Once a Detainee is Determined Not to Be a Threat, Officers Need to Use Common Sense in Any Use of Force

Editorial: Excessive Force and Common Sense
By Robert Phillips
Deputy District Attorney (ret.) 

Hot-stopping an elderly, unarmed, compliant female suspected of auto theft may well constitute excessive force. 

Picture your 83-year-old, 5-foot-2, 117-pound grandmother driving her car down some random county road, minding her own business, when she suddenly sees a police car’s red and blue emergency lights turned on behind her. Wondering what she might have done wrong, she obediently pulls to the side of the road and stops, expecting some (hopefully) good-looking young officer to contact her and explain to her what is going on.  

Instead, she hears over the patrol car’s loudspeaker a not so pleasant officer ordering her to “show (her) hands and slowly “get out of (her) car!” Suddenly scared to the point of a near cardiac arrest, she complies, only to be told to get down on her knees, raise her hands and interlace her fingers – indeed, likely a challenging physical feat in itself for someone her age. 

Two officers (presumably at gunpoint) then approach her, handcuffing her before helping her back to her feet, since she cannot physically stand up on her own). Within about three minutes, she is unhandcuffed As she is told after the fact, the officers suspected that the car she was driving was stolen, a suspicion that was quickly dispelled when it was determined the car was hers. 

Analyzing this incident, we must ask ourselves:  

• Was her detention lawful   
• More importantly, was it really necessary to order her to her knees and handcuff her – an “excessive force” issue   

These two issues were to be determined in the 42 U.S.C.§1983 civil suit Elise Brown filed in federal court in 2020. While I admittedly embellished a bit on the facts above, I did so knowing how so-called “vehicle hot stops” are typically performed.  

When her case finally got its hearing, the federal district (trial) court granted the officers’ motion for summary judgment, ruling that they were entitled to “qualified immunity” from civil liability as to both the detention and excessive force claims, there being insufficient case law precedent to put the officers on notice that what they did ....

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