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Qualified Immunity Denied To Officer Who Tased Man In The Genitals

Let the jury do its job.

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TaserA Glendale (AZ) police officer (now former police officer… more on that in a bit) isn’t going to be able to walk away from a civil rights lawsuit stemming from excessive force he deployed during a routine traffic stop. An Arizona federal court says there’s enough in dispute that Officer Matt Schneider will have to continue to face the lawsuit filed against him by Johnny Wheatcroft, the vehicle passenger he tased eleven times, including one shot to the groin after Wheatcroft was handcuffed and restrained face down on 108-degree parking lot pavement by two other officers.

Here’s Courthouse New Service’s recounting of the incident.

Body camera video shows officers approach Wheatcroft’s vehicle in a Motel 6 parking lot just after dusk on July 26, 2017. Schneider asks Wheatcroft and his wife, who was driving, to hand over ID. The officer said the car failed to use a turn signal when entering the parking lot.

Wheatcroft, a passenger, told the officer he did nothing wrong and refused to provide ID. Schneider then said he would take Wheatcroft to the police station. Schneider accused Wheatcroft of stuffing something between the car seats or in a bag by his feet, which Wheatcroft denied. Schneider then opened the passenger door, placed his Taser on Wheatcroft’s shoulder and told Schneider to relax his arm and stop tensing up.

According to Wheatcroft’s lawsuit, Schneider used his Taser on Wheatcroft 11 times. Body camera video shows Wheatcroft lying face down on the pavement with his shorts pulled down while Schneider deploys his Taser in an area that appears to be close to Wheatcroft’s genitals. The man’s children can be seen and heard crying and screaming, “No, daddy.”

The video is disturbing to watch. It even disturbed law enforcement professionals interviewed by ABC15, which first obtained the body cam footage.

Multiple independent law enforcement experts, who agreed to review the incident, said the officers’ conduct was unlawful, potentially criminal, and one of the most cruel and troubling cases of police misconduct they’ve ever seen.

“I have never seen anything like this before,” said Jeff Noble, an attorney and former deputy chief of police in Irvine, Calif., who’s testified in hundreds of cases including Tamir Rice and Philando Castile. “ It reminds me of a case in New York where an individual was sadistically taking a broom handle and shoving it up (the suspect’s) anus. This is just beyond the pale. It’s outrageous conduct.”

This was a classic pretextual stop. The stated reason was a failure to signal before pulling into the motel parking lot. That claim is also disputable, even though it’s not part of the claims being made by Wheatcroft in his lawsuit. Lowering the Bar’s coverage of this ruling notes that security cam footage from the motel indicates the officers could not have seen the alleged no-signal turn from where they were originally parked.

The incident happened in 2017, after officers made a traffic stop of a vehicle in a motel parking lot. Although by “traffic stop,” I mean they lied about seeing the car turn into the lot without signaling. That kind of technical violation might justify a stop, but here security-cam footage made it clear the officers could not have seen the car turn because they were a block away in a back alley at the time.

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A defensive statement was issued by the Glendale PD shortly after body cam footage was released to the public. The statement, as ABC15 notes, is clearly contradicted by both camera footage and the department’s own internal investigation of Officer Schneider.

“The male suspect was complying with Officer Fernandez while your attention was directed towards the female suspect, who was now being taken into custody. The suspect’s feet were close to where you were standing, when the male suspect swung his legs around and appear to kick you. You reacted by kicking him in the groin. You stated you kicked the suspect in the groin with the tip of your right boot. You then placed your taser on his right buttock near his intergluteal cleft (taint) and drive-stunned the subject in the right lowerbuttocks/groin. The pain of the drive-stun caused him to kick away, hitting your taser. The subject stopped kicking and put his legs in the fetal position and was stood up by Officer Fernandez, when you delivered a second kick to his groin.

Based upon the suspect’s lack of resistance at the time of your use of force, review of the video-recordings, and subject matter expert review of all of the circumstances, the amount of force you used against the suspect was unreasonable and unnecessary. Therefore, the allegations against you are SUSTAINED.

Even this reaction from the Glendale PD was delayed. The internal investigation wasn’t immediate. Nothing happened to the officer until ABC15 started asking questions. Here’s Lowering the Bar again:

According to ABC15, initially no one was disciplined for this, and the department and city blew off its requests for comment. After the reports started to air, the department conducted an internal investigation, after which it suspended Schneider. For three days. (It was his fourth suspension.) But that was it, and prosecutors also declined to charge him. Only after the reports continued and the body-cam footage was released in 2019 did they reopen the case. Schneider is now, finally, a former police officer being charged with aggravated assault, and he’s also one of the defendants in the civil case. (He was allowed to retire on “accidental disability” so he gets to keep his pension.)

Officer Schneider is now no longer technically an officer. That means he may not get indemnified if he loses the lawsuit filed against him by the man he subjected to multiple Taser deployments. (On the other hand, the public will still be paying his pension for years to come.) There’s no qualified immunity to be had, says the federal court [PDF]. This is going to go in front of a jury.

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Here, a genuine dispute exists as to whether Wheatcroft presented an immediate threat to the safety of the Officers. Officer Lindsey testified during his deposition that Wheatcroft was “reaching toward the middle console” and “continuing to reach” into the console after Officer Schneider gave him a command to stop. Officer Lindsey testified that he believed “[t]here could be a weapon in there. There could be
something that could harm the people in the vehicle, harm me, harm themselves.” Officer Schneider testified he went “hands on” with Wheatcroft “[b]ecause he started reaching down into the center console.” But Wheatcroft testified that during his conversation with the Officer, he was “trying to unbuckle his seat belt” and while the Officer had him in an arm bar, he was not pulling his arm away, the Officer was “twisting” his arm, which was “making [him] go down.”

The Officer Defendants assert that their methods of force were necessary given the “high crime area” around the Motel 6, Wheatcroft’s refusal to obey the Officers’ commands, Wheatcroft’s agitated demeanor, his use of obscenities, and his acts of tensing his arm and “shifting his hands in between his backpack and the center console.” But almost all of Defendants’ justification for their use of force against Wheatcroft is disputed: the parties dispute whether the Motel 6 had an active trespass agreement with the City of Glendale Police Department; whether Wheatcroft was moving his hands around the car and accessing his backpack; where the Taser struck on Wheatcroft’s body; and even whether Wheatcroft had to identify himself to the Officers in the first place.

First, Wheatcroft was under no obligation to provide ID to Officer Schneider. The law used to charge Wheatcroft says a person is only obligated to do this if they are “lawfully detained based on reasonable suspicion” of committing a crime. The stated reason for the interaction was a failure to signal, which was a criminal infraction that could only be committed by the driver, not any of the passengers, including Wheatcroft.

Second, it’s pretty rich for an overly aggressive officer to claim a citizen’s “agitated manner” and “use of obscenities” justifies force deployment. Officer Schneider did both and yet no one would claim that his “agitated manner” and “use of obscenities” would justify resisting arrest or use of physical force against him. Heal thyself, you irony-proof ingrate.

The officer’s arguments aren’t really arguments, the court says. A jury will sort out the differences and decide whether tasering a handcuffed vehicle passenger was justified under the circumstances — a failure to signal traffic stop. (It also should be noted no illegal substances or weapons were discovered on Wheatcroft or in the vehicle.)

In light of all of the circumstances, a reasonable jury could conclude that the Officers’ substantial use of force against Wheatcroft outweighed the Officers’ need for its use. The Defendants have failed to show that the force they applied was objectively reasonable based on Wheatcroft’s version of the facts, which the Court must accept as true for the purposes of this motion. Accepting Wheatcroft’s version of the facts, a jury could find that the Officer’s use of force here was unreasonable. Wheatcroft was Tasered six times, forcibly removed from a car where he was a passenger, and handcuffed, all in about five minutes from when Officer Schneider first went “hands on” with Wheatcroft. Defendants do not argue that the amount of force the Officers used against Wheatcroft was small, but rather, was justified under the circumstances. But these circumstances—as the Defendants present them to the Court—all come from the point of view of the Defendants themselves. Thus, the Officers “have done little more than present their own version of the facts and ask the court to rule in their favor...”

Ignorance of clearly settled law is no excuse.

Blankenhorn and Graham would adequately put a reasonable officer on notice that Tasing Wheatcroft six times to effectuate an arrest when he offered no resistance to the Officers, and even told them he was not resisting, was a Fourth Amendment violation. The law here was clearly established at the time of Wheatcroft’s arrest and gave the Officers sufficient notice.

If the Glendale PD is smart, it will settle. If it isn’t, it will try to appeal this decision, increasing the cost to Glendale residents currently being underserved by their police department. They’re already paying for one officer’s retirement. There’s no reason they should be expected to fund further arguments against their own best interests.

Qualified Immunity Denied To Officer Who Tased Man In The Genitals

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