971 F.Supp.2d 85
D.D.C.2013Background
- On Jan. 29, 2012, during the Occupy DC encampment at McPherson Square, U.S. Park Police posted no-camping notices; Ryan Lash ripped down some notices, yelled at officers, and disposed of them in a trash can.
- Officers approached Lash; video evidence shows Lash following, yelling at, and resisting officers’ attempts to restrain him; officers attempted to seize him and a struggle ensued.
- Officer Jennifer Lemke deployed a TASER once for about five seconds; Lash was then handcuffed and removed from the park.
- Lash sued Lemke and Sergeant Todd Reid under Bivens alleging (1) Fourth Amendment excessive force and failure to intervene/supervise, and (2) First Amendment retaliation (arrest and excessive force), seeking damages.
- Defendants moved to dismiss or for summary judgment; both parties submitted video and other evidence; the Court treated the motion as one for summary judgment.
- The district court considered qualified immunity and, viewing the record including video, concluded no constitutional violation occurred and granted summary judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lemke used excessive force in violation of the Fourth Amendment by tasering Lash | Lash: single taser deployment was unreasonable given the minor offense, he was unarmed, startled, and only reflexively pulled away | Defs: the scene was volatile, Lash was belligerent and actively resisting arrest, taser use was reasonable and policy-authorized | Court: No excessive force; a reasonable officer could believe taser use was lawful; summary judgment for defendants |
| Whether Sergeant Reid is liable for failure to intervene or supervise | Lash: Reid failed to prevent or stop excessive force | Defs: Reid not liable because no excessive force occurred and he supervised appropriately | Court: Reid not liable; qualified immunity applies |
| Whether arrest or force was retaliatory in violation of the First Amendment | Lash: his speech (insulting officers) was protected and force was used in retaliation | Defs: probable cause and objective facts support lawful arrest/use of force; Reichle limits retaliatory-arrest claims | Court: Retaliatory-arrest claim conceded/defeated under Reichle; retaliatory-force claim fails because no excessive force found |
| Whether defendants are entitled to qualified immunity | Lash: constitutional rights were violated so immunity should not apply | Defs: even if close, no clearly established constitutional violation; qualified immunity protects them | Court: Qualified immunity granted because no violation established; no need to address "clearly established" prong |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (recognizes damages action for certain constitutional violations by federal officers)
- Saucier v. Katz, 533 U.S. 194 (two-step qualified immunity framework: constitutional violation then clearly established law)
- Pearson v. Callahan, 555 U.S. 223 (district courts may exercise discretion in the Saucier sequence)
- Graham v. Connor, 490 U.S. 386 (objective reasonableness standard for excessive-force claims under the Fourth Amendment)
- Scott v. Harris, 550 U.S. 372 (video evidence may rebut version of events that is "blatantly contradicted by the record")
- Wardlaw v. Pickett, 1 F.3d 1297 (D.C. Cir.) (factors for assessing reasonableness of force in confrontational settings)
- Arrington v. United States, 473 F.3d 329 (D.C. Cir.) (excessive force where arrestee was disarmed and handcuffed but then beaten)
- Draper v. Reynolds, 369 F.3d 1270 (11th Cir.) (taser use reasonable against hostile, belligerent, uncooperative subject)
- Deorle v. Rutherford, 272 F.3d 1272 (9th Cir.) (warning factor considered in excessive-force analysis)
- Vathekan v. Prince George's County, 134 F.3d 173 (4th Cir.) (failure to warn and use of a police dog found unreasonable in certain settings)