A Fort Collins police officer's contention that he should not face civil liability for slamming an unarmed college student face-first into the pavement received an icy reception at the Denver-based federal appeals court on Wednesday.
After a lower court judge ruled that Officer Randall Klamser would proceed to a jury trial for using a "rowing arm takedown" on Michaella Lynn Surat in an alleged act of excessive force, Klamser turned to the U.S. Court of Appeals for the 10th Circuit. Although Klamser reminded a three-judge appellate panel that Surat was unquestionably resisting arrest at the time he took her to the ground, the panel suggested there had to be some limit on the force Klamser could use in response.
"So anytime you have someone who has even admitted to resisting arrest, the officer could take out their gun and empty all of the chamber into the person?" asked Judge Carolyn B. McHugh.
The appeal in Surat's excessive force lawsuit raised the question of whether a person who has been found guilty of resisting arrest can sue the arresting officer for excessive force. The judge overseeing Surat's case previously said yes, but with conditions attached.
Klamser was one of two officers who responded to a disturbance at Bondi Beach Bar the night of April 6, 2017. Surat was there to celebrate her twenty-second birthday with her boyfriend, who was the subject of the call. According to Klamser's body-worn camera footage, approximately 40 seconds elapsed between his first contact with Surat and his takedown of her.
After Surat allegedly brushed against Klamser while leaving the bar, she attempted to grab her boyfriend's arm while he was speaking with the second officer. Klamser then told her to keep walking. The encounter quickly escalated, with Surat telling him, "You don't need to f---ing touch me" and Klamser telling her she was under arrest.
Surat asked what she had done wrong, to which Klamser replied, "I don't wanna throw you on the ground." Surat continued to protest and tried to pry Klamser's fingers from her arm. Klamser then slammed her face-first into the sidewalk.
A bystander recording of the takedown quickly went viral. Klamser claimed in his incident report Surat had tried to grab his throat, but the video did not corroborate that allegation.
In 2018, a Larimer County jury convicted Surat of resisting arrest and obstruction, both misdemeanors. She received a sentence of probation and community service. Surat then sued Klamser and the city of Fort Collins for excessive force.
The defendants attempted to throw out the case based on the U.S. Supreme Court's decision in Heck v. Humphrey, which bars people from seeking monetary damages if doing so calls the validity of their conviction into question. Klamser also asserted qualified immunity, which shields government employees from civil liability unless they violate a person's clearly-established legal rights. Typically, a prior court decision — under very similar circumstances — labeling an officer's conduct as unreasonable is necessary in order for a right to be clearly established.
U.S. District Court Judge William J. Martínez acknowledged the Heck decision limited the evidence Surat could use to prove excessive force, given that a jury had agreed she was resisting arrest at the time. However, the jury's verdict did not indicate whether Surat, by trying to remove Klamser's fingers from her arm, needed to be slammed into the ground in response.
"Did Surat’s struggle against Klamser’s wristlock hold authorize Klamser to use any amount of force to subdue Surat? Could he have shot her legs out from under her instead of throwing her to the ground, at his option? Or shot her dead?" Martínez wrote. "The Court hopes it is obvious to Defendants that the answer is 'no.'"
The judge also denied qualified immunity to Klamser, explaining the officer would have been on notice from multiple court decisions that "slamming a woman approximately half his size into the ground because she was resisting arrest for a misdemeanor" was unconstitutional. After Klamser appealed to the 10th Circuit, which normally takes jurisdiction of the case away from the trial court while the appeal is pending, Martínez took the unusual step of labeling the officer's appeal "frivolous."
Klamser's lawyer argued to the 10th Circuit's panel that it was reasonable for Klamser to react the way he did, as officers in similar court cases "did not face the level of resistance, obstruction and physical violence the Plaintiff exhibited towards Officer Klamser."
The appellate judges focused not on Surat's mild resistance prior to being slammed to the ground, but on the proportionality of the rowing arm takedown itself.
"There can be instances where the force is excessive even when the person is resisting arrest, correct?" McHugh asked.
"The officer already tried lawful, lesser force and that was ineffective. That’s the piece of the analysis that carries over into whether the takedown maneuver was objectively reasonable," replied attorney Andrew D. Ringel.
Not so, McHugh countered, because "even if there is an attempt to subdue with lesser force, it doesn’t tell us that this force is reasonable. We have to look at this force at the moment it was used."
Judge Nancy L. Moritz added the court could assume Surat's convictions were for her attempt to pry Klamser's fingers off her arm, turning the focus back to Klamser's choice to respond with the rowing arm takedown.
"That’s the question: Was that the next step? Or whether that was excessive in light of this circumstance," she said. "That's what we have here. We have minimal resistance."
Surat's lawyers agreed a reasonable jury could find Surat posed little or no threat to Klamser, one of the factors in evaluating whether force is unconstitutional. But even if other court cases clearly established officers act unreasonably by using force in those circumstances, McHugh observed the suspects in those encounters were not resisting arrest, as Surat was.
"The lack of resistance is critical. There would be absolutely no reason for an officer to apply force at all, of any level, if they’re not resisting," she told the attorney arguing for Surat. "So to me, that’s a critical fact that has to be in a case that you claim clearly establishes the law."
The case is Surat v. Klamser et al.
