A Mesa man can take his excessive force lawsuit to trial against one of four officers involved in his brutal 2018 arrest, according to a 9th Circuit Court of Appeals ruling.
The federal appeals court issued its opinion Monday, partially overturning a lower court judge’s ruling in favor of qualified immunity for all the officers.
The panel of three judges heard oral arguments in the case in May 2023.
2018 arrest
Lawsuit plaintiff Cole Spencer had been a passenger in a car that two SWAT officers stopped for a minor traffic violation in 2018. According to the police report, Spencer was asked his name but gave a fake one. After that, Spencer was asked to step out of the car.
When one officer tried to handcuff and arrest him, Spencer admitted to attempting to get away.
Mesa SWAT Officer Aaron Pew was one of the officers who held down Spencer as they tried to arrest and handcuff him. According to the Mesa police report, Spencer displayed superhuman strength during the struggle with officers. It lasted three minutes before he was handcuffed.
Body-worn camera video, from two Maricopa County Sheriff’s deputies who arrived during the arrest, showed Spencer lying face down as Pew kneed him in the head, smashed his face repeatedly into the ground, and wrapped both hands tightly around his neck.
"This guy Pew," Spencer said in a 2020 phone call with ABC15. "He sadistically inflicted all this onto me."
However, an attorney for the City of Mesa and their officers defended the heightened use of force, calling the situation “chaotic,” “very stressful,” and a “rapidly evolving situation” during the May 2023 court hearing.
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Court decisions
In 2021, a federal district court judge found qualified immunity should apply to all the officers involved: two Mesa officers and two MCSO deputies. Qualified immunity is a legal doctrine that protects government officials, including law enforcement officers, from individual liability in a lawsuit unless the official violated a clearly established statutory or constitutional right.
Spencer appealed the decision to the 9th Circuit Court of Appeals. While the panel of judges traveled to Phoenix to hear the case in May 2023, a decision was not released until September 2024.
The appellate judges found Pew should not be entitled to qualified immunity protection, due to what happened after Spencer was handcuffed lying face down on the ground. The judges noted that Pew kneeled on Spencer’s back for three minutes, with the exception of a few seconds’ break.
According to the court’s written opinion, Spencer “complained that he could not breathe at least four separate times,“ and “Pew simultaneously had his right knee on Spencer’s head and his left knee on Spencer’s back for more than 10 seconds.”
After looking at the court rulings in a similar case, the judges concluded, "Every reasonable officer would recognize that full-body-weight compression of a then largely compliant, prone, and handcuffed individual despite his pleas for air involve[d] a degree of force that is greater than reasonable."
The judges remanded the lawsuit to the federal district court with Pew as the only defendant. Spencer can now move for a trial in the case.
Spencer told ABC15 he’s hoping that an attorney will take his case and represent him before the jury. Spencer said he’d previously been unable to hire a civil attorney to assist him and has mostly served as his own legal counsel.
Pew’s history
Since 2013, Pew has been cleared in five separate claims of excessive force including the July 2020 bean bagging of Lorenzo Jones, who had his hands up and his small children nearby. Mesa police told ABC15 Tuesday that Pew also was accused of excessive force in 2022. Internal investigators sustained that complaint and Pew was disciplined, according to a department spokesperson.
Pew is no longer on the SWAT team. He currently works in Mesa as a sergeant on the bike squad, according to an MPD spokeswoman.
Spencer faced multiple charges after his 2018 arrest. He pleaded guilty to a prior burglary and to aggravated assault for pushing one officer just prior to the beating. He is currently in an Arizona prison.
The federal case, which is a civil lawsuit, would not affect Spencer’s prison sentence.
ABC15 asked civil rights attorney Benjamin Taylor about the impact of the appeals court decision.
He said other local law enforcement agencies should consider this ruling as they train officers in arrest techniques.
“If they know that a person is handcuffed and face down, they shouldn't allow their officers to have a knee back or their neck for a long period of time when the person is no longer a threat,” Taylor said.
The Mesa Police Department declined to comment on the pending lawsuit. However, a spokesperson said MPD has updated its training since 2021 “to focus on Police Jiu Jitsu techniques” that put “weight on the hips, and away from neck and spine.”
