No Qualified Immunity for Sweep Kicking Cop

By Robyn Hagan Cain on February 24, 2012 | Last updated on March 21, 2019

The Eighth Circuit Court of Appeals ruled this week that a police officer who used a leg sweep to interrupt a child custody argument was not entitled to qualified immunity from an excessive force lawsuit.

Police officers in Flandreau, South Dakota intervened in two child custody arguments between Shaylene Montoya and her ex-boyfriend. The first police visit ended calmly, with a warning that someone would be arrested if the police had to return. The second argument concluded with Officer Justin Hooper breaking Montoya’s leg and arresting her on the way to the hospital.

Montoya, who was subsequently convicted on a disorderly conduct charge and acquitted on simple assault and resisting arrest, sued the Officer Hooper for employing excessive force against her.

Montoya claimed that she and her ex-boyfriend were arguing in the middle of a circle of spectators when the police arrived, attempted to arrest her, and used a leg sweep to knock her to the ground, breaking her leg. Officer Hooper claimed that Montoya raised her fist in a way that looked like she intended to hit her ex, and he only used the leg sweep when Montoya resisted arrest.

Montoya sued Officer Hooper, and a district court ruled that he was entitled to qualified immunity.

The Eighth Circuit Court of Appeals reversed the district court, finding that there was a genuine issue of material fact for a jury in the case. The appellate court declined to say that Officer Sweep Kick's use of force was objectively reasonable as a matter of law for two reasons.

First, the evidence showed that Montoya was standing 10 to 15 feet away from her ex when she raised her hands above her head in frustration. She asserts she did not intend to hit him, and he testified he did not feel threatened by her actions. Second, nothing in the record indicates that Montoya posed any threat to the safety of the officers on the scene. Thus, at the time Officer Hooper performed the "leg sweep," Montoya was at most, violating a disorderly conduct law, which is a misdemeanor.

Because Officer Hooper's actions were not objectively reasonable, the Eighth Circuit ruled that he was not entitled to qualified immunity.

Leg sweeps were dramatic in The Karate Kid, but that kind of drama is better suited to movies. If you advise a police department on excessive force policy, consider suggesting that cops avoid using leg sweeps on disorderly conduct suspects.

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