Cornell Journal of Law and Public Policy

A recent post-game celebration in Tuscaloosa, Alabama received national attention after local news reported an altercation between University of Alabama students and local police. Videos of the incident, captured by bystanders, paint a violent picture as police tasered students multiple times, threw them to the ground, struck them with batons and dragged them outside of their apartment. The video caused an immediate uproar on social media, prompting outrage and calls to eliminate excessive force and police brutality. In response, the Tuscaloosa Police Department promised a full investigation of the circumstances depicted in the video. However, after seeing the videos, many people still have questions about what happened. One Twitter user, reported by the Washington Post, asked a simple question: Is this legal? The short answer is no, and here is why. The facts, as shown in the video, actually raise two legal issues. First, was it legal for the police to enter the student’s apartment without a warrant and issue an arrest stemming from a noise complaint? And, second, was the use of force by the police in making the arrest—including the taser—legal? Let’s start with the first issue. The Fourth Amendment protects against unreasonable search and seizure, including warrantless entry and arrest at individuals’ homes. For minor offenses—such as a noise violation—protection is even greater, according to the Supreme Court. Under Welsh v. Wisconsin, warrantless arrests in homes for relatively minor offenses are presumptively unreasonable and, therefore, unconstitutional. Another case is particularly persuasive, holding that warrantless arrests predicated on violations of a “municipal ordinance regulating conduct that is noncriminal in nature” are per se unreasonable. In these cases, police officers must prove they either received consent to enter—which was clearly not given here (and cannot be given “constructively”—you can’t give consent by being dragged out of your home), or “exigent circumstances”.[1] So what exactly does that mean? Well, according to the Supreme Court, exigent circumstances exist in four situations:

(1) where officers must provide emergency assistance to an occupant of the home,

(2) to engage in “hot pursuit” of a fleeing suspect after the commission of a felony,

(3) to enter a burning building to put out a fire and investigate its cause, or

(4) to prevent the imminent destruction of evidence.[2]

Importantly, a warrantless arrest at home is not justified where there is no showing of exigent circumstances leading to the arrest itself; that is, if the police created the alleged exigent circumstances, the exception could not apply. Accordingly, existing case law establishes that warrantless arrests—in the absence of exigent circumstances and clear consent—violate the Fourth Amendment. The students’ encounter with the police originated with a noncriminal noise complaint. None of those “exigent circumstances” appear in the video or are alleged by the police, there appears to be a clear answer to our question: It was not legal for the police to enter the student apartment and it was not legal to effectuate the arrests under the circumstances. That leads us to the second issue regarding the use of force. In Graham v. Connor, the Supreme Court recognizes the long-standing right of police officers to use reasonable force (or threat of force) to arrest individuals. That means that “not every push or shove, even if it may seem unnecessary later,” by the police is excessive and unconstitutional. Instead, the Court articulates a careful balance of the “nature and quality of the intrusion on the individual’s Fourth Amendment interests” against the countervailing governmental interests at stake. Consequently, all claims of excessive police force are subject to this analysis. The Graham standard is one of objective reasonableness, without consideration of a police officer’s subjective intent or motivation (whether malicious or in good faith). The Graham standard measures this from the perspective of a reasonable police officer on the scene based on the totality of circumstances. That means “20/20 hindsight” is irrelevant; rather, taking into account that circumstances are “often tense, uncertain and rapidly evolving.” Ultimately, in determining reasonableness courts look to the so-called “Graham Factors”, including:

(1) the severity of the crime at issue,

(2) whether the suspect poses an immediate threat to the safety of the officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

In McNally v. Eve, a federal court applied this analysis to facts nearly analogous to this case. There, police were called to investigate a noise violation at a house party, finding the host wearing only a bathrobe. The host refused the police entrance without a warrant and attempted to turn away when threatened with arrest. The host was then tasered, brought to the ground, and arrested for obstruction of justice. The court found that violating the noise ordinance—and even the alleged crime of obstruction—was of minor severity; that the host, speaking calmly and clearly unarmed, posed no threat to the officer nor anyone else; and, that the host never resisted arrest, nor attempted to flee (even by turning away). Accordingly, the court held that the evidence was sufficient to find the officer’s conduct objectively unreasonable under the circumstances, thus, the conduct was excessive and in violation of the Fourth Amendment. Based on the video evidence and existing law, it’s difficult to find the officers’ conduct, in this case, reasonable. As in McNally, the police responded to a noncriminal noise complaint and were refused entrance without a warrant by the unarmed students who made little or no attempt to resist or flee; then the students were tasered and repeatedly beaten with batons while clearly in police custody. (See “00:34–00:37” in the video.) This is particularly significant considering that a suspect, being held on the ground and in police custody, cannot objectively be considered a threat requiring additional force. Hence, under a Graham analysis, the officers’ conduct is almost certainly objectively unreasonable based on the circumstances, and therefore, unconstitutional. So, the bottom line: the officers’ conduct in the video certainly appear to be illegal. [1] 5 Am. Jur. 2d Arrest §§ 99, 102 (2015). [2] 3A Charles Alan Wright, Andrew D. Leipold, Peter J. Henning, & Sarah N. Welling, Federal Practice and Procedure: Federal Rules of Criminal Procedure § 678 (4th ed. 2010).