June 28, 2014

Court ruling in Watauga case may make it harder to sue police

A recent Texas Supreme Court opinion may make it difficult to sue police agencies for excessive force.

When Russell Gordon was arrested by Watauga police on suspicion of drunken driving five years ago, he repeatedly complained that the handcuffs were too tight and caused a great deal of pain.

Gordon sued Watauga, alleging negligence and excessive force over how the officer used the handcuffs, but the city fought back, saying it couldn’t be sued under state law.

While lower courts sided with Gordon’s claims, a recent Texas Supreme Court opinion overturning and dismissing the case may, in the end, make it increasingly difficult to sue police agencies in excessive force cases.

Michael Lovins, an attorney who represented Gordon, said he is concerned that if someone is injured during an arrest or as an innocent bystander, suing will be more difficult.

“If a state or government official is committing an arrest, it doesn’t matter what they do or how badly the person gets hurt. There is nothing you can do against the state,” Lovins said.

Lovins said Gordon cannot appeal to a federal court because the case involves state law.

Joe Tooley, an attorney who represented Watauga, said the Supreme Court ruling was needed because opinions previously differed on when sovereign immunity could be waived under the Texas Tort Claims Act.

“This has been an open legal issue for years. Courts and cities really needed some guidance on this issue,” Tooley said.

Gordon declined to be interviewed or comment to the Star-Telegram.

The arrest

In January 2009, Gordon was stopped by Watauga police on suspicion of driving while intoxicated. According to court records, Watauga officers asked him to submit to a sobriety test, but he refused.

Police then told Gordon that he would be arrested and handcuffed. Gordon did not resist arrest and did not resist being handcuffed.

But when he complained that the cuffs were too tight and he was suffering wrist pain, police ignored Gordon’s complaints, according to court documents.

He was booked in to the Watauga Jail and still complained that the handcuffs were too tight.

Gordon had to seek medical attention because of the injuries to his wrists, Lovins said.

In 2011, Gordon sued Watauga and won in both state District Court and the 2nd Court of Appeals with both courts ruling that Watauga was negligent, effectively waiving the city’s immunity claim.

Supreme Court Justice John Devine wrote in his opinion that because Gordon alleged that police used excessive force in his arrest, a claim that arises out of a battery, his pleadings do not state a claim for which governmental immunity has been waived under the Tort Claims Act.

Setting guidelines

Defense attorney Greg Westfall, who has heard a number of claims involving handcuffs, said the Texas Supreme Court is trying to head off unreasonable force claims and put those cases in federal court.

“Having practiced criminal defense I’ve heard a lot of handcuff claims, and I’ve seen a lot of marks left by handcuffs. I’m not sure if it’s not an intentional act,” he said.

Lynne Rambo, a professor at the Texas A&M Law School, said both sides bring up valid arguments.

“What is clearly happening is that the Supreme Court is setting guidelines for cases that will get immunity under the Tort Claims Act … ,” Rambo said.

“As with many decisions, you get increased clarity at the cost of compensation for injured people.”

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