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10-3395 Padula v. Leimbach

By: WISCONSIN LAW JOURNAL STAFF//August 29, 2011//

10-3395 Padula v. Leimbach

By: WISCONSIN LAW JOURNAL STAFF//August 29, 2011//

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Civil Rights
Excessive force

Although a suspect’s reactions resulted from a diabetic seizure, summary judgment was properly granted to the officers on the suspect’s excessive force claim, where the officers reasonably believed he was intoxicated.

“In light of the circumstances and their reasonable belief that Clement was intoxicated, Officers Leimbach and Arceo were entitled to forcibly remove him from his car when he did not comply with their command to get out on his own. … Further, we find no evidence that the Officers removed Clement from his car by throwing him to the ground, as in McAllister, to which Padula directs our attention, but rather that he fell to the ground as dead weight as they pulled him out. … It was also reasonable to use mace to attempt to control Clement under the circumstances, which involved a physical struggle both before and after placing him in handcuffs. … The Officers’ use of batons was also reasonable. Record evidence indicates that Officer Leimbach’s baton strikes were ‘stern,’ but not ‘severe,’ which was appropriate in response to Clement kicking and flailing his arms. Further, Officer Leimbach struck Clement’s leg a third time only because his first two strikes did not allow him to pin Clement’s leg to his buttocks and prevent him from kicking; there is no indication that Officer Leimbach used his baton gratuitously. And while Padula points to Clement’s death, presumably as evidence of the Officers’ force, see McAllister, 615 F.3d at 881 (‘[A] jury may look to the type of injury suffered by a plaintiff to determine whether or not the amount of force used by law enforcement was reasonable.’), the Coroner’s Verdict states that Clement died of natural causes, not because of any force used two weeks before his death, and we find no other indication in the record that Clement’s death was related to the Officers’ force, see id. at 882. … The Officers faced a fluid situation; as the struggle with Clement escalated, the Officers appropriately increased their force in order to keep the situation under control. See Smith, 295 F.3d at 770 (‘When police officers face what is essentially a fluid situation, they are entitled to graduate their response to meet the demands of the circumstances confronting them.’); Estate of Phillips, 123 F.3d at 593.”

Affirmed.

10-3395 Padula v. Leimbach

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Flaum, J.

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