Ginette BONE, Plaintiff-Appellant, v. Kelli DUNNAWAY, Police Officer; Bryan Jones, Defendants-Appellees.
No. 15-30846
United States Court of Appeals, Fifth Circuit.
Date Filed: 08/05/2016
657 F. App‘x 258
The Sentencing Guidelines provide that a court may reduce a defendant‘s term of imprisonment whеn the defendant was sentenced in accordance with a sentencing range that has subsequently been lowered by the Sentencing Commission. See
Although its reasoning was brief, the record reflects that the district court adequately considered the relevant sentencing factors under Section 3553(a), the relevant Guidelines Policy Statement, and Rios‘s post-sentencing conduct in determining that a reduction of his sentence was not warranted. See
IV. CONCLUSION
For the reasons stated herein, we affirm the district court‘s denial of Defendant-Appellant‘s Agreed Motion for a Sentence Reduction.
Gary William Bizal, New Orleans, LA, for Plaintiff-Appellant.
Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ginette Bone appeals the district court‘s summary judgment for defendants, Officers Kelli Dunnaway and Bryan Jones, which granted them qualified immunity from Bone‘s claims of excessive force and false arrest under
I
The following facts are set forth in the light most favorable to Bone. Bone was eating at a restaurant in the French Quarter of New Orleans, Louisiana around 10:00 p.m. on a Saturday night, December 14, 2013. She and her dining companions noticed an SUV parked in the no-parking zone outside of the restaurant. One of the passengers threw trash onto the sidewalk. In response, Bone‘s companion approached the SUV and discussed what he witnessed with the passengers. Bone then witnessed a passenger throw more trash onto the ground. This time, Bone walked outside, picked up the trash, and placed it on the hood of the SUV. One of the passengers got out of the SUV and confronted Bone. An argument ensued, during which the driver of the SUV threatened to call the police.
Bone‘s companion flagged down Officer Dunnaway. When Dunnawаy arrived, the
The officers arrested Bone and took her to Orleans Parish Prison. Dunnaway cited Bone for disturbing the peace by tumultuous behavior in violation of section 54-403 of the New Orleans Municipal Code, and resisting an officer in violation of section 54-441. Bone was the only person arrested at the scene, although the passengers of the vehicle were also issued summonses for disturbing the peace and littering. Jones‘s force resulted in bruising around Bone‘s wrists, fingerprints on her arms, and a swollen cheek. Bone did not go to the doctor because she did not have medical insurance.
Bone filed claims under
II
A
We review the grant of summary judgment de novo and apply the same standard as the district court. Thompson v. Mercer, 762 F.3d 433, 435 (5th Cir. 2014), cert. denied, --- U.S. ----, 135 S.Ct. 1492, 191 L.Ed.2d 434 (2015). “Summary judgment is aрpropriate where the record and evidence, taken in the light most favorable to the non-moving party, show ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‘” Id. (quoting
Bone asserts claims of false arrest and excessive force under section 1983. “Section 1983 provides a private cause of action against thоse who, under color of law, deprive a citizen of the United States of ‘any rights, privileges, or immunities secured by the Constitution and laws.‘” Goodman v. Harris Cty., 571 F.3d 388, 394-95 (5th Cir. 2009) (quoting
B
Bone claims that Dunnaway violated her Fourth Amendment right to be free from false arrest. The district court granted summary judgment for Dunnaway, concluding that she was entitled to qualified immunity because “Dunnaway was not objectively unreasonable in concluding that plaintiff committed or attempted to commit the offense of disturbing the peace by tumultuous behavior.”
“The constitutional claim of false arrest requires a showing of no probable cause.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). Probable cause is defined as “facts and circumstances within the officer‘s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Id. (quoting Piazza v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000)). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Lockett v. New Orleans City, 607 F.3d 992, 998 (5th Cir. 2010) (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)). The right to be free from false arrest without probable cause is clearly established. See Club Retro, 568 F.3d at 206. However, to overcome qualified immunity, Bone must show that no reasonable officer would have believed that there was probable cause to arrest Bone. See id. at 206-07; Manis, 585 F.3d at 846. Probable causе and the ensuing qualified immunity turn on Dunnaway‘s reasonable beliefs and knowledge, including information received from eyewitnesses. See Cooper v. City of La Porte Police Dep‘t, 608 Fed.Appx. 195, 200 (5th Cir. 2015) (citing United States v. Nunez-Sanchez, 478 F.3d 663, 666 (5th Cir. 2007)).
Dunnaway arrested Bone for disturbing the peace by tumultuous behavior in violation of a New Orleans municipal ordinance that prohibits “act[ing] in a violent or tumultuous manner toward another whereby the property of any person is placed in danger of being destroyed or damaged.” NEW ORLEANS, LA., MUN. CODE § 54-403(b)(7). The Municipal Code also makes it a criminal offense to attempt to violate a provision of the code. See
C
Bone also claims that Jones violated her Fourth Amendment right to be free from excessive force. A plaintiff must meet three elements to establish an еxcessive force claim: (1) the plaintiff suffered an injury, (2) the injury “resulted directly and only from the use of force that was excessive to the need,” and (3) the force was objectively unreasonable. Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). The right to be free from excessive force is clearly established, but the degree of force that is reasonable varies based on the totality of the circumstances. See Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013). “To gauge the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for force,’ paying ‘careful attention to the facts and circumstances of each particular case.‘” Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores, 381 F.3d at 399). The Supreme Court has instructed that courts determining the objeсtive reasonableness of force must consider “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 he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Although Bone‘s allegation of injury could be characterized as de minimis—bruising and a swollen cheek—whether an injury is cognizable depends on the reasonableness of the force, not just the extent of injury. See Freeman, 483 F.3d at 416-17; see also Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (“What constitutes an injury in an excessive force claim is therefore subjective—it is defined entirely by the context in which the injury arises.“); Brown v. Lynch, 524 Fed.Appx. 69, 79 (5th Cir. 2013) (“Any force found to be objectively unreasonable necessarily exceeds the de minimis threshold....” (footnote omitted)).2 At the very lеast, there is a fact question about the degree of injury.3 Therefore, we must determine the reasonableness of Jones‘s force.
To withstand Jones‘s motion for summary judgment, Bone must show that a genuine dispute of material fact exists as to whether: (1) Jones‘s use of force violated Bone‘s Fourth Amendment right to be free from excessive force; and (2) Jones‘s use of force was objeсtively unreasonable in light of then clearly established law. Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012).
Jones does not make much of an attempt to meet the first prong, perhaps because, considering the evidence in the light most favorable to Bone, none of the Graham factors favors Jones in this case. See Graham, 490 U.S. at 396. Perhaps, also, Jones does not seek to
Turning to the question of “clearly established law,”4 this same factual dispute prevents us from answering the question in Jones‘s favor at summary judgment. Given that this case does not involve a serious crime, any perception that the suspect posed a risk of injury to anyone, or any active physical “resistance,” the only possible justification for the use of force was Jones‘s perception that Bone was “fleeing” at the time of the use of force (and his argument that the “slam” was accidental). We have distinguished, for
This distinction also drove the outcome for one plaintiff in Tolan v. Cotton, 573 Fed.Appx. 330, 330 (5th Cir. 2014) (no qualified immunity where officers shot suspect who was neither physically resisting officers nor attempting to flеe), on remand from --- U.S. ----, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014),5 while resulting in a different outcome for his mother, see Tolan v. Cotton, 713 F.3d 299, 308 (5th Cir. 2013) (holding that officer‘s “grabbing [the plaintiff‘s] arm and shoving her against the garage door” after she refused to comply with verbal commands to facilitate a search was not unconstitutional under clearly established law), vacated on other grounds, --- U.S. ----, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014), aff‘d in relevant part, 573 Fed.Appx. 330, 331 (5th Cir.2014) (“It goes without saying that all other [than the son‘s] dismissals ... are not affected by [the Supreme Court‘s] holding.“).
A case directly on point is not required to show that it is clearly establishеd that certain force is a constitutional violation; nonetheless, existing precedent must “define[] the contours of the right in question with a high degree of particularity.” Hogan, 722 F.3d at 735 (quoting Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc)). These cases define parameters for officers like Jones. Under his version of the facts, Bone had resisted verbal commands to come back and submit to an arrest and was attempting to flee (and thе “slam” was accidental), which is arguably within the parameters of the cases in which we have granted qualified immunity. On the other hand, if Bone‘s version of the events is true, there was no verbal command that she stop, no arrest, and no flight, and Jones‘s degree of force was clearly prohibited under our precedent. Given this factual dispute, which turns on the credibility of Jones and Bone, we cannot resolve the qualified immunity question as a matter of law. Accordingly, we conclude that Jones is not entitled to summary judgment on qualified immunity grounds. See Newman, 703 F.3d at 766.
As a result of its ruling on Bone‘s federal claims, the district court declined to exercise supplemental jurisdiction over the state law claims. We leave in place that action as to Dunnaway, but vacate and remand as to Jones sо that the district court can examine anew the question of supplemental jurisdiction over the state law claims in light of the pendency of this federal claim.
III
In conclusion, we AFFIRM the district court‘s judgment as to Dunnaway. We VACATE the judgment in favor of Jones and REMAND to the district court for further proceedings consistent with this opinion.