Fifth Circuit: No qualified immunity for deputies who allegedly used excessive force against pre-trial detainee who died in cell

Court ruled a jury could find that punching the inmate in the face and applying pressure to her neck, back and legs after her resistance was controlled was excessive


On October 8, 2017, Kelli Page was incarcerated in the Coryell County, Texas jail awaiting trial. She was 46 years old, 5’ 6,” 220 lbs with serious mental health challenges and various physical ailments. At 7:50 a.m. she began tapping her hairbrush on her cell door. Deputy Pelfrey, concerned that the sound would disturb other inmates, went to her cell and spoke with her about the noise. During the conversation, Page allegedly threatened to stab Pelfrey in the eye with the hairbrush. Pelfrey left and she stopped tapping for a few minutes.

The tapping began again, and Deputy Lovelady came to her cell, opened the food slot in the cell door and requested Page to turn around to be handcuffed. She refused and Lovelady deployed pepper spray. Page retreated to the far wall and both Pelfrey and Lovelady entered the cell. Lovelady approached Page from behind and sprayed her three times in the face. Page remained standing with her back to the deputies, while still holding the hairbrush.

What happened next is disputed, but the court explained that in cases involving appellate review of pre-trial defense-initiated summary judgment motions, the court must normally accept the plaintiff’s version of disputed facts. [1] The court, after reviewing a prison video that revealed portions of the incident, adopted the plaintiff’s version of disputed facts. Plaintiff alleged that the deputies threw Page to the floor. Page grabbed Lovelady’s handcuffs and laid face down on top of them.

While trying to regain the handcuffs, Lovelady applied two knee strikes and punched Page in the face. Page resisted by kicking and once biting Lovelady but remained pinned on the floor. The deputies retrieved the handcuffs and Lovelady punched Page in the face two more times. Page was handcuffed behind her back and while lying on her stomach, the deputies continued to apply weight to her neck, back and legs for more than two minutes until she became unresponsive and died. The medical examiner listed the cause of death as “mechanical asphyxia.” [2]

The decision of the Fifth Circuit [3]

Page’s family sued the county and the two deputies in the federal district court for excessive force pursuant to the federal civil rights statute (42 U.S.C. § 1983). The court ruled in favor of all defendants. The plaintiff appealed to the Fifth Circuit and the appellate court reversed.

The Fifth Circuit observed that the United States Supreme Court ruled in Kingsley v. Hendrickson, 576 U.S. 389 (2015), that force directed at a “pretrial detainee” is governed by the Fourteenth Amendment and that whether the force used is excessive is determined by an objective (fact-based) reasonableness test.

The Supreme Court listed factors it deemed relevant to the objective reasonableness inquiry. These include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made … to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”

Plaintiff’s version of facts plus video provided foundation for the jury's finding of excessive force

The Fifth Circuit applied the Kingsley directives to the instant matter. The court observed that “Until Lovelady grabbed Page’s arm and threw her to the floor, the only acts of resistance [by Page] were shaking her head “no’ and turning her back. This passive resistance did not justify throwing [her] to the floor.”

The court noted that once Page was on the floor, she grabbed the handcuffs and kicked and bit Lovelady when he tried to retrieve them. The video of the incident disclosed that Lovelady punched Page in the face while trying to retrieve the handcuffs. Ten seconds after the handcuffs were retrieved, Lovelady punched Page in the face again.  Twenty seconds after regaining the handcuffs, he punched her in the face a third time.

The court examined the attempt to retrieve the handcuffs and stated, “Some force was certainly warranted to retrieve the handcuffs. But once that was accomplished and the jailers were flipping Page back over onto her stomach, Lovelady punched her in the face two more times.” The court observed that “after Lovelady successfully handcuffed Page, the video shows that he continued to straddle her with his knee in her back. The video also shows Pelfrey forcing his elbow onto to Page’s neck.”

The court concluded that a reasonable jury could find that the force used by the deputies after the handcuffs were regained and after Page was handcuffed was excessive. The court explained “’ A use of force that may begin as reasonably necessary in order to obtain compliance may cease to be so as a suspect becomes more compliant.’” [4] Moreover, “’an exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased.’” [5]

The court rejected the deputies’ assertion of qualified immunity by stating, “[A] jury’s finding that the jailers continued to apply pressure to Page’s neck, back, and legs for more than two minutes after she was subdued [i.e., lying prone on her stomach and handcuffed behind her back] would establish a violation of clearly established law.”

Lessons learned

  • Prison officials, correction officers and pretrial detention deputies should take into account the known mental instability, likely physical resistance and propensity for violence of verbally recalcitrant inmates entering their cell to gain compliance with orders and directives.
  • When disobedience involving physical resistance is likely, officers should ensure that sufficient resources (i.e., personnel and equipment) are at the ready to control the inmate without causing serious injury.
  • Prior to entry to a cell, officers should take the time to formulate a well-reasoned plan to gain compliance without use of force. However, if force becomes necessary, the plan should include a decision to employ the least amount of physical force necessary to achieve their objectives.
  • Officers must remember that after a use of force incident is over, particularly one that results in serious injury or death to an inmate, their every relevant action from beginning to end will be reviewed by internal affairs officers, judges and juries, and local and federal prosecutors.
  • In the instant matter, the court carefully reviewed the available video and determined that throwing Page to the floor [6] at the outset of the incident and punching her in the face twice after the handcuffs were recovered was excessive. Further, the court determined that applying pressure to her neck, back and legs after she was lying prone on the floor while handcuffed behind her back was excessive and a violation of clearly established law.

References

1. The Supreme Court created an exception to this rule in Scott v. Harris, 550 U.S. 372; 127 S. Ct. 1769, 1775 (2007).  In Scott, the Court ruled that there was clear and convincing video evidence that directly contradicted the plaintiff’s alleged version of material facts. In situations of this nature, appellate courts do not have to accept the plaintiff’s version of disputed facts and instead are required to take into account videotape evidence that shows that a plaintiff’s version of disputed facts is demonstrably not credible.

2. According to WebMD mechanical asphyxia occurs when a force or object keeps a person from breathing.

3. Fairchild v. Coryell County, Texas; Steven Lovelady; Wesley Pelfrey (No. 20-50237) (5th Cir. 2022).

4. (Quoting) Tucker v. City of Shreveport, 998 F.3d 165, 181-82 (5th Cir. 2021).

5. (Quoting) Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009).

6. Throwing Page to the floor was disputed by Lovelady but accepted by the court as required during appellate review.

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