Judge Thomas McAvoy
Parolee Bigwarfe had a daily curfew from 9 p.m. to 6 a.m., and was barred from drinking alcohol. During curfew hours, police officers observed Bigwarfe under the influence and carrying beer. A breathalyzer test showed Bigwarfe to be legally intoxicated. Deciding to charge him later, the officers told Bigwarfe and his female companions to go home. Instead, Bigwarfe barricaded himself in the women’s bathroom of a veteran’s hall. Arrested, Bigwarfe resisted efforts to remove him from the police car and bring him into the police station. Officer Whitton allegedly assaulted Bigwarfe and jumped on him. Bigwarfe was incarcerated. His guilty plea to resisting arrest satisfied charges of unlawfully dealing with a child and obstructing governmental administration. The court dismissed the bulk of Bigwarfe’s complaint, alleging false arrest and excessive force, under 42 USC §1983. The officers had probable cause to stop and arrest Bigwarfe. They observed him in direct violation of parole conditions. However, although his excessive force claim was weak and was not supported by medical records, the officer’s denial of using any force raised a genuine fact issue on the matter.
