The Supreme Court denied cert in a particularly bad decision by the Sixth Circuit, granting qualified immunity to Cleveland cops who arrested, tackled and punched Shase Howse on the porch of his home.
One summer night in 2016, Howse was walking home from a convenience store. Along the way, Howse says an unidentified Cleveland Police officer approached and asked whether he had any weapons. Howse said no. The John Doe officer then patted him down and searched his pockets. After finding no contraband, the officer told Howse that he could leave.
There may have been a reason the cop engaged in this seemingly unconstitutional stop. Maybe there was a call about a black guy with a weapon and so they were stopping any black guys in the area. That happens regularly. But Howse didn’t run, didn’t fight, didn’t do anything to escalate the confrontation, even though it meant suffering the indignity of having his constitutional right to be left alone violated. It’s just another day in Cleveland. Until it wasn’t.
When Howse got home, he began climbing the steps on his front porch. The parties dispute what happened next.
As Howse tells it, several men (two of whom he later identified as Officers Thomas Hodous and Brian Middaugh) pulled up in an unmarked vehicle. Middaugh asked Howse if he lived at the house. Howse replied that he did. Middaugh asked Howse if he was sure that he lived there. Howse said something like “yes, what the f—” in response. That prompted Middaugh to comment that Howse had a smart mouth and a bad attitude. Middaugh then got out of the car, walked toward the porch, and asked Howse (yet again) if he was sure that he lived there. Again, Howse responded yes.
This time, the cops are in plain clothes. Their car is unmarked. As far as Howse, who is indeed on the front porch of his home after having already been unlawfully searched, these aren’t cops doing what cops do, but random guys in a car challenging a guy on his own front porch as to his right to be there. “What the fuck” seems like an eminently reasonable response by Howse. The cops’ reaction, not so much.
Things escalated from there. Middaugh told Howse to put his hands behind his back and that he was going to jail. Howse disobeyed Middaugh’s command to put his hands behind his back. Instead, Howse yelled that he hadn’t done anything wrong and that he lived at the house. Middaugh ran onto the porch, grabbed Howse (who at that point was screaming at the top of his lungs), and threw him down.
Judge Amul Thapar betrays his bias here, characterizing Howse’s failure to put his hands behind his back as “disobeying” the cop’s “command.” While the court knows Middaugh’s a cop on appeal, does Howse know that on his porch? As far as Howse knows, this is a criminal attacking him in his porch. If it turned out to be a robber, would Judge Thapar call it “disobeying” a robber’s “command”?
When Middaugh was on top of him, Howse realized that Middaugh was a police officer. Middaugh, with help from Hodous, then tried to handcuff Howse. But Howse, in his own words, was resisting arrest by screaming and “stiffening up” his body. Howse says he never tried to hit, push, or fight with the officers. And he claims that he “didn’t do anything that would be considered offensive” to the officers.
What constitutes “resisting” is primarily a matter of how one characterizes otherwise ordinary conduct. As Howse not only committed no conceivable offense as he stood on his front porch and was questioned, then tackled and beaten by some putative robber, was it resisting that he wasn’t happily cooperating in his subjugation by relaxing himself sufficiently to appease the guys who just unlawfully seized him and beat him? That he didn’t fight back reflects remarkable self-control, which can’t be said of the two Cleveland cops.
There are two levels of concern here, the second raised in the suit against the police for violation of Howse’s constitutional rights which resulted in qualified immunity granted to the cops on the basis of there being no clearly established caselaw to alert police that they can’t arrest, seize, tackle and beat someone for committing no offense on their front porch. As proffered in the petition for cert, the Sixth Circuit might have done better to consider that there need not be any clearly established caselaw as no sentient cop could have possibly not grasped the unconstitutionality of his actions. But SCOTUS said no, and that’s that.
But the first level of concern is the conundrum presented by Judge Thapar’s majority opinion, seeing the facts on summary judge solely from the perspective of the police.
The officers tell a different story. That night, Hodous and Middaugh (along with another officer) were patrolling the area where Howse lived—an area known for violence, drugs, and gang activity. While driving in an unmarked vehicle, they saw Howse lingering suspiciously on the front porch of a house. Howse looked nervous when he saw the unmarked vehicle. Middaugh thought the house was vacant because it appeared to be boarded up and there were bars on the doors.
In dissent, Chief Judge R. Guy Cole, taking the plaintiff’s perspective of the facts as summary judgment would require, takes a different perspective.
Crucially, unlike the individual in Middaugh’s prior case, Howse never attempted to flee or revealed himself to be armed. Prior to Middaugh telling Howse he was going to jail and attempting to arrest him, Howse had done nothing illegal at all, and the officers do not allege otherwise. Instead, Howse had only repeatedly asserted the (true) fact that he lived at the residence and sworn at the plainclothes officers when they kept asking him the same question. In fact, as Middaugh attempted to arrest Howse, his only professed basis for doing so was Howse’s profanity.
Had Howse known these guys were cops, had they been in uniform, in a market RMP, even just displaying shields, he likely would have capitulated to their “commands,” even though they violated his constitutional rights, just to avoid being arrested, not to mention beaten. But if some random guys displaying no indicia of being police officers start questioning your right to be on your front porch then tackle and beat you, you react like a normal person at your own risk.
Neither the Sixth Circuit nor the Supreme Court faces the conundrum that these two guys could just have easily turned out to be robbers or killers as far as Howse knew, and yet they would have required him to take a beating, or maybe die, just in case they had shield hidden in their pocket.
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