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Brumitt vs Smith2024 WL 2269489 (7th District 2024)
Sergeant Sam Smith of the Evansville Police Department saw Charles Brumitt lying over a junction box in the parking lot of a bar at 3 a.m. After stopping his car, Smith got out to check on Brumitt’s well-being and to see if there were any outstanding warrants for his arrest. The sergeant asked Brumitt if he was OK, and Brumitt mumbled “no” and stopped talking. Smith identified himself as a police officer and said he wanted to make sure Brumitt was OK. Brumitt mumbled that he could “pass out anywhere he wanted.” When Smith replied that he could take Brumitt to jail, Brumitt said, “Take me with you, mother____. Take me with you.”
Smith thought he saw a card sticking out of Brumitt’s pocket that could serve as identification. Smith said to Brumitt, “Let’s see your identification,” and reached for the card. Brumitt stood up and said, “Don’t you fucking grab my ass. Don’t you fucking grab my ass.” Brumitt punched the sergeant in the face and said, “Leave me the hell alone, mother_____.” The underhanded blow momentarily confused Smith.
Colonel John Boyd developed the OODA loop or cycle (Observe, Orient, Decide, Act) based on his experiences as a fighter pilot. The OODA loop model assumes that police officers – and suspects – make decisions in a dynamic situation by observing the circumstances, orienting themselves to the perceived threat and forming a mental picture of the evolving circumstances, deciding on an action script, and executing the selected action. Spend a few minutes with legendary trainer Lt. (Ret.) Dennis Tueller as he explains the OODA cycle in relation to the 21-foot principle:
Although Sergeant Smith took a nanosecond to enter and execute his own OODA loop, Smith grabbed Brumitt’s shirt and punched him in the face four times in (at most) four seconds. Smith described his reaction as “purely instinctive” and likely due to his martial arts training. (The officer held multiple black belts.) At some point during those four seconds, Brumitt lost consciousness. However, the officer did not realize Brumitt was unconscious until after the fourth and final punch. Brumitt was left with a broken eye socket, a broken nose, and deep cuts to his face.
Brumitt sued Smith under 42 USC § 1983, claiming that Smith Violence that was completely disproportionate to subdue the intoxicated Brumitt, and unnecessarily continued the force when Brumitt was unconscious. The sergeant asked the court for summary judgment, arguing his force was reasonable and that he was entitled to qualified immunity because there was no clearly established precedent to indicate his actions were unlawful. The court denied the motion for qualified immunity, ruling that a jury could find the officer’s force was unreasonable because Brumitt was intoxicated, drowsy, and uncoordinated, and there was no evidence that he was armed. The trial judge also stated that a jury could also find that a “reasonable officer would have perceived him to be unconscious and would have had time to recalibrate his use of force” before the fourth and final strike at the four-second mark.
On appeal, Sergeant Smith argued that the trial judge had mistakenly assumed that a clearly defined law required reasonable police officers to repeatedly consider the use of force during an altercation lasting only a few seconds “to ensure that officers are aware of and able to respond to the precise moment at which a suspect becomes unconscious.”
The Court of Appeal looked at the facts in the light most favorable to Brumitt, finding that as the officer approached the obviously intoxicated Brumitt, he asked him if he was OK and inquired about his identification. Brumitt then told the officer to take him to jail, just before punching the officer in the face. The court acknowledged that the officer delivered four rapid punches in four seconds, a force the court described as “significant.” The court considered that the officer could have paused his punches and seen that Brumitt appeared limp.
Notwithstanding these facts, the appeals court ruled that it had to assume that a reasonable officer would know immediately that Brumitt was unconscious and would react accordingly within less than four seconds. Brumitt could not cite any case “establishing that an officer must do so and cease force the precise second a suspect yields.” The appeals court reiterated the clearly established principle that “an officer should not continue to use force after a suspect has been subdued.” Although an officer’s force should be proportionate to the threat posed by the suspect, Brumitt could not cite any cases advising an officer “that four quick strikes in response to a suspect’s unprovoked punch in his face are disproportionate to that punch.” Moreover, “no case clearly establishes that a reasonable officer must reassess his force so quickly.”
The conclusions for suspects: Not hit a policeman from behind who is trying to be helpful. And when you do, don’t let it be a cop with multiple black belts. The takeaway for officers: Remember that continued use of force is inappropriate when an officer “has sufficient time to realize that a suspect has been subdued.” Even so, officers “are entitled to reasonable latitude to give them time to realize that the threat level has diminished.”
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