watson was operating a motor vehicle near the
intersection of Rawles and Finley near the T&B Grocery. (Id.)
Burrow was aware that Watson’s license had been revoked, and he
communicated that fact to Clements. (Id. at 227-28.) After they
stopped in the T&B parking lot, Burrow stayed in the patrol car to
radio dispatch. He explained that “[t]hat’s a safety issue. You let
everybody know where you’re at in case the stop goes bad.” (Id. at
228.) Burrow testified that “I can talk on the radio and still look
straight ahead. I’m still aware what’s in front of me.” (Id.) While
he was on the radio, Burrow watched what was happening outside the
vehicle. (Id.)
Burrow recalled that Clements “was yelling for Mr. Watson to
step out, get out of the vehicle. He was moving around a lot.” (Id.
48
at 229.) When Burrow was through talking to dispatch, he joined
Clements. (Id.) Clements was standing at the driver’s door, about
an arm’s length away from Watson. (Id.) Clements told Burrow that
Watson had “weed in his mouth.” (Id.) Burrow thought that “[w]e
were trying to place him under arrest. We needed to get him out
before he could possibly choke on it or OD.” (Id.)
Burrow had previously encountered suspects with illegal drugs
in their mouths (id. at 229-30), and he stated that, “[i]f you have
something in your mouth, it’s hard to talk” (id. at 230). He
continued:
“Normally
when
I
would
stop
Mr.
Watson,
he
was
talkative. That time he was not.” (Id.) Burrow could not recall the
quantity of marijuana that Watson spit out of his mouth, but he
estimated it to be about two grams. (Id.) The plastic bag of
marijuana was “[l]ike ping-pong size, maybe a little less . . . .”
(Id.) Burrow had previously encountered suspects with ping-pong
ball sized bags of marijuana in their mouths, and he stated that it
affected their ability to communicate. (Id.) “They’re not able to
talk. They mumble. It’s — you can tell they have something in their
mouth.” (Id. at 231.) Burrow testified that, when a suspect has a
bag of that size in his mouth, “I can’t understand what they’re
saying most of the time.” (Id.)
Verbal commands are at the lowest level of the DPD’s use of
force
continuum.
(Id.)
Verbal
commands
are
an
example
of
cooperative controls. (Id.)
Burrow was familiar with the DPD’s General Order on the use of
force. (Id. at 238.) That is the use of force policy he had been
49
trained on prior to February 20, 2008. (Id. at 238-39.) Burrow was
also familiar with the DPD’s use of force continuum, which he was
trained to use prior to February 20, 2008. (Id. at 239.) Burrow
testified that the force used by him and Office Clements on
February 20, 2008 was consistent with the DPD’s use of force policy
and use of force continuum. (Id. at 239-40.)
Burrow testified that he used one one-second burst of spray on
Watson. (Id. at 240.) Clements used one one-second burst of spray
on Watson. (Id.) Watson was actively resistant when Burrow and
Clements used the spray. (Id.) The first burst of spray was used
“[j]ust after he was removed from the vehicle that I recall.” (Id.)
The total number of bursts of spray was two. (Id.) Watson did not
stop resisting at any time before Clements sprayed him. (Id.)
Watson was not handcuffed when Clements used the spray. (Id. at
240-41.) He was not handcuffed when Burrow used his chemical spray.
(Id. at 241.) Watson was handcuffed after Clements sprayed him and
he stopped resisting. (Id.) The use of force ceased when Watson
“was handcuffed, complied and got handcuffed.” (Id.)
Watson was charged with possession of marijuana, driving on a
revoked license, and tampering with evidence. (Id.) Tampering with
evidence is a felony charge. (Id.)
As the senior officer, it was Burrow’s responsibility to
prepare an incident report. (Id. at 241-42.)16 The report was
prepared “[p]robably within an hour or two after we dropped
16
Exhibit 13 is the incident report that Burrow completed after the
arrest. (Id. at 242.)
50
[Watson] off at the jail.” (Id.) Burrow also prepared a risk
management report. (Id. at 243.) A risk management report is
required anytime an officer uses force. (Id.)17 The report reflects
that soft hand force was used and that a chemical agent was used
two times. (Id. at 244.) The report also reflects a supervisor’s
determination that the incident did not require further review.
(Id.)
Based on his training and experience, Burrow did not believe
that any force used by him or Officer Clements on February 20, 2008
was unlawful. (Id. at 245.) Based on his training and eighteen
years of law enforcement experience, Burrow believed that neither
he nor Officer Clements took any action that was unreasonable under
the circumstances. (Id. at 245-46.)
After the incident on February 20, 2008, Watson “appeared to
be okay except for the effects of the Freeze.” (Id. at 246.) Watson
made no complaint about his physical condition after the incident.
(Id.) While they were still at the scene, Clements gave Watson
water to flush out his eyes and, after he had been taken to the
police station, he was given a wipe designed for the removal of
pepper spray. (Id.) Watson was given water “[a]lmost immediately
when he quit resisting.” (Id.) Burrow was not aware that any items
of Watson’s personal property were broken during the encounter.
(Id.)
17
Exhibit 14 is the risk management report for the incident at issue.
(Id. at 245.)
51
On February 20, 2008, Watson resisted when the officers tried
to arrest him. (Id.) He refused to spit out marijuana after being
commanded to do so. (Id. at 246-47.) Burrow did not use any greater
force than was necessary to subdue Watson and prevent him from
swallowing the marijuana. (Id. at 247.)
On cross-examination, Burrow was asked whether he believed
that citizens file complaints about police officers because the
officers are doing a good job, and he responded, “That could vary.”
(Id.) Burrow explained that “[t]he complaint could be false.” (Id.
at
248.)
He
agreed
that,
ordinarily
when
a
citizen
files
a
complaint, he believes a police officer has done something wrong.
(Id.)
Burrow did not believe the situation was under control after
he administered the first burst of Freeze and Watson was on the
ground. (Id.) He did not administer a second burst of Freeze at
that time “‘[c]ause I was struggling with you, trying to get your
hands behind your back.” (Id.)
Burrow testified that the incident in which Watson was passing
counterfeit bills was not a traffic stop. (Id.) He stated that
“[i]t was a consensual encounter.” (Id.) The counterfeit bill that
Burrow seized was never introduced into evidence at a trial. Burrow
stated that “I never got a chance to.” (Id. at 249.) The bill was
never turned over to evidence (id.), which suggests that it was not
recovered after Watson fled. Burrow stated that he has “seen
numerous counterfeit bills” and, “[b]ased on my experience, I
believe it to be counterfeit.” (Id.)
52
Burrow
confirmed
that
Watson’s
flight
on
that
occasion
constituted evading arrest. (Id.) Although Watson may not have been
formally arrested, Burrow testified that “[w]hen you ran, I told
you to stop. You were under arrest. You continued.” (Id. at 24950.) Burrow acknowledged that Watson was acquitted of evading
arrest. (Id. at 250.) Watson was acquitted of criminal simulation
“‘[c]ause
you
destroyed
the
evidence.”
(Id.)
The
jury
also
acquitted Watson of tampering with evidence. (Id.)
Burrow testified that it does not bother him that, with the
exception of a charge of simple possession of marijuana, every
other charge he placed on Watson has been dismissed. (Id. at 252.)
Burrow stated that Watson’s past possession of a weapon affected
Burrow’s behavior in future encounters with Watson. (Id.) He
stated, “You had been in possession of a weapon before. Therefore,
I would be more cautious in the future encounters with you.” (Id.)
Although the weapons charge was dismissed, Burrow stated that
“[y]ou still had a weapon though.” (Id.) Burrow conceded that it
was “[p]ossible,” although “[n]ot likely,” that Watson was unaware
of the loaded weapon that police found in a vehicle that Watson had
borrowed. (Id. at 253.) Burrow explained that, “[w]hether or not
you were found guilty, you had a weapon within reach. I’m going to
be cautious. It’s going to be — it’ll affect the way I approach
you. I’ll be more cautious.” (Id. at 254.) “That’s with anybody,
not just you, if I know they’ve been in possession of a gun
before.” (Id.)
53
Burrow testified that he is a member of the Fraternal Order of
Police. (Id. at 247.) He did not know whether the Order requires
officers to protect their brother officers. (Id. at 254.) Burrow
would protect “the physical wellbeing of [his] partner.” (Id. at
254-55.) He would not lie to protect his partner. (Id. at 255.)
Burrow was asked whether he agrees with everything his partner
does, and he responded, “When I’ve been around him and there was no
wrongdoing, yes, I do.” (Id.) He also stated that, “[i]f I saw an
officer doing something wrong, I would report it.” (Id.)
Burrow was asked whether he might have lost control a little
bit in light of the facts that every charge he had placed against
Watson had been dismissed except the charge for simple marijuana
possession and in light of his concern that Watson might have had
a gun. (Id.) He stated that “I’ve never lost control.” (Id.) Burrow
denied that Officer Clements lost control during the incident on
February 20, 2008. (Id. at 155-56.)
By the time Burrow had finished communicating with dispatch on
February 20, 2008, Clements was standing at the driver’s door to
Watson’s vehicle. (Id. at 256.) Burrow did not recall stating
previously that Watson had been removed from the vehicle when
Burrow finished his call. (Id.)18 Burrow stated that “I remember you
still being in the vehicle. I don’t know if you were partially out
or not. I don’t remember that.” (Id. at 257.) In response to
whether Burrow assisted Clements in removing Watson from the
18
That is not an accurate paraphrase of Burrow’s previous testimony.
See supra pp. 5-6.
54
vehicle, Burrow responded, “I don’t remember grabbing you when you
were in the vehicle. I don’t remember that.” (Id.)
Burrow
recalled
his
previous
testimony
that
Watson
had
approximately two grams of marijuana in his mouth, which was about
the size of a ping-pong ball. (Id.) Watson asked whether an amount
of marijuana the size of a ping-pong ball weighs two grams, and
Burrow testified, “It would depend on what was in it, if it was
like seeds in it. It would vary in weight.” (Id.) Burrow conceded
that the amount of marijuana in Watson’s mouth could have been
smaller than a ping-pong ball. (Id. at 258.) He denied that the wad
of marijuana was a lot smaller than a ping-pong ball: “I wouldn’t
say a lot smaller. It could be a little smaller. You had chewed
over it. There was slobber all over it, saliva.” (Id.) Burrow also
stated that “[i]t could have been more than 2 grams. It was smaller
because you’d chewed on it.” (Id.) Burrow did not recall the weight
of marijuana reflected in the lab report. (Id.)
Burrow confirmed that the risk management report stated that
soft-hand force was used. (Id.) Burrow denied that the use of force
escalated
to
hard-hand
force,
which
he
defined
as
“striking
somebody.” (Id. at 258-59.) He stated that “[y]ou were never
struck, and I don’t remember [Clements] testifying to that.” (Id.
at 259.) Burrow testified that, “[w]hen we were holding onto you,
trying to get your hands behind your back, trying to control you,
that’s soft-hand force.” (Id.) The arm bars were also soft-hand
force, as is the use of an officer’s body weight to pin a suspect
to the ground. (Id.) Burrow would not consider an officer’s use of
55
a knee to the neck of a suspect to pin him to the ground to be
soft-hand force, and he insisted that “[t]hat did not happen in
this situation.” (Id.)
Burrow recalled his previous testimony that, after Watson had
been sprayed with Freeze and was on the ground, he was on his
stomach and Burrow was behind him. (Id. at 259-60.) Watson asked
where Clements was at that time, and Burrow said that “I don’t
recall if he was behind you or in front of you.” (Id. at 260.) “He
could have been on either side of you.” (Id.) Burrow testified that
“I was behind you ‘cause I handcuffed you.” (Id.) Burrow was asked
whether Watson was on his stomach or his side, and he replied, “You
could have been a little of both. From where I was, you looked like
you were mostly on your stomach; but, I mean, you could have been
raised up just a little bit on your side. You can be on your
stomach and be on your side, too.” (Id. at 261.) Burrow was not
certain where Clements was positioned. (Id.) Burrow confirmed that
he was behind Watson and Watson was on his stomach. (Id. at 26162.) Burrow reiterated that, “[a]s I said before, you can still be
on your stomach and be up just a little bit on your side.” (Id. at
262.) “From my position, it looked like you were mostly on your
stomach.” (Id.)
The defense called Commander Dennis Mays, a resident of
Jackson, Tennessee. (Id. at 264.) At the time of trial, Mays was a
law enforcement consultant and trainer and was a vice president of
Training Services Group. (Id.) Mays entered law enforcement in 1975
and had over thirty years of experience. He retired in 2008 as a
56
commander with the Jackson Police Department in Jackson, Tennessee,
where he also served as the department’s legal advisor. (Id. at
265.) For the eighteen years prior to his retirement, Mays was on
the executive command staff of the Jackson Police Department. He
was
involved
involving
in
the
investigations.
promulgating
use
of
(Id.)
force,
As
policies,
and
evaluating
reviewing
commander
of
situations
internal
the
Jackson
affairs
Police
Department, Mays supervised subordinate officers and a department
of about two hundred officers. (Id.) Mays was also responsible for
reviewing misconduct complaints and disciplining officers where
appropriate. (Id.)
Mays was asked about his previous law enforcement positions,
and
he
testified
that
he
started
in
1975
as
an
undercover
operative. He moved into the Patrol Division, where he spent “two
or three years.” (Id. at 266.) Mays then “moved over to Metro
Narcotics, spent some years there.” (Id.; see also id. at 265
(three years as an investigator for the Metro Narcotics Unit).) In
1986, Mays left Narcotics and spent “a little over three years”
with the Tennessee Bureau of Investigation. (Id. at 266.) In 1990,
Mays was asked to return to the Jackson Police Department as a
legal
advisor
and
subsequently
was
promoted
to
the
command
position. (Id.) Mays also testified that he spent eight years
running the Criminal Investigation Division of the Jackson Police
Department. (Id. at 265.)
Mays obtained a bachelor’s degree from the University of
Tennessee at Martin in 1986 and received a law degree from the
57
University of Memphis in 1989. (Id. at 266.) He obtained a license
to practice law in Tennessee in 1990. (Id.)
Mays was certified as a police officer from 1975 until 2010.
(Id. at 266-67.) During the time he was a certified police officer,
Mays received annual in-service training. (Id. at 267.) Mays is a
member of the Tennessee Bar Association and is a lifetime member of
both
the
Tennessee
International
Association
Association
of
of
Chiefs
Chiefs
of
of
Police
Police.
and
(Id.)
the
Mays
previously testified at least seven times in state and federal
court on police procedures or use of force. (Id.)
Training
Services
Group,
with
which
Mays
is
presently
affiliated, is “a group of instructors that provide law enforcement
training
to
sworn
officers.”
(Id.
at
267-68.)
Mays
gives
presentations to police officers “[m]any times a year.” (Id. at
268.) That training includes instruction in police procedures and
the use of force. (Id.)
Mays attended the Tennessee Law Enforcement Training Academy
in Nashville, the same academy that Burrow and Clements attended.
(Id.) “That training provided I think it was a week’s worth of use
of force training and defensive tactics combined. It also covered
the constitutional issues of the use of force, the laws of arrest,
the laws of search and seizure, et cetera.” (Id.) Mays’ annual inservice training included the use of force. (Id.)
During his years in law enforcement, Mays has had occasion to
use force against a suspect. (Id. at 268-69.) He has encountered
subjects who resist arrest but could not estimate the number of
58
instances in which that occurred. (Id. at 269.) Mays stated that
“most of that was early on in [his] career” and not within the past
ten years. (Id.) Mays has also encountered subjects who try to
conceal drugs, including marijuana. (Id. at 270.)
At the Jackson Police Department, Mays supervised the use of
force by other officers. (Id. at 269.) Mays read “every use of
force report filed by an officer” in the Jackson Police Department.
(Id.) While he was a supervisor and commander of the Jackson Police
Department, Mays trained officers in “the constitutional issues
surrounding the use of force.” (Id.) The training that Mays
provides to other law enforcement officers includes instructions in
dealing with suspects who resist arrest. (Id. at 269-70.) Mays
stated that “[t]he training involves giving officers guidance in
using the amount of force necessary to overcome whatever resistance
they’re encountering.” (Id. at 270.)
The defense tendered Mays as an expert in police procedures
and the use of force. (Id. at 271.) The Court recognized Commander
Mays as a person who is qualified to give an opinion as to police
procedures and the use of force. (Id. at 272.)
Mays testified that, in forming an opinion about the incident
of February 20, 2008, he reviewed the DPD’s General Order governing
the use of force and the use of force continuum, the declarations
of Officers Burrow and Clements, the incident report, the risk
management report, Plaintiff’s deposition and the exhibits thereto,
the personnel records of Officers Burrow and Clements, and the
testimony of Officers Burrow and Clements at trial. (Id. at 27759
79.) Mays concluded that “the use of force against the plaintiff
was reasonable and not unnecessary or excessive.” (Id. at 280.) In
reaching that conclusion, Mays “broke the incident down into
segments,
starting
with
the
officers’
confrontation,
initial
confrontation with Mr. Watson.” (Id.) Mays testified as follows:
I think Officer Burrow testified that he had
reasonable suspicion to believe his driver’s license was
revoked which gave him reasonable suspicion at least to
approach Mr. Watson.
When Officer Clements made that approach, you know,
it’s his testimony that he almost immediately I think saw
marijuana placed in his mouth; and that changed the whole
complexity of the incident. At that point they’ve got
probable cause to arrest him based on his suspicion of
that fact that he was possessing marijuana.
So, from that point forward any use of force was an
attempt to take him into custody; and the officers in my
opinion didn’t use anymore force than necessary to affect
[sic] that arrest.
The testimony I heard was that when they pulled him
from the vehicle, he began resisting, refused to comply
with their verbal instructions, refused to put his hands
behind his back; and they escalated a force from mere
presence to use of compliance techniques to first attempt
to take him to the ground, which I understand was
unsuccessful.
Then they used a chemical spray which then permitted
them to take him to the ground which I find was
completely reasonable and understandable under the
circumstances.
Thirdly, once they got him on the ground, the
testimony was he continued to resist which resulted in
them having to apply a second dose of chemical weapon
which at that time officers testified he then complied
and permitted him to be handcuffed.
I find all
circumstances.
that
to
(Id. at 281-82.)
60
be
reasonable
under
the
Mays was asked whether it was reasonable for the officers to
interpret Watson’s failure to respond to verbal commands to spit
out the marijuana and exit the vehicle as non-compliance, and he
responded that “[m]y opinion is that they had evidence he was not
going to comply. That’s why they used compliance techniques to get
him out of the vehicle.” (Id. at 282-83.) In response to why it was
important to get Watson out of the vehicle, Mays stated,
[Number] One, they’re justified.
probable cause now to take him into
possession of marijuana.
They’ve
custody
got
for
[Number] Two, they want him out of that vehicle
because they don’t know what’s in that vehicle. I’m
talking in scope of what weapons may be there. They’ve
got to take him into custody. So, they’ve got to get him
restrained.
And all of their use of force was in direct response
to his resistance to that.
(Id. at 283.)
In response to whether it was reasonable for the officers to
take Watson to the ground, Mays stated, “Well, that’s another
compliance technique. That’s safer for both the individual and the
officers because it eliminates the suspect’s movements. You can
contain those movements, and it’s also a technique of where you got
them on the ground to get them handcuffed.” (Id.) The technique is
designed to prevent a situation from escalating. (Id.)
Mays recalled Officers Clements’ testimony that, before using
chemical spray, he attempted a straight arm bar takedown. (Id. at
283-84.) Mays testified that “[t]hat was the appropriate compliance
technique to use at that point.” (Id. at 284.)
61
Mays reviewed the DPD use of force policy that was in place on
February 20, 2008. (Id.) That policy contained a use of force
continuum. (Id.) “A Use of Force Continuum is guidance that’s
provided officers generally by policy that gives them guidance on
how much force to use in any given circumstance which is dependent
on the amount of resistance that they’re encountering.” (Id.) The
use of force policy contains parameters for the use of chemical
agents. (Id.) Mays testified that the types of force used by
Officers
Burrow
and
Clements
“were
appropriate
compliance
techniques to utilize based on the resistance they encountered from
Mr. Watson.” (Id. at 285.) As an expert on police procedure and use
of force, Mays concluded that the DPD’s use of force policy and use
of force continuum complied with Fourth Amendment standards. (Id.)
Mays stated that it is important for officers to know any
risks they might encounter when they deal with a suspect. (Id.) He
testified:
Well, an officer’s got to take their training, their
experience, and part of the — in making a decision of
what course of action to take.
Part of that experience is knowing who you’re
dealing with and I’ve heard testimony of — by Officer
Burrow that he had had some prior confrontations with Mr.
Watson and that that heightened his alertness or made him
more cautious which I think most officers would do in a
circumstance when they’re dealing with somebody that
they’ve had prior encounters with.
(Id. at 285-86.) It is reasonable for officers to rely on their
prior experiences with a suspect when they encounter him again in
another arrest. (Id. at 286.) A law enforcement officer’s knowledge
and experience that a suspect has been known to resist arrest or
62
destroy evidence “prepares them for the potential; and since
they’ve had these previous occasions, they know the potential’s
there. So, certainly, I think it affects how they react.” (Id.) An
officer’s knowledge that a suspect may have possessed a weapon in
the past should affect how he deals with that suspect. (Id.) Mays
explained:
An encounter with an individual that’s had a firearm in
the past, then, you know, I’m going to frisk that
individual; and I’m going to have a reasonable suspicion
to do it simply based on my experience and training. I
know that that’s a probability, that they’re armed.
So, certainly it’s going to have a bearing on how I
make my approach to that individual and how I use my
verbal commands and how I react to any resistance.
(Id. at 287.)
Mays
agreed
that
police
officers
must
make
on-the-spot
decisions about whether force is needed and how much force is
required. (Id.) He explained:
Yeah, what an officer’s going to do is an officer’s
going to use the force necessary to effect that arrest;
and the amount of force utilized is going to be based on,
again, the amount of resistance that they encounter from
the suspect.
. . . [I]f an individual is told to stop, an officer
has reasonable suspicion to detain him, told to turn
around and put your hands behind you, and handcuff him,
then there’s not going to be a use of force.
(Id.)
Mays testified that it is “not unusual at all” for suspects to
attempt to conceal marijuana in their mouths. (Id.) An officer can
reasonably assume that the suspect is attempting to destroy that
evidence by swallowing it. (Id. at 287-88.) Mays stated that there
63
is a risk to the suspect in swallowing the plastic bag. (Id. at
288.) “I think you’ve got a choking risk and I certainly am not a
medical expert, but I’d say the plastic bag would be pretty hard to
digest.” (Id.) According to Mays, the officers are “justified in
trying to attain that evidence and, again, the amount of force
they’re going to use in trying to obtain that [evidence] is going
to be based on the kind and amount of resistance they encounter.”
(Id.)
Mays concluded that Officer Burrow and Officer Clements “acted
reasonably under the circumstances of this case.” (Id. at 288-89.)
He stated that “[m]y opinion is that they did not use anymore force
than necessary, that they acted as any other reasonable officer
faced with the same circumstances would have acted.” (Id. at 289.)
On cross-examination, Mays admitted that he was not present
during the events of February 20, 2008. (Id. at 290.) Mays stated
that he believes in second chances and that a person can change.
(Id. at 291.) He denied that he was angry. (Id. at 291-92.) Mays
stated that he has children. (Id. at 292.) He had no opinion about
whether Watson could be a good father. (Id. at 292-93.)
Mays testified that he took some sociology courses for his
undergraduate degree. (Id. at 294.) Mays did not recall whether
race relations were covered in a sociology course he took. (Id. at
294-95.)
Mays testified that he is objective. (Id. at 297.) He denied
that Watson’s criminal history had any bearing on the opinion he
formed about the use of force in this case. (Id. at 300, 301.) He
64
stated that “[m]y evaluation was based on objectively reviewing the
facts of what occurred on February the 20th, 2008.” (Id.) The
information provided was selected by defense counsel, and he
reviewed everything he received. (Id.)
Mays had testified as an expert at trial or in a deposition
fourteen times. He could not recall how many of those cases
involved the use of force. He had been retained forty-nine times
since 1995, and one-third of those cases involved use of force.
(Id. at 301.) It is not unusual for defense counsel to provide an
expert with the criminal history of the individual complaining of
excessive force. (Id. at 301, 302.) Mays noted that he had no
knowledge of what an attorney might have that was not sent to him.
(Id. at 301-02.)
Mays did not believe he spoke to anyone from the DPD before
forming his opinion. (Id. at 302.) He testified that “I have had
some discussions with some officers from the Dyersburg Police
Department about this case, but I couldn’t tell you where in the
time continuum it occurred.” (Id.) Mays never spoke to Watson about
the incident. (Id.)
Mays heard and believed the testimony that a final burst of
Freeze was administered when Watson was on the ground. (Id. at
304.) Mays was asked whether he accepted Plaintiff’s testimony
that, when he exited the vehicle, his hands were in the air and he
stated
that
necessarily
he
was
because
not
I
resisting.
also
know
that
He
responded:
you
had
a
“No,
mouthful
not
of
marijuana by the testimony — by your own testimony. So, I don’t
65
know how you’re going to be yelling at them, ‘I’m not resisting,’
with a mouth full of marijuana and a plastic bag.” (Id.)
Mays testified that he has experience in identifying drugs.
(Id. at 304-05.) Mays could not quantify the amount of space two
grams of marijuana would take up, but he stated “[i]t’s not a lot,
if that’s your point.” (Id. at 305.)
May also noted that “you
had a plastic bag in your mouth by your own testimony.” (Id.)
Mays discredited Watson’s testimony that he was sprayed after
he was handcuffed. He testified that “[t]he officers have been
consistent in every testimony and every declaration I’ve seen.
They’ve been consistent with the facts, and it’s my opinion that
their version is the version I made my determination on.” (Id.)
Mays testified that, in some cases, a citizen complaint about
an officer means that he is doing a good job. (Id. at 305-06.) “You
know, an officer that’s out, being proactive — and we’ll just use
an example, traffic stops, he’s going to get more complaints filed
against him, valid or not, than an officer that’s not proactive. I
think that was the point that the officer was trying to make from
the stand the other day.” (Id. at 306.) Although Mays conceded that
some citizen complaints against officers are valid, he also stated:
I evaluated every complaint that came through that
Jackson Police Department; and I can tell you the vast
majority of them, the officer did something that was
appropriate. They didn’t do a good job of explaining it.
As a profession, we do a real good job of what we do but
not real good at explaining it to citizens. So, they have
some misconceptions. That results in complaints.
(Id. at 307.) Mays was not willing to conclude that Officer Burrow
was not doing a good job because only one complaint had been filed
66
against him. (Id.
at 306.) He stated, “I’m not specifically
speaking to Officer Burrow. I don’t know what he does.” (Id.)
Mays testified that he is a member of the Fraternal Order of
Police and that not all police officers are members. (Id. at 307.)
The Fraternal Order of Police is a nationwide organization. (Id. at
308.) Mays denied that his membership in that group made him
biased. (Id.)
Mays was asked whether his opinion would change if he knew
that there had been a pattern of assaults on Plaintiff by police
officers and of unjustified traffic stops, and he responded that “I
don’t think having any other background information would have
altered
that
because
I
limited
my
review
to
that
specific
incident.” (Id. at 312.) Mays denied that he reviewed Watson’s
criminal history to find “consistencies.” (Id.)
Mays agreed that, if Watson were sprayed while he was on the
ground, handcuffed, and not resisting, that that would constitute
excessive force. (Id. at 313.) Watson asked Mays about an officer
putting a knee to a subject’s neck while he was on the ground,
handcuffed, and not resisting, and he stated that, if a subject has
stopped resisting, “any further use of force is excessive.” (Id.)
Watson attempted to present rebuttal testimony on his own
behalf. Watson stated that he had an epidural steroid injection to
his L4 and L5 discs. (Id. at 318.) The steroid epidural shot
occurred at the end of a two-year course of treatment. (Id. at
336.) The Court was prepared to accept Watson’s complete medical
records from the TDOC as Exhibit 15. (Id. at 327, 342-43.) At
67
trial, neither party had Watson’s entire medical record for the
period after February 20, 2008. The defense was expected to
supplement the exhibit after trial and to provide a copy to
Plaintiff. (See D.E. 179 at 2.) To date, the medical records have
not been supplied, and Plaintiff has taken no steps to compel
Defendants to submit the medical records.
II.
FINDINGS OF FACT
The Court makes the following findings of fact:
1.
Watson was arrested on February 20, 2008, at the T&B
Grocery in Dyersburg, Tennessee. (Stipulation, D.E. 176 at 5.)
2.
On February 20, 2008, at approximately 3:00 p.m., Watson
was driving a vehicle near the intersection of Rawles Avenue and
Finley Street in Dyersburg. Watson’s young daughter was in the car
with him. At the time, Watson’s driver’s license had been suspended
or revoked. (Watson Tr. 86, 95; Burrow Tr. 227.)
3.
Officers Burrow and Clements were on duty at the time and
observed Watson operating a motor vehicle. The officers were in a
marked police car, and Clements was driving. Burrow recognized
Watson. The previous week, Burrow had run Watson’s driver’s license
and discovered that it had been suspended or revoked. (Burrow Tr.
18-20, 227-28; Clements Tr. 172.)
4.
Watson pulled into the parking lot of the T&B Grocery and
stopped his engine. The officers pulled in behind Watson’s vehicle
68
and activated their blue lights. (Watson Tr. 86-87; Burrow Tr.
30.)19
5.
Officer
Burrow
stayed
in
the
patrol
car
to
notify
dispatch, and Officer Clements approached the driver’s side of
Watson’s vehicle. The driver’s side window to the vehicle was
halfway down. Clements observed Watson pull something out of the
console and put it into his mouth. Clements saw Watson chewing on
a plastic baggie containing a green, leafy substance that Clements
suspected was marijuana. (Clements Tr. 49-50, 173.) Watson had a
look of concentration on his face, and Clements suspected that he
was attempting to ingest the marijuana and the plastic baggie. (Id.
at 49-50, 173.) Watson admits he had marijuana in his mouth during
this encounter. (Watson Tr. 96.) The officers were concerned that
Watson
might
be
injured
by
choking
or
by
consuming
a
toxic
substance that might be in the marijuana. (Burrow Tr. 217-18, 229;
Clements Tr. 56-57, 159-60.)
6.
Officer Clements opened the door to Watson’s vehicle and
gave several verbal commands to Watson to spit out the drugs.
(Clements Tr. 49-50, 51, 173-74.)
7.
Watson knew that he was being detained by the officers,
but he did not respond to Officer Clements’ verbal instructions.
(Clements Tr. 50-51, 174; Watson Tr. 87, 95, 96-97, 99-101, 103.)
19
Some of the officers’ testimony suggests that they decided to
initiate a traffic stop and that Watson pulled into the grocery store parking lot
when they activated their blue lights. (Burrow Tr. 19; Clements Tr. 49.) It makes
no legal difference which version is accepted.
69
8.
Because Watson did not comply with the instructions to
exit the vehicle and spit out the marijuana, Officer Clements had
to
pull
Watson
out
of
the
vehicle.
Officer
Clements
was
unsuccessful on his first attempt because Watson was holding onto
the seat. On his second attempt, Clements was able to extract
Watson from the vehicle. (Burrow Tr. 23-25; Clements Tr. 51-53,
175.)20
9.
Watson was standing after being pulled from his vehicle.
Watson resisted the officers as they attempted to handcuff him by
pulling his arms away and thrashing around. (Burrow Tr. 25;
Clements Tr. 53-54, 175-76.)
10.
Officers Burrow and Clements were aware that Watson had
previously been arrested in the vicinity of a firearm. (Burrow Tr.
40, 225; Clements Tr. 54, 56, 58-59.) The officers were also aware
of previous incidents in which Watson had evaded or resisted
arrest. (Burrow Tr. 38-39, 222-25; Clements Tr. 58-59, 70, 79-80,
171.) During the encounter on February 20, 2008, the officers were
concerned about their safety. (Burrow Tr. 225-26; Clements Tr. 54,
81.)
11.
Officer Clements attempted to perform a straight arm bar
takedown to gain control of Watson and place him on the ground, but
20
Plaintiff is correct that there are some discrepancies in the
officers’ testimony. Clements testified that, at some point, Burrow assisted him
in pulling Watson from the vehicle. (Clements Tr. 55-56.) Burrow was not asked
about Clements’ statement. Because the Court concludes that it was reasonable
under the circumstance to pull Watson out of his vehicle, it is unnecessary to
resolve whether Burrow did, in fact, assist Clements in doing so.
70
was unsuccessful because of Watson’s physical resistance. (Clements
Tr. 175-76.)
12.
Because Watson refused to obey verbal commands to place
his hands behind his back and continued to physically resist the
officers’ attempts to handcuff him, Office Burrow sprayed a onesecond burst of Freeze+P in the direction of Watson’s face.
(Clements Tr. 61, 62, 175; Burrow Tr. 25, 240-41.)
13.
The burst of Freeze+P applied by Officer Burrow helped
the officers get Watson to the ground. The officers attempted to
handcuff Watson while still trying to get him to spit out the
marijuana. Watson pulled away from the officers and appeared to be
attempting to swallow the drugs in his mouth. (Burrow Tr. 25-27;
Clements Tr. 61-63, 176-77.)
14.
While struggling with Watson on the ground, Officer
Clements applied a one-second burst of Freeze+P toward Watson’s
face in an effort to subdue him and cause him to eject the
marijuana from his mouth. (Burrow Tr. 27; Clements Tr. 63, 176.)
15.
After Officer Clements applied the burst of Freeze+P,
Watson stopped resisting. Officer Burrow was able to handcuff
Watson, and he spit out the bag of marijuana in his mouth. (Burrow
Tr. 27, 240-41; Clements Tr. 63, 176-77, 180.)
16.
No force was used against Watson after he was handcuffed.
(Burrow Tr. 27, 240-41; Clements Tr. 176-77; see also Watson Tr.
109-10 (at his deposition, Watson testified that he was sprayed
after being handcuffed on October 13, 2007, not on February 20,
2008).)
71
17.
Although Watson’s version of the events of February 20,
2008, differed substantially from that of Officers Burrow and
Clements, the Court finds the testimony of the officers more
credible than that of Watson. The Court does not credit Watson’s
testimony that he voluntarily stepped out of his vehicle, held up
his hands, and stated that he was not resisting. Watson’s direct
testimony and prior statements do not mention that he had marijuana
in his mouth, a fact that he acknowledged on cross examination.
Watson has difficulty retrieving memories because of an unrelated
gunshot injury. (Watson Tr. 114-16; see also Tr. 11-12 (Watson’s
opening statement).) The Court credits the officers’ testimony that
they did not place their knees on Watson’s neck. (Burrow Tr. 259;
Clements Tr. 65-66, 184-85.)
18.
After Plaintiff had been handcuffed, he was provided
water to flush out his eyes. (Burrow Tr. 246; Clements Tr. 178.) He
was transported to the police station for booking, at which time he
was given wipes to clean off the spray. (Burrow Tr. 246; Clements
Tr. 178.) Plaintiff did not complain about any injuries other than
the effects of the spray on his eyes. (Burrow Tr. 246; Clements Tr.
181.)
19.
Watson
was
charged
with
possession
of
marijuana,
resisting arrest, driving on a suspended or revoked license, and
tampering with evidence. The charge of tampering with evidence was
a felony. (Watson Tr. 91; Burrow Tr. 241; Clements Tr. 178.)
72
20.
Watson pled guilty to the charge of simple possession of
marijuana arising from his arrest on February 20, 2008. (Watson Tr.
96; Trial Ex. 2.)
21.
The officers acted in accordance with the DPD’s use of
force policy and the use of force continuum on which they had been
trained. (Trial Ex. 10 & 11; Burrow Tr. 219-21, 238-40; Clements
Tr. 161-67, 174, 176, 179-80; Mays Tr. 284-85.)
III.
CONCLUSIONS OF LAW
To state a claim under 42 U.S.C. § 1983,21 a plaintiff must
allege two elements: (1) a deprivation of rights secured by the
“Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142
(1970). Defendants Burrow and Clements acted under color of state
law during the events at issue.
Plaintiff’s claim that Defendants Burrow and Clements used
excessive force in arresting him on February 20, 2008, arises under
the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.
21
Section 1983 provides: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought against
a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.”
73
Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989).22 Not every use of force
in making an arrest will state a § 1983 claim. “[T]he right to make
an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to
effect it.” Id. at 396, 109 S. Ct. at 1872. “The ‘reasonableness’
of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id., 109 S. Ct. at 1872. “The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments — in
circumstances that are tense, uncertain, and rapidly evolving —
about the amount of force that is necessary in a particular
situation.” Id. at 396-97, 109 S. Ct. at 1872. The “reasonableness”
inquiry is an objective one: “the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying
intent or motivation.” Id. at 397, 109 S. Ct. at 1872. The proper
application of this standard “requires careful attention to the
22
In its order on summary judgment, the Court dismissed Plaintiff’s
claim for false arrest, which was limited to a challenge to a custodial arrest
for a misdemeanor. (See D.E. 137 at 9 n.8, 23 n.10.) Although Plaintiff now
claims that the officers lacked reasonable suspicion for the traffic stop (D.E.
185-1 at 1), it is unnecessary to address that assertion at length. Pursuant to
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889 (1968),
a police officer is permitted to make a brief investigatory stop when he has a
reasonable suspicion that criminal activity may be afoot. An officer’s reasonable
suspicion must be supported by “specific and articulable facts.” Id. at 21, 88
S. Ct. at 1880; see also Ill. v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673,
676, 145 L. Ed. 2d 570 (2000) (“The officer must be able to articulate more than
an inchoate and unparticularized suspicion or ‘hunch’ of criminal activity.”)
(additional internal quotation marks & citation omitted). In this case, the
officers had reasonable suspicion for a Terry stop because Officer Burrow had run
Watson’s license the previous week and found that it had been revoked. (Burrow
Tr. 19-20.)
74
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396, 109 S. Ct. at 1872; see also Martin
v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013)
(same); Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 (6th
Cir. 2006) (same). “These factors are not an exhaustive list, as
the ultimate inquiry is whether the totality of the circumstances
justifies a particular sort of seizure.” Baker, 471 F.3d at 606-07
(internal quotation marks and citations omitted).
That an arrestee does not suffer physical injuries does not
establish that there has been no Fourth Amendment violation. “In
determining whether there has been a violation of the Fourth
Amendment, [a court must] consider not the extent of the injury
inflicted but whether an officer subjects a detainee to gratuitous
violence.” Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir.
2010) (internal quotation marks and citation omitted); see also
Stricker v. Twp. of Cambridge, 710 F.3d 350, 364 (6th Cir. 2013)
(“In
general,
a
plaintiff
need
not
demonstrate
a
physical
injury.”); Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505,
511 (6th Cir. 2012) (applying standard where taser shock might have
contributed to suspect’s death); Morrison v. Bd. of Trs. of Green
Twp., 583 F.3d 394, 407 (6th Cir. 2009) (“‘Gratuitous violence’
inflicted upon an incapacitated detainee constitutes an excessive
75
use
of
force,
even
when
the
injuries
suffered
are
not
substantial.”).23
Applying these factors to the instant case, the officers
stopped Watson because they suspected him of driving on a suspended
or
revoked
Tennessee.
license,
Tenn.
which
Code
Ann.
is
§
a
misdemeanor
in
55-50-504(a)-(b).
the
After
State
of
Officer
Clements approached the vehicle, he had probable cause to arrest
Plaintiff for possession of marijuana, a misdemeanor, and tampering
with evidence, a Class E felony. Those offenses are “moderate in
severity.” Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 774
(6th Cir. 2004) (misdemeanor DUI and fleeing an officer); see also
Williams v. Sandel, 433 F. App’x 353, 360-61 (6th Cir. 2011) (naked
man walking along highway might have violated various state laws),
cert. denied, ___ U.S. ___, 132 S. Ct. 1622, 182 L. Ed. 2d 163
(2012). In this case, “[t]he amount of force [the officers] used,
although not trivial, was [also] moderate.” Gaddis ex rel. Gaddis,
364 F.3d at 774.
“Of course, the use of force can be reasonable, even when the
crime at issue is innocuous.” Thomas v. Plummer, 489 F. App’x 116,
126 (6th Cir. 2012); see also Turner v. City of Toledo, No. 3:07 CV
274, 2012 WL 1669836, at *8 (N.D. Ohio May 14, 2012) (“Turner’s
initially minor crime does not abrogate his failure to comply with,
23
For example, “[a]n officer has used excessive force when he pepper
sprays a suspect who has not been told she is under arrest or is not resisting
arrest.” Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009). Use of an excessive
amount of pepper spray might violate the Fourth Amendment. Id. at 312 (use of
enough pepper spray to cause suspect to pass out). Those circumstances were not
present in the instant case.
76
and his physical resistance to,” the officers); Edwards v. City of
Martins Ferry, 554 F. Supp. 2d 797, 806 (S.D. Ohio 2008) (granting
summary judgment on claim that taser was used on elderly suspect
with Alzheimer’s disease accused of urinating in city park, and
stating, “While the severity of the crime is not a factor in this
case, it was reasonable for Officer Dojack to believe that Mr.
Edwards could pose a threat in that he was resisting arrest.”).
The two remaining Graham factors establish that the officers’
use of force in effecting Plaintiff’s arrest on February 20, 2008
was reasonable under the circumstances. The testimony at trial
demonstrated that the officers were reasonably concerned that
Plaintiff might pose a risk to them and to himself. The officers
had actual knowledge that Plaintiff had previously been found in
the vicinity of a firearm and, therefore, they were alert to the
risk that he might have a weapon in his vehicle. (Factual Finding
(“FF”) 10.) Plaintiff was attempting to swallow a plastic baggie
containing marijuana, leading the officers to fear that he might be
injured
by
substance
choking
that
on
might
the
be
baggie
found
in
or
the
by
ingesting
marijuana.
a
(FF
harmful
5.)
By
swallowing the marijuana, Plaintiff was also destroying evidence of
a crime. Under those circumstances, the officers acted reasonably
in pulling Plaintiff out of his vehicle when he disregarded Officer
Clements’ verbal instructions to get out of the car and spit out
the drugs.
Once Plaintiff was on his feet, the officers acted reasonably
under the circumstances by spraying him with two bursts of Freeze+P
77
to get him on the ground, handcuff him, and make him spit out the
contents of his mouth. See, e.g., Williams, 433 F. App’x at 362
(use of baton strikes, pepper spray, and taser on naked man who was
actively resisting arrest on highway not unreasonable); AbdulKhaliq v. City of Newark, 275 F. App’x 517, 521 (6th Cir. 2008)
(affirming summary judgment on excessive force claim where officers
had probable cause to arrest suspect for disorderly conduct and
suspect “suffered a brief dose of pepper spray, was knocked to the
ground, and was handcuffed” after “carrying on a prolonged and
heated debate about whether or not he had a gun, and vigorously
opening his coat in a gesture toward the police officers”);
Cabaniss v. City of Riverside, 231 F. App’x 407, 413 (6th Cir.
2007) (affirming summary judgment on excessive force claim where
unsecured suspect in back of patrol car was sprayed with pepper
spray after disregarding orders to stop repeatedly banging head on
partition and officers had information that suspect might be
suicidal).
This conclusion is not altered by Watson’s claim that Clements
used a racial slur during the encounter. Williams, 433 F. App’x at
362 (collecting cases); McDougald v. Timberlake, No. 1:08-cv-744,
2010 WL 2572800, at *3 (S.D. Ohio May 27, 2010) (“An officer’s
alleged use of slurs and racial epithets is not a search or
seizure, and thus cannot sink to the level of violating the Fourth
Amendment’s
prohibition
of
excessive
force.”)
(report
and
recommendation), adopted, 2010 WL 2572752 (S.D. Ohio June 21,
2010); Uhuru v. City of Memphis, No. 08-2150-V, 2009 WL 3255194, at
78
*12 (W.D. Tenn. Oct. 6, 2009) (“The Uhurus allege that Lt. McCord
used racial slurs in referring to the Ururus as well as their
daughter. But to find a violation under the Fourth Amendment, there
must
first
exist
a
search
or
seizure.
The
use
of
racially
insensitive language does not constitute a search or seizure and
therefore
does
not
amount
to
a
constitutional
violation.”)
(citation omitted). As previously stated, see supra p. 74, an
officer’s subjective feelings are not relevant to whether his
conduct was objectively reasonable under the circumstances.
The officers used no more force than was reasonably necessary
to subdue and restrain Watson, cause him to spit out the marijuana,
and place him under arrest. Therefore, the Court HOLDS that
Officers Burrow and Clements did not use excessive force against
Plaintiff on February 20, 2008.
“Governmental officials performing discretionary functions
generally are shielded from liability for civil damages in so far
as their conduct does not violate clearly-established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738, 73 L. Ed. 2d 396 (1982). “Determinations of qualified
immunity require [a court] to answer two questions: first, whether
the officer violated a constitutional right; and second, whether
that right was clearly established in light of the specific context
of the case.” Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011),
cert. denied, ___ U.S. ___, 132 S. Ct. 543, 181 L. Ed. 2d 349
(2011). Those questions may be addressed in any order. Id. Because
79
the Court has concluded that Officers Burrow and Clement did not
violate Plaintiff’s Fourth Amendment rights, it necessary follows
that they are entitled to qualified immunity.
Because Plaintiff has failed to prove his claims against
Defendants Burrow and Clements arising from the events of February
20, 2008, a verdict must be rendered for Defendants, for which let
judgment issue.24
IV.
APPELLATE ISSUES
The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should he seek
to do so. When an appellant seeks to proceed in forma pauperis on
appeal, the United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine whether
the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3)
provides that “[a]n appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good
faith.”
The good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d
21 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal
is taken in good faith is whether the litigant seeks appellate
review of any issue that is not frivolous. Id. The considerations
that
lead
the
Court
to
grant
summary
judgment
on
some
of
Plaintiff’s claims and to grant judgment for Defendants on the
24
Plaintiff’s remaining claims were resolved by summary judgment. (See
D.E. 137.)
80
remaining claims also compel the conclusion that an appeal would
not be taken in good faith. It is therefore CERTIFIED, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff
would not be taken in good faith and Plaintiff may not proceed on
appeal in forma pauperis. Leave to proceed on appeal in forma
pauperis is, therefore, DENIED.
If Plaintiff appeals the dismissal of this case, the Court is
required to assess the $455 appellate filing fee. In McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997) (per curiam),
partially overruled on other grounds, LaFountain v. Harry, 716 F.3d
944, 951 (6th Cir. 2013), the Sixth Circuit set out specific
procedures for implementing the Prison Litigation Reform Act of
1996, 28 U.S.C. §§ 1915(a)-(b). Plaintiff is instructed that, if he
wishes to take advantage of the installment procedures for paying
the appellate filing fee, he must comply with the procedures set
out in McGore and 28 U.S.C. § 1915(b).
IT IS SO ORDERED this 20th day of September, 2013.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
81
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