January 14, 2012

Barling, Arkansas – A passenger who walked away from a traffic stop in Barling, Arkansas was tasered and beaten by local police. Though the force used was excessive, a federal judge ruled on December 27 that Derrol Dee Kirby III should only get $1 for his pain and suffering.

Prior to a 2010 US Supreme Court ruling (view case), some courts argued that passengers were not seized and that they could “walk away” from a traffic stop because they were not under arrest. In this case, Kirby was riding in a vehicle that allegedly ran a stop sign and had no license tags on November 8, 2005. Kirby’s girlfriend, Danielle Ingram, had been driving the car and was arrested because she had what appeared to be methamphetamine in her purse. Police performed field sobriety tests and a breathalyzer test on Kirby, even though he was not driving. He was found to have a blood alcohol content of 0.04 — under the legal limit. His mother was called to the scene so that she could take Kirby home.

About forty minutes had elapsed during which police agreed Kirby had been cooperative. He was not under arrest and the four officers had no reason to fear for their safety. Nonetheless, they asked Kirby to consent to a pat-down search; he declined. When Kirby’s mother arrived, he began walking to her. One officer ordered him to “comply or be tased.” Kirby kept on walking and was hit by a taser, causing him to fall face first onto the pavement. A federal judge found this excessive.

“Plaintiff by backing away or beginning to leave was not evading or resisting an arrest at that point, because there was no evidence of a crime or other basis for any arrest of plaintiff to be made,” Chief US Magistrate Judge James R. Marschewski ruled. “At most the evidence established that the severity of plaintiff’s conduct was the failure to comply with a command of an officer. While this may be a crime, defendants offered no proof of any such crime or its severity, and plaintiff was never charged with any such crime.”

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The following PDF contains the court’s decision in Kirby v. Roth PDF (US District Court, Western District Arkansas, Dec 27 2011)

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