holding that police officer’s use of force was excessive when, after plaintiff refused to exit the car after being pulled over for speeding, the officer “scream[ed] and curs[ed] her, tried to jerk her door open, ... attempted to smash her driver’s side window with his nightstick, ... menaced her with his .357 Magnum handgun, [and allegedly] fired a shot at her car as she drove away,” despite the fact that her two young children were in the car with her
How later courts described this case
- holding that police officer’s use of force was excessive when, after plaintiff refused to exit the car after being pulled over for speeding, the officer “scream[ed] and curs[ed] her, tried to jerk her door open, ... attempted to smash her driver’s side window with his nightstick, ... menaced her with his .357 Magnum handgun, [and allegedly] fired a shot at her car as she drove away,” despite the fact that her two young children were in the car with her
- recognizing that validity of excessive force claim based on violation of Eighth Amendment “must be judged by reference to the specific standard which governs [Eighth Amendment] right rather than by the more general substantive due process standard”
- explaining that Graham rejected the substantive due process standard “only in cases in which the alleged excessive use of force arguably violated a specific right protected under the Bill of Rights”
- concluding that the plaintiffs had “asserted a valid claim under § 1983 for a constitutional violation for excessive force under the Fourteenth Amendment”
Written by the judges who cited it.
The opinion
DENNIS, Circuit Judge,
dissenting:
Athough I join in part III.A. of the per curiam opinion, I respectfully dissent from parts III.B. and IV of the opinion for the reasons expressed in my original dissenting opinion. Petta v. Rivera, 133 F.3d 330 , 346-58 (5th Cir.1998) (Dennis, J., dissenting).