A Look at the Legal Action Michael Bennett Could Take Against Las Vegas Police

3:07 | NFL
Roger Goodell Voices Support for Michael Bennett, but Was Statement Strong Enough?
Friday September 8th, 2017

Fallout from Seattle Seahawks defensive end Michael Bennett’s encounter with the Las Vegas Metropolitan Police Department (LVMPD) continues to grow.

On Thursday, the union for the Las Vegas Metropolitan Police Department mailed a letter and accompanying demand to NFL commissioner Roger Goodell. In the letter, the union urged Goodell to launch an investigation into what the union describes as “Bennett’s obvious false accusations against our officers.”

The incident

Bennett and the LVMPD offer largely differing accounts as to what took place shortly after Bennett attended the Saturday, Aug. 26 fight between Floyd Mayweather and Connor McGregor at the T-Mobile Arena. There appears to be consensus, however, that as Bennett walked towards his nearby hotel, he and other persons near him heard gunshots. They then ran away from where the sound emanated. Within minutes, police officers arrived at their location to investigate a possible active shooter situation.

At that point in the narrative, there is significant disagreement about what occurred next. The 31-year-old Bennett, who is 6' 4" and 274 pounds, contends that the officers quickly fixed their attention on him. They then drew guns and pointed them at him, Bennett says, for “nothing more” than Bennett “being a black man in the wrong place at the wrong time.”

Bennett says he complied with an officer’s request that he immediately get on the ground and not move. An officer, Bennett recalls, approached him and told him that Bennett would have his head “blown off” if he tried to move. A second officer then “forcefully jammed his knee” into Bennett’s back, which allegedly impaired Bennett’s breathing. Bennett describes feeling “terrified and confused”—feelings only exacerbated when officers handcuffed him and directed him to the back of a police car. Bennett says he was detained until officers realized he wasn’t a “thug” but was in fact a famous NFL player.

Kevin McMahill, the Undersheriff of the LVMPD, offers a very different account of the incident. McMahill insists that there is “no evidence that race played any role” in the officers’ interaction with Bennett.

McMahill’s description of Bennett is that of person who chose to attract suspicion. McMahill says officers first noticed Bennett while he was “crouched down behind a gaming machine” at the Crowmell Hotel and Casino. As they approached him, they saw Bennett “quickly” run away from the machine and out of the building’s doors. Bennett then “jumped” over a four-foot wall onto an adjacent road. From there he moved into traffic and “hid” from officers by crouching next to a wall on a sidewalk. Bennett would then be detained, McMahill claims, for only about 10 minutes. Bennett’s behavior led the officers to view him as possibly involved in the shooting. McMahill stresses Bennett’s race was irrelevant.

To downplay the alleged role of race in Bennett’s detainment, McMahill highlights that the officers who detained Bennett were Hispanic. The officers’ race, however, does not seem relevant in evaluating whether race played a meaningful role in Bennett’s detention. It goes without saying, but a person of any race can act in ways that raise questions about whether they are influenced by the race of another person.

TMZ has obtained a video of Bennett on the ground being handcuffed. During the video Bennett repeatedly says “I wasn’t doing nothing.” He also explains that while he was with friends, he was told to “get out” and then “everybody ran.” The detaining officer did not respond to Bennett’s pleas, instead handcuffing Bennett and yelling at him “put your palms together!” There is no body cam video from the officer as the LVMPD claims it was turned off.

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Bennett could sue the LVMPD

Bennett has retained civil rights attorney John Burris to explore the possibility of suing the LVMPD, which has opened an internal investigation into Bennett’s detainment. In his tweeted message, Bennett noticeably uses the phrase “excessive force” when describing the officers’ conduct. Lawsuits concerning excessive force and pre-conviction punishment typically involve claims under Section 1983 of the Civil Rights Act of 1871. The Civil Rights Act instructs that police officers and other persons acting under the authority of law cannot violate a citizen’s Constitutionally protected civil rights.

In a so-called “Section 1983” lawsuit, Bennett would contend that the officers detained him without justifiable cause and used more force was reasonably necessary to take him into custody. Bennett would insist that he was deprived of liberty without due process of law. Such due process is guaranteed under the Fifth and 14th Amendments to the U.S. Constitution. Further, Bennett would claim that the officers violated his Fourth Amendment protection from unreasonable searches and seizures. Bennett would describe the officers as motivated by race and acting willfully and with wanton disregard to his constitutional rights.

Bennett would strengthen his possible lawsuit if he could show that (1) the LVMPD has adopted customs or practices that lead to black men being treated worse by LVMPD officers and (2) LVMPD superiors knowingly decline to correct such mistreatment. Along those lines, Bennett would seek to prove that the constitutional rights of black men are frequently neglected or downplayed by LVMPD officers. To that end, Bennett would portray his encounter with the LVMPD as a high-profile illustration of a more common problem experienced by black men while interacting with LVMPD officers. Whether evidence of large-scale police misconduct exists is a different story—and Bennett would need it before asserting such damning claims.

In addition to a Section 1983 claim, Bennett would likely include claims for negligence, intentional infliction of emotional distress and battery. A negligence claim would contend that the officers violated a duty to avoid causing unjustified distress. The claim would also assert that the officers’ supervisors unreasonably failed to adequately train and supervise these officers. An intentional infliction of emotional distress claim would portray the officers’ behavior as outrageous and intended to cause Bennett distress. For its part, a battery claim would cover unlawful physical contact between Bennett and the officer, including when one officer allegedly used his knee to interfere with Bennett’s breathing.

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Legal defenses for the LVMPD and role of “reasonable suspicion”

If Bennett sues, the LVMPD would deny his core allegation that the officers acted in a way that violated the law and that deprived Bennett of his constitutional protections. The LVMPD would stress that the officers were focused on identifying and detaining a possible live shooter, who posed a threat to public safety. The officers would also highlight that the scene was chaotic and that Bennett, by running away from the officers and allegedly “hiding,” cast himself in a suspicious light.

Importantly, if the officers possessed “reasonable suspicion” to suspect that Bennett was involved in the shooting, they obtained the legal right to detain him. Indeed, the officers could lawfully detain Bennett for a short while until they could assess whether he was, in fact, involved in the shooting.

The reasonable suspicion standard is applied when the police detain a person. “Detain” should not be confused with “arrest,” which requires the higher “probable cause” standard. Bennett was detained, not arrested. While the Fourth Amendment prohibits unreasonable searches and seizures, it has been interpreted by the U.S. Supreme Court to permit detainment upon the presence of reasonable suspicion.

To insist that they had reasonable suspicion, the officers would highlight Bennett’s behavior, which they would portray as strange and suspicious. In terms of the length of Bennett’s detainment, courts have found that detainments as long as 20 minutes can be deemed permissible. McMahill says Bennett was detained for about 10 minutes; Bennett doesn’t indicate how long he was detained but says it “felt like an eternity.”

In addition, the LVMPD would likely invoke “sovereign immunity,” a legal principle which dictates that citizens cannot sue the government and its many “arms”—including the police—without the government’s consent. There are various exceptions and qualifications to sovereign immunity, but at times law enforcement has used it effectively when sued over police behavior.

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Expect the NFL to take a slow and deliberate approach the controversy

The legal controversy involving Bennett’s detainment has now become an NFL controversy. As mentioned above, the officers’ union—the Las Vegas Police Protective Association Metro, Inc.—formally requested that the NFL investigate Bennett. The union says Goodell should review Bennett’s so-called “false accusations” against officers who responded to a dangerous call to investigate “an active shooter firing rounds in a crowded casino.”

The officers’ union is no doubt aware of Article 46 of the NFL’s collective bargaining agreement. It is perhaps the most widely discussed term of any pro league collective bargaining agreement. Under Article 46, Goodell has the authority to fine or suspend players “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” As we know from extensive media coverage of Ezekiel Elliott’s recent six-game suspension for alleged domestic violence, Article 46 has empowered Goodell to sanction players for off-field conduct. Even though such conduct is unrelated to football, it nonetheless generates negative publicity for the league. The league thus seeks to deter such conduct.

The NFL will likely monitor developments in the Bennett matter, but the league on Friday announced there is no violation of Article 46 and there will be no investigation. The league’s decision is sensible given that he was an innocent man detained by the police. Even if the officers are shown to have lawfully detained Bennett, the experience was no doubt frightening for Bennett. It was likely degrading, too. Bennett was forced to the pavement and then handcuffed while other people watched. Any innocent person in such a position would probably feel outraged and humiliated. That doesn’t mean the officers acted unlawfully or wrongly, but it does suggest that Bennett’s reaction was understandable and not deserving of league punishment.

The MMQB will monitor the Bennett matter closely.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.

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