Jury to decide whether officer had the right to lift a woman by her bra strap during demonstration and throw her to the ground

The Court of Appeals has held that a woman who asserts a police officer, for no good reason, lifted her up by her bra strap and dropped her on the ground during a protest in August 2020 may take her claim to trial, as it is not clear that the officer did not violate clearly-established law in this use of force against her.

The case is Eaton v. Estabrook, issued on July 9. The protest took place in Connecticut. The officer did this without prior warning. At first glance, it looks like the plaintiff has a great case. But most excessive force claims have a loophole for the defendant officer: if his actions did not violate clearly-established case law, then he cannot be sued and the case against him is over. To invoke this defense, known as qualified immunity, the officer will argue that he had no choice but to do this. But the record allows the jury to find otherwise. 

Why was plaintiff lifted by her bra strap? Because during the protest, the officer was called to the scene on a Code 30, which means "officers need assistance." The officer said he was responding to an emergency because other officers got into a scuffle with other loud and chaotic protesters. This meant he had to get through the crowd and grabbed plaintiff to get her out of the way as best he could, by grabbing her by her bra strap, lifting her up, and dropping her onto the pavement, causing injuries. 

Qualified immunity prevents the officer from being sued if clearly-established law did not prohibit his actions. Of course, the law has been clear for years that an officer cannot subject someone to gratuitous force, even during a protest. But if the officer reasonably thought he had to grab someone and force her out of the way to protect officers who were under seige, then he can invoke this immunity. In this case, the jury has to decide what the officer perceived as he made his way through the crowd. The jury will tell the judge what really happened during the protest, and the judge will use those facts to determine if the officer acted reasonably and can invoke qualified immunity.

We need a trial for the following reasons: first, no one is sure what a Code 30 means. It might have referred to a Code 3, which is rare and "and is a very serious call." If the jury finds that a Code 30 does not carry the high level of urgency as a Code 3, then the officer cannot justify his actions based on a Code 30. The summary judgment record is not clear if the Code 30 refers to a Code 3. 

We also need a trial because the record shows conflicting evidence on how serious the crowd control problem was when the defendant officer showed up. It may or may not be the case that the officer reasonably thought he was witnessing an urgent problem that required him to essentially throw the plaintiff aside in order to protect a fellow officer; in such a scenario, every second counts. The Court of Appeals (Nardini, Lynch and Kahn) says a jury might find there were obvious, less drastic alternatives for defendant to reach the officers. Depending on how the jury sees the facts, the officer may have violated prior case law, which makes it clear that he could not, under the Constitution, 

have license to yank up a protester by her bra strap, drive her backward several feet, and throw her down on the ground, while responding to a call for officer assistance where she was not actively resisting police commands; where it is unclear whether he had any basis to think he needed to get past her to reach officers in danger; where he had not given her a warning nor asked her to step aside first; where there may have been other less drastic means available to accomplish moving past her, such as stepping around her or simply pushing past her in a less forceful manner; and where she sustained serious head and neck injuries.