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Retired patrolman Jim Simone didn't get any help from the Sixth Circuit, as the court ruled Wednesday to affirm the lower court's denial of summary judgment in a civil rights suit against the Cleveland cop.
The case involves Simone using a stun gun on a suspect, Rafael Correa, who he suspected of having a gun, despite the Correa's compliance with the officer during the arrest, reports The Plain Dealer. The Sixth Circuit also took some time to elucidate some fun facts about Tasers and police procedure before booting Simone back down to the district court.
Officer Simone is charged in Correa’s complaint with use of excessive force in violation of his civil rights (read: 4th Amendment) as well as some other intentional torts for the use of Simone’s stun gun while Correa was alleged to have been on his knees and shirtless, reports The Associated Press.
The Sixth Circuit is no stranger to these sorts of claims, but what’s peculiar about Simone’s case is that the Court denied his assertion of qualified immunity.
First of all, the Sixth Circuit reminded Simone that the lower court’s take on the material issues of fact related to his immunity claim are locked in, they only review issues of law. After a collective “duh” was breathed, the court found that suspects with “their hands up in the air” who aren’t resisting pose no immediate threat to law enforcement that would justify the use of a Taser.
The Court also noted that there were enough cases on the unconstitutional nature of tasering unresisting suspects that Correa’s right to be free from unwanted zaps while complying with arrest was “clearly established” as of the time of the arrest.
Correa’s complaint also alleges that he was falsely arrested by Simone since the only mildly incriminating evidence he had on Correa was an accusation that he spit on a girl inside a club. The Sixth Circuit gave that claim a big yes, finding no probable cause to arrest Correa, in light of the fact that even an officer being spit on by a suspect, unless he had an infectious disease, doesn’t rise to the level of arrestable assault.
Simone’s attempt to justify Correa’s arrest under Atwater v. City of Lago Vista also failed, as the purported spitting was not done in Simone’s presence.
A police officer in the Sixth Circuit (even Cleveland) can’t arrest someone for spitting when they never saw it, and even when an arrest is made, a suspect who isn’t resisting cannot constitutionally be tasered.
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