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No qualified immunity for officer in diabetic man's claim

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Indiana Lawyer Rehearing

The 7th Circuit Court of Appeals affirmed denial of summary judgment in favor of a police officer in a diabetic man’s claims that the officer used excessive force and injured him while removing him from a car after a diabetic episode.

Police Chief Jerry Price claimed qualified immunity against the Fourth Amendment violation claim by Frank McAllister. McAllister’s blood sugar plummeted while he was driving in Burns Harbor, causing him to get into an accident with two other cars. Calls to 911 reported a possible intoxicated driver; witnesses at the crash saw McAllister staring off into space, twitching, and convulsing as Price arrived at the scene.

McAllister was unable to respond to Price’s request to turn off the car or answer what was wrong with him. Price, believing he was intoxicated, pulled McAllister out of the car, threw him to the ground, and handcuffed him. Price is trained to ask if someone who appears unwell is diabetic, but did not do so until after taking him to the ground. After this, Price found McAllister’s medical alert necklace and released the handcuffs.

McAllister suffered several injuries from the incident, including a bruised lung and a broken hip. He claimed that he wasn’t hurt from the accident.

Price filed an interlocutory appeal to the 7th Circuit once the District Court denied his summary judgment motion on the excessive force issue.

In Frank McAllister v. Jerry L. Price, in his individual capacity, No. 10-1213, the Circuit judges concluded the District Court didn’t err in finding that McAllister’s injuries were relevant to determining whether Price used excessive force or in finding a genuine issue of material fact regarding McAllister’s diabetic condition.

They also found McAllister had enough evidence to create an issue of fact on whether Price’s use of force was reasonable.

“Viewed in the light most favorable to McAllister, the evidence shows that Price ignored obvious signs of McAllister’s medical condition, pulled him out of the car, and took him to the ground with such force that McAllister’s hip was broken and his lung bruised from the force of Price’s knee in his back, not because such force was necessary but because Price was 'angry' with McAllister,” wrote Judge Joel Flaum.

Even if Price was justified in using some force to remove McAllister, using the force involved here against a non-resisting suspect could have been unreasonable given the circumstances. There are other possible interpretations of the evidence, but if believed, it’s sufficient for a jury to conclude it was excessive force, noted the judge.

The judges also concluded that Price’s conduct went beyond the bounds of McAllister’s clearly established Fourth Amendment rights and Price could have inferred his conduct was illegal based on previous cases dealing with excessive force.
 
 

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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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