Utah cop seeks to dodge excessive force suit from disabled man

(CN) — A Utah city and one of its former police officers asked a federal judge on Thursday to dismiss an excessive force case brought by a man with intellectual disabilities who was arrested after a takedown maneuver while walking home from a karaoke bar.

An attorney representing the city of Clearfield and former police officer Zachary Fratto said U.S. District Judge Dale Kimball should dismiss the excessive force lawsuit because the officer’s actions were protected under qualified immunity.

Plaintiff Shawn Nicholas, who was 44 years old at the time and is a Special Olympics athlete, was walking home from karaoke night at the Summit Lounge in Layton, Utah, where he had been a regular for several years. Nicholas says he only drank Dr. Pepper that night, but often stayed until after closing time.

As he was walking through a nearby strip mall at about 3 a.m., Fratto approached him and asked why he was walking home so late. Nicholas says he has experienced harassment from the police in the past and tried to avoid the unwanted contact by evading Fratto’s questions and hurrying away from him.

After Nicholas refused to show Fratto an ID card, Fratto used a takedown maneuver to restrain Nicholas and identify him. Nicholas claims the use of force was inappropriate because he did not do anything to physically resist Fratto and had not broken any laws.

Defense attorney Bill Helfand, of Lewis Brisbois, described Fratto’s actions as a normal Terry stop, which permits a police officer to temporarily detain someone based on reasonable suspicion of criminal activity.

“This is not even a close call, judge,” Helfand told Kimball. “This is a case of immunity. Could Mr. Nicholas or the court say they could have done it differently? I won’t quarrel with that. But that’s not the legal standard here.”

Helfand said Fratto was protected under qualified immunity because a reasonable officer would have found Nicholas’ behavior suspicious. Nicholas and his attorneys would not be able to argue otherwise, Helfand said.

“What about the takedown though?” Kimball, a Bill Clinton appointee, asked.

This too is protected, he said, because Fratto was by himself and trying to question an uncooperative suspect.

“As a practical matter, there is no practical way to handcuff an individual without putting them on the ground,” Helfand added.

Nicholas’ attorney Anna Christiansen, of Christensen & Jensen, refuted the arguments of Fratto and the city of Clearfield, starting with their characterization of her client’s walk through a strip mall late at night as suspicious in itself. She also disagreed with the defendants’ claim that the strip mall was a location known for criminal activity.

“Years have gone by and defendants have not been able to identify what particularized crime they suspected Shawn of committing,” Christiansen said. “The lateness of the hour does not make every factor. It’s a strip mall that people frequent. I go there to get pizza all the time.”

She also disputed the defendants’ claim that the situation rapidly escalated.

“The point where Fratto decided to put Shawn in handcuffs was eight minutes after the stop,” she said. “This is not tense. This is not rapidly evolving. This is two people speaking to each other.”

After the initial contact with Nicholas, Fratto continued to follow the man through the strip mall. That’s when Nicholas says he moved more quickly to get away from Fratto. Not long after, Nicholas crossed a street without using a crosswalk, after which Fratto demanded he stop and identify himself because he had broken the law.

“You committed a crime,” Fratto told Nicholas. “I have a legal right to identify you. So — so either you’re going to give me your ID or I’m going to put you in handcuffs and then I’m going to find your identification anyway. So what is it gonna be?”

Under Utah law, no person is required to show a police officer their ID card, Christiansen said. They may be required to identify their names and their date of birth, but Fratto only asked for an ID card.

“This is an important distinction that needs to be recognized,” she said. “He can make that refusal 100 times and he is still protected under the law.”

Fratto continued to question Nicholas about where he was coming from and what he was doing out at night, at which point Nicholas says a reasonable officer would have realized he had intellectual disabilities.

When he refused to answer, Fratto grabbed one of Nicholas’ arms and performed a leg sweep, bringing him to the ground.

Christiansen cited the 10th Circuit decision in Surat v. Klamser which held two police officers violated the Fourth Amendment when they used a takedown maneuver on a nonviolent suspect. The appellate panel also found, the officers were shielded under qualified immunity, however.

“I think that is abundantly clear to put any officer on notice that minimal resistance does not justify bringing a person to the ground — certainly not using a leg sweep,” Christiansen said.

Nicholas was handcuffed for about 48 minutes before being released. He was charged with interfering with a police officer, but the charge was later dropped. He says he no longer feels safe to walk home at night.

The Clearfield Police Department later determined Fratto’s actions were justified during the incident.

Attorneys did not respond to request for comment after the hearing.