7th Circuit: Police officers’ use of baton launcher was excessive

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Police used excessive force when they fired a baton launcher four times in order to arrest a nonviolent drunk driver who was mistakenly suspected of being a car thief, the 7th Circuit has ruled in reversing a defense verdict.

Police received a report that a vehicle registered to the plaintiff was being driven by an apparently intoxicated driver. Computer records also indicated that the vehicle was stolen, although that turned out to be untrue. Police later located the vehicle idling in some bushes with the intoxicated plaintiff in the front seat.

Still believing the vehicle to be stolen, police cordoned off the area and ordered the plaintiff to exit her car. The plaintiff failed to comply and after about ten minutes police decided to use an SL6 baton launcher to get her out of the vehicle. Used like a bean-bag gun, a baton launcher is a supposedly non-lethal firearm that fires polyurethane bullets.

After firing one warning shot into the vehicle, an officer shot the plaintiff in the legs with the baton launcher four times. One of the polyurethane bullets tore the flesh from the bone of the plaintiff’s right ankle, leaving a six-inch wound that required 30 stitches.

The plaintiff sued the police under §1983 for excessive force and a jury returned a defense verdict.

But the 7th Circuit found that the officers used excessive force and were not entitled to qualified immunity.

“[W]e conclude from the case law and from the extent of [the plaintiff’s] injuries that the force used during her arrest was at least on the high-end of the spectrum of less-lethal force. In other words, when balancing the ‘nature and quality of the intrusion’ against the ‘governmental interest at stake,’ we conclude that the intrusion upon [the plaintiff’s] Fourth Amendment rights was significant,” the court said.

It remanded the matter for entry of judgment for the plaintiff and a determination of her damages.

U.S. Court of Appeals, 7th Circuit. Phillips v. Community Insurance, No. 10-1654.