KEVIN LEO DONAHUE, Plaintiff - Appellant, v. OFFICER SHAUN WIHONGI; SALT LAKE CITY POLICE DEPARTMENT; SALT LAKE CITY CORPORATION, Defendants - Appellees.
No. 19-4005
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
January 17, 2020
PUBLISH
FILED United States Court of Appeals Tenth Circuit Christopher M. Wolpert Clerk of Court
Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CV-00312-DAK)
Karra J. Porter (J.D. Lauritzen with her on the briefs), of Christensen & Jensen, P.C., Salt Lake City, Utah, for Plaintiff - Appellant.
John E. Delaney (Mark E. Kittrell with him on the brief), of Salt Lake City Corporation, Salt Lake City, Utah, for Defendants - Appellees.
Before LUCERO, HARTZ, and MATHESON, Circuit Judges.
Kevin Donahue was walking home one night when he saw a woman outside his neighbor‘s house. Dr. Donahue thought she was trespassing, and a heated conversation ensued.1 They approached two police officers, Officer Shaun Wihongi and Officer Shawn Bennett, who were investigating an incident a few houses away. The officers questioned them separately. The woman told Officer Wihongi her name was “Amy LaRose,” which later turned out to be untraceable. She claimed Dr. Donahue was drunk and had insulted her. Dr. Donahue refused to provide his name but admitted he had been drinking and said the woman had hit him. The officers eventually arrested and handcuffed Dr. Donahue.
Dr. Donahue sued Officer Wihongi, the Salt Lake City Police Department (“SLCPD“), and Salt Lake City Corporation (“SLC“) (collectively, “Defendants“). He alleged Officer Wihongi violated his Fourth Amendment rights by (1) arresting him without probable cause, (2) using excessive force during the arrest, and (3) detaining him for too long. Officer Wihongi moved for summary judgment. The district court granted the motion on all three claims and dismissed the case. Exercising jurisdiction under
I. BACKGROUND
A. Factual Background
We present the facts in the light most favorable to the plaintiff, drawing all reasonable inferences in his favor. See Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014).2
At 10:45 p.m. on April 21, 2015, Dr. Donahue saw Ms. LaRose hiding near his neighbor‘s house. He questioned her and told her to leave. When Ms. LaRose refused, Dr. Donahue called her “a piece of shit.” App. at 136. She responded by punching his left jaw. Dr. Donahue told Ms. LaRose he would call the police. She said she was hiding from police officers investigating an incident a few houses away.
1. Interviews of Dr. Donahue and Ms. LaRose
Dr. Donahue and Ms. LaRose approached SLCPD Officers Bennett and Wihongi at the nearby house. Dr. Donahue explained, “This woman just assaulted me[;] I‘d like to press charges on her.” Id. at 137. Officer Bennett then began interviewing Dr. Donahue. Bennett 1 at 25:50-30:30; Bennett 2 at 0:00-2:10. Dr. Donahue
While Officer Bennett spoke with Dr. Donahue, Officer Wihongi separately interviewed Ms. LaRose. Wihongi 1 at 26:05-29:45. She gave Officer Wihongi her name and birthdate which he later discovered were untraceable in the police database.3 She also recounted her version of events: Dr. Donahue, a stranger “drunker than Cooter Brown,” had approached her and called her a “piece of shit.” Id. at 26:40-57.
2. Pre-Arrest Conversation
After speaking with Ms. LaRose, Officer Wihongi joined Dr. Donahue and Officer Bennett. Wihongi 2 at 29:34-45. He heard Officer Bennett ask for Dr. Donahue‘s name. Id. at 2:11-30. When Dr. Donahue refused, Officer Wihongi explained why a name is necessary for police assistance and recounted Ms. LaRose‘s allegations. Id. at 2:33-3:32. Dr. Donahue appeared to confirm that he had insulted Ms. LaRose during their altercation, id. at 3:14-15,4 but denied starting the altercation, id. at 6:22-35.
Officer Bennett left to hear Ms. LaRose‘s version of events. Officer Wihongi then told Dr. Donahue why he needed to investigate: “Two people are telling us a story that‘s completely different in dynamics and we have to . . . [decide] what‘s gonna happen here.” Id. at 6:48-56. When Officer Wihongi asked, “Have you been drinking this evening, sir?” Dr. Donahue responded, “Yes.” Id. at 7:00-03.5 Officer Wihongi suggested Dr. Donahue was intoxicated and disruptive in violation of Utah‘s public intoxication statute, but Dr. Donahue denied both assertions. Id. at 7:12-29.
Officer Bennett, having permitted Ms. LaRose to leave, rejoined them. He asked Dr. Donahue if he had been drinking, and Dr. Donahue again replied, “Yes.” Id. at 7:45-48. Officer Wihongi again requested Dr. Donahue‘s name, but he again refused. Id. at 8:26-33.
3. Handcuffing
Officer Wihongi then pulled Dr. Donahue up by his arm, saying, “Stand up, sir . . . You‘re gonna be detained . . . I‘m not asking you, I‘m telling you.” Id. at 8:33-41. The officers pulled Dr. Donahue‘s hands behind his back and handcuffed him. Id. at 8:38-9:20. Dr. Donahue protested, “Please don‘t hurt me,” claimed the officers were “twisting [his] wrist,” and asked, “Why am I being detained?” Id. at 8:55-9:20. Officer Wihongi explained they were detaining him for public intoxication and failure to provide his name. Id. at 9:18-42. Officer Wihongi again requested Dr. Donahue‘s name, and he again refused. Id. at 12:05-07.
When the officers briefly stepped away from Dr. Donahue, Officer Wihongi whispered his suspicion that Ms. LaRose was a runaway from the nearby incident. Id. at 17:00-15. He directed Officer Bennett to run “Amy LaRose” in the SLCPD database. Id. at 17:48-56. Officer Bennett did so, but found nothing. Id. at 23:31-57. Officer Wihongi then told Dr. Donahue he was “suspicious,” id. at 24:21-27, of Ms. LaRose and would “make it known to . . . the
Throughout the encounter, Dr. Donahue had asked for a sergeant. See, e.g., id. at 4:56-59; 8:18-21; 8:29-31; 12:22-25. Sergeant Wallace arrived 19 minutes after Dr. Donahue was handcuffed. Id. at 27:39-43. The parties agree that Dr. Donahue was released three minutes later.
* * * *
The following time line summarizes the significant events described above.7
| Time Line | Event | Bodycam Video Time Stamp |
|---|---|---|
| 0:00 | Interviews of Ms. LaRose and Dr. Donahue begin. | Bennett 1 at 25:50-30:30; Bennett 2 at 0:00-2:10 |
| 11:40 | Dr. Donahue first admits he has been drinking. | Wihongi 2 at 7:00-03 |
| 12:25 | Dr. Donahue again admits he has been drinking. | Wihongi 2 at 7:45-48 |
| 13:06 | Dr. Donahue refuses to provide his name. | Wihongi 2 at 8:26-33 |
| 13:13 | Dr. Donahue is told he is being detained. | Wihongi 2 at 8:33-41 |
| 13:18 | The officers handcuff Dr. Donahue. | Wihongi 2 at 8:38-9:20 |
| 28:11 | The officers discover Ms. LaRose‘s name is not in the SLCPD database. | Wihongi 2 at 23:31-57 |
| (approximately) 35:19 | Dr. Donahue is released. | Off-camera |
B. Procedural Background
Dr. Donahue filed a pro se complaint seeking damages under
On the first claim, the district court concluded Officer Wihongi had reasonable suspicion that Dr. Donahue violated Utah‘s “public intoxication” statute. Donahue v. Wihongi, No. 17-312, 2018 WL 6699743, at *3-4 (D. Utah Dec. 20, 2018). Officer Wihongi was therefore authorized to request Dr. Donahue‘s name under Utah‘s “stop-and-question” statute. Id.9 The court further
On the second claim, the court determined Officer Wihongi‘s use of force to arrest Dr. Donahue was objectively reasonable. Id. at *4.
On the third claim, it determined Officer Wihongi detained Dr. Donahue for a reasonable amount of time. Id. at *4-5.
Because the district court found no constitutional violation by Officer Wihongi, it granted summary judgment to him on all three claims and entered judgment dismissing the case. See Doc. 10683417 at 1; Dist. Ct. Doc. 58 at 1 (“[T]he Court rules as a matter of law that no constitutional violation occurred . . . .“). Dr. Donahue timely appealed. For the reasons discussed below, we affirm.11
II. DISCUSSION
Dr. Donahue cannot show Officer Wihongi violated his constitutional rights. Without an underlying constitutional violation, Dr. Donahue‘s claims for municipal liability against SLCPD and SLC also cannot stand. We conclude the district court did not err in granting summary judgment to Officer Wihongi and entering judgment for all Defendants.
A. Legal Background and Standard of Review
Under
When a defendant asserts a qualified immunity defense, “the plaintiff carries a two-part burden to show: (1) that the defendant‘s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant‘s unlawful conduct.” Cillo v. City of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013). We “exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) (quotations omitted).
“[W]e review the award of summary judgment based on qualified immunity de novo.” Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (quotations omitted). The movant must “show[] that there is no genuine dispute as to any material fact.” Estate of Booker, 745 F.3d at 411
The Fourth Amendment “question [of] whether a police officer‘s observations amounted to reasonable suspicion or probable cause” and “the excessive force question” are “mixed question[s] of law and fact.” Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1253 (10th Cir. 2013) (quotations omitted). And “where there are no disputed questions of historical fact . . . such as on summary judgment,” the court “make[s] the . . . determination [of reasonable suspicion, probable cause, or excessive force] on its own” as a question of law. Id.; see Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (stating that at summary judgment, once the facts and inferences are drawn in the nonmovant‘s favor, the determination of excessive force is a “pure question of law“); Ornelas v. United States, 517 U.S. 690, 696 (1996) (stating that once the facts are “admitted or established,” the determination of reasonable suspicion or probable cause is a question of law); United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005) (same).
B. Analysis of Dr. Donahue‘s Three Claims
1. Claim 1 - Arrest Without Probable Cause
Dr. Donahue argues the district court erred in finding Officer Wihongi had probable cause to arrest him.12 We resolve this claim in two steps.
First, we consider whether the facts, viewed by an objectively reasonable police officer, see Ornelas, 517 U.S. at 696, gave Officer Wihongi reasonable suspicion that Dr. Donahue violated Utah‘s public intoxication statute,
Second, we consider whether the facts, viewed by an objectively reasonable police officer, see Ornelas, 517 U.S. at 696, gave Officer Wihongi probable cause that Dr. Donahue violated Utah‘s failure-to-identify statute,
We conclude Officer Wihongi had reasonable suspicion that Dr. Donahue was publicly intoxicated and therefore had the
a. Additional legal background
Dr. Donahue‘s claim requires us to apply the federal Fourth Amendment13 reasonable suspicion and probable cause standards to Officer Wihongi‘s detention and arrest of Dr. Donahue for state law offenses.14 Below, we discuss (i) the Fourth Amendment‘s reasonable suspicion standard for an investigative stop, (ii) the Fourth Amendment‘s probable cause standard for a warrantless arrest, (iii) the circumstances in which an informant‘s tip might give rise to reasonable suspicion or probable cause, (iv) the Utah state statutes at issue in this case, and (v) cases addressing Utah‘s public intoxication statute.
i. Reasonable suspicion
The Fourth Amendment permits a police officer to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.‘” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); see INS v. Delgado, 466 U.S. 210, 217 (1984) (explaining that reasonable suspicion requires “some minimal level of objective justification“). Reasonable suspicion must be more than an “inchoate and unparticularized suspicion or hunch.” Alabama v. White, 496 U.S. 325, 329 (1990) (quotations omitted). But it “is a less demanding standard than probable cause” and can be established with information “differ[ing] in quantity or content” or that is “less reliable.” Id. at 330.15
To assess whether an officer had “particularized and objective” reasonable suspicion, courts consider the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotations omitted). The determination “must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277. “[R]easonable suspicion may exist even if it is more likely than not that the individual is not involved in any illegality.” Mocek v. City of Albuquerque, 813 F.3d 912, 923 (10th Cir. 2015) (quotations omitted).
Under the Fourth Amendment, a warrantless arrest requires probable cause. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004); A.M. v. Holmes, 830 F.3d 1123, 1140 (10th Cir. 2016) (identifying the “basic federal constitutional right of freedom from arrest without probable cause” (quotations omitted)).
Police officers have probable cause to arrest if “the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Adams v. Williams, 407 U.S. 143, 148 (1972) (alterations and quotations omitted). As with reasonable suspicion, courts assess probable cause “from the standpoint of an objectively reasonable police officer” under the totality of the circumstances. Ornelas, 517 U.S. at 696.
iii. Informants
Both reasonable suspicion and probable cause may arise from information provided by individuals.16 An anonymous tip alone without “indicia of reliability” is not enough. Florida v. J.L., 529 U.S. 266, 270 (2000).
Relevant considerations include whether the officers corroborated details of the tip, such as the informant‘s “basis of knowledge” and “veracity.” Id. at 241.17 “[E]yewitness knowledge . . . [also] lends significant support to the tip‘s reliability.” Navarette v. California, 572 U.S. 393, 399 (2014). Officers “may weigh the credibility of witnesses.” Mocek, 813 F.3d at 928 (quotations omitted). Face-to-face informants generally are more reliable than anonymous informants because they “allow[] the police an opportunity to evaluate [their] credibility and demeanor.” See United States v. Sanchez, 519 F.3d 1208, 1213 (10th Cir. 2008) (“A face-to-face informant must, as a general matter, be thought more reliable than an anonymous . . . tipster.” (brackets and quotations omitted)). Courts may also apply less “skepticism and careful scrutiny” to the reliability of “an identified victim or ordinary citizen witness” than the often-anonymous informant who “supplies information on a regular basis.” Easton v. City of Boulder, 776 F.2d 1441, 1449-50 (10th Cir. 1985) (quotations omitted).
iv. Utah statutes
This case concerns four Utah statutes:
-
The public intoxication statute, Utah Code Ann. § 76-9-701(1) , which prohibits a person from being “under the influence of alcohol . . . to a degree that the person may endanger the person or another, in a public place.” - The stop-and-question statute,
id. § 77-7-15 , which allows a police officer to “stop any individual” and “demand the individual‘s name” if “the officer has a reasonable suspicion . . . the individual has committed or is in the act of committing or is attempting to commit a public offense.” - The failure-to-identify statute,
id. § 76-8-301.5(1) , which states:A person is guilty of failure to disclose identity if during the period of time that the person is lawfully subjected to a stop as described in [the stop-and-question statute]:
(a) a peace officer demands that the person disclose the person‘s name or date of birth;
(b) the demand described in Subsection (1)(a) is reasonably related to the circumstances justifying the stop;
(c) the disclosure of the person‘s name . . . does not present a reasonable danger of self-incrimination in the commission of a crime; and
(d) the person fails to disclose the person‘s name . . . .
- The arrest-with-probable-cause statute,
id. § 77-7-2(4) , which allows a police officer to arrest without a warrant “when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under [the failure-to-identify statute].”18
v. Case law on public intoxication
As already explained, Claim 1 requires us to determine whether Officer Wihongi had reasonable suspicion that Dr. Donahue violated the public intoxication statute.
Utah‘s public intoxication statute has three elements: (1) “under the influence of alcohol,” (2) “to a degree that the person may endanger the person or another,” and (3) “in a public place.”
1) Under the influence
The first element requires that a person be “under the influence of alcohol.”
2) May endanger
The public intoxication statute uses the phrase “may endanger the person or another.”
b. Analysis
We agree with the district court that Officer Wihongi had reasonable suspicion
i. Reasonable suspicion of intoxication to justify stop-and-question
We begin by determining whether Officer Wihongi had reasonable suspicion under the “totality of the circumstances” that Dr. Donahue violated Utah‘s public intoxication statute. Arvizu, 534 U.S. at 273 (quotations omitted). We draw all facts and inferences in Dr. Donahue‘s favor and determine whether reasonable suspicion existed as a question of law. See Cavanaugh, 718 F.3d at 1253. Our analysis considers whether Officer Wihongi had reasonable suspicion that Dr. Donahue satisfied the “under the influence” and “may endanger” elements. We address these interrelated elements in turn, acknowledging that the statute ties the extent of intoxication to the risk of endangerment. See
1) Under the influence
Considering the totality of the circumstances, we conclude Officer Wihongi had reasonable suspicion that Dr. Donahue was “under the influence.” This suspicion arose from two sources. First, Ms. LaRose told Officer Wihongi that Dr. Donahue appeared “drunker than Cooter Brown.” App. at 122; id. at 53. She had observed Mr. Donahue‘s behavior and could judge whether he was intoxicated. See Navarette, 572 U.S. at 399 (eyewitness knowledge supported the tip‘s reliability); Lloyd, 263 P.3d at 564 (holding
that ordinary citizens can assess whether a person is under the influence of alcohol).
Even discounting for her apparent hostility to Dr. Donahue, the officers could reasonably conclude that Ms. LaRose, who spoke face-to-face with the police, had more incentive to tell the truth about his drunkenness than an anonymous informant. See Sanchez, 519 F.3d at 1214 (police‘s ability to evaluate face-to-face informant‘s credibility and demeanor supported tip‘s reliability). Her information provided an even stronger basis for reasonable suspicion than the anonymous tip in Garner, 416 F.3d at 1215, which determined that an anonymous informant‘s tip and the officer‘s corroboration constituted reasonable suspicion. Further, we are generally less skeptical of the reliability of victim-witnesses who are not anonymous, professional informants. See Easton, 776 F.2d at 1449-50.
Second, Officer Wihongi heard Dr. Donahue corroborate Ms. LaRose‘s story. While speaking with the officers, Dr. Donahue acknowledged he had an altercation with Ms. LaRose. Wihongi 2 at 2:33-3:32. He also twice admitted that he had been drinking. Wihongi 2 at 7:00-03, 7:45-48. These admissions support Officer Wihongi‘s reasonable suspicion that Dr. Donahue was “under the influence.” See Vondrak, 535 F.3d at 1207 (officer had reasonable suspicion that suspect was “under the influence” where suspect admitted to having “had one beer three hours ago“).
Dr. Donahue argues Officer Wihongi lacked reasonable suspicion because he did not appear intoxicated, was “articulate,” and “wasn‘t slurring his words.” App. at 82
2) May endanger
Officer Wihongi also had reasonable suspicion to believe Dr. Donahue satisfied the “may endanger” element of the public intoxication statute. When the officers first encountered Dr. Donahue and Ms. LaRose, it was nearly 11 o‘clock at night, and the officers were investigating a separate incident. Ms. LaRose and Dr. Donahue agreed that Dr. Donahue had been drinking and had shouted an epithet at her. Each claimed the other had started the altercation. Wihongi 1 at 26:40-44; Wihongi 2 at 6:22-35. Dr. Donahue also alleged that Ms. LaRose had punched him.
The officers weighed the credibility of the two accounts as they endeavored to sort out what had happened. See Mocek, 813 F.3d at 928 (explaining officers may weigh the credibility of witnesses). Although Dr. Donahue did not demonstrate overtly aggressive behavior in front of the officers, see Trane, 57 P.3d at 1062, they observed he was “agitated, irritated,” and “argumentative.” App. at 226. By contrast, the videos show that Ms. LaRose cooperated with the officers’ questioning. See, e.g., Wihongi 1 at 26:05-29:45. Under the totality of the circumstances, the officers reasonably assessed the two accounts. In deposition testimony, Officer Wihongi explained that Ms. LaRose was “confronted by somebody who she described as drunk” and perceived that Dr. Donahue had “threatened her.” App. at 81. Officer Bennett similarly questioned why Dr. Donahue was “scaring” and “questioning [people] when they‘re just walking.” Wihongi 2 at 7:54-57.
Reasonable suspicion requires only “some minimal level of objective justification,” Delgado, 466 U.S. at 217, “based on commonsense judgments and inferences about human behavior,” Wardlow, 528 U.S. at 125. Further, the public intoxication statute prohibits being under the influence only “to a degree that the person may endanger the person or another.” See
* * *
Officer Wihongi had reasonable suspicion to believe Dr. Donahue was “under the influence” and posed a risk of endangerment in violation of the public intoxication statute. See
Having determined that Officer Wihongi had authority to demand Dr. Donahue‘s name, we proceed to the second step of our analysis. This step requires us to determine whether Officer Wihongi had probable cause to arrest Dr. Donahue for “fail[ing] to disclose [Dr. Donahue‘s] name” while “lawfully subjected to a stop,” as required under the failure-to-identify statute.
When Officer Wihongi demanded Dr. Donahue‘s name and Dr. Donahue refused, Wihongi 2 at 8:26-33, Officer Wihongi had probable cause that Dr. Donahue violated the failure-to-identify statute,
c. Dr. Donahue‘s “stop” argument
Dr. Donahue argues he was not “lawfully subjected to a stop” under Utah‘s stop-and-question statute. See Aplt. Br. at 36-37; Aplt. Reply Br. at 11-13.24 We disagree. Although Dr. Donahue initially approached the officers, they eventually detained him “for purposes of investigating possibly criminal behavior.” Terry, 392 U.S. at 22. “[T]aking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Kaupp v. Texas, 538 U.S. 626, 629 (2003) (quotations omitted); see also United States v. Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017) (explaining an officer may seize someone without using physical force when the officer shows his authority and the citizen submits).25 “Even an initially consensual encounter can be transformed into a seizure or detention within the meaning of the Fourth Amendment.” Kaupp, 538 U.S. at 632 (alterations and quotations omitted). As we explain below, the detention here occurred no later than Dr. Donahue‘s second admission of drinking.
After Dr. Donahue and Ms. LaRose approached the police, the officers interviewed them separately about their altercation.26 At about 7 minutes into the
At this point, under “all of the circumstances,” a reasonable person in Dr. Donahue‘s position would not have felt free to leave. See Kaupp, 538 U.S. at 629; California v. Hodari D., 499 U.S. 621, 638 (1991). The officers’ questioning may not have been especially accusatory and intrusive. See United States v. Little, 60 F.3d 708, 712-13 (10th Cir. 1994). But as evidenced in the video, they used a “commanding manner or tone.” United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996). While the officers permitted Ms. LaRose to leave, they continued questioning Dr. Donahue.27 They repeatedly conveyed their need for Dr. Donahue‘s name for their investigation of the altercation. Wihongi 2 at 6:48-56; see Bostick, 501 U.S. at 437; see also Morgan v. Woessner, 997 F.2d 1244, 1253 (9th Cir. 1993) (“When a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual.” (emphasis omitted)).28 The officers developed and expressed concerns about Dr. Donahue‘s drinking, his ambivalence about reporting the altercation, his refusal to identify himself, and his overall agitation and lack of cooperation.
Although Dr. Donahue had initially approached the officers, and the officers did not apply physical force, the interaction became a “stop.” A reasonable person would have recognized and submitted to their show of authority. See Roberson, 864 F.3d at 1121 (citing Hodari D., 499 U.S. at 626). The detention occurred before he refused to give his name a second time, Wihongi 2 at 8:26-33, at which point the officers had probable cause for a failure-to-identify violation.
* * * *
Officer Wihongi had reasonable suspicion that Dr. Donahue violated the public intoxication statute. This authorized the police to demand Dr. Donahue‘s name under the stop-and-question statute. When
2. Claim 2 – Excessive Force
Dr. Donahue asserts that Officer Wihongi used excessive force while arresting him, thereby violating his Fourth Amendment rights. Below, we provide legal background on Fourth Amendment excessive force claims. We conclude Officer Wihongi did not use excessive force and the district court therefore did not err in finding no Fourth Amendment violation.
a. Additional legal background
When a plaintiff alleges an officer used excessive force to arrest, “the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014). Courts consider excessive force claims under the balancing test from Graham v. Connor, 490 U.S. 386 (1989), which delineates “three, non-exclusive factors“: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (quoting Graham, 490 U.S. at 396).
Under the first factor, a “minor offense . . . support[s] the use of minimal force.” Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). A misdemeanor committed in a “particularly harmless manner . . . reduces the level of force . . . reasonable for [the officer] to use.” Casey v. City of Fed. Heights, 509 F.3d at 1281; see Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (petty misdemeanor required reduced force).
Under the second factor, an officer may use increased force when a suspect is armed, repeatedly ignores police commands, or makes hostile motions towards the officer or others. Compare Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009) (suspect who repeatedly refused to drop gun and had previously threatened his wife was immediate threat); with Casey, 509 F.3d at 1282 (“slightly upset but not disrespectful” suspect was not immediate threat (quotations omitted)).
As to the third factor, courts do not consider a suspect who asks questions, or asks to be treated carefully, as actively resisting. See Cortez, 478 F.3d at 1128 (no active resistance where plaintiff briefly “asked [d]efendants what was going on“); Fisher, 584 F.3d at 896 (no active resistance where suspect “begged the officers to take account of his injuries“).
The Graham test asks if the officers’ actions were “objectively reasonable,” Cortez, 478 F.3d at 1125 (quotations omitted), and recognizes that officers need to make “split-second judgments,” id. at 1138 (quotations omitted). “[A] small amount of force, like grabbing [a suspect] and placing him in the patrol car, is permissible in effectuating an arrest under the Fourth Amendment.” Id. at 1128.
An excessive force claim that includes a challenge to the “[m]anner or course of handcuffing” requires the plaintiff to show both that “the force used was more than reasonably necessary” and “some non-de minimis actual injury.” Fisher, 584 F.3d at 897-98 (quotations omitted).29
b. Analysis
When Officer Wihongi and Officer Bennett arrested Dr. Donahue, Officer Wihongi pulled Dr. Donahue up, and both officers pulled Dr. Donahue‘s arms back and handcuffed him. See Wihongi 2 at 8:33-9:42. Under Graham, these actions were “objectively reasonable” and not excessive. Cortez, 478 F.3d at 1124.
All three Graham factors favor minimal force: (1) the crimes at issue were misdemeanors, (2) Dr. Donahue was unarmed and did not make hostile motions toward the officers, and (3) although Dr. Donahue did not stand up when asked, he did not actively resist. Even so, as confirmed by the video evidence, Officer Wihongi used the minimal, “small amount of force, like grabbing [a suspect],” that is “permissible in effectuating an arrest.” Id. at 1128.30
Further, the handcuffing was not an act of excessive force because a reasonable jury could not conclude Dr. Donahue suffered a non-de minimis “actual injury.” See Fisher, 584 F.3d at 896-900 (determining a jury could conclude the suspect‘s affidavit and corroborating circumstances established a non-de minimis “actual injury” because the suspect‘s gunshot wounds were exacerbated by officers’ handcuffing). Although Dr. Donahue alleges he sustained bruising, the record reveals no evidence of permanent injury. See Vondrak, 535 F.3d at 1209 (explaining plaintiff‘s permanent nerve injury from handcuffing established “actual injury“). Dr. Donahue‘s photographs show, at most, “superficial abrasions,” Koch, 660 F.3d at 1248 (quotations omitted), and his affidavit alleging injury does not suffice under Cortez, 478 F.3d at 1129 (affidavit describing handcuff marks was “insufficient, as a matter of law, to support an excessive force claim“).
* * * *
Officer Wihongi appropriately used minimal force and Dr. Donahue did not suffer a non-de minimis actual injury. The district court therefore correctly determined that Officer Wihongi did not use excessive force in violation of Dr. Donahue‘s Fourth Amendment rights when arresting him.
3. Claim 3 – Excessive Detention
Dr. Donahue argues he was unreasonably detained because any reasonable suspicion of intoxication dissipated either before or after probable cause for the arrest arose. We agree with the district court that there was no constitutional violation.
a. Additional legal background
“[R]easonable suspicion must exist at all stages of the detention, although
b. Analysis
We address Dr. Donahue‘s dissipation argument as applied to the time periods before and after probable cause arose.
i. Pre-probable cause detention
Dr. Donahue asserts that even if reasonable suspicion of public intoxication initially existed, it dissipated before probable cause arose. He avers that because Officer Wihongi lacked authority to demand his name, his refusal did not give rise to probable cause that he violated the failure-to-identify statute, and his detention should have ceased.32 We are not persuaded.
In her interview with Officer Wihongi, Ms. LaRose described Dr. Donahue as drunk and claimed he had insulted her. See Wihongi 1 at 26:05-57. Roughly 12 minutes after the interviews began, Dr. Donahue admitted to drinking. See Wihongi 2 at 7:00-03. Less than one minute later, Dr. Donahue again admitted to drinking. Id. at 7:45-48. As discussed above, these admissions, combined with Ms. LaRose‘s account, gave Officer Wihongi reasonable suspicion that Dr. Donahue was “under the influence” in violation of Utah‘s public intoxication statute. Further, under the circumstances, Officer Wihongi appropriately weighed the credibility of two conflicting accounts and had reasonable suspicion that Dr. Donahue was under the influence to a degree of endangerment. This reasonable suspicion, in turn, authorized Officer Wihongi to ask for Dr. Donahue‘s name.
Less than one minute after Dr. Donahue‘s second drinking admission, Officer Wihongi requested Dr. Donahue‘s name. Dr. Donahue refused to provide it. See Wihongi 2 at 8:26-33.33 As explained above, this refusal gave Officer Wihongi probable cause that Dr. Donahue had violated the failure-to-identify statute. The record shows no events in the short interval between Dr. Donahue‘s admissions (which supplied reasonable suspicion to demand his name) and his refusal to provide his name (which provided probable cause to arrest) that could have dispelled the initial reasonable suspicion. See United States v. Padilla-Esparza, 798 F.3d 993, 1000 (10th Cir. 2015) (determining nothing between first and second investigative stops dispelled officer‘s reasonable suspicion of criminality).
Dr. Donahue also appears to argue he was unduly detained because Officer Wihongi‘s reasonable suspicion of public intoxication dissipated after the arrest when the officers began to have questions about Ms. LaRose. This argument is unpersuasive. Even if reasonable suspicion for public intoxication dissipated after Dr. Donahue was arrested, by that point he had failed to identify himself. Dr. Donahue‘s violation of the failure-to-identify statute supplied a fresh basis for his detention. See De La Cruz, 703 F.3d at 1198 (noting that “additional detention [must] be supported by new reasonable suspicion of criminal activity,” and thus reasonable suspicion “need not be based on the same facts throughout [the detention]” (alterations and quotations omitted)).
If the officers’ reasonable suspicion of public intoxication had dissipated before they demanded Dr. Donahue‘s name, their request for identification would not have been authorized under the stop-and-question statute. In that scenario, Dr. Donahue‘s failure to identify himself would not have provided probable cause for an arrest, and continued detention may have been unreasonable. But those are not the facts before us, where a fresh basis for detention arose. See United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005) (stating that “if additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed“).
* * * *
Dr. Donahue‘s dissipation argument fails. Officer Wihongi had reasonable suspicion to justify the pre-probable cause detention, and Dr. Donahue‘s failure to identify himself supplied a fresh basis for the post-probable cause detention. The district court therefore correctly determined that Officer Wihongi did not violate Dr. Donahue‘s Fourth Amendment rights in continuing to detain him.
C. Municipal Liability
As noted above, after oral argument, we remanded this case to the district court to clarify the finality of (1) its memorandum decision and order, which granted Officer Wihongi‘s motion for summary judgment, see Donahue, 2018 WL 6699743, at *1, and (2) its judgment, which stated that “the case is dismissed,” App. at 18. On remand, the court issued an order stating that “the Court clarifies and supplements its original order and judgment to make clear that, because the Court rules as a matter of law that no constitutional violation occurred, all claims against each and every named Defendant were and are hereby dismissed with prejudice.” Dist. Ct. Doc. 58 at 1. Because we affirm summary judgment for Officer Wihongi on the ground that no constitutional violation was committed, judgment was proper for defendants SLCPD and SLC.
The SLCPD and SLC are “persons” subject to § 1983 liability. See Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 690 (1978) (noting § 1983 applies to municipalities and other local government units). Under § 1983, a municipality is responsible only for its own illegal acts. It “may not be held liable where there was no underlying constitutional violation by any of its officers.” Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)); see also Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009). Without an underlying constitutional violation by Officer Wihongi, SLCPD and SLC cannot be liable. The
III. CONCLUSION
Dr. Donahue failed to show a constitutional violation. The district court did not err in granting summary judgment for Officer Wihongi and entering judgment to dismiss the case. We affirm.