Appeals Court: No Immunity For Cops Who Punched A Man Hanging From A Second Story Window And Tased Him When He Hit The Ground

from the I-didn't-see-a-weapon-but-I-didn't-*not*-see-a-weapon-either dept

It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.

This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.

The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.

But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

According to Peroza-Benitez, as he was hanging from the windowsill with his hands, his feet “dangling,” C.I. Haser “repeatedly” punched him in the temple region of his head with a closed fist. App. 173. C.I. Haser testified that he punched Peroza-Benitez “[o]ne or two times . . . . [p]robably two,” with the purpose being to “stun” and “disorient” Peroza-Benitez into compliance “to help him out.”

That's a weird way of helping. Haser's next attempt to "help out" was even weirder.

It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought “we’re like, screw it, you want to fall, you’re gonna fall. So we let go of him.”

Peroza-Benitez fell. And as he fell, Officer Daniel White made quite the set of observations:

Officer White indicated to his fellow officers that he was ready to assist should Peroza-Benitez fall. Officer White did not observe a weapon, or “the absence of one,” in Peroza-Benitez’s hands as he fell from the window.

Schrodinger's weapon: one that exists in two states until an officer feels comfortable testifying one way or the other. Officer White's did/didn't statement was made to excuse his response to the suspect falling and breaking his leg: the deployment of his Taser.

Officer White tased Peroza-Benitez after he struck the concrete steps. Officer White, without providing a verbal warning, deployed his taser in dart mode for a 5-second cycle. Accounts differ as to the exact duration of time that elapsed between Peroza-Benitez landing in the stairwell and getting tased, ranging from “as soon as he hit the concrete” to “less than five seconds.” However, the parties agree that Peroza-Benitez was tased either immediately or almost immediately upon landing.

Some of the cops (including Officer White) claimed the suspect "lunged forward" as if he was going to start running on his broken leg. The plaintiff claims he was temporarily knocked out after his head hit the concrete. Both Officer White and C.I. Haser claimed qualified immunity shielded their actions. The Second Circuit says they're both wrong.

Here, Peroza-Benitez was unarmed, injured, covered in his own blood, and hanging from a second-story window by his hands, feet dangling, when C.I. Haser – knowing Peroza-Benitez to be unarmed – punched him “repeatedly” in the head with a closed fist. C.I. Haser’s punches “stunned and disoriented” Peroza-Benitez, causing him to fall over ten feet into a below-ground concrete stairwell. Accordingly, we rely on a modification of the District Court’s definition: The Fourth Amendment right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death.

Previous case law dealing with stunning suspects in precarious positions all deal with Taser deployments. The end result is the key, not the method used.

Officer Smith – who was with C.I. Haser at the window – testified that it is “against protocol” to “tase someone on the roof” because if “they fall off, that’s not going to be good. We’re not gonna tase someone that’s on a roof.” App. 53. The same exact logic applies to deliberately punching someone “to stun” them, App. 187, when that person is hanging out of a window.

The same goes for Officer White. Case law may not be exactly on point but a reasonable officer should know that tasing a possibly unconscious person was excessive force.

Viewing the facts in the light most favorable to Peroza-Benitez – again, as we must do at summary judgment – Peroza-Benitez was tased by Officer White while lying unconscious after having fallen over 10 feet into a below-ground, concrete stairwell. The duration of time that elapsed between Peroza-Benitez hitting the ground and getting tased does not change the fact that, in the light most favorable to Peroza-Benitez, he was tased while visibly unconscious and after multiple seconds had elapsed, App. 264, such that a reasonable jury could find that Officer White should have known that he was tasing an unconscious individual.

The case heads back to the lower court and -- if this law enforcement agency chooses not to settle -- a jury will get to decide whether or not rights were violated. According to what the court sees here -- and the admissions made by the officers involved -- there's a pretty good chance this will end in the plaintiff's favor. More factual development isn't going to change the fact one cop said "screw it" and let the suspect fall. And it won't change Officer White's response to someone falling off a second-story windowsill into an alley filled with cops: a swift tasing of someone in no position to escape.

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Filed Under: 2nd circuit, police, qualified immunity


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  • icon
    That Anonymous Coward (profile), 20 Apr 2021 @ 5:23pm

    He lunged forward!!
    Of course that could have just been the electricity coursing though his body...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Apr 2021 @ 5:44pm

      Re:

      His body bounced sickeningly on the stairs upon impact. I was scared.

      reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 20 Apr 2021 @ 9:24pm

      Re: He lunged forward!!

      Your Honour,

      the prisoner struck my rapidly moving closed fist with his stationary face, then continued the attack by assaulting me with blood from his nose. After defending myself from his ribcage impacting upon my fist, he compounded the assault by vomiting on me, with malice aforethought. He then deliberately slumped forward in his electric wheelchair and engaged the joystick so that the wheels would run over my foot.

      The defense counsel expects this court to believe that the prisoner's "refusal" to identify themselves was due to a tracheotomy, which only became apparent to this department after the post mortem.

      reply to this | link to this | view in chronology ]

    • icon
      Bluegrass Geek (profile), 21 Apr 2021 @ 5:20am

      Re:

      Most likely scenario:

      Peroza-Benitez landed on his feet, broke his leg, and pitched over. Officer White decided "that looks like he's running" and just fired his taser without even waiting to see if the guy hit the ground or not. Not excusable.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2021 @ 5:56pm

    That sound you hear is Koby and restless094110number grinding their teeth, whimpering in morally-outraged protest.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 20 Apr 2021 @ 6:07pm

    Poor officer

    I'm sure the guy deserved to get tazed for damaging the pavement.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 20 Apr 2021 @ 9:26pm

    Of course they had they had to punch him in the head

    It was impossible to get a knee on his neck while he was hanging from the windowsill.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 21 Apr 2021 @ 4:45am

    Schrodinger's weapon: one that exists in two states until an officer feels comfortable testifying one way or the other.

    Schrodinger's weapon: one that exists in two states until an officer feels comfortable testilying one way or the other.

    FTFY

    The Fourth Amendment right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death.

    It is truly disgusting that the 4th Amendment has to be contorted like this to find some Constitutional basis for the right not to be viciously assaulted (sometimes murdered) by the cops for no valid reason. It is even more disgusting that this determination of a gross violation of basic rights results in only a civil trial being allowed to proceed, rather than an open-and-shut / mandatory-minimum-sentence criminal case against the cops involved.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Apr 2021 @ 5:37am

    What's even sadder is that this is an Appeals Court ruling...which means some previous court thought "You know what? I've never seen a case where a suspect was shoved off a two-story window then tasered once he landed. Guess this one's a free pass for you boys!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2021 @ 8:05am

      Re:

      You know, I was going to point out that the cops could have appealed instead...but the decision says Peroza-Benitez was the one who appealed. There goes that argument.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Apr 2021 @ 5:39am

    Just want to note a slight error in the blog post. This ruling is from the Third Circuit not the Second.

    reply to this | link to this | view in chronology ]

  • identicon
    Cowardius Anonimae, 21 Apr 2021 @ 12:51pm

    "It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought “we’re like, screw it, you want to fall, you’re gonna fall. So we let go of him.”"

    I wonder what the thought process is on that. Man clinging to the edge, desperately trying to hold on while being punched in the head. Obviously, this man 'wants to fall'. I suppose in police logic, someone trying to tread water and screaming for help, is someone who 'wants to drown'.

    reply to this | link to this | view in chronology ]


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