Brаndon M. COOK, Plaintiff-Appellee, v. Joe PETERS, Jr., in his official and individual capacities, Defendant-Appellant, and Stanley Glanz, in his official capacity as Sheriff of Tulsa County; Tulsa Promenade LLC, a foreign limited liability company; Glimicher Realty Trust, a foreign real estate trust, Defendants.
No. 14-5052
United States Court of Appeals, Tenth Circuit
March 13, 2015
663
III
The judgment of the district court is reversed and its dismissal is vacated. This case is remanded to the district court with instructions to remand to the state court for lack of federal subject-matter jurisdiction. Mr. Haik‘s motion to certify questions of state law to the Utah Supreme Court is denied.
Scott B. Wood, Esq., Wood, Puhl & Wood, P.L.L.C., Tulsa, OK, for Defendant-Appellant.
Robert P. Coffey, Jr., Coffey, Gudgel & McDaniel, Tulsa, OK, for Defendants.
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT *
ROBERT E. BACHARACH, Circuit Judge.
Brandon Cook, a teenager, was at a Tulsa shopping mall when he was told to leave. Before leaving, he cursed at a deputy sheriff working as a security guard (Joe Peters). Mr. Peters reacted by arresting Mr. Cook. When Mr. Peters tried to restrain Mr. Cook, the two hit the ground. Mr. Cook blamed Mr. Peters, suing him for excessivе force under
Mr. Peters moved for summary judgment based in part on qualified immunity. In addressing the summary judgment motion, the district court concluded that a reasonable fact-finder could infer five facts:
- Mr. Peters was 11 inches taller and 200 pounds heavier than Mr. Cook.
- Mr. Peters carried out the arrest thrоugh a “forceful takedown” of Mr. Cook.
- Mr. Cook resisted arrest by pulling away from Mr. Peters.
- At the time of the takedown, Mr. Cook posed little immediate threat to anyone.
Mr. Cook‘s crime (misdemeanor breach of the peace by use of profane language) was relatively minor.
Appellant‘s App., vol. II, at 483-84.
Based on the potential to infer thеse five facts, the district court denied Mr. Peters’ motion for summary judgment, concluding in part that a genuine issue of material fact existed on the defense of qualified immunity. Mr. Peters appeals this part of the ruling, and we affirm.
I. Jurisdiction
Mr. Cook challenges our jurisdiction. Though we have jurisdiction, it is limited.
Ordinarily, аppellate jurisdiction is limited to final orders. See
But, our review is limited: We must “take, as given, the facts that the district court assumed when it denied summary judgment.” Johnson v. Jones, 515 U.S. 304, 319 (1995). We ask only “whether the set of facts identifiеd by the district court is sufficient to establish a violation of a clearly established constitutional right.” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir. 2002)).2
II. Standard of Review
To answer this question, we engage in de novo review, considering the evidence in the light most favorable to Mr. Cook. See Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014), cert. denied, --- U.S. ---, 135 S.Ct. 975 (2015).
III. Qualified Immunity
To overcome qualified immunity, Mr. Cook had to show that
- the use of force violated a constitutional right and
- the right was clearly established at the time of the violation.
Morris v. Noe, 672 F.3d at 1191. Mr. Cook has satisfied his burden for purposes of summary judgment: He created a genuine issue of material fact on the first element; and under the district court‘s assumed facts, a reasonable officer would have known that Mr. Peters’ conduct violated Mr. Cook‘s clearly established cоnstitutional right.
A. The First Element: The Violation of a Constitutional Right
A law enforcement officer can violate the Fourth Amendment by using excessive force to carry out an arrest. Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1248 (10th Cir. 2013). When an arrestee alleges excessive force, the court applies the objective reasonableness test announced in Graham v. Connor, 490 U.S. 386 (1989).
- the severity of the crime at issue,
- the immediate threat that the suspect posed to officers and others, and
- any active resistance or attempt to flee by the suspect.
As noted above, we must consider these factors based on the findings inferred by the district court. These findings involved the forceful takedown
- of a teenager who was 11 inches shorter and 200 pounds lighter than the guard
- without any significant immediate threat
- to effect an arrest fоr a relatively minor crime, misdemeanor breach of the peace by use of profanity.3
Considering the severity of the crime, the threat, and the resistance, a fact-finder could reasonably conclude that the force was excessive. See Morris v. Noe, 672 F.3d 1185, 1195-96 (10th Cir. 2012).
In Morris v. Noe, we affirmed the dеnial of summary judgment under analogous circumstances. Id. In Morris, a domestic altercation led to an arrest, which resulted in a
Mr. Peters argues that Morris is inapplicable because there the arrestee was not trying to flee, struggle with the officers, or resist arrest. We disagree.
In Morris, we concluded that the arrestee had posed little threat to the officers. Id. In drawing this conclusion, we acknowledged that the arrestee might have presented some threat because he was a big man and asked a potentially confrontational question. Id. But, we discounted the threat because the arrestee had been unarmed and had not overtly threatened anyone. Id.
In the present case, the district court concluded that the evidence would permit a reasonable finding that Mr. Cook “posed little immediate threat to the safety of officers or others.” Appellant‘s App., vol. 2, at 483. The supporting evidence was even more compelling than it had been in Morris. Unlike the arrestee in Morris, Mr. Cook was not a big man; he was a 95-pound teenager, roughly 200 pounds and
Mr. Peters insists that Mr. Cook posed a threat because he was reaching into his pocket and could have had a gun. But, the district court concluded that the fact-finder could reasonably determine that before the takedown, Mr. Cook had already discarded the object in his pocket (a cellphone) so that it was out of his reach. Id. The district court‘s assessment of the evidence is binding on our interlocutory review. See p. 665, above.
Morris cannot be distinguished based on the threat of this 95-pound teenager who uttered a curse word as he was moving away from a 295-pound security guard. As in Morris, a genuine issue of material fact existed on the first element of qualified immunity.
B. The Second Element: A Clearly Established Cоnstitutional Right
The same is true of the second element: the existence of a clearly established right.
The right was clearly established if it would have been clear to a reasonable officer that the takedown was unlawful under the circumstances. Courtney v. Oklahoma ex rel. Dep‘t of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). Under the facts inferred by the district court, the forceful takedown would have violated a clearly established constitutional right.
For claims involving excessive force, we follow “a sliding scale: ‘The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is rеquired from prior case law to clearly establish the violation.’ ” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)). When the officer‘s conduct is clearly unconstitutional based on application of the Graham factors alone, the right is considered “clearly established.” Id. at 1197-98; Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Based on the Graham factors alone, a reasonable officer in Mr. Peters’ position would have known that a forceful takedown would constitute excessive force.
The district court concluded that a reasonable fact-finder could have inferred that
- Mr. Peters had acted intentionally when he forcefully took down Mr. Cook,
- Mr. Cook‘s crime had been minor and nonviolent,
- Mr. Cook had posed little threat to anyone, and
- Mr. Petеrs had been 200 pounds heavier and 11 inches taller than Mr. Cook.
Mr. Cook‘s right to be free from a forceful takedown under these circumstances was clearly established under Graham.
Mr. Peters advances two arguments to support his theory that Mr. Cook‘s right was not clearly established:
- Mr. Cook has not presented cases with facts sufficiently similar to show that Mr. Peters was on notice that his conduct would be unlawful.
- Existing cases indicated that Mr. Peters had acted reasonably.
We reject both arguments.
First, case law with similar facts is not always required in excessive force cases. Rather, a plaintiff can establish that his right was clearly established if application of the Graham factors alone would put a reasonable officer on notice that his actions were unconstitutional. Morris v. Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012); Casey v. City of Fed. Heights, 509
We addressed comparable circumstances in Morris v. Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012). As discussed above, that case involved a
[The officer] had reason to believe [the arrestee] was, at most, a misdemeanant. But [the arrestee] posed no threat to [the officer] or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, [the arrestee‘s] right to be free from a forceful takedown was clearly established under Graham.
Under Morris, we must treat Mr. Cook‘s constitutional right as clearly established. The district court in Morris and in our case described the force in the same way, as a “forceful takedown.” See pp. 664, 666, above. In our case, the district court added that at the time of the takedown, the guard was much bigger than Mr. Cook, that Mr. Cook posed little danger, and thаt Mr. Cook was backing away from the guard. See p. 664, above. Based on these facts, which we must take as true, any reasonable officer would have known that he or she could not arrest Mr. Cook by a forceful takedown. Thus, the district court correctly regarded the constitutional right as clearly established.
Second, Mr. Peters points to cases that held an officer had acted reasonably or had not violated clearly established rights. But, these cases involved arrestees who were intoxicated or physically threatening. E.g., Rojas v. Anderson, 727 F.3d 1000, 1002-1006 (10th Cir. 2013) (rejecting a сlaim of excessive force when an officer restrained an adult, intoxicated arrestee who had become physically violent); Becker v. Bateman, 709 F.3d 1019, 1021-24 (10th Cir. 2013) (rejecting a claim of excessive force when an officer believed the plaintiff was intoxicated and resisting arrest); Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (holding that an officer acted reasonably in applying a take-down maneuver to an adult, intoxicated arrestee who had taken an aggressive physical stance); Hinton v. City of Elwood, 997 F.2d 774, 777-81 (10th Cir. 1993) (holding that it was reasonable for an officer to force an adult to the ground and use a stun gun after he had shoved police and resisted by biting and kicking). Unlike the circumstances in those cases, the altercation here involved a sober minor, outweighed by 200 pounds, who posed little threat to the safety of the officer or bystanders. None of the cited cases involve these kinds of fаcts.4
IV. Conclusion
Based on the district court‘s assessment оf the facts, Mr. Peters was not entitled to summary judgment on the ground of qualified immunity. As a result, we affirm.