The 5th Circuit Approves a Cop’s Violent Response to a Dispute Over a 7-Year-Old’s Littering

An argument between neighboring families that started when a 7 year-old boy was accused for littering turned into a fight with Fort Worth Police Officer William Martin. Martin took Jacqueline Craig’s mother and three other sisters to the police station. Craig claims Martin forced her daughter (15 years old) to the ground using a taser and kicked her.Her 14-year old daughter, K.H. (“J.H.”) was also hit by Martin. After handcuffing Brea Hymond’s 19-year old daughter, Brea, in the neck, she “hyperextended” her handcuff arms and flexed them over her head to inflict pain. Martin’s bodycam video shows that all of this occurred because Craig was angry at Martin for allowing her to attack her son. He also criticizes her parenting.

Craig’s lawsuit against Martin was dismissed by a federal judge because it wasn’t clear what Martin had done to justify his use of force. A three-judge panel of U.S. Court of Appeals, 5th Circuit judges concluded last month that Martin had not done anything illegal. This assessment, even though based upon the factual facts in the case seems extremely dubious.

Martin answered two 911 calls. Craig’s neighbour, Itamar Varidi, called Martin. According to the 5th Circuit, Vardi reported that “several persons were on his property arguing. They refused to leave. And were intently throwing trash in his yard.” Craig also received a call from Itamar Vardi, reporting that Vardi confessed to pulling her neck while he was refusing to clean up litter.

Martin took Craig’s complaint very seriously right from the start. Martin replied, “Why not teach your son to stop littering?” He asked her. Craig asked her to ask the 5th Circuit for a rehearing of her case. Craig said that her son dropped his bag accidentally.[ed]Vardi saw raisins left on Vardi’s sidewalk. Craig said to Martin that Vardi could not take the boy’s littering action if he had intentionally littered. “Why not?” Martin asked. Martin asked. Craig replied. Craig responded,

Angered by Martin’s blasé attitude and his presumptuous criticism, Craig raised her voice, castigating him for his response. “Why do you shout at me?” Martin responded. Martin said, “If I keep screaming at you, it’s going to piss you off. And I’m going take you to prison.”

The situation quickly deteriorated from there. Craig says that her and her children didn’t do anything to justify Martin’s violent response. Martin’s bodycam video shows that Martin lost his temper over Craig’s rudeness.

U.S. District Judge John McBryde decided that Hymond’s cell phone video and body camera footage were part of the evidence. He also concluded that it was “too uncertain to dismiss the plaintiff’s account.” McBryde denied Martin’s request for qualified immunity. This protects officers against liability if their misconduct is not in violation of “clearly-established” law. He said that Martin “may well have been found not to use excessive force” by a jury, however the court was unable to rule on Martin’s claim to qualified immunity.

Martin appealed to the 5th Circuit, but it accepted Martin’s version of events. This was something the 5th Circuit wasn’t supposed to accept at this stage, unless Craig’s evidence “blatantly contradicted”. McBryde believed it didn’t. McBryde believed it did. But, the appeals court disagreed, and for some reasons not completely clear. Chief Judge Priscilla O Owen wrote the 5th Circuit’s decision stating that Martin had mistreated Craig et al. “It wasn’t objectively unreasonable.” His conduct was not “objectively unreasonable,” the court added.

Craig and Hymond argue in their petition to en banc reconsideration that McBryde’s evidence was incorrectly substituted for McBryde’s by the 5th Circuit. Their argument is that Martin’s use for force didn’t violate any “clearly-established” constitutional rights. However, the case law clearly demonstrates that Martin can not be used force against non-resistant detainees.

The Institute for Justice, (I.J.Craig, in brief support of Craig’s petition. He focuses on Martin’s decision not to use “pain control” on Hymond because she didn’t “immediately answer” his questions about her age and name.

After Martin secured Hymond’s mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone’s safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymond—who had been recording the incident from a distance and yelling at the officer that she was doing so—grabbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for “interfering.” Martin didn’t stop at displaying authority.

Martin stood behind his patrol vehicle and Hymond was held steady by Martin
Hymond repeated her belief that Martin was “kickin'” by being at his side, holding a single handle.
“She,” refers to J.H. In response, Martin started questioning Hymond:
What is your age? “What is your name?” Hymond was not there immediately
answer his questions. Hymond was still behind her back. Martin then jerked Hymond’s arms in the air and applied a pain management maneuver.
In police training, the instructor repeated the question and enunciated slowly.
intentional staccato: Is. Your. Name?”

5th Circuit rejected Hymond’s use of force, stating that Martin only jerked Hymond in the arms after Hymond declined to give Martin her name. I.J. argues that intentionally inflicting pain upon a non-resistant arrestee to get information is not constitutional. According to I.J., the alarming acceptance by appeals courts of such a practice is unacceptable.

Although Hymond was described by the 5th Circuit as “resisting,” there is no basis to that description. Judge Owen said that Hymond shouted at Martin the entire time. “She did not comply with any of Martin’s commands or instructions….Hymond continued to verbally deride Martin while Martin was lifting her arms and immediately after he put her arms down. Martin was justified in using force against Hymond despite Hymond’s resistance.

Hymond’s “shouting”, given the circumstances surrounding her family, was normal. Critiquing a police officer is not an offense, so Hymond was certainly justified in his behavior. It is also understandable that Hymond allegedly failed to follow Martin’s orders, given her criticism and filming. However, the 5th Circuit did not mention any claim that Hymond attacked or physically resist Martin. According to the court, Hymond did not give Martin her name as a reason for pain control.

“Any reasonable officer would know that inflicting physical pain on someone to make them comply is a way of compel.”
The I.J. states that answering questions is against the Constitution. The American Civil Liberties Union joined the brief. If this ruling stands, it means that an officer may purposefully inflict pain upon a non-resisting, restrained person in order to force her to talk, provided the court has deemed the force’relatively minor’.”

The 5th Circuit compared Martin’s treatment Hymond to cases where police officers inflicted worse injuries. Owen wrote that the plaintiffs pointed to an instance in this court where an officer had smashed a suspect who was not resistant into a vehicle nearby, causing two broken teeth. “They point to a decision from another circuit in which multiple officers punched, kneed, and kicked a suspect—while he was handcuffed on the ground—severely enough to fracture the suspect’s neck.” Panel members said Martin’s use force against Hymond was much less.

However, the Supreme Court cautioned that merely claiming a violation “clearly established law” does not mean you have to locate a precedent with similar facts. This issue was explained by the Supreme Court in 2002. Hope v. PelzerThe question isn’t whether “very much of the action in question was held illegal”; it’s whether officials received “fair warning” that they were being accused [misconduct]was in violation of the Constitution.” In HopeThe Court found it obvious that handcuffing an unclothed prisoner to a hook for seven hours in hot sunshine violated the Eighth Amendment’s prohibition on cruel and unusual punishments.

Two recent cases overturning the 5th Circuit affirmed that constitutional violations can be apparent even though there are no precedents involving similar conduct. In 2020 Taylor v. Riojas, I.J. I.J. The 2021 case McCoy v. Alamu“The Court decided to reverse the Court’s grant, qualified immunity, of an official who pepper-sprayed prisoner’s face ‘for not a reason at all’.”

I.J. says, establish that “obviousness can provide fair warning of unconstitutionality,” which means Hymond need not locate “a factually identical case on point—one where an officer used a pain control maneuver on a restrained, non-resisting suspect to force her to answer his questions.” But even without such precedents, Hymond said that “every officer knew that they could not strike any non-resisting suspected.” It is also well-established that “qualified immunity does not apply to officers who use excessive or unreasonable force simply because they have a new method of doing so.”

Although the 5th Circuit was concerned with Martin’s use of excessive force during Craig’s arrest, her arrests appear utterly illegitimate. Martin took the decision to discipline Craig et. al. They were loudly questioning Martin’s demeanor and competence as well as his behaviour.

Craig was accused of first obstructing Martin’s work. But her interference was limited to yelling at Martin after he said that her son had been littered and that she was wrong for raising her son properly. Her second offense, resisting arrest, and failure to identify herself were contingent upon Martin’s hotheaded choice to arrest her.

Hymond, too was accused of interference. This was again limited to Martin’s yelling. Martin was charged as well with resisting arrest, and failing to identify.

J.H. (the 15-year-old) was forced to sit in Martin’s vehicle and was then handcuffed. She was never charged. K.H. (the 14-year old) was taken to a juvenile facility and released with no charges.

Craig and Hymond both were cleared of all charges. The excessive force allegations aside, it is clear that this incident could’ve been avoided if Martin wasn’t so eager to assert authority and defend his bruised ego.