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Windham Police Sued

Winter 1995 Vol. 8, No. 4 A man convicted of Operating Under the Influence sued law enforcement officers last fall for violating his civil rights. The resulting jury verdict produced public outcry and bafflement, and caused the presiding judge to make a rare public statement about the jury's decision. Publicity surrounding the Federal Court case suggested that the plaintiff had successfully sued the police for trying to apprehend him while he was greatly intoxicated and driving dangerously. While it is true that plaintiff received a jury verdict in his favor that the police had used "deadly force," the parties thereafter agreed to settle the case for $75,000 before the jury was asked to assess damages. An examination of what actually occurred before the trial and at the trial may help clarify the curious result, and also demonstrate the risk of taking any case before a jury. Philip Green had been drinking for 2 1/2 hours before he began driving home that night. He had a conditional license prohibiting him from driving after drinking any alcohol. When a Windham police officer stopped Green for driving erratically, Green got out, performed sobriety tests, then jumped back into his van and sped away. The officer, pursuing the van at high speed, called for backup help, and another officer responded by positioning his cruiser as a roadblock. Green rammed the cruiser and suffered injuries. Although Green was later convicted of drunk driving and eluding police, he brought suit against the Town of Windham for alleged excessive use of force by the police in seizing him in violation of the Fourth Amendment of the U.S. Constitution. Certain issues before trial had been resolved favorably to the defense. Claims against the police chief based on inadequate training and supervision, and state tort law claims against both officers were dismissed. The only issue for trial was whether there was a partial or complete block of the roadway. A full roadblock would violate Green's Fourth Amendment protection against unreasonable seizure. The paved roadway at the collision point was about 20 feet wide. Defense presented evidence establishing that the parked police cruiser was located in plaintiff's lane of travel facing the same direction with its lights on. Plaintiff's evidence contended that the cruiser was fully blocking the road. The cruiser was about 17 1/2 feet long, and if placed for maximum obstruction, could block about 18 1/2 feet of paved road. Law enforcement has a right to use force reasonable under the circumstances in seizing a person, but not excessive force. They may not gratuitously physically harm an arrestee. These issues were well publicized as a result of the Rodney King case in Los Angeles. When the principles governing excessive force are applied to a roadblock case in which law enforcement is trying to stop someone, the general rule is that the roadblock must leave some avenue of escape. In a parallel case, Brower v. County of Inyo, 489 U.S. 593 (1989), officers put a tractor trailer across a road in such a way that the driver they were trying to stop could not see the truck in time to stop, and was killed in the inevitable collision. The Brower Court determined that the use of "deadly force" in that case was not constitutional. There are circumstances in which use of deadly force is appropriate and therefore constitutional, but they were not present either in Brower or in Green v. Town of Windham. A review of the questions submitted to the jurors helps explain the strange result of a drunk driver obtaining a settlement from the officers who arrested him. The paraphrased questions submitted to the jury and the jury's answers are as follows: 1. Was there reasonably sufficient room for the plaintiff's van to pass around the parked cruiser? No. 2. Could a reasonable police officer, possessing the information available to the officer who parked the cruiser reasonably have believed that he was creating only a partial roadblock such that the plaintiff's van could pass around it? No. 3. Did the police officer who parked the cruiser intentionally create a total roadblock? Yes. 4. Could a reasonable police officer, possessing the information available to the pursuing police officer, reasonably believe that he was not subjecting plaintiff to a collision with the stationary cruiser? Yes. By answering the fourth question "yes," the jury found no liability against the pursuing police officer. But by answering "no" to the first three questions, the jury found liability on the officer who parked the cruiser. The jury evidently did not believe defense testimony about the cruiser's location and found that the officer intentionally created a total roadblock. This left the officer subject to liability, and because of the jury's finding on the "intentional" question, would have permitted the jury to award punitive damages. In the Green case, liability was tried separately from damages. Since the liability issue was resolved in favor of the plaintiff, the defendant faced the prospect of going back to the jury for an assessment of damages and perhaps punitive damages as well. In addition, the defendant faced the possibility of liability for attorney's fees, which are awarded automatically to a prevailing civil rights plaintiff. Faced with this uncertainty, the defendant decided to reach a settlement with the plaintiff. The jury verdict was not, however, an endorsement of Philip Green's conduct, or an indictment of the officer's attempt to get an obviously drunk driver off the road. The verdict hinged on one critical finding: that the police car effectively blocked the roadway and so constituted a use of deadly force, violating the plaintiff's civil rights. Judge Hornby was apparently concerned with the level of publicity generated by this case. In an unusual, and perhaps unprecedented step for a Federal District Court Judge in Maine, he issued a written statement to the media which emphasized that the jury had only been asked to determine whether the roadblock was partial or full, and had not decided whether the plaintiff should in fact recover any damages. Several jurors were reported to have been shocked by the amount of the settlement agreed to by the parties, and said they would probably have awarded a substantially lower figure. Email us

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