United States District Court, D. Arizona
ORDER
Honorable David C. Bury United States Distict Judge
On
January 8, 2019, this Court granted in part and denied in
part the Defendant's Motion for Summary Judgment and set
the excessive use of force claim against Defendant Massie for
trial. On January 18, 2019, the Defendant filed a Motion for
Reconsideration based on new legal authority, City of
Escondido, Calif. v. Emmons, 2019 WL 113027 (January 7,
2019). In Escondido, the Court framed its holding as
follows:
As we have explained many times: “Qualified immunity
attaches when an official's conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.” Kisela
v. Hughes, . . . 138 S.Ct. 1148, 1152 . . . (2018) (per
curiam) (internal quotation marks omitted); see District
of Columbia v. Wesby, . . . 138 S.Ct. 577, 593 . . .
(2018); White v. Pauly, . . . 137 S.Ct. 548, 551 . .
. (2017) (per curiam); Mullenix v. Luna, . . . 136
S.Ct. 305, 308 . . . (2015) (per curiam).
Id. at *2. This Court considered Kisela
when ruling on Defendant's summary judgment motion. Order
(Doc. 37) at 3.)
Defendant
asks this Court to reconsider its application of “cases
which are black and white, regardless of differing factual
predicates, where any force used is constitutionally
unreasonable, if there is no need for any use of
force.” Id. at 6. The Defendant argues that as
a matter of law under Escondido factual
dissimilarities mean there can be no clearly established
constitutional right, and the Court should have granted
summary judgment for Massie based on the doctrine of
qualified immunity.
This
Court found the facts as alleged by the Plaintiff reflected a
circumstance where absolutely no force was justified against
her. In other words, Defendant Massie had no reasonable basis
for grabbing Plaintiff's wrist and jerking her about,
which she alleged resulted in her hand being pinched, and no
need to push her face-first into the palm tree and handcuff
her. As noted by the Defendant, the Court sua sponte
cited several cases reflecting that the law is clearly
established: that any degree of force is constitutionally
unreasonable, if there is no need for any use of force at
all. On reconsideration, the Defendant challenges the cases
relied on by the Court because one, P.B. v. Koch, 96
F.3d 1298, 1303-04 & n. 4 (9th Cir.1996), involves the
use of force by a school principal and the other two cases,
Felix v. McCarthy, 939 F.2d 699, (9th Cir. 1991) and
Meredith v. Arizona, 523 F.2d 481, 482-84
(9th Cir.1975), involve use of force by prison
guards.
The
Court agrees that generally diversity of facts would preclude
a finding that there is clearly established law and would
warrant summary judgment under the doctrine of qualified
immunity. Specificity is especially important in the Fourth
Amendment context because it is sometimes difficult for an
officer to determine how the legal doctrine of excessive
force will apply to the factual situation the officer
confronts. Use of excessive force, especially, depends very
much on the facts of each case. And, hence police officers
are entitled to qualified immunity unless existing precedent
squarely governs the specific facts at issue in the case.
Escondido, 2019 WL 113027 * 2 (citing
Kisela, 138 S.Ct. at 1153.)
While
Escondido is not new law, it does offer a good
example of the type of analysis required to avoid the risk of
describing clearly established law “at a high level of
generality by saying only that ‘the right to be free of
excessive force' was clearly established. Id. at
*3. The Court explained that the appellate court
“should have asked whether clearly established law
prohibited the officers from stopping and taking down a man
in these circumstances, ” referring to the specific
facts of the case. Id.
In
Escondido, police had received a 911 call about a
domestic violence incident where children were present and
reportedly crying for help. When officers attempted to
conduct a welfare check, they knocked, and no one answered,
but a side window opened and officers spoke to a woman and
attempted to get her to open the door. A man inside told her
to move away from the window, and she did. A few minutes
later, a man exited the apartment. Officers told him not to
close the door, but he did and tried to brush past police.
Officer Craig stopped the man, took him quickly to the
ground, and handcuffed him. The Supreme Court found error by
the appellate court's reliance on Gavelet-Blondin v.
Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013),
a case involving the use of force by police against
individuals engaged in passive resistance.
In
Gavelet-Blondin, police arrived to conduct a welfare
check of an elderly man, Jack, suspected of being in the
process of committing suicide. It was reported that he owned
a gun and might have it with him. When officers arrived, Jack
was in his car with the exhaust hose running from the exhaust
pipe into the car window. After some hesitation, Jack
complied with directives to get out of the car but then
refused to show his hands. For officer safety reasons, police
tasered him twice before successfully restraining him. His
neighbors, the Blondins, hearing the commotion, went outside
and into Jack's back yard and saw officers holding him on
the ground. Approximately 37 feet away and separated by the
car from where police were holding Jack on the ground, Mr.
Blondin called out, “what are you doing to Jack?”
Police yelled at Mr. Blondin, “get back” and
“stop, ” both of which he did-taking about two
steps back and stopping. While screaming “get back,
” Sgt. Shelton ran towards Mr. Blondin with his taser
extended and began to warn Blondin that he would be tased if
he did not leave, but fired his taser before he finished the
warning. Sgt. Shelton tased Blondin in dart mode, knocking
him down and causing excruciating pain, paralysis, and loss
of muscle control. Mr. Blondin was disoriented and weak, and
began to hyperventilate. Sgt. Shelton asked Blondin if he
“wanted it again” and then turned to Ms. Blondin
and warned, “You're next.” Mr. Blondin was
arrested and charged with obstructing a police officer, a
charge that was ultimately dropped. Id. at 1089-90.
In
Gavelet-Blondin, the court found police had used
excessive force and turned to the question of qualified
immunity. Citing numerous cases, the court found it was
clearly established prior to 2008 that the application of
non-trivial force for engaging in mere passive resistance was
excessive. Id. at 1093 (citations omitted).
Defendant argued, however, that the law was not clearly
established until 2010 when tasers in dart mode were found to
be an intermediate level of force. The court discussed the
facts of the taser cases and found they were based on
behavior which could have been perceived as threatening or
resisting. Id. at 1094. The court evaluated the
situation with Sgt. Shelton and Blondin- who, unlike
Bryan[1], Brooks and Mattos[2] had no connection to the
underlying crime- committed no act of resistance. He took no
affirmative step to violate an officer's order (Bryan),
did not physically resist officers (Brooks), and neither made
physical contact with an officer nor tried to interfere with
efforts to arrest a suspect (Mattos). The court found that
Blondin's momentary failure to move farther than
thirty-seven feet away from officers who were arresting his
neighbor, after merely inquiring into what those officers
were doing, could hardly be considered resistance.
Id. at 1094. As such, the law was clearly
established that when there is no resistance, non-trivial
force in response to passive bystander behavior would be
unconstitutionally excessive. The court found that it was
well known in 2008, without it being clearly established in
law until 2010 that a taser in dart mode was more than
trivial force. The court concluded that Sgt. Shelton was not
entitled to qualified immunity. Id. at 1096.
Coincidentally,
Gavelet-Blondin is relevant for Mena's case. The
court in Gavelet-Blondin found that the right to be
free from non-trivial force for engaging in passive
resistance was clearly established prior to 2008. Arguably,
the facts in this case, as alleged by Mena, reflect that at
most she engaged in passive resistance by not immediately
tendering her identification and asking what she and her
boyfriend did wrong? It is equally well established that
“handcuffing substantially aggravates the
intrusiveness” of a detention. Washington v.
Lambert, 98 F.3d 1181, 1188 (9th Cir.1996); United
States v. Bautista, 684 F.2d 1266, 1289 (9th
Cir. 1982). “Circumstances which would justify a
detention will not necessarily justify a detention by
handcuffing. More is required.” Meredith v.
Erath, 342 F.3d 1057, 1062 (9th Cir. 2003).
Handcuffing is more than non-trivial force.
In
Meredith v. Erath, 342 F.3d 1057, (9th
Cir. 2003), the court considered circumstances where there
was no officer safety risk, no attempt to flee, the
investigation was into nonviolent offenses (income tax
related crimes, ) and she objected vociferously to the search
and “passively resisted.” The court concluded
that the need for force, if any, was minimal at best-and
police violated the Fourth Amendment by grabbing her by the
arms, throwing her to the ground, and twisting her arms while
handcuffing her.
To the
extent that the Court's previous analysis was deficient
under Escondido, the Court supplements it here. The
relevant facts alleged by the Plaintiff reflect circumstances
amounting to passive resistance at best and a need, if any,
for no more than minimal force. It does not matter that
Officer Massie is a police officer and the defendants in the
cases relied on by the Court in denying qualified immunity
were a principal and prison guards. Plaintiff alleges that
she and her boyfriend were fighting but both were calm and
cooperative after police arrived and began questioning them.
Both readily answered questions. She did not touch either
officer. When officer Massie asked her to produce her
identification she started to comply, then paused, and asked:
“What did we do wrong?” The relevant
circumstances as alleged by the Plaintiff are that there were
no officer safety issues, no risk of flight concerns, the
offense was minor and non-violent (disturbing the peace), and
if she resisted at all, it was passive resistance by way of
asking a question. Under these circumstances, ...