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Media > Newsletters > Law Enforcement Bulletin > June 2012 > Phillips v. Community Insurance Corp. — Seventh Circuit Court of Appeals (Illinois, Indiana, Wiscons

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Phillips v. Community Insurance Corp. — Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), April 27, 2012

Question: Did officers use excessive force when they fired an SL6 riot gun four times at a non-resisting, intoxicated suspect? 
Quick answer: Yes, so they are not entitled to qualified immunity.
Facts: Officers received a dispatch call reporting a possibly intoxicated driver. There was some initial confusion about the status of the reported vehicle. At first, the vehicle license plate was reported as belonging to a black Nissan Maxima that had been reported stolen. However, a later dispatch call corrected that, stating the stolen vehicle with that license plate number was actually a silver Honda Civic. Both the Honda and Nissan were registered to the same person, plaintiff Tamara Phillips. From this conflicting information, officers assumed the car they were looking for was stolen. Within several minutes of receiving the dispatch calls, the officers located the black Nissan. They treated the traffic stop as “high-risk” because the car was still running, was stopped in a residential area, and was believed to be stolen. Seven cruisers surrounded the car, where its only occupant, Phillips, was sitting in the driver’s seat with her legs outside the car window.
Officers identified themselves and commanded her to show her hands and get out of the car. Phillips didn’t comply, but instead stayed in the vehicle while lighting a cigarette. She also continued to hang her feet out the driver’s side window while leaning back near the center console. For the next ten minutes, Phillips remained non-compliant with the officers’ repeated demands to exit the vehicle, so they decided to use a “less lethal” SL6 riot gun. Officers first fired a warning shot that hit Phillips’ car on the driver-side door. In response, she opened the door and put her feet on the ground. She didn’t respond to their commands to exit the car, so officers aimed and fired the SL6 at Phillips’ legs. They hit her legs three more times before she slumped out of the car and onto the ground. Officers then arrested her. Phillips received a large cut on her right leg along with other leg injuries. She sued the officers for excessive use of force.
Why the case is important: The Seventh Circuit found that the force used to arrest Phillips was unreasonable under the circumstances. To make its decision, the court considered (1) the severity of the crime, (2) whether Phillips posed an immediate threat to anyone’s safety, and (3) whether she actively resisted or evaded arrest. First, although officers were justified to initially treat the stop as “high risk” because they believed the Nissan Maxima was stolen, it was unreasonable for them to ignore the later dispatch call explaining that the stolen car was actually a silver Honda Civic. The officers also learned that both cars were registered to Phillips, so at that point, their decision to treat the black Nissan as stolen was objectively unreasonable. Second, any threat that Phillips posed to the officers was substantially contained by surrounding her vehicle with seven police cruisers.
Finally, the officers were aware that Phillips had a diminished capacity because the dispatch call reported that the driver of the black Nissan was possibly intoxicated. And even though she was noncompliant with law enforcement’s commands, she never actively resisted or evaded arrest. Her conduct was more of a “passive resistance,” which warrants only a minimal use of force. The facts here did not reveal a rapidly evolving situation requiring the officers to make split-second decisions. Therefore, firing a high-powered SL6 riot gun four times at Phillips’ legs was excessive force, and the officers were not entitled to qualified immunity for their conduct.
Keep in mind: The extent of force you may use to arrest a suspect depends on the facts and circumstances of the crime as well as the suspect’s conduct. For that reason, you should consider all the information you receive from dispatch before deciding how to respond, especially when presented with conflicting information.
Click here to read the entire opinion.