Deputy Loses Immunity For Battering Arrestee, Tightly Handcuffing Him For Three Hours As 'Punishment'

from the some-cops-are-the-'people'-who-think-'they-can-do-as-they-please' dept

Mon, Apr 10th 2017 6:00pm — Tim Cushing

We've discussed before how difficult it is to strip law enforcement officers of qualified immunity. Courts have been spectacularly unwilling to take this protection away from cops, even when confronted with horrendous rights violations. Even in cases where the court decides a rights violation has occurred, unless it has "clearly established" precedent to work with -- something stating that this particular violation in this particular set of circumstances has resulted in the stripping of immunity before -- the officer being sued usually remains shielded from liability.

So, if the court is unwilling to set the precedent, the violation can occur again and again and again until the presiding court decides it's had enough. When a case comes through where immunity has been denied -- or stripped away by a higher court -- it's immediately notable.

In this case [PDF] handled by the Eleventh Circuit Court of Appeals, the standard for losing qualified immunity is still high. It's just that the law enforcement officer in this case went out of his way to be an abusive asshole. The court's unwilling to let that slide.

Paul Stephens and his cousin, Roan Greenwood, were guests of Greenwood's girlfriend at an apartment complex that sat atop a row of stores. They were both checking out Greenwood's girlfriend's car, attempting to track down the source of the "check engine" warning that came on right before it was parked.

Deputy Nick DeGiovanni decided the two might be planning to break into the shops below the apartments. He ignored Greenwood's offer to take him up to his girlfriend's apartment to prove he had permission to be there. While he was questioning Stephens (really just demanding he produce some ID), Stephens took a call on his phone using his Bluetooth headset. It all went downhill quickly from there.

When he answered the phone using the Bluetooth device on his right ear, Deputy DeGiovanni unexpectedly slapped the Bluetooth from Stephens’s ear and stated: “Who told you to answer the phone?” Stephens then asked Deputy DeGiovanni to get a field supervisor on the scene. Deputy DeGiovanni responded by saying: “Shut your damn mouth.” For no reason, Deputy DeGiovanni, using his full body weight, slugged Stephens hard in his chest, slamming him into the driver’s seat.

Stephens attempted to talk the deputy out of making this worse -- both for him and for the deputy -- by appealing to his conscience. Apparently, Deputy DeGiovanni didn't have one.

Stephens stood up and asked Deputy DeGiovanni: “Why are you doing this?” Deputy DeGiovanni hit Stephens a second time with a blow to his chest, thrusting him into the driver’s seat. With the air knocked out of his lungs, Stephens got up and said to Deputy DeGiovanni: “The kids are upstairs looking at you. What kind of example are you setting for the kids?”

Deputy DeGiovanni battered Stephens a third time by stepping on Stephens’s left foot while simultaneously and forcefully grabbing him by the neck and slamming him backward, which threw Stephens against the car-door frame. Stephens’s head hit in the space between the open driver’s door and the car, and his head and neck slammed into the car-door jamb. Stephens, who was seriously injured, reached up with his right hand to grab the car door to lift himself up. Deputy DeGiovanni then grabbed Stephens’s right hand and twisted it so the palm of his hand faced up; he also forced the last three fingers on Stephens’s right hand backward toward his forearm, causing all of Stephens’s body weight to be placed on those three fingers of his right hand.

Then it somehow got worse for Stephens. DeGiovanni arrested Stephens and made it clear what he thought of black people. (Or immigrants. Stephens is originally from Jamaica.) Emphasis added by the court:

After Stephens was standing and while Deputy DeGiovanni still had those three fingers of Stephens’s right hand bent backwards, Deputy DeGiovanni told Stephens to turn around, and he handcuffed him. He did not tell Stephens he was under arrest or why he was arresting him. Because the handcuffs were quite tight, causing Stephens to lose the feeling in his hands, he asked Deputy DeGiovanni to loosen the handcuffs. Deputy DeGiovanni responded: “It’s punishment. You people come here and think you can do as you please.” Am. Compl. at 4 ¶ 15. Deputy DeGiovanni did not adjust the handcuffs on Stephens for almost three hours.

At no time did Stephens resist the arrest and throughout the painful experience he tried to be compliant. Deputy DeGiovanni was apparently in the mood to hurt someone, and Stephens ended up being in the wrong place at the wrong time despite being a guest at the apartments he was parked in front of.

Stephens was booked, denied a chance to use the restroom, and the vehicle was towed away. The jail refused to process Stephens because of his injuries, which were fairly extensive. This is from the physician's report:

[A] cervical sprain/strain with multilevel disc herniations and resultant foraminal stenosis as a result of the described assault on February 16, 2009. The patient also sustained a left shoulder partial thickness articular-sided rotator cuff tear involving the infraspinatus tendon. He also sustained a sprain of the right wrist. Further electrodiagnostic workup is required to evaluate the radiating pain and little finger numbness to differentiate cervical radiculitis/radiculopathy and a peripheral nerve injury in the right upper extremity…

[...]

The patient may require arthroscopic rotator cuff debridement or repair due to his persistent and refractory left shoulder pain. He may require cervical epidural steroid injections or cervical disc decompression depending on the result of his electrodiagnostic studies.

Deputy DeGiovanni spun his night of excessive force into something else entirely, charging Stephens with resisting arrest and not having a valid Florida driver's license.

The lower court found DeGiovanni's use of force to be reasonable. (Unbelievably, it actually found the force used to be "de minimis." WTF.) The Appeals Court disagrees. Instead of looking to see whether there was exact precedent that would make the deputy's use of force a violation of Stephens' rights, it uses the "obvious clarity" standard. In this case, the deputy's actions were obviously unwarranted given the nature of the questioning and subsequent arrest.

The basic constitutional law governing excessive force in arrest situations was well established before Stephens’s arrest in February 2009. Qualified immunity is unavailable “if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff.” Harlow, 457 U.S. at 815, 102 S. Ct. at 2737 (citation, internal quotation marks, and alteration omitted); see Sheth v. Webster, 145 F.3d 1231, 1235-36 (11th Cir. 1998) (affirming denial of qualified immunity, “because of the absence of any justification for [the officer’s] use of force, application of the Fourth Amendment reasonableness standard would inevitably lead every reasonable officer . . . to conclude that the force was unlawful...”

Clearly, the court states, the amount of force used was disproportionate to the criminal acts Stephens was charged with -- both misdemeanors. Furthermore, Stephens never once physically resisted the deputy during the interaction. And with that, away goes the deputy's immunity.

There is no evidence Stephens attempted to resist Deputy DeGiovanni’s investigation ending in his arrest or to evade his arrest by fleeing. To the contrary, Stephens answered Deputy DeGiovanni’s questions, despite Deputy DeGiovanni’s harsh, threatening questioning and his forcefully hitting Stephens in his chest multiple times, ultimately causing his head to strike the door jamb, resulting in permanent injury as well as twisting Stephens’s right hand and three fingers backward, supporting his full body weight. Through it all, Stephens was compliant, even when Deputy DeGiovanni arrested and handcuffed him.

Stephens never attempted to flee the scene of his arrest. Consequently, none of the Graham factors applies to Stephens’s encounter with and seizure by Deputy DeGiovanni as to Stephens’s actions resulting in his seizure and arrest by Deputy DeGiovanni. “[Q]ualified immunity is not appropriate when the Graham analysis yields an answer that is clear beyond all doubt,” as in this case.

The case is kicked back to the lower court to return an opinion consistent with the Appeals Court's decision. It also says the lower court is welcome to revive Stephens' state law claims of excessive force in light of its decision.

That's the bar that must be hit to lose immunity: to be so unreasonably forceful that the usual defensive ploys won't work. Deputy DeGiovanni decided he'd pick on some foreigners and now he's going to be paying Stephens for the injuries he caused and the career he ended (Stephens was an auto mechanic but lost his job after suffering the debilitating injuries). No one abuses their power this way unless they think there's a good chance they'll get away with it. DeGiovanni played the odds and lost.

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Filed Under: 11th circuit, immunity, nick degiovani, paul stephens, police brutality, roan greenwood

46 Comments

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Anonymous Coward, 10 Apr 2017 @ 6:37pm

This is not an isolated case
Go back and review this Deputies previous interactions. He is a bigoted bully and this is not his first victim.
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My_Name_Here, 10 Apr 2017 @ 6:39pm

Tim Cushing hates authority. News at 11.
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Anonymous Coward, 10 Apr 2017 @ 7:05pm

Good. If I found out a officer did this to any of my family they are done, that is all I'll say.
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Anonymous Coward, 10 Apr 2017 @ 7:21pm

the real story here is not the creep. it's paul stephens. that man must have the soul of nelson mandela to have withstood that abuse and kept his wits about him.

all due respect.
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Anonymous Coward, 10 Apr 2017 @ 8:04pm

It takes an exceptional man to make such a clean case. If there's a successful prosecution, everyone benefits. Including those other potential victims who are hard to admire, but have rights anyway.
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Anonymous Coward, 10 Apr 2017 @ 8:22pm

dont cheer yet... now we will wait and see if he just gets a slap on the wrist like usual. You have enormous trouble with dealing with law enforcement scum. The entire system is designed to treat them like first class citizens and everyone else like 2nd and 3rd. And in the event that punishment is levied, it is usually a joke, rarely does a cop get fucked over... unless they are against other cops, then they get fucked HARD!

Hopefully Paul Stevens is made personally wealthy by all of this. The locals deserve to pay the taxes necessary to support the brutality of the police force they refuse to reform when election for mayor and sheriff comes along.
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orbitalinsertion (profile), 10 Apr 2017 @ 9:11pm

I am sure the lesson taken here by DiGiovanni and his ilk is to learn a small modicum of self-control and immediately and fatally shoot the person they decide to molest instead of enjoying a little of the old ultraviolence. They won't talk back after that. Not in court or anywhere else.
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That One Guy (profile), 10 Apr 2017 @ 9:47pm

Hopefully anyway
No one abuses their power this way unless they think there's a good chance they'll get away with it. DeGiovanni played the odds and lost.

You'd like to think so but...

The upper court merely stated that his actions weren't covered by qualified immunity, for the thug to face punishment it still requires the lower court to find that his actions were unreasonable and excessive, and given they've already found his actions not only reasonable but not even serious enough to consider once, it's unfortunately all too possible that he'll end up facing a slap on the wrist and a "Don't get caught next time" as 'punishment'.
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surfer (profile), 10 Apr 2017 @ 10:40pm

and..
you and everyone here expands the stupidity never said.., 'oh, dear me, this is intolerable', yet you never steel yourself to defiance. he's wrong you say, he's violating x rule, bla bla bla. in the world we live in today, if you stand up for your constitutional rights , you are in the wrong. if you believe your rights to immunity then you are a terrorist, if you believe you have a say in things, you are a terrorist. you are not following the script, the world no longer exists as you once thought it did, its gone, forever. sure 'tards call me a shill, but more of a realist, the world is gone. accept the fact that the world is run by corporations feeding politicians and you will understand the world better.

its over, get over it, you allowed it...
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Narcissus (profile), 11 Apr 2017 @ 1:00am

Prejudice
I was reading the first paragraphs and caught myself thinking: "I bet Paul Stephens is black." Then I thought, am I not being prejudiced against cops now?

Next: Then it somehow got worse for Stephens. DeGiovanni arrested Stephens and made it clear what he thought of black people. (Or immigrants. Stephens is originally from Jamaica.)

So, maybe prejudiced but it seems the prejudice is there for a reason...
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Anonymous Coward, 11 Apr 2017 @ 1:13am

Re: and..
You are not a realist, you are a pessimist. The difference is that you want to lay down and get the most comfortable spot possible for when they come to stomp on you.
Sure, we might not have a whole lot of luck right now, but there are a few victories here and there. We are up against a huge force and we might not be able to turn it around or even stop it, but we are able to slow it, just a bit.
I would rather fight a losing battle than betray what I believe in and become a mindless zombie.
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Daydream, 11 Apr 2017 @ 2:02am

Please go on.
According to Tim, the police officer did a major wrong in violently assaulting an innocent person for no reason whatsoever, the lower court let the officer off and called his use of force insignificant and trivial, and even the appeals court is only bringing the officer to justice because Stephens didn't defend himself in any way.

It's 11 PM in Zimbabwe at the moment, so please, tell us more about how Tim Cushing's hatred of authority.
Do you find it reasonable? Should courts have a stricter standard for use of force? Is answering a phone really a good reason to physically brutalize someone and give them permanent injuries?
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Anonymous Coward, 11 Apr 2017 @ 2:28am

Re:
Well, at least he's able to make a fact based decision on the behaviour of a police officer. He's not a bootlicker like you.
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Bamboo Harvester (profile), 11 Apr 2017 @ 4:38am

Re: Hopefully anyway
His loss of qualified immunity opens him up to civil actions, where there is a MUCH lower standard of evidence.

He'll get sued personally regardless of the lower court finding, and if the lower court does find against him, it opens the entire department up to civil suits.

Police of any sort are a necessary evil. People get polarized on either of those two, very few see them as something that needs to be averaged.
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Roger Strong (profile), 11 Apr 2017 @ 5:00am

The deputy has a promising future at United Airlines.
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Jeremy Lyman (profile), 11 Apr 2017 @ 5:23am

New Australia
So there's a chance that maybe this violent criminal will have to financially pay for the damage he caused? Uh, how about the criminal nature of his actions? How about his violations of the Authority vested in him by the State? This should be a much WORSE crime than if it was perpetrated by a random mugger.
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Anonymous Coward, 11 Apr 2017 @ 5:28am

Re:
Really that's what you're going with? What are you, a United employee?
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Anonymous Slashdot Refugee, 11 Apr 2017 @ 5:35am

Re: New Australia
Probably not. There will be a settlement with no admission of fault, paid by the taxpayers, while our boy in blue goes on a vacation to deal with the trauma of fearing for his life.

Everyone keep this story handy for when "just do what the police say" trolls show up.
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nick (profile), 11 Apr 2017 @ 5:57am

Re:
I wish this wasn't even a little funny.
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Anonymous Coward, 11 Apr 2017 @ 6:21am

I hope the ass eats his gun
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Anonymous Coward, 11 Apr 2017 @ 6:22am

Cases like this are the reason that 5 cops were assassinated in Dallas. It is cases like that that caused the execution of 2 NYPD cops. While not excusing these killings, politicians and cops themselves need to understand that if actions such as this case are allowed to go unpunished and swept under the rug, there are people out there in the world that are unbalanced and will pick up a gun and go cop hunting. The sad thing is that they will probably choose their targets at random and will end up killing perfectly good cops that would never do these things to people.

Bad cops have to be dismissed. Good cops need to get rid of the bad cops out there, because the bad cops make it more dangerous for all of them.
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Anonymous Coward, 11 Apr 2017 @ 6:24am

Re: Prejudice
Stereotypes are true, on average. That is why they are stereotypes.
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Anonymous Coward, 11 Apr 2017 @ 7:58am

"now he's going to be paying Stephens for the injuries he caused and the career he ended"
Why the fuck is this cop only going to end up being sued for damages and not being thrown in prison for assault and battery? What the fuck does it take to lose your immunity for being charged with the goddamned crime that this is?
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Anonymous Coward, 11 Apr 2017 @ 7:59am

Re:
Bad cops need to be thrown in jail for the crimes they commit. The "shield" is supposed to represent the cops being a shield for the populace, not a shield against being prosecuted for the crimes they commit.
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Coogan (profile), 11 Apr 2017 @ 8:44am

> “It’s punishment. You people come here and think you can do as you please.”

Yeah, who do you think you are? A cop?
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Anonymous Coward, 11 Apr 2017 @ 8:45am

wow, this happened over 8 years ago and that criminal Deputy Nick DeGiovanni is probably still acting out his perverse reality.
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Wyrm (profile), 11 Apr 2017 @ 9:25am

Re: New Australia
As said here, the police should not be held to lower standards of self-control than the general population because they're the supposedly "good guy".
They should be held to higher standards because of the authority they are given.

Hopefully, judges will come to that conclusion over time.
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Anonymous Coward, 11 Apr 2017 @ 9:42am

After 8 years of Trump, even this won't be egregious enough for them to lose immunity.
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Anonymous Coward, 11 Apr 2017 @ 9:42am

Re:
Too quick. It should hurt.
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David, 11 Apr 2017 @ 9:45am

Re:
It takes an exceptional man to make such a clean case, and yet the lower court decided for the deputy. It has been handed the case back now. It will give the deputy the meekest and warmest slap on the hand it can muster. In the mean time, the exceptional man will pay the court cost for the lower court and for the appeals court for this minuscule bit of justice.

The U.S.A. is a bad place to live in if you are not in the population group that the police sucks up to and back.
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Anonymous Coward, 11 Apr 2017 @ 9:46am

Re:
There's something seriously wrong with you.
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Anonymous Coward, 11 Apr 2017 @ 10:23am

Re: Re: and..
What would you have done in that situation?
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Anonymous Coward, 11 Apr 2017 @ 10:27am

Re:
In prison, he can't earn money to pay back the damages. Working, at least his pay can be docked and go towards the victim.
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David, 11 Apr 2017 @ 10:47am

Re: Prejudice
There is experience and there is prejudice. Prejudice is not giving the other the chance to act differently than you have come to expect. But that does not mean that you have to be unprepared if he does.

But your expectations also rub off on others. Believing the best or worst of people makes it more likely. So it is good if people's experiences actually are good, in particular better than they expected, and work towards that.
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Anonymous Coward, 11 Apr 2017 @ 1:23pm

Re:
I love the smell of salty snowflakes in the morning, smells like victory!
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Anonymous Coward, 11 Apr 2017 @ 4:28pm

Re: Re:
You should stop eating the yellow snow.
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Anonymous Coward, 12 Apr 2017 @ 3:42am

Re: Re: Re: and..
I was not responding to the situation. I was responding to surfer.
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Anonymous Pickle Jar, 12 Apr 2017 @ 4:26am

Re: Re:
I think society has had enough of this guy's "work".
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Bergman (profile), 12 Apr 2017 @ 4:28am

Re:
My_Name_Here hates authority and is in favor of excusing violent criminals. News at 6.
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Bergman (profile), 12 Apr 2017 @ 4:29am

Re:
But even that much is enough for a first degree murder conviction. You're not as anonymous as you think on the internet.

Just saying.
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Bergman (profile), 12 Apr 2017 @ 4:31am

Re:
I agree. Were it me, and knowing the law as I do, I'd have arrested the officer for second degree assault on the spot -- in a state where private citizens making a citizen's arrest can legally use any degree of force to enforce the arrest that a police officer could to enforce an arrest.
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Bergman (profile), 12 Apr 2017 @ 4:34am

Re:
That's one reason I tell people to make citizen's arrests when they see cops committing what they reasonably believe in good faith to be crimes -- suing the officer in civil court and getting a settlement paid for by taxpayers while the officer continues to be a cop is not justice.

One of the benefits of the citizen's arrest path is that in about a third of the states, if the officer resists arrest, the citizen can legally use any necessary force to enforce the arrest, just like a cop can.

Killed while violently resisting arrest has a nice ring to it -- especially since if an officer is in punching range, he's also inside the safe firearm draw range and any attempt to do so leaves him open to being disarmed, in self defense.
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sorrykb (profile), 12 Apr 2017 @ 9:14am

Re: Re:
>in a state where private citizens making a citizen's arrest can legally use any degree of force to enforce the arrest that a police officer could to enforce an arrest.

Had Paul Stephens or his cousin attempted to make a citizen's arrest, that deputy would have murdered them.
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Bergman (profile), 17 Apr 2017 @ 1:30am

Re: Re: Re:
He'd probably have tried, I agree. Perhaps he'd have succeeded, but it would have been successful second degree murder in most states, successful first degree murder in a few (a death resulting from deadly force used while unlawfully resisting arrest is charged that way in those states).

Using me as an example, there's a good chance the deputy would have at least had his own gun aimed at him to enforce the arrest, if not being shot with it while resisting arrest -- one of the martial arts-related things that fascinated me in my youth was the concept of a gun disarm, so I sought out a teacher who knew how to actually do it. I've never needed to do it and am probably rusty as hell at it now 20+ years later, but those drilled-in reflexes are a lot like riding a bicycle.
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Bergman (profile), 17 Apr 2017 @ 1:40am

Re: and..
That's why my advice to people isn't to simply remain silent and sue later. I am constantly telling people that if they find themselves in those situations or witnessing one, they should say a double handful of words to the police officer in recording range of his patrol car or body cam.

"Sir, I am placing you under citizen's arrest for Name-Of-Crime."

By law, an arrest happens when someone is informed (or would reasonably conclude) they are under arrest, not when the handcuffs go. By law (case law, anyway), any violence committed against the one making the arrest after being informed of the arrest is resisting arrest with violence.

Even if you do nothing but say those words to a cop when you reasonably believe in good faith that he is breaking the law, him leaving the scene becomes a crime -- escaping custody and/or fleeing from custody. If he attacks you for saying them, the proper charge is assault/battery of law enforcement. If he is in possession of a deadly weapon when he commits those crimes -- even if he never draws it -- the crimes are the enhanced/aggravated versions.

Having such a thing on his record will do his career no favors, even if he manages to dodge any criminal charges. And the worst that will happen to you legally for saying those words is you might have to give testimony in court -- something you might have to do anyway as a witness just for being nearby while an arrest or investigation is made.
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Bergman (profile), 17 Apr 2017 @ 1:48am

Re: New Australia
It IS a much worse crime -- but the US government seems to have zero interest in making arrests, filing charges or convicting people for it.

US Federal law -- Title 18, Chapter 13, Sections 241 & 242 -- make it a crime for anyone acting under color of law to violate or deny any constitutional, civil or statutory right. Doing so varies in severity as crimes go, ranging from a minor crime worth a year in federal prison to one punishable by execution, depending on the circumstances of the violation.

Since possession of a firearm while committing a crime is the same, legally speaking, as using one when committing the crime, and US police are almost never unarmed, the minimum charge (unless the prosecutor is corrupt) under those laws would be a felony. If two or more police acted together to violate rights -- even as little as silently standing in the background backing up the violation -- the crime would be a felony. And if anyone died as a result of the rights violation (even if someone killed one of the cops in self defense), all the cops working together would be guilty of a capital crime punishable by execution.

But as I said, the government seems to have zero interest in actually enforcing that law.
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