Could an octogenarian who was five feet, two inches tall and weighed 117 pounds reasonably pose an immediate threat to the officers who stopped her car when they suspected it was stolen? The trial court said “yes” and granted the arresting officers summary judgment due to their qualified immunity. But the Ninth Circuit said “no,” and now the 83-year-old will be given another chance to prove her Fourth Amendment rights were violated because she was “outnumbered, unarmed, and compliant.”

The Ninth Circuit affirmed the plaintiff’s civil rights claims for excessive force but reversed her claims for unlawful arrest.

This saga began when plaintiff Elise Brown, an African American woman, reported that one of her cars had been stolen. Brown owned two vehicles, and the police erroneously entered the license plate number of the car that was not stolen into their computer. While on patrol, the automated license plate reader (ALPR) in the defendants’ patrol sent out an alarm that told them the plaintiff’s car was stolen.

The defendants, Chino officers Matthew Gregory and Madalyn Briley, pulled Brown over and ordered her to toss out her keys. According to the complaint filed by Brown, the officers then “unreasonably and unlawfully detained Plaintiff by requiring her to walk backwards with her arms fully extended in the air, get on her knees, and handcuff her, humiliating her before the public and causing her severe, ongoing physical, mental, and emotional distress.’

After applying the three-part test that precedent requires in Fourth Amendment claims of excessive force, in a 2-1 decision by a three-judge panel of the United States Court of Appeals, Justices Bridget Shelton Bade and Marsha S. Berzon reversed the summary judgment order of District Court Judge Mark C. Scarsi of the Central District of California. The unpublished opinion included a strong dissent by Circuit Judge Ryan D. Nelson, who wrote that qualified immunity protected the two officers from Brown’s claims of unlawful arrest.

Brown filed a civil rights claim against the officers, the City of Chino, and San Bernadino County, in a Section 1983 lawsuit that alleges her civil rights were violated under the Fourth Amendment of the Constitution. The Ninth Circuit opinion explains that a 1989 U.S. Supreme Court decision in Graham v. Connor provides the criteria for evaluation of excessive force claims. The test asks “whether the officers’ actions are “objectively reasonable in light of the facts and circumstances confronting them, keeping in mind three non-exhaustive factors.”

Graham states that those factors are: the severity of the crime, whether the suspect posed an immediate threat to the officers’ safety, and whether the suspect is actively resisting or evading arrest. The key element is “whether the suspect posed an immediate threat to the safety of the officers or others.”

After reviewing the facts, the court outlined its view of the events. The opinion determined that the officers did act reasonably when they removed Brown from her car. However, their reasonable actions ended when they found that she was not armed, did not try to flee, and immediately complied with all their orders.

The opinion said that in light of her complete compliance, a jury could find that it was not “reasonable for Defendants to force Brown to her knees and handcuff her.” They added, “Force is only justified when there is a need for force.” In addition, stealing a car, without more, “does not support a finding that the suspect poses a threat” that justifies the need for force. Another officer admitted to Brown that “obviously, you do not look like you were going to be a violent suspect.”

The Ninth Circuit reached a different conclusion regarding the plaintiff’s claim for unlawful arrest. On this claim, the opinion said that the officers were entitled to qualified immunity because they “did not violate a clearly established right.” The justices wrote that immunity is judged by “whether it is reasonably arguable that there was probable cause for arrest.” Could reasonable officers disagree as to the legality of the arrest? They believed they could, and ruled that the District Court did not err when it gave the officers qualified immunity on Brown’s unlawful arrest claim.

Justice Nelson’s defense, which is two pages longer than the majority opinion, agreed that Brown’s unlawful arrest claim should have been sustained. However, it strongly disagreed with the majority’s holding on the excessive force claim. He said that the court never held that “police who encounter an unarmed grand theft auto suspect of small stature are forbidden from instructing the suspect to kneel for a few seconds and placing the suspect in handcuffs for a couple of minutes while they verify automobile ownership and confirm nobody else in the vehicle.” He believed that the Ninth Circuit’s decision would “chill future police enforcement and investigation in…serious cases.”

Instead of finding the officers’ behavior unlawful, he said it was a “mischaracterization” that only “violate(s) standards of social decorum,” and commented that “grandmas around the country may rightfully wag an experienced finger chastising the police action.”

In light of recent police actions such as last month’s tragic beating death of Tyre Nichols in Memphis, Americans, and not just grandmas, are demanding more than wagged fingers against inappropriate and uncalled-for police actions. The dissent says that it has never been established “that police cannot use any force against a person who poses no threat.” Hopefully, the Ninth Circuit’s decision in this case will begin to establish that imperative.