LaTonya Denise DAVIS v. Todd CLIFFORD, Lakewood Police Officer; Todd Fahlsing, Lakewood Police Sergeant; Michele Wagner, Lakewood Police Sergeant; Michelle Current, Lakewood Police Sergeant; City of Lakewood, jointly and severally
No. 15-1329
United States Court of Appeals, Tenth Circuit
June 13, 2016
825 F.3d 1131
I respectfully dissent.
LaTonya Denise Davis, pro se.
Thomas J. Lyons and Matthew J. Hegarty, Hall & Evans, L.L.C., Denver, Colorado; for City of Lakewood; Michele Wagner; Todd Clifford; Todd Fahlsing, Defendants-Appellees.
Jonathan M. Abramson, Kissinger & Fellman, P.C., Denver, Colorado, for Michelle Current, Defendant-Appellee.
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
LUCERO, Circuit Judge.
LaTonya Davis, proceeding pro se, brought this action against four Lakewood Police Department officers and the City of Lakewood (the “City“). She alleges that the officers used excessive force in arresting her for a misdemeanor offense. Upon stopping Davis’ car, which had a license plate with a handicapped symbol, for driving with a suspended license, Officer Todd Clifford called for additional assistance;
Exercising jurisdiction under
I
On review of summary judgment, we recite the facts in the light most favorable to Davis, the non-moving party. See Howard v. Waide, 534 F.3d 1227, 1235 (10th Cir. 2008). Many of the material facts recited here are disputed.
Davis’ claims arise from a traffic stop that occurred around 11:30 pm on February 25, 2012, in Lakewood, Colorado. Clifford processed Davis’ license plate, which had a handicapped symbol, through a law-enforcement database and discovered an
After being surrounded by police cars, Davis heard batons banging on her car and, fearing for her safety, she locked the doors and rolled up her window. Clifford and Fahlsing approached the driver‘s side door, and Clifford told Davis to step out of the car. Through a gap in the window, Davis asked why she had been pulled over and offered to show her license, insurance, and registration. Clifford responded, “you know why,” and commanded her to “step the fuck out of the car.” After the officers told Davis that she was under arrest and again directed her to exit the vehicle, Davis responded that she would get out of the car if the officers promised not to hurt her.
When Davis did not immediately exit her vehicle, Fahlsing shattered the driver‘s side window with his baton. Instead of reaching in to open the door, Clifford and Fahlsing grabbed Davis by her hair and arms, pulled her through the shattered window, pinned her face-down on the broken glass outside the car, and handcuffed her. Placed into a patrol car, Davis suffered an anxiety attack—paramedics were called and she was transported to a hospital for treatment. She was then transferred to jail.
Davis filed suit alleging that the officers used excessive force, in arresting her and that the City failed to properly train and supervise the officers. The defendants filed a motion for summary judgment, asserting they were entitled to qualified immunity and there was insufficient evidence to support Davis’ claim against the City. A magistrate judge recommended granting the motion in favor of all defendants. The district court adopted the recommendation and entered summary judgment. Davis timely appeals.
II
“We review orders granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.” Howard, 534 F.3d at 1235. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
”
In response to Davis’ claims of excessive force, the officers moved for summary judgment, asserting they were entitled to qualified immunity. Qualified immunity “shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker, 745 F.3d at 411
A
We consider whether, viewed in light most favorable to plaintiff Davis, defendants Clifford and Fahlsing‘s conduct violated her constitutional rights. “The ultimate question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007) (quotation omitted). This determination “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
The severity of Davis’ crime weighs against the use of anything more than minimal force because the charge underlying her arrest—driving with a suspended license for failing to provide proof of automobile insurance—is a misdemeanor. See
The second factor, whether Davis posed an immediate threat to the safety of the officers or others, also weighs against Clifford and Fahlsing. There is no evidence that Davis had access to a weapon or that she threatened harm to herself or others. Cf. Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir. 2010) (clearly established law prohibits use of deadly force when the officer “did not have probable cause to believe that [arrestee posed] a serious threat of serious physical harm to himself or others” (quotation omitted)); see also Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014) (denying qualified immunity to officers who used stun grenades when there was no suggestion that the arrestee was ready to engage in violence or had immediate access to weapons); Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (holding a jury could conclude that officer‘s use of force was excessive, in part, because the officer knew the arrestee was unarmed and could not access a weapon); Winterrowd v. Nelson, 480 F.3d 1181, 1185 (9th Cir. 2007) (officer‘s use of force was not justified when arrestee carried a weapon in his car but was far from his vehicle and unable to access the weapon). To the contrary, Davis alleges she merely sought reassurance that she would not be hurt, and that the officers responded by shattering her vehicle window and pulling her through the broken window by her hair and arms. Because the evidence does not demonstrate that Davis posed a threat to the safety of the officers or others, this factor suggests Clifford and Fahlsing‘s use of force was excessive.
Viewing the evidence in the light most favorable to Davis, Howard, 534 F.3d at 1235, we conclude she has demonstrated that Clifford and Fahlsing used excessive force.
B
We turn to the second element—whether the law was clearly established. “A right is clearly established if it would be clear to a reasonable officer that his conduct was unlawful in the situation.” Maresca v. Bernalillo Cty., 804 F.3d 1301, 1308 (10th Cir. 2015) (quotation omitted), petition for cert. filed, 84 U.S.L.W. 3484 (U.S. Feb. 22, 2016) (No. 15-1076). Generally “this means that there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Id. (quotation omitted). “However, the qualified immunity analysis involves more than a scavenger hunt for prior cases with precisely the same facts.” Perea, 817 F.3d at 1204 (quotation omitted). “[A] general constitutional rule ... can apply with obvious clarity to the specific conduct in question, even though [such conduct] has not previously been held unlawful.” Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (quotation omitted). “We have therefore adopted a sliding scale to determine when law is clearly established. The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Casey, 509 F.3d at 1284 (quotation omitted). We have been cautioned “not to ‘define clearly established law at a high level of generality,’ but to focus on ‘whether the violative nature of particular conduct is clearly established.‘” Perea, 817 F.3d at 1204 (quoting Mullenix v. Luna, 136 U.S. 305, 308, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)).
The degree of force allegedly used by police officers in this case is disturbing, and we find nothing in the record that would justify the alleged aggressive behavior of the officers. “[W]e need not have decided a case involving similar facts to say that no reasonable officer could believe that he was entitled to behave as [Clifford and Fahlsing] allegedly did.” Casey, 509 F.3d at 1285. “When an officer‘s violation of the Fourth Amendment is particularly clear from Graham itself, we do not require a second decision with greater specificity to clearly establish the law.” Morris, 672 F.3d at 1197 (quotation omitted).2
Looking at other circuits, this case is closely akin to Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009), which held that the law was clearly established that officers used excessive force in executing a minor traffic stop by breaking the driver‘s-side window, roughly extracting the driver from the car, and tightly handcuffing her, causing severe nerve damage, when she passively resisted arrest. Id. at 169; see also Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998) (holding that when arrestees had not committed a serious crime, posed no immediate threat, and did not actively resist arrest, “the officers were not justified in using any force, and a reasonable officer thus would have recognized that the force used was excessive“). Because all of the Graham factors are in Davis’ favor, “a reasonable officer would know based on his training that the force used was not justified.” Morris, 672 F.3d at 1198; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.“). Thus, viewing the evidence in the light most favorable to Davis, we conclude she has met her burden to demonstrate that the law was clearly established that the officers used excessive force. Thus, Clifford and Fahlsing are not entitled to qualified immunity and we reverse the district court‘s grant of summary judgment to these two officers.3
The district court granted summary judgment in favor of Sergeants Michele Wagner and Michelle Current because Davis’ allegations against them—that one held her legs while she was handcuffed—were insufficient to state a claim for excessive force. Davis does not challenge this determination on appeal, and thus any claim of error is waived. See United States v. Lilly, 810 F.3d 1205, 1219 n.6 (10th Cir. 2016). Accordingly, we affirm the grant of summary judgment to Wagner and Current.
III
The grant of summary judgment in favor of Wagner, Current, and the City is AFFIRMED. The judgment as to Clifford and Fahlsing is REVERSED and the claims pertaining to them are remanded for further proceedings consistent with this opinion. Davis’ motion to proceed in forma pauperis on appeal is GRANTED.