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A panel of Atlanta’s federal appeals court has ruled that police officers did not violate the constitutional rights of a fleeing suspect who died after his hands were cuffed behind his back and tied to ankle restraints. A medical examiner in 1997 blamed a “hog tie restraint” for causing the asphyxiation death of Eric William Irby, who led police on a high-speed chase before crashing his car in Athens-Clarke County, Ga., and trying to fight arresting officers. U.S. District Judge Duross Fitzpatrick last year ruled that the county government and four officers sued by Irby’s mother should stand trial for civil rights violations because officers had “a fair and clear warning” that their treatment of Irby, specifically the use of the hog-tie restraint, was unconstitutional. But on Friday, a panel of the 11th U.S. Circuit Court of Appeals reversed Fitzpatrick’s decision. Saying they would replace the term “hogtie” with “fetter,” Chief Judge J.L. Edmondson, Judge Stanley F. Birch Jr. and 9th Circuit Senior Judge Joseph Jerome Farris concluded that the officers did not violate Irby’s Fourth Amendment right to be free of excessive force. The panel added that even if the officers had violated Irby’s rights, they would be entitled to immunity from suit because, “given the circumstances, defendants’ acts were not so far beyond the hazy border between excessive and acceptable force that every objectively reasonable officer … would have known that the acts violated the pre-existing federal law.” COURT GRAPPLING WITH IMMUNITY The decision comes as the 11th Circuit has been wrestling with how much deference the law and Constitution give law enforcement officers in their dealings with suspects and prisoners. In 2002 the U.S. Supreme Court said in Hope v. Pelzer, 536 U.S. 730, that the 11th Circuit’s approach to granting immunity was wrong because it shielded police from suit unless a case addressed the specific conduct at issue. Accordingly, the high court reversed the 11th Circuit’s immunity grant to Alabama prison guards accused of tying an inmate to a “hitching post.” In October, the full 11th Circuit will rehear a case in which a panel split 2-1 in favor of a Zebulon officer accused of strip-searching two motorists, jabbing their bare buttocks with a flashlight or baton and joking that the two would be raped in prison. Evans v. Zebulon, No. 02-16424 (11th Cir. Nov. 18, 2003). The decision in the hog-tying/fettering case does not bode well for the plaintiffs in the strip-search case, said Eric K. Krasle, who represents Irby’s mother, Pamela Garrett. TERMINOLOGY CHANGED Krasle took issue with the court’s changing terminology. He said the judges failed to distinguish between the officers’ efforts to restrain Irby and “excessive force” used on Irby after a shot of pepper spray subdued him enough for officers to place handcuffs on him. The court said Irby’s submissive reaction to the spray could have been temporary. They called it “a window of opportunity” for the officers “to restrain Irby in such a way that he could not harm another officer or himself should he decide to stop being compliant.” The court noted that Irby, who was found to have methamphetamine and amphetamine in his system, screamed that he wouldn’t be caught and at one point grabbed an officer’s flashlight and would have hit the officer had he not been stopped by other officers. “It’s almost like they are arguing he deserved it,” said Krasle. The court rejected Krasle’s arguments that there was enough evidence from a medical expert to let a jury hear the case. The expert said there was a risk of death from the use of hog-tying/fettering, but the court said that without quantifying that risk, the expert’s views were not relevant. “No competent evidence in this case supports the view that death or serious injury is a likely consequence of fettering a person as Irby was fettered,” the decision says. Garrett v. Athens-Clarke County, No. 03-11264 (11th Cir. July 30, 2004). Andrew H. Marshall of Athens’ Begnaud & Marshall, who represented the officers and the county government, did not mind the court’s terminology change. He said “hogtying” was “just a pejorative term used by critics.” However, Marshall noted that the Athens police chief had prohibited the practice before Irby’s death but that the officers had not received the message before the incident. At the trial level, Fitzpatrick had ordered the county to trial on the claim that it failed to train the officers not to use the restraint that caused Irby’s death. Now that the 11th Circuit has found Irby’s constitutional rights were not violated, Marshall said, the county cannot be found liable for causing a constitutional violation, thereby releasing it from the case. Krasle said the decision, if upheld by higher courts, puts a trial against the county into question.

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