Andersen v. DelCore, et al.Andersen v. DelCore, et al.
Gordon L. Vaughan of Vaughan & DeMuro, Colorado Springs, Colorado, for Defendant-Appellant.
Reid Allison (David A. Lane with him on the brief), of Killmer, Lane & Newman, LLP Denver, Colorado, for Plaintiff-Appellee.
EBEL, Circuit Judge.
This case is a civil proceeding under
I. BACKGROUND
A. Appellate Jurisdiction
The procedural posture of this case imposes jurisdictional limits on the scope of our review. Officer DelCore appeals the district court’s denial of his motion for summary judgment based on qualified immunity. Under the collateral order doctrine,
In this posture, we “defer to the district court’s factual determinations and ask only whether those determinations would entail the violation of a clearly established right.” Id. at 1122; see also Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (“The district court’s factual findings and reasonable assumptions comprise ‘the universe of facts upon which we base our legal review of whether defendants are entitled to qualified immunity.’” (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008))).
In sum, we have jurisdiction to address Officer DelCore’s interlocutory appeal because he challenges only the district court’s legal conclusion that he used excessive force against Mr. Andersen, based upon the facts found by the district court. Cognizant of our limited jurisdiction, we turn to the district court’s factual determinations.
This appeal arises from a law enforcement investigation into injuries suffered by Mr. Andersen’s nineteen-month-old daughter. As the district court explained:
On April 17, 2019 Mr. Andersen’s pregnant fiancée, Carissa Hiteshew, was pulling her car out of the driveway. Their daughter, who was then nineteen months old, ran after her and was accidentally struck by the moving car. A medical helicopter transported their daughter to Memorial Central Hospital in Colorado Springs while Mr. Andersen and the rest of the family drove to the hospital. At Memorial Hospital their daughter was treated in the pediatric ICU for her serious injuries while members of the family waited in the hospital room and in the hallway. When forensic nurses questioned the family about the child’s injuries, the Andersen family was not forthcoming. Suspecting child abuse, the nurses called the [Colorado Springs Police Department (“CSPD”)].
CSPD officers found the family similarly uncooperative when they arrived. One family member, not plaintiff or his fiancée, eventually told Officer Eckert a vague story about the child being hit by a car in Woodland Park, an area in the [Teller County Sheriff’s Office’s (“TCSO”)] jurisdiction. The CSPD officers called the TCSO, who dispatched Detective Matarazzo. When he arrived, he too found plaintiff and Ms. Hiteshew unwilling to answer questions.
Appellant’s Appendix Vol. 2 at 296.
By the time Detective Matarazzo arrived, he had learned that Ms. Hiteshaw had been texting a friend about the child’s injuries and Detective Matarazzo asked her about those messages. She denied sending any such messages, insisting “that she had talked to nobody beyond calling out of work.” Id. at 297. Detective Matarazzo insisted on obtaining her cell phone to prevent her from deleting any text messages. Mr. Andersen, however, took the phone from Ms. Hiteshaw and refused to hand it over to the detective.
Immediately, Officer DelCore attempted to snatch the cell phone from plaintiff’s back pocket. ECF No. 68-14 (Eckert BWC) at 0:24. Plaintiff jumped back and said, “excuse me, you do not grab anything from my pockets.” Id. Officer DelCore responded with a threat: “you are going to hit the ground real hard.” Id. at 0:29. Officer Eckert intervened to suggest they discuss in the hallway. Id. at 0:32. Plaintiff refused, insisting that he would not leave his daughter’s side. Plaintiff and Officer Eckert engaged in a brief back-and-forth in which Officer Eckert asserted a right to take the cell phone pursuant to “the investigation” and plaintiff calmly but firmly disagreed. Officer DelCore, now standing off to the side, cut this exchange short when he pulled out his taser, causing plaintiff to ask, “you are going to tase me because I’m not going to give you my wife’s cell phone?” Id. at 0:48.
Officer Eckert tried again, asking plaintiff to either give him the phone “and we’re done” or go to the hallway to “talk about it.” Id. at 1:01. Plaintiff again insisted that the officers had no right to take the cell phone and informed them that his father, who was standing right next to him, was on the phone with the Teller County Sherriff to resolve the situation. Id. Everyone was silent for about thirty seconds while plaintiff’s father spoke with the Sheriff. Officer Eckert then said, “we’re just trying to keep this simple,” to which plaintiff calmly responded, “so am I, and you don’t need to take the cell phone.” Id. at 1:47. Officer DelCore then interjected with another threat: “you will be charged with obstruction.” Id. at 1:51. Plaintiff objected, saying “I’m not going to be charged with anything because you don’t have a right to take her cell phone.” Id. The officers disagreed, and plaintiff asked them to “show [him] where you have the right to take her personal property.” Id. at 2:03.
Plaintiff had remained calm yet firm throughout this conversation. He had not raised his voice or made any verbal or physical threats. Officer DelCore nonetheless decided to circle behind plaintiff, explaining that he
“[didn’t] want anyone behind [plaintiff] getting hurt.” Id. at 2:08. Plaintiff said “excuse me,” retreated half a step, and turned to talk with Officer DelCore. Id. Officer DelCore immediately grabbed plaintiff’s arm and tried to twist it behind his back, saying “I will tase you” and then ordering “get out of the room right now.” Id. at 2:15. At this point, Officer Eckert had grabbed plaintiff’s other arm and took the cell phone out of his pocket. Id. Plaintiff said, “are you serious” and then officer DelCore tased him in the back. Id. at 2:20. Plaintiff struggled as all four officers, led by Officers Eckert and DelCore, forced him to the ground where Officer DelCore then tased him again. Id. at 2:35. The officers handcuffed plaintiff and led him out of the room.
Id. at 297–98. Mr. Andersen was subsequently charged with obstruction and resisting arrest, but both charges were dropped.
C. Procedural Background
Mr. Andersen sued the three officers, Detective Matarazzo, and the municipalities of Colorado Springs and Teller County under
However, the district court drew a distinction with Officer DelCore and concluded that he used excessive force against Mr. Andersen. The court assessed the Graham factors from the moment Officer DelCore first grabbed Mr. Andersen to subdue him and seize the phone, concluding that they weighed against the officer’s initial use of force. The district court criticized Officer DelCore for his conduct before using force, noting that he “created the need to use force by escalating the interaction at every turn” by interrupting “civil conversation[s]” with threats of violence and arrest. Appellant’s Appendix Vol. 2 at 306. The court concluded that Officer DelCore “encircled plaintiff, taser drawn, in order to initiate a physical alteration,” and did so without giving Mr. Andersen any chance to comply before grabbing him. Id. at 307. The district court then concluded that Mr. Andersen’s right to be free from excessive force was clearly established “even though he has cited no identical case.” Id. Instead, the court ruled that the right was clearly established by
II. DISCUSSION
Officer DelCore argues on appeal that on this summary judgment record he did not use excessive force against Mr. Andersen and he is entitled to qualified immunity. We agree. We conclude on the record before us that Officer DelCore used reasonable force under the circumstances when he grabbed Mr. Andersen’s arm as part of the officers’ efforts to secure Ms. Hiteshaw’s cell phone. We also conclude that Officer DelCore later used reasonable force when he tased Mr. Andersen twice. Even though the officers’ initial objective had been accomplished when Officer Eckert seized the cell phone from Mr. Andersen’s back pocket moments after Officer DelCore grabbed his arm, Mr. Andersen strenuously resisted arrest and posed a threat to officer safety, as found by the district court. Under these circumstances, Officer DelCore reasonably thereafter used his taser to subdue Mr. Andersen and to obtain peace and control over the situation. Therefore, Officer DelCore did not violate Mr. Andersen’s Fourth Amendment right to be free from excessive force when he arrested Mr. Andersen.4
We review de novo the district court’s denial of summary judgment to Officer DelCore on qualified immunity grounds. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Where, as here, “a
arrest, arguing that the officers lacked a basis to arrest or seize him for obstructing a police officer. But the district court granted summary judgment for the officers on this claim, concluding that any Fourth Amendment violation was not clearly established. Excessive force claims are distinct from false arrest claims. See Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (en banc). Unlike false arrest claims, which require proof that the officers lacked probable cause to arrest the plaintiff, an excessive force claim requires the plaintiff to “prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest.” Id. Thus, on the issue before us, we proceed under the assumption that Officer DelCore’s arrest of Mr. Andersen was lawful and ask only whether he used excessive force in conducting the arrest.
We have discretion “‘to decide the order in which to engage the[] two prongs’ of the qualified immunity standard.” Est. of Taylor v. Salt Lake City, 16 F.4th 744, 758 (10th Cir. 2021) (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)), cert. denied, 143 S. Ct. 83 (2022). If we conclude that the plaintiff has not met his burden as to either part of the two-prong inquiry, we must grant qualified immunity to the defendant. Medina, 252 F.3d at 1128.
B. The Graham factors support Officer DelCore’s use of force.
Excessive force claims arising out of a law enforcement investigation implicate the Fourth Amendment and its protections against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989). As with all seizures, “[t]o establish a constitutional violation, the plaintiff must demonstrate the force used was objectively unreasonable.” Est. of Taylor, 16 F.4th at 759 (quoting Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008)). Under this standard, we “carefully balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th Cir. 2010) (quoting Graham, 490 U.S. at 396) (cleaned up).
We assess the reasonableness of an officer’s use of force by applying the three nonexclusive factors first set forth by the Supreme Court in Graham v. Connor: “[1]
In applying the Graham factors, we must be conscious that in an evolving situation, different degrees of force may be appropriate at different points during an encounter between an officer and an individual. Here, we divide the encounter between Officer DelCore and Mr. Andersen into two phases: (1) Officer DelCore’s initial attempt to arrest Mr. Andersen, which was not immediately successful, and (2) Officer DelCore’s subsequent use of his taser to subdue Mr. Andersen once he began resisting arrest. We therefore apply the Graham factors twice—first to determine
1. The initial attempt to arrest Mr. Andersen
Applying the Graham factors to Officer DelCore’s initial attempt to arrest Mr. Andersen, we conclude that he used reasonable force under the circumstances.
a. Severity of the crime
The first Graham factor—the severity of the crime at issue—weighs in Officer DelCore’s favor. In their briefs, both parties contend that the misdemeanor crime of obstructing a peace officer is the relevant crime for this prong of the analysis, see
However, even if we assume for the sake of argument that the officers suspected Mr. Andersen of only misdemeanor crimes, the first Graham factor nevertheless supports Officer DelCore’s use of force. It is true that misdemeanor crimes ordinarily “weigh against the use of significant force.” Wilkins v. City of Tulsa, 33 F.4th 1265, 1274 (10th Cir. 2022) (quoting Lee v. Tucker, 904 F.3d 1145,
Here, exigent circumstances existed because Mr. Andersen refused to hand over a cell phone that Detective Matarazzo had reason to believe contained probative evidence relating to an ongoing investigation into child abuse. And based on Mr. Andersen and Ms. Hiteshaw’s uncooperative behavior in the hospital room, Detective Matarazzo reasonably could have believed that Mr. Andersen would delete any relevant evidence of child abuse from the phone if the officers allowed him to keep it.
b. Threat to the officers or others
The second Graham factor applied to Officer DelCore’s initial attempt to arrest Mr. Anderson—“whether the suspect pose[d] an immediate threat to the safety of the officers or others”—is neutral. Graham, 490 U.S. at 396. This factor requires us to “look at ‘whether the officers [or others] were in danger at the precise moment that they used force.”6 Emmett, 973 F.3d at 1136 (quoting Pauly, 874 F.3d at 1219)
When Officer DelCore first grabbed Mr. Andersen’s wrist, he was unarmed, outnumbered by the officers in the hospital suite, and had only verbally objected to the officers’ request that he surrender the cell phone. At that moment, a reasonable officer would have had no reason to believe that Mr. Andersen posed a threat. Even so, at that moment, the amount of force that Officer DelCore employed against Mr. Andersen was relatively small and consistent with his right to take reasonable measures to effect an arrest. See Cortez v. McCauley, 478 F.3d 1108, 1131 (10th Cir. 2007) (en banc) (“We have little difficulty concluding that a small amount of force, like grabbing [the plaintiff] and placing him in the patrol car, is permissible in effecting an arrest under the Fourth Amendment.”). Thus, this factor appears to be neutral.
c. Active resistance or evasion of threat
We turn next to the third Graham factor, where we evaluate whether the suspect attempted to flee or actively resisted arrest. Graham, 490 U.S. at 396. “Like the second factor, when evaluating the third factor we consider whether the plaintiff was fleeing or actively resisting at the ‘precise moment’ the officer employed the
over his fiancée’s cell phone was a reasonable effort to persuade Mr. Anderson to comply with the officer’s request.
When Officer DelCore first grabbed Mr. Andersen’s arm, he was not physically resisting or fleeing. But resistance need not be physical. We have found this third factor to weigh in favor of “some degree of physical coercion or threat,” Graham, 490 U.S. at 396, when an individual refuses to obey an officer’s lawful orders, see Mecham v. Frazier, 500 F.3d 1200, 1204–05 (10th Cir. 2007) (officers’ use of pepper spray was not unreasonable when plaintiff refused to obey repeated officer instructions to exit her car during a fifty-minute standoff). Officers must be able to employ force to enforce their lawful orders. Otherwise, an officer’s power to give lawful orders “would be hollow.” Helvie v. Jenkins, 66 F.4th 1227, 1238 (10th Cir. 2023).
Officer DelCore had a lawful basis to request that Mr. Andersen hand over the cell phone. When officers “have probable cause to believe that a container holds . . . evidence of a crime,” they may seize it without a warrant if exigent circumstances exist.7 United States v. Place, 462 U.S. 696, 701 (1983). Those exigent circumstances include the need to preserve the evidence of a crime. Roaden v. Kentucky, 413 U.S. 496, 505 (1973) (“Where there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without[t] prior judicial evaluation.”). For the
We believe that the rule from Place allows the warrantless seizure of a cell phone to prevent the deletion of incriminating evidence that the officer had probable cause to believe existed on the cell phone. That is consistent with the Supreme Court’s decision in Riley v. California, 573 U.S. 373 (2014). In Riley, the Court required officers to obtain a warrant before searching a cell phone seized incident to arrest. Rejecting the argument that warrantless cell-phone searches were sometimes necessary to review evidence that might be deleted, the Court noted that seizing and immobilizing a cell phone would just as effectively prevent suspects from deleting any “incriminating data.” Id. at 388 (“[O]nce law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.”). Consistent with Riley, we believe that a warrantless seizure is permitted under Place when there is probable cause that the phone contains incriminating information and exigent circumstances exist.8 Id. at
That is what the officers sought to do here. They had probable cause to believe Ms. Hiteshaw’s cell phone contained evidence relevant to their investigation into child abuse, based on the following facts:
- Mr. Andersen and Ms. Hiteshaw’s daughter had suffered severe injuries,
- The family was not forthcoming about the circumstances of the accident,
- The forensic nurses at the NICU suspected that child abuse was at play,
- Detective Matarazzo had learned that Ms. Hiteshaw had sent text messages about the accident but she denied sending any messages, and
- Mr. Andersen took the phone when Detective Matarazzo asked for it and Mr. Andersen refused to turn it over.
Taken together, these facts would have given a reasonable officer probable cause to believe that the cell phone contained relevant evidence of child abuse that Mr. Andersen and Ms. Hiteshaw were eager to keep from the officers. Therefore, a reasonable officer could also have believed that they would have deleted that evidence from the cell phone if given the chance.
The officers consequently had a lawful basis to order Mr. Andersen to turn over the cell phone so they could secure it pending a search warrant. When Mr. Andersen refused to surrender custody of the cell phone, Officer DelCore was entitled to use an appropriately tailored amount of force to enforce compliance with the officers’ lawful order. Under these circumstances, we conclude that this factor
reasonable. See Riley, 573 U.S. at 401–02 (suggesting that a warrantless search of a cell phone may be permissible in certain, extreme, situations).
* * *
In sum, we conclude that Officer DelCore used objectively reasonable force when he initiated arrest procedures by grabbing Mr. Anderson’s wrist and twisting his arm behind his back. Considering the totality of the circumstances, Officer DelCore used a minor degree of force that was appropriately tailored to the circumstances. Even though Mr. Andersen did not pose a threat to the officers, he was suspected of a serious crime. And most importantly, Officer DelCore had a lawful basis to demand that Mr. Andersen turn over the cell phone to prevent the destruction of evidence and was entitled to use some force when he refused to comply. Therefore, no constitutional violation occurred at that point of the arrest.
2. The subsequent use of the taser to effectuate the attempted arrest
We now turn to Officer DelCore’s decision to tase Mr. Andersen twice. We conclude that this use of force was also reasonable, but for somewhat different reasons. As before, we apply the Graham factors to the “facts and circumstances as they existed at the moment the force was used”; here, the two uses of the taser. Emmett, 973 F.3d at 1135. A new Graham analysis is appropriate because the facts and circumstances had changed in two key respects. First, Mr. Andersen no longer had control over Ms. Hiteshaw’s cell phone. The district court found that moments after Officer DelCore grabbed Mr. Andersen’s arm, Officer Eckert took the phone
Second, as the district court found when assessing the conduct of the other officers, Mr. Andersen began strenuously resisting arrest in the moments after Officer DelCore grabbed him and Officer Eckert took the phone:
Plaintiff was physically struggling against Officer DelCore and appeared to be overpowering the officer. Even though plaintiff had not committed anything more than a misdemeanor, he potentially posed a threat to officer safety and was actively resisting Officer DelCore’s attempts to control him.
Appellant’s Appendix Vol. 2 at 305. It was at this moment that Officer DelCore first tased Mr. Andersen. Even though the electric shock brought Mr. Andersen to his knees, the district court concluded that he continued to struggle in the moments before Officer DelCore fired his taser for the second time. After the second use of the taser, the officers were able to handcuff Mr. Andersen and led him from the room.
We begin again with the first Graham factor—the severity of the crime. As before, this factor weighs in Officer DelCore’s favor. Not only was Mr. Andersen
The second Graham factor—whether Mr. Andersen posed an immediate threat to the officer or others—now weighs decisively in Officer DelCore’s favor. As the district court found, Mr. Andersen appeared to be overpowering Officer DelCore and therefore posed a threat to Officer DelCore and his colleagues. Under these circumstances, the second Graham factor supports Officer DelCore’s decision to use his taser to subdue Mr. Andersen. See Coronado v. Olsen, No. 20-4118, 2022 WL 152124, at *4 (10th Cir. Jan. 18, 2022) (unpublished) (finding second Graham factor weighed in favor of officers’ use of a taser when suspect posed an immediate threat);10 Meyers v. Baltimore Cnty., 713 F.3d 723, 733 (4th Cir. 2013) (same).
Finally, the third Graham factor—whether Mr. Andersen was resisting arrest—strongly supports officer DelCore’s decision to fire his taser twice. Encounters between law enforcement and civilians can be “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397. When an officer lawfully uses force but an individual resists that initial use of force, we think it obvious that the officer may use a greater degree of force than would have initially been appropriate to subdue the individual, obtain peace, and ensure that the officers had control over the situation.
It therefore follows that Officer DelCore was entitled to respond to Mr. Andersen’s forceful resistance with reasonable measures to subdue him and reassert control over the situation, even though Officer Eckert already had possession of the cell phone. Consider the alternative. Had Officer DelCore released Mr. Andersen as soon as Officer Eckert had secured the phone, the officers would have been trapped in a small hospital room with a visibly upset and powerful Mr. Andersen. We need not ponder this hypothetical situation long to realize the risks the officers could have faced: The body-worn camera footage in the record reflects that as soon as Officer Eckert took the phone, Mr. Andersen tried to lunge at him, screaming “Give me the cell phone.” Sandoval BWC at 2:15; Eckert BWC at 2:16. Had Officer DelCore and his colleagues released him at that moment, we think it clear that Officer Eckert would have faced a certain and immediate threat from Mr. Andersen as he tried to recover the cell phone. Therefore, the need to subdue Mr. Andersen and reassert control over the situation tilts the third Graham factor strongly in favor of Officer
III. CONCLUSION
We conclude that Officer DelCore did not violate Mr. Andersen’s Fourth Amendment right to be free from excessive force at any point in the encounter. Because no constitutional violation occurred, we need not reach the second prong of the qualified immunity inquiry. Officer DelCore is entitled to qualified immunity. We REVERSE the district court’s order denying summary judgment and REMAND with instructions for the district court to enter judgment in favor of Officer DelCore.