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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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