Ryan Lash v. Jennifer Lemke
786 F.3d 1
D.C. Cir.2015Background
- In Jan. 2012 at the Occupy D.C. encampment in McPherson Square, U.S. Park Police officers posted anti-camping notices; a crowd protested and filmed the encounter.
- Ryan Lash confronted officers, tore down notices, shouted profanities, and then attempted to walk away through tents while officers followed.
- Officer Reed seized Lash from behind; Lash pulled his arms away twice and continued to struggle while two officers held his arms.
- Officer Lemke then fired her Taser once into Lash’s lower back; Lash fell, was handcuffed, transported, and charged with disorderly conduct.
- Lash sued Lemke and Sgt. Reid under Bivens alleging (1) Fourth Amendment excessive force and (2) First Amendment retaliatory use of force; district court granted summary judgment for defendants on qualified immunity grounds.
- The D.C. Circuit affirmed, holding officers entitled to qualified immunity on the Fourth Amendment claim because no clearly established right barred a single Taser application against an actively resisting arrestee, and rejecting Lash’s First Amendment claim for failure to meaningfully argue it on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the single Taser use violated the Fourth Amendment | Lash: discharge was excessive force and unlawful | Officers: Taser discharge was reasonable to subdue active resistance; qualified immunity applies | Qualified immunity: no clearly established law prohibited a single Taser on an actively resisting suspect |
| Whether Lash was actively resisting at time of Taser | Lash: affidavit denies resisting; factual dispute precludes summary judgment | Officers: video unambiguously shows Lash pulling away twice and struggling | Court: video defeats Lash’s account; no genuine dispute—he was actively resisting |
| Whether prior caselaw clearly established constitutional violation | Lash: relies on cases like Mattos and argues force was excessive | Officers: caselaw from multiple circuits shows single Taser on active resister not clearly unlawful | Held: no clearly established right; consensus among circuits favored immunity; Mattos not controlling or dispositive |
| First Amendment retaliatory-force claim | Lash: force was retaliatory because it followed his protest of officers | Officers: Lash did not meaningfully brief retaliatory-motive on appeal | Held: claim forfeited/affirmed against Lash for failure to meaningfully argue presence of retaliatory animus on appeal |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognizing a damages remedy against federal officers for constitutional violations)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity protects officials unless law was clearly established)
- Saucier v. Katz, 533 U.S. 194 (2001) (two-step qualified immunity framework; context-specific inquiry)
- Pearson v. Callahan, 555 U.S. 223 (2009) (courts may decide either prong of qualified immunity first)
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence can negate a nonmovant’s factual claim at summary judgment)
- Mattos v. Agarano, 661 F.3d 433 (9th Cir.) (en banc) (Taser uses can violate rights in limited factual contexts, but did not clearly establish law here)
- Draper v. Reynolds, 369 F.3d 1270 (11th Cir.) (single Taser application held constitutionally reasonable in the face of belligerent, noncompliant behavior)
- Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir.) (no clearly established right to be free from Taser use when actively resisting)
- Aldaba v. Pickens, 777 F.3d 1148 (10th Cir.) (where subject actively resists, courts often find no constitutional violation or no clearly established right)
- Bame v. Dillard, 637 F.3d 380 (D.C. Cir.) (defining when circuit consensus can create clearly established law)