Before starting the blog entry of the week, I want to wish all my Jewish brethren a happy new year. Here is hoping that it is a healthy, happy, and successful new year for you and your families.

It seems in Georgia that there is an epidemic of police shootings. In fact, I read the other day in the Atlanta Journal-Constitution, that police shootings in Georgia are way above the pace in previous years. That article also mentioned that Graham v. Connor was the seminal case for training police forces on whether force is excessive. So, I pulled Graham v. Connor. When I did that, it became pretty obvious to me that if this particular case is the one being used for training police on excessive force, then people doing the training really need to reconsider. This blog entry will talk about that case, explain why it is not a good idea for trainers to be using this case as the vehicle for training police forces on excessive force, and then will talk about a case that trainers may want to use instead. As usual, the blog entry is divided into categories, and they are: Graham v. Connor; Graham v. Connor looked familiar; Graham v. Connor thoughts; Vos v. City of Newport Beach introduction and facts; Vos court’s reasoning-excessive force; Vos court’s reasoning-ADA; and takeaways. Of course, the reader is free to focus on any or all of the sections of the blog entry.


Graham v. Connor

In Graham v. Connor, the petitioner, a type I diabetic, asked his friend to drive him to a convenience store to purchase orange juice to counteract the onset of insulin reaction. Upon entering the store and seeing the number of people ahead of them, he hurried out and asked his friend to drive him to a friend’s house instead. A police officer became suspicious after seeing Graham hastily enter and leave the store, and so he followed the car. He made an investigative stop, ordering Graham to wait while he found out what had happened in the store. Backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. During the encounter, Graham sustained multiple injuries. Once the police officer learned that nothing that happened in the store, he was released.

As the court put it:

On November 12, 1984, Graham, a diabetic, felt the onset of an insulin reaction. He asked a friend, William Berry, to drive him to a nearby convenience store so he could purchase some orange juice to counteract the reaction. Berry agreed, but when Graham entered the store, he saw a number of people ahead of him in the checkout 3899*38910 line. Concerned about the delay, he hurried out of the store and asked Berry to drive him to a friend’s house instead.

Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw Graham hastily enter and leave the store. The officer became suspicious that something was amiss and followed Berry’s car. About one-half mile from the store, he made an investigative stop. Although Berry told Connor that Graham was simply suffering from a “sugar reaction,” the officer ordered Berry and Graham to wait while he found out what, if anything, had happened at the convenience store. When Officer Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly.

In the ensuing confusion, a number of other Charlotte police officers arrived on the scene in response to Officer Connor’s request for backup. One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry’s pleas to get him some sugar. Another officer said: “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M. F. but drunk. Lock the S. B. up.” App. 42. Several officers then lifted Graham up from behind, carried him over to Berry’s car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to “shut up” and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham’s brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.

39011*39012 At some point during his encounter with the police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder; he also claims to have developed a loud ringing in his right ear that continues to this day. He commenced this action under 42 U. S. C. § 1983 against the individual officers involved in the incident, all of whom are respondents here,[1]13 alleging that they had used excessive force in making the investigatory stop, in violation of “rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U. S. C. § 1983.” Complaint ¶ 10, App. 5.[2]14 The case was tried before a jury. At the close of petitioner’s evidence, respondents moved for a directed verdict. In ruling on that motion, the District Court considered the following four factors, which it identified as “[t]he factors to be considered in determining when the excessive use of force gives rise to a cause of action under § 1983”: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) “[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.” 644 F. Supp. 246, 248 (WDNC 1986). Finding that the amount of force used by the officers was “appropriate under the circumstances,” that “[t]here was no discernable injury inflicted,” and that the force used “was not applied maliciously or sadistically for the very purpose of causing harm,” but in “a good faith effort to maintain or restore order in the face of a potentially explosive 39115*39116 situation.” id., at 248-249, the District Court granted respondents’ motion for a directed verdict.

Graham brought suit alleging they had used excessive force in making the stop. The court held that the standard for evaluating whether force was excessive was, “objective reasonableness,” and vacated and remanded the decision.


Graham v. Connor looked familiar?

I could not believe it when I read the facts of Graham v. Connor because just recently the Sixth Circuit affirmed a jury verdict in favor of the EEOC for $277,565 where Dollar General terminated a diabetic employee left with very little choice under company policies and decisions made by its employees to drink a $1.69 bottle of orange choose to deal with a diabetic attack and then was promptly terminated for violating company policies. You can see Jon’s write up of the Sixth Circuit affirming the jury verdict here, and the Sixth Circuit’s affirmance of the jury verdict here.


Graham v. Connor Thoughts

  1. Graham v. Connor was a 1989 US Supreme Court case. Of course, that means the case was decided prior to the advent of the ADA (signed on July 26, 1990).
  2. Absolutely no doubt in my mind that under the case we discussed here, the police force would be on the hook for damages for violating title II of the ADA.
  3. This case was almost 30 years ago and things have changed considerably, especially with respect to the rights of persons with disabilities. Graham facts may well be excessive today even under an objective reasonableness standard. Even assuming no excessive force claim, if this happened today there undoubtedly would be a successful title II claim as well as a successful Rehabilitation Act claim.


Vos v. City of Newport Beach Introduction and Facts

A much better case that trainers may want to consider using when it comes to excessive force and ADA compliance would be Vos v. City of Newport Beach decided by the Ninth Circuit on June 11, 2018. Here are the facts.

At approximately 8:15 PM on May 29, 2014, plaintiff entered a 711 convenience store. He became very agitated and ran around the store shouting things like, “shoot me already, dog.” A person called 911. For the next six minutes, plaintiff ran around the store cursing at people. Meanwhile, video footage showed other customers going about their business of shopping and checking out at the cash register. The Newport Beach Police Department dispatch stated that the reporting party was advising that the subject was holding a pair of scissors inside the store and there were still people inside. At one point, plaintiff grabbed and immediately released a 711 employee, yelling, “I’ve got a hostage!” An Officer Kresge arrived on the scene and saw the plaintiff behind 7-Eleven’s glass doors yelling, screaming, and pretending to have a gun. He then broadcasted on the police radio that the subject is simulating having a handgun behind his back and is asking me to shoot him. He then asked for backup and specifically asked for a 40 mm less-lethal projectile launcher. As other officers arrived, he informed them that the plaintiff was agitated and likely under the influence of narcotics.

By 8:30 PM, several more officers had arrived. Immediately before the fatal shooting, at least eight officers were present. A trainee armed himself with the requested less-lethal device. The others readied themselves with lethal weapons. There was also a K-9 unit on the scene. Everybody knew that the plaintiff had been simulating having a gun, was agitated, appeared angry, and was potentially mentally unstable and under the influence of drugs. They also heard the plaintiff yell “shoot me,” and other similar cries. The police on site discussed using non-lethal force to subdue the plaintiff both over the radio and among themselves at the scene.

At about 8:43 PM plaintiff open the door of the 711’s back room. As he did so, some officers shouted doors opening. Plaintiff then ran around the front check out counter and towards the open doors holding an object over his head in his hand. At that point, there was about 30 feet in distance between the plaintiff and the officers. One officer shouted that the plaintiff had scissors. Over the public address system, Officer Preasmyer twice told the plaintiff to drop the weapon. When he did not drop the weapon that kept charging toward the officers, Officer Preasmyer then shouted shoot him. All the officers then opened up fire shooting the plaintiff four times whereupon he died from his wounds. During the 20 minutes from when the officers arrived until the plaintiff ran at them, the officer did not communicate with the plaintiff. The officers who fired the lethal weaponry did not know that another officer had fired non-lethal weaponry. Testimony also said that they saw a metallic object, which they believed to be scissors. When the plaintiff’s blood was later tested, it came up positive for both amphetamine and methamphetamine. His medical history later revealed that he was a schizophrenic. Plaintiff’s parents sued the City of Newport for violating §1983 (excessive force), and for violating title II of the ADA and for violating the Rehabilitation Act of 1973. They also filed claims under California State law as well. The District Court granted summary judgment to the City of Newport and the plaintiff appealed.


Vos Court’s Reasoning Excessive Force

  1. The standard for determining whether the force was excessive is Graham v. Connor’s objectively reasonable standard.
  2. Whether force is objectively reasonable involves balancing the nature and quality of the intrusion on the individual’s fourth amendment interests against the governmental interests at stake.
  3. Use of deadly force implicates the highest level of fourth amendment interests because the suspect has a fundamental interest in his own life and because that kind of force frustrates the interests of the individual and of society in having the judiciary determine guilt and punishment.
  4. Assessing the government’s interest means looking to: the severity of the crime at issue; whether the suspect posed an immediate threat to the safety of the officers or others; and whether the suspect was actively resisting arrest or attempting to evade arrest by flight.
  5. The officers were not responding to the report of a crime, rather they were there because of plaintiff’s erratic behavior.
  6. Once the officers were at the scene, plaintiff had little opportunity to flee.
  7. There were simply not reasonable grounds to suggest that the police officers could have perceived an immediate threat from the plaintiff to themselves requiring deadly force. More particularly: the officers had surrounded the front door to the 711; they had established positions behind cover their police vehicles, they outnumbered the plaintiff 8 to 1; even though plaintiff charged the officers, the officer did not believe he had a gun, and they had less-lethal methods available to stop the plaintiff from charging; and the plaintiff was within the range of a less-lethal weapon, a Taser, or a K-9 when he was shot.
  8. Other relevant factors in deciding whether deadly force is warranted include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed. Here, the officers had upwards of 15 minutes to create a perimeter, assemble less-lethal means, coordinate a plan for the use of force, establish cover, and, arguably, attempt to communicate with the plaintiff. Also, it was really clear that the plaintiff was mentally unstable, acting out, and at times even inviting officer to use deadly force on him. Those indications of mental illness diminished the government’s interest in using deadly force. Indeed, six of the officers were aware and prepared to respond by using only non-lethal weapons.
  9. Since existing precedent was not beyond debate that the officers acted unreasonably, the officers get qualified immunity for their actions (of course, that doesn’t help the City of Newport at all).


Court’s Reasoning ADA

  1. The ADA and the Rehabilitation Act applies to arrests. See this blog entry.
  2. The officers had time and opportunity to assess the situation and employ accommodations identified by the parents, such as de-escalation, communication, or get specialized help.
  3. The facts show that further accommodation was possible.
  4. The same factual questions preventing the determination of whether the police officers engaged reasonably with respect to excessive force also informed the question of whether they provided reasonable accommodations. Those concerns also undercut the City of Newport’s argument that the plaintiff posed an immediate threat, i.e. a direct threat, and was not entitled to accommodation.
  5. For the reasons discussed in the court’s discussion of excessive force as well as for the reasons discussed in this section of the blog entry, VI, the defendants were not entitled to summary judgment on the ADA and Rehabilitation Act claims.



  1. For trainers that are using Graham v. Connor as the basis for training police on excessive force, reconsider, especially in light of the Sixth Circuit affirmance of the jury verdict in the Dollar General case. By using Graham, trainers are communicating to the police that they have wide latitude with excessive force and implicitly suggesting that they are off the hook otherwise. That is simply not the case. Graham v. Connor is a clear violation of title II of the ADA and the Rehabilitation Act.
  2. A much better case to use than Graham v. Connor is Vos v. City of Newport Beach.
  3. While the police officers were given qualified immunity so that they did not face individual liability. That is a one off because now the case law is clear beyond debate that officers simply can’t behave the way they did in Graham v. Connor, let alone in Vos v. City of Newport Beach.
  4. It is clear that whenever you have an excessive force case combined with a person with a disability being subject to that force, you will have both excessive force claims and title II/Rehabilitation Act claims to deal with simultaneously. Whether the employer of the police officers will face damages, will depend upon this blog entry.
  5. Qualified immunity is a one off. That is, an individual officer might get qualified immunity, but if the case goes against the officer’s employer, then it can be said that the precedent may be beyond debate and the next officer will not be so lucky. Also, civil cases may inform that analysis. Certainly, Graham v. Connor if it came up today would not only subject the police force to title II liability, Rehabilitation Act liability, and excessive force liability, it would also be unlikely that the police officers would get qualified immunity.
  6. With respect to excessive force, the police should not limit themselves to the factors in Graham v. Connor. They should also consider the other relevant factors mentioned in Vos as well.