What is The Law?
Edward Locke, Jr. of Bella Villa: Profiling Scalia's New Police Professional

Is Criminal Assault Unreasonable Police Conduct?

There is no better way to see "quirks," "nuance," or "double standards" than to simultaneously study or practice two areas of law: Criminal defense and police misconduct. The same conduct that would get an ordinary citizen arrested is often found to be "no big deal," when a police officer does it.  The same conduct that gets a civilian thrown into jail won't even allow for a lawsuit against a police officer.  A recent Eighth Circuit Court of Appeals case is illustrative.

In v. City of Bella Villa, No 08-2712 (8th Cir. Oct. 2, 2009) (here), a man left a car after witnessing Chief Edward Lock sexually assault the man's wife. The police officer, without any warning, tasered the man. The officer placed the man into handcuffs and then

Chief Locke picked Michael up off the ground and slammed Michael against Diane's mother's car. Chief Locke then instructed Michael to get in the patrol car, but when Michael had difficulty getting in the vehicle, Chief Locke pushed Michael into the car, hitting Michael’s head on the door.

Slip op. at *11-12. The Fourth Amendment states that a seizure of a person must be reasonable. What reasonable reason exists for slamming Michael (who weighed 112 lbs.) into a car?   Michael was already in custody. Thus, no use of force would have been reasonable. Nevertheless, two federal Court of Appeals judges held that the use of force was reasonable. How did the two judges reach that conclusion?

They credited the lack of permanent or serious physical injuries:

The record before us contains pictures of these alleged injuries which reveal two puncture marks on Michael’s chest where the taser darts entered, and, at most, a scrape to Michael’s eyebrow. In its memorandum granting summary judgment on Michael’s excessive force claim, the district court noted the lack of any significant injury sustained by Michael and no permanent physical injury.

Shouldn't the existence of injuries go towards damages rather than liability? The Fourth Amendment allows a police officer to use force to effectuate an arrest. Once a person is arrested, though, what excuses the use of force?  The cop is kicking a man "just for kicks." How is that not per se unreasonable?

Edward Locke lives in Missouri. Under Missouri law, Locke's conduct was unreasonable as a matter of law.

Mo. Rev. Stat. provides that a person is criminally liable for third-degree assault when "(1) The person attempts to cause or recklessly causes physical injury to another person ... (3) The person purposely places another person in apprehension of immediate physical injury []."  Slamming a person's head into a car just for fun can cause an injury.  Slamming a person into the hood of a car puts a person into apprehension of physical injury.  Under Missouri criminal lock, Locke committed a crime.

The law of criminal assault will nearly the same way in every state in the union. Nevertheless, two federal judges held that criminal conduct, when done by a police officer, isn't even unreasonable.

Some will say say, "But constitutional law is different from criminal law."  That's true on its face, but also glosses over how constitutional law - at least in Section 1983 cases - is made.  The Constitution states that the use of force must be reasonable.  The Constitution doesn't contain an Appendix of Definitions.  The Constitution does not define "reasonable."

Judges must determine, on a case-by-case basis, what conduct is reasonable.  One way to judge reasonableness is to look towards criminal and civil laws.  If every state in the union has classified assault as a crime, isn't it reasonable to infer that assault is unreasonable conduct?

Here, Edward Locke assaulted a man under the law of every state.  How then could two judges excuse his conduct?