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Cops Shouldn't Shoot Drunk Drivers, Even with Rubber Bullets

By Robyn Hagan Cain | Last updated on

The Seventh Circuit Court of Appeals is tired of bad police judgment. The Chicago-based appellate court recently denied cops qualified immunity in two cases.

We told you about the first case, involving the arrest and release of a bipolar woman last week. Now we're going to discuss the second case, which involved cops using rubber bullets to subdue a drunk driver.

Plaintiff Tamara Phillips contends that Waukesha, Wis. police officers used excessive force in arresting her after she disregarded their orders to exit her car; the cops shot her four times in the leg with an SL6 baton launcher.

Officer James Hoffman, one of the cops involved in the dispute, claimed the incident was treated as a “high-risk traffic stop” because police believed that Phillips's car was stolen — it wasn’t — and she had stopped in a residential area with her car pointed toward the street in the direction of the officers.

During a high-risk traffic stop, officers will order the driver to shut off the car, put the keys outside, step out, and walk to a safe location to be placed in custody. Phillips, however, was reportedly too intoxicated to respond to such commands. Officers estimated that they gave Phillips orders continuously for 10 minutes before deciding to use their SL6.

The SL6 is a shoulder-fired, semi-automatic firearm that fires polyurethane bullets with a force equivalent to a .44 magnum pistol. Waukesha cops shot Phillips legs four times with the SL6 before she slumped out of the car and kneeled on the ground. She sustained multiple injuries; the most serious was a six-inch wound on her right ankle that required 30 stitches because the bullet tore her flesh from the bone.

Phillips filed an excessive force lawsuit against the officers. The jury ruled for the cops, and Phillips moved for judgment as a matter of law. She eventually got it, thanks to the Seventh Circuit.

The court concluded that the use of the SL6 was a significant intrusion upon Phillips's Fourth Amendment rights. Here, the Seventh Circuit Court of Appeals held that the officers were not entitled to qualified immunity, and that Phillips was entitled to judgment as a matter of law on her excessive force claim.

The cops knew Phillips was drunk. She wasn't aggressive, nor did she try to escape. Though she resisted arrest, it was passive resistance that only warranted minimal force. Finally, at time of instant incident, the law clearly established that multiple trauma-inducing shots would constitute excessive force when used against a non-resisting, intoxicated arrestee.

If you represent a police department, warn the officers you work with to think carefully before using rubber bullets on drunk drivers. If you represent a victim of an allegedly excessive rubber bullet pelting, you may have a case in a Seventh Circuit feeder court.

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