A federal judge has refused to dismiss an excessive force claim against a Philadelphia police officer in a case stemming from an alleged altercation during a Black Friday shopping excursion at a city Walmart more than a year ago.
U.S. District Judge Legrome Davis denied on Feb. 9 a motion by city police officer Hasheem Basil to dismiss a federal complaint against him.
The complaint had been initiated by Michael P. Bannan, a Philadelphia man who sued Basil, a fellow officer and the City of Philadelphia, after Bannan allegedly suffered injuries following a shove to the ground by Basil during a Black Friday incident in late November 2010.
Bannan claimed the officers used excessive force when they attempted to remove him from a line outside a Walmart store in the early morning hours of Nov. 26, 2010.
The complaint alleged that Basil didn’t first attempt to verbally ask Bannan to step out of the line, but instead resorted to force by grabbing Bannan’s arms, and then subsequently pushing Bannan to the ground.
Bannan requested an ambulance and was taken to the hospital for treatment following the incident.
Bannan initially sued all three defendants, but the parties later stipulated to the voluntary dismissal of all counts against the city, according to Davis’ ruling.
Basil subsequently moved for partial summary judgment on the excessive force claim, arguing that “one shove is not excessive as a matter of law,” the ruling states.
Davis denied the officer’s motion.
Davis wrote that when analyzing an excessive force claim, the objective reasonableness of the conduct has to be taken into consideration, primarily by factoring in the severity of the crime, whether the suspect poses a threat to the safety of officers or others, the possibility that the suspect is armed, whether the suspect is actively resisting arrest and other factors.
“Defendant correctly points out that ‘not every push or shove … violates the Fourth Amendment,’” the ruling states. “However, not every push or shove is permissible, either.”
Davis wrote that Basil was not involved in a situation where he was forced to make a split-second decision when he was involved in attempting to remove Bannan from the line outside the store.
“Applying the excessive force factors to the matter at hand, the severity of the crime at issue (disorderly conduct, and perhaps public drunkenness) is relatively minor,” the judge wrote. “Bannan did not pose an immediate threat to the safety of anyone.”
Bannan had stated that he never attempted to resist when Basil tried to move Bannan away from the entrance to the Walmart.
Furthermore, neither officer, during their respective depositions, testified that he or she believed Bannan to be armed and/or dangerous.
“Finally, this was far from a riot situation,” Davis wrote. “At the time he shoved Bannan, Basil was dealing with Bannan alone. In sum, Bannan presented Basil with a relatively innocuous annoyance.”
The judge also shot down Basil’s qualified immunity argument.
“The right not to be pushed in the back by a police officer for no legitimate reason is clearly established, even if no precedent addresses these precise factual circumstances,” Davis wrote. “Therefore, we cannot conclude as a matter of law that Officer Basil enjoys qualified immunity in this case.”