Black Friday shove suffices for excessive force suit
Officer Hasheen Basil probably didn’t imagine that he’d wind up herding Black Friday shoppers when he signed on to become a member of the Philadelphia Police Department.
He also probably never thought that a simple push in the back might amount to a violation of a shopper’s Fourth Amendment rights.
Thursday, a federal judge in Pennsylvania decided that a simple push is enough to support a §1983 claim for excessive force.
The lawsuit was brought by Michael P. Bannan. In the early morning hours of Nov. 26, 2010, Bannan somehow allowed himself to be trapped into going Black Friday shopping with his wife and daughter at a Philadelphia Walmart.
Bannan and his wife and daughter arrived at around 1:30 a.m. and duly lined up in the “cattle chute” that Walmart had set up at the entrance to control the flow of shoppers into the store. Once inside, they discovered that the shopping carts were all gone.
Displaying a fundamental ignorance of the dynamics of Black Friday shopping, Bannan made the mistake of thinking that it would be a simple matter for him to go back outside, get a cart from the parking lot, and then return to the store.
Grabbing a cart outside, Bannan turned around only to be faced with once again navigating the cattle chute. Bannan evidently thought he had obtained squatters rights by making it to the store entrance the first time, so he attempted to rejoin his family by lifting the cart over the barrier separating the entrance from the exit at the front of the store.
As Bannan tried to perform this maneuver, he was confronted by Officer Basil and Officer Margaret Donnelly, who were trying to maintain some kind of order in the Black Friday madness.
The officers would later claim in their respective depositions that Bannan was intoxicated at the time. Bannan disputed that claim, but admitted that he had had two beers before going shopping, presumably to stiffen his resolve.
Anyhow, perceiving a breach of Black Friday etiquette, the officers told Bannan to leave. In order to help him along, Basil grabbed Bannan by the arm and escorted him away from the entrance.
Bannan went back to his car and stewed for about ten minutes before deciding to head back into the store to go shopping with his family. But Bannan had learned his lesson and this time followed store procedure by walking through the cattle chute to the store entrance.
However, at the end of the cattle chute, instead of a cheerful welcome by a smiling Walmart greeter, Bannan was confronted by Officer Basil. The police officer had meant what he said when he told Bannan to leave. After asking, “What, are you f-ing stupid?”, Basil grabbed Bannan’s arms, and moved him away from the entrance area.
There’s a dispute as to what happened next. Bannan claims that he did nothing threatening and did nothing to resist the officer in any manner.
The police office had a different account of what occurred. According to Basil, Bannan objected to being moved and “stiffened-up” to resist the officer’s efforts to lead him away from the store.
There is no dispute that, as Basil escorted Bannan away from the store entrance, Basil pushed Bannan in the back. The store’s security camera confirms this fact.
The officer’s push caused Bannan to fall to the pavement. Bannan claims that he was injured in the fall. In any event, he requested an ambulance at the time and was taken to the hospital.
Next came the inevitable §1983 suit against Basil in which Bannan alleged that the officer used excessive force in violation of his Fourth Amendment rights.
Basil moved for summary judgment, arguing that one shove is not excessive as a matter of law.
U.S. District Judge Legrome D. Davis agreed with the general proposition that not every push or shove violates the Fourth Amendment, but pointed out that whether a particular push or shove is excessive must be evaluated under the standard of reasonableness.
The judge concluded that Bannan raised a jury issue on this point based on his allegation that he did nothing to resist Officer Basil as he was being escorted from the Walmart.
“Basil says Bannan resisted, while Bannan says he did not,” the judge explained. “We have reviewed the surveillance video of the incident and find it inconclusive on the resistance issue. Of course, if Bannan resisted, Basil’s shove seems much more reasonable. In light of this genuine issue of material fact, we cannot grant summary judgment.”
Moreover, the judge found that Basil was not entitled to qualified immunity:
[W]e believe that a reasonable officer would know … that it would be excessive to shove a non-resisting, non-threatening, non-armed man in the back hard enough that he falls to the ground, merely to move him away from a Walmart entrance and arrest him for disorderly conduct. This is particularly true if the officer did not first verbally warn the individual not to enter the store, as Bannan contends here. Stated differently, the right not to be pushed in the back by a police officer for no legitimate reason is clearly established, even if no precedent addresses these precise factual circumstances.
– Pat Murphy
