Reasonable In Cleveland

According to District Attorney Tim McGinty, a reasonable cop in Cleveland jumps out of his car and murders a 12-year-old boy based upon misinformation from a dispatcher that he has a gun.  Not that the cop actually saw a gun, but a reasonable cop wouldn’t take the chance. That’s the baseline for a reasonable cop in Cleveland.

The Sixth Circuit, however, has a different, a higher, expectation of reasonableness for Cleveland cops.

On a summer day in 2010, two armed-robbery suspects were on the loose in Cleveland, Ohio. Officers Brian Kazimer and Dan Crisan were on the case. The officers learned from the dispatcher that the suspects had stolen a wallet at gunpoint and had run toward a nearby apartment complex—the same complex, the dispatcher said, where two men had just given a nearly empty wallet to the apartment’s manager. Coincidence? The officers thought not. After hearing that one of these men was wearing a red shirt and jeans, the officers drove to the apartments to investigate. As they pulled up, they saw someone who matched that description take off running. That gave them reasonable suspicion to detain the fleeing person, the district court held.

There is no discussion of how many people in the apartment complex wore “a red shirt and jeans.”  That someone takes off running when the cops arrive is, unfortunately, normal, because young men are afraid of cops. They don’t want to die. They don’t want to be harmed. They don’t want to be arrested. That might not be how you would react, but then, you probably don’t live in their world.

What is missing from the court’s recitation of fact is that the 15-year-old boy, wearing a red shirt and jeans, who took off running, had Down Syndrome. One might suspect that would be a tell-tale factor, but apparently not to the cops involved. Or the court. Reasonable suspicion is not, shall we say, a rigorous test.

Eyewitnesses saw a police officer chase down a sixteen-yearold boy with Down syndrome, take him from his mother’s arms, slam him against an SUV, then pin his face against the car, all while ignoring pleas from standers-by that he was a harmless teenager. The officer admits that he saw (and felt) the boy surrender and heard him cry out in pain. Yet the officer, eyewitnesses say, kept him pinned down for fifteen minutes while another officer stood by.

He then handcuffed Juan and “used his body weight”—205 pounds and twice Juan’s weight—“to pin Juan against the hot vehicle.” Even though “Juan was not making any effort to resist” and was “crying out in pain,” and even after Kazimer gave an “ALL OK” signal to the dispatcher, Kazimer reportedly kept Juan pinned for around fifteen minutes. Many residents yelled at Kazimer that Juan had done nothing wrong. But Kazimer responded: “I don’t care,” pushed the residents away, and cursed at them. He told Juan’s parents that they were “lucky he didn’t shoot [Juan].” That may be right.

The officers, Brian Kazimer and Dan Crisan, moved for summary judgment based on qualified immunity. The Circuit said no.

This use of force was clearly established as excessive before 2010. The just-cited cases support the point, as do many others saying that the gratuitous use of force against a suspect who has “surrendered” is “excessive as a matter of law.”  And that’s the case even when the suspect had originally resisted arrest (say by running from the police, as here). According to the plaintiffs, Kazimer used extreme force against someone who, by the officer’s own admission, looked like he “was surrendering” and who, by other eyewitness accounts, “was not making any effort to resist” and was “crying out in pain.”

This shouldn’t be controversial, and indeed, the court held it wasn’t.

A reasonable officer would have known better.

But the cops were not without their excuses.

Kazimer tries to counter this conclusion in several ways, each unconvincing. He first calls our attention to the reality that some suspects fake their surrenders, only to try to escape anew or to assault the officer after the officer relaxes his hold on the suspect.


The officer next submits that the chaotic nature of the scene made his use of force reasonable. The record, it is true, shows that ten or so people surrounded Kazimer, with many of them yelling at him and one or two reaching toward Juan. These facts may have justified the use of some force against Juan. But they do not justify the amount of force allegedly used here. Kazimer’s purported level of force—slamming Juan (rather than, say, grabbing him) and pressing Juan against the hot car for fifteen minutes (rather than, say, removing him from the scene)—rises to the level of clearly excessive for summary-judgment purposes.

What makes the court’s eminently reasonable assessment, for the purposes of qualified immunity, significant is how closely it tracks the same allegations and explanations offered in so many other cases where the ruling goes the other way. Does this reflect a shift in the court’s perspective, a sudden and wonderful reluctance to accept the usual litany of facile excuses for cops doing what cops do?

It is well to remember that the officers may not have done anything wrong. They may have diligently pursued an armed-robbery suspect, used a reasonable amount of force in a chaotic situation to detain him, and eased up seconds later once they found out he did not commit the robbery.

While it may not have occurred to Judge Jeffrey Sutton when considering whether Kazimer and Crisan had a reasonable suspicion as a teenager with Down Syndrome ran from them that this wasn’t the person they were looking for, at least the panel recognized that ripping a kid with Down Syndrome from his mother’s arms to slam him to the ground was more than their sensibilities could take.

But there is nothing about Kazimer’s and Crisan’s conduct that doesn’t happen regularly, and nothing about their cop excuses that isn’t regularly accepted as being perfectly reasonable behavior by police.  Aside from the fact that Juan had Down Syndrome.

One other thing stands out in the opinion.

He told Juan’s parents that they were “lucky he didn’t shoot [Juan].” That may be right.

Maybe the dead body of Tamir Rice lingers in the minds of the judges when they have to ask themselves what is reasonable for a cop in Cleveland.

H/T Zoe Tillman

8 thoughts on “Reasonable In Cleveland

  1. Mort

    OK, so, non-lawyer question that supposes this lawsuit actually goes to trial…

    Would this ruling be admissible at trial? It seems… Well, it seems fairly damning, and I can imagine several parts of it (admittedly having only skimmed the document) that the plaintiff’s attorney would desperately love to get in front of a jury.

    1. Ryan K

      No. The opinion’s recitation of the facts is “damning” because, for purposes of the appeal, it treats the plaintiff’s side of the story as true. The facts recited are not evidence of anything and merely track the plaintiff’s allegations.

  2. Sam

    Of course the ruling would be admissible at trial – it’s the very thing that would be required for a trial to be held, that being the district court’s denial of the officer’s summary judgment motion being upheld on appeal. The important thing is that Ortiz fortunately produced sufficient evidence to demonstrate that it’s possible for a jury to find for him. The evidence may not be sufficient for Ortiz’s own motion for judgment on the pleadings, nor is it guaranteed a jury will find it convincing enough, but it’s so far good enough to move the proceedings forward.

    What makes this incredible, as Scott mentions, is that the court refused to buy the standard excuses offered by cops in similar situations. So many times judges simply accept police excuses for their questionable conduct in the face of evidence that suggests they should not. The law accommodates their reasoning far too easily (in my opinion) and hopefully this could be useful precedent in civil cases against agencies and officers. And perhaps this reasoning will spill over to the criminal sphere of things when officers are criminally charged (as opposed to this matter, where it’s merely a civil matter).

    Also Scott, Judge Sutton’s opinion makes note of Ortiz’s disability in the first sentence (which you quoted) and recites a witness’s statement that mentions it as well – but as you note, apparently this otherwise didn’t impact his reasoning regarding RS. Ridiculous. Thanks for the post, as I had not heard about this case.

    1. SHG Post author

      As others have already explained, the ruling would not be admissible at trial under any circumstances. Yes, by prevailing on summary judgment, the case goes to trial. No, the ruling is not evidence of anything.

  3. Marc R

    I really want to be excited. I don’t know why but I picture a similar appeal to reverse summary judgment perchance containing “the Juan ruling is controlling to the extent the specific factual situation is substantially similar; to wit, the deciding factors there, namely a child weighing half the officer’s weight ripped from his mother’s arm, and also having Down’s Syndrome, are highly dissimilar than the case at issue. Accordingly, we will not extend Juan to hold the same ‘reasonableness’ applies in this situation.”

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