Lash v. Lemke
971 F. Supp. 2d 85
D.D.C.2013Background
- Lash participated in Occupy DC in McPherson Square where park police posted no-camping notices.
- Lash removed notices, engaged verbally with officers, and one account has Lash using profane language toward officers.
- Officers approached Lash to arrest him; Lash allegedly resisted, pulled away, and an arrest ensued with a taser deployment.
- Video evidence from Lash and defendants depicts Lash resisting and officers restraining him; the recordings conflict on Lash’s cooperation.
- Lash filed Bivens claims alleging Fourth Amendment excessive force and First Amendment retaliation; defendants moved for dismissal or summary judgment.
- The court treated the motion as summary judgment and granted it, applying qualified immunity and finding no Fourth or First Amendment violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force in taser deployment | Lash argues taser use was excessive and unnecessary. | Lemke acted reasonably given resistance and threat in a volatile crowd. | No reasonable jury could find excessive force; Lemke entitled to qualified immunity. |
| Supervisory liability of Reid for arrest | Reid failure to supervise caused unlawful arrest. | No basis for supervisory liability given lack of constitutional violation. | Reid not liable; qualified immunity bars claims. |
| First Amendment retaliation claim (arrest/force) | Excessive force retaliatory for protected conduct. | No First Amendment violation since no underlying constitutional injury. | No First Amendment violation; qualified immunity applies. |
| Warnings prior to taser use | Lack of warnings supports excessive force. | Warning was not required in all circumstances;ifiable as practicable. | Lack of warning does not render force unreasonable; still qualified immunity. |
| Applicable standard for qualified immunity at summary judgment | Right clearly established; facts show violation. | Officer actions were reasonable; right not clearly established. | Court applied Saucier/ Pearson framework and granted summary judgment. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (objective reasonableness standard for excessive force)
- Wardlaw v. Pickett, 1 F.3d 1297 (D.C. Cir. 1993) (reasonableness in face of danger and resistance context)
- Arrington v. United States, 473 F.3d 329 (D.C. Cir. 2006) (discusses excessive force in restraint scenarios)
- Scott v. Harris, 550 U.S. 372 (2007) (summary judgment when record contradicts plaintiff's version)
- Saucier v. Katz, 533 U.S. 194 (2001) (two-step approach to qualified immunity (existing right + clearly established))
- Pearson v. Callahan, 555 U.S. 223 (2009) (modifies Saucier by allowing the order of analysis to be chosen)
- Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) (consideration of warnings in use-of-force analysis)
- Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) (taser reasonable against hostile, uncooperative suspect in some contexts)
- Reichle v. Howards, 132 S. Ct. 2088 (2012) (qualified immunity framework applied in first amendment context)
- Ashcroft v. al-Kidd, 563 U.S. 742 (2011) (broad protection of government officials in qualified immunity)