Horne v. Crozier

SD 65 HORNE, Plaintiff B. William Appellant, CROZIER, individually as an

Brian Falls,

employee of Sioux Falls, Ap- of Sioux Defendants and

pellees.

No. 19536.

Supreme Dakota. Court South Dec.

Argued

Decided June Irons, Falls,

Eugene J. for Sioux appellant. Woods, Fuller, Gary P. Thimsen of Shultz Smith, Falls, & Sioux for defendants and appellees.

KONENKAMP, Justice. question

[¶ This case raises the 1] a officer a citizen’s violates civil “gross fastening for handcuffs stop, too B. tight. After traffic William driving arrested for license Horne was with Contending the revoked and DUI. handcuffs disability, permanent caused Horne sued Of- ficer Brian Crozier and the of Sioux granted summary Falls. circuit court defendants, affirm, judgment for and we purported wrongdoing finding the insufficient establish Fourth Amendment violation under 42 U.S.C. 1983.

Facts 5,1991, May approximately [¶ 3:30 2] On a.m., Horne, resident, driv- California was ing down Sixth Street Sioux Falls. When speeding, stopped him for he learned Crozier had Horne’s license been revoked. Crozier sobriety perform had him field tests. some test, Following preliminary breath Horne and taken to McKen- was arrested DUI sample drawn. Hospital nan to have a blood trip, his handcuffs During the Horne claims excruciating pain, tight were he suffered so ignored pleas to loosen them. but Crozier they patrol Horne believes remained time, unduly long protracting his car for an torment. McKennan, they arrived 3] When sample of Horne’s

nurse drew blood: percent, at .10 ac- level later tested alcohol depo- cording Horne. In his affidavit and sition, nurse remarked to Horne said the injured, but Horne’s were officer that wrists suggestion treat- disregarded her recuffed, more ment. even Horne then before, asserts, taken to tightly than he Jail, County booked for DUI the Minnehaha no As there were and released bond. (S.D.1992) (citations defendants, from includ- N.W.2d omit factual submissions ted). fact, if affidavit from either affirmance is suitable ing deposition or nurse, legal support the Horne’s version rests basis exists to court’s deci Crozier or the sion. Paul Fire & Marine Ins. v. Schill St. uncontradicted.1 (S.D.1994); ing, Wad 20,1991, pled guilty May [¶ On Bank, 591, Dewey County dell v. 471 N.W.2d driving. charge of reckless He reduced (citations omitted). (S.D.1991) Summary 593 surgery eventually carpal tun- underwent judgment preferred process dispose to is a syndrome, a condition caused nel v. Norwest meritless claims. See Schlosser Greenwald, handсuffs, according to Dr. Alan Dakota, 416, Bank 506 418 South N.W.2d In treating physician California. Horne’s Press, (S.D.1993)(citing Viking Janklow v. action, 1992, brought aver- Horne this June (S.D.1985)). 875, High 378 N.W.2d 877 Our ring force. Defen- false arrest and excessive summary judgment est considers Court answered, lan- promptly but the case dants justice: pursuit venerable device attorney enduring changes guished, four Summary judgment procedure properly is delays discovery.2 unexplained regarded procedural not as a disfavored summary judgment Defendants moved shortcut, integral part as an but rather or, alternative, dismissal for failure to whole, the Federal Rules as a which 28, hearing prosecute. on December designed just, speedy “to secure the 1995, granted the court every inexpensive determination of action.” for defendants. Catrett, 317, 327, Corp. v. 477 U.S. Celotex of Review Standard 2548, 2555, 265, 106 S.Ct. 91 L.Ed.2d 276 Summary proper judgment is (1986) (citations omitted). depositions, answers to in pleadings, “if the file, togeth terrogatories, The circuit court found both and admissions affidavits, any, City protected by if show that there the officer and the were er with the fact, Qualified immunity any qualified immunity. is a genuine issue as to material court; legal question moving party is entitled to to be decided and that thus, particularly 15-6- it is amenable to judgment as a matter of law.” SDCL Moore, 112, ¶7, 224, 56(c); judgment. Bryant, 552 Hunter v. 502 U.S. Ford v. 1996 SD 227, 534, 536, 589, 850, material 112 595 If no issues of S.Ct. N.W.2d curiam). exist, (1991)(per Supreme The legal questions havе been cor Court fact decided, emphasized rectly ‘[t]he affirm. Len that “because entitlement we will Industries, Inc., immunity from, 519 N.W.2d is an suit rather than a mere nox v. Mitek (S.D.1994); Gordon, 330, liability,’ Forsyth, Bego v. 407 defense to Mitchell v. 472 332 (S.D.1987). 2815, 511, 526, 2806, 801, All reasonable U.S. 105 S.Ct. 86 N.W.2d (1985), repeatedly have from the facts must be L.Ed.2d inferences drawn nonmoving party, importance resolving immuni in favor of the stressed construed Lenz, 51, 9, ty questions possible stage at the earliest 1996 SD 547 N.W.2d Rehm v. 560, 564, litigation.” qualified im moving party must show Id. To find whether while the munity applies, the if the any genuine issue of material test ask the absence of Co., Ry. officer’s conduct violated established fact. v. Great N. 83 S.D. Wilson 19, statutory rights a reason If the or constitutional 157 N.W.2d right conclusion for able officer would have known at the time. circuit court reaches the reason, Fitzgerald, nonetheless affirm. Harlow v. 457 U.S. wrong we will (1982); Hoeksema, 2738, 73 L.Ed.2d Kehn v. Miller, Creighton, (S.D.1994); also Anderson v. Falls v. see Sioux affidavit, switching attorneys and then 2. Horne's of South Dakota opposing offered 1. Crozier’s may explain change delay. only withdrawn, some of the Not did he apparently is not of record. Horne's times, in South Dakota four but counsel considered, affidavit not be counsel moved this attempted he retain out- the record also shows days in advance of as it was offered less than five Spence lawyers, including Gerry and the of-state late Melvin Belli. He also sionally. upon. hearing. motion never ruled pro appeared se occa- driving. plea guilty guilty to reckless (1987); Rogers, claim v. forestalls later action Gainor (8thCir.1992). “objective legal This rea probable that arrest cause. Mala lacked Crunk, means contours “[t]he sonableness” standard dy v. sufficiently clear right must be (8thCir.1990). Broughton generally See would understand that reasonable official State, 37 N.Y.2d N.Y.S.2d right.” doing violates what he (1975), cert. denied 423 N.E.2d

Anderson, (1975)(a Delano, 531; Hafner probable conviction is “conclusive evidence of (S.D.1994). Qualified immu N.W.2d cause”). they have Persons who believe been ‍​​​‌​‌​​‌​‌‌​​​​‌‌‌​​‌​​‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​‌​‌‍Hafner, nity personal defense. is a persevere unlawfully acquit must arrested Melо, at 591. N.W.2d See Hafer outright tal or to maintain valid dismissal 21, 358, 116 301 112 L.Ed.2d S.Ct. § action false arrest. Roesch v. for (2dCir.1992). will be Otarola, Law enforcement officers [¶ 7] Un (1) immunity if by qualified their shielded law, given, plea, der Dakota once South consti established conduct violates nonjurisdictional complaints about waives all (2) objec statutory rights; it is tutional or or Eagle Leapley, Two defects. N.W.2d tively them to believe their reasonable for Crow, (S.D.1994); State v. Anderson, rights. those acts did not violate (S.D.1993); State v. N.W.2d 638-39, 107 at at S.Ct. Anderson, (S.D.1988); 417 N.W.2d 530; at Hafner, 520 N.W.2d L.Ed.2d at (S.D. Grosh, 503, 506 State v. 640, 107 Anderson, (quoting 483 U.S. at 1986). plea intelligent voluntary “A and Harlow, 531); at at understanding a full when the accused has at at U.S. at and, having rights his the un (“This Gainor, 410; [analy Eagle, derstanding, them.” Two waives ample good for a faith mis sis] allows room (citing Leapley, N.W.2d at 768 Petrilli his conduct must be take the officer since (S.D.1992)). Horne never ar N.W.2d of the belief of reason measured terms driving plea, gues which arose his reckless upon the facts then avail able officer based charge, from same facts as DUI officer.”). able to the misunderstanding, coercion or product Analysis and Decision he to knowledge. lack He admits wanted to ease he could return San finish the so appeal, urges Horne our attention On [¶ 8] legal (1) to to another matter. Francisco attend falsely Officer Crozier issues: several charge stemming cause; guilty to a from рled Horne probable him as there was no arrested and, (2) very claims was defective negligence produced a 'arrest he gross the officer’s force; probable as doing, lack of cause in so waived § 1983 action for excessive genuine (3) 1983. granted his for suit under the court should have basis partial judgment on lia- motion

bility. Negligence and Excessive [¶ Gross 11] Force Arrest

[¶ Unlawful alleg complaint, Horne 12] In his Horne asserts Crozier es, gross negligence with “Defendant Crozier him. To probable cause arrest lacked handcuffing force in excessive used such position, he recites a succession support his gross negligence ... which Plaintiffs wrists arrest, surrounding in legаl defects sei in Defendant’s unreasonable resulted speeding; his DUI ar cluding: he was not proximate result zure .... As a direct cause; performed he probable rest lacked specified gross neg foregoing tests; Defendant’s sobriety it and was the field well on civil of Plaintiffs ligence and violations require blood improper the officer has to by 42 Plaintiff vested U.S.C. breathalyzer pres revealed test after [damages].” appel Horne’s date sustained Regardless, all alcohol. ence of minimal negligence per se in late also broaches pled brief footless once points these became Rights Crozier’s use of handcuffs. The underlying Civil intent or motivation.” Graham v. (42 1983) Connor, provides: Act of U.S.C. (1989) (citations who, Every person any under color of stat- omitted).

ute, ordinance, custom, regulation, or us- age, Territory State or or the Dis- shove, every push “Not or even if it Columbia, subjects, trict causes to be unnecessary later seem peace in the of a subjected, any citizen the United States Glick, chambers,” judge’s Johnson v. jurisdiction person or other within the F.2d at violates the Fourth Amend- deprivation any rights, thereof to the ment. The calculus of reasonableness privileges, or immunities secured embody must allowance for the fact that laws, Constitution and shall be liable to the police officers are often forced to make law, party injured in an action at suit split-second judgments circumstances —in equity, proper proceeding or other for re- tense, uncertain, rapidly dress. evolving the amount of force that is —about To establish a claim under necessary in particular situation. allege must and show deliberate action. Id. “Historically, guarantee process of due [the] 455-56.3 conscious choice to inflict force to deliberate decisions of applied has been negligent and a wholly exercise of force are government deprive person officials to a of species Only different of conduct. the first life, Daniels v. liberty, property.” implicates a infringement. constitutional Williams, 327, 331, 662, 474 U.S. 106 S.Ct. negligence Gross in conducting an arrest (1986)(lack 665, 662, 88 L.Ed.2d 668 of due altogether insufficient to sustain an action by causing injury care official unintended § County, Davis v. Fulton clause). implicate process does not the due Ark, 1346, (8thCir.1996)(“Neg 90 F.3d 1352 Heights Arlington Metropolitan See also v. ligent, grossly negligent, or even conduct 252, Housing Corp., 429 Dev. U.S. 97 S.Ct. government officials cannot be the basis of a (1977)(must 555, 50 L.Ed.2d 450 show invidi claim.”) (citations omitted); constitutional tort discriminatory § purpose ous for a 1983 ac Govern, Nashville, Lewellen v. Metro. 34 of Gamble, tion); 97, 105, Estelle v. 97 345, (6thCir.1994), F.3d cert. denied 513 351 285, 291, 251, (1976)(re- 260 1112, 903, U.S. 115 S.Ct. 130 L.Ed.2d 787 quired showing of “deliberate indifference” to (1995)(noting gross negligence enough is not prisoner’s injury liability). § for 1983 in a “arbitrary 1983 action because it is not plaintiff ‍​​​‌​‌​​‌​‌‌​​​​‌‌‌​​‌​​‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​‌​‌‍must show an affirmative act creat in the Collins sense”)(quoting ing power of depriva an abuse to constitute Heights, v. Harker 115, 129, 503 112 Daniels, 330, tion. 474 U.S. at 1061, 1071, 261, 276 664, negligence 88 L.Ed.2d at 667. Mere Larson, (1992)); Rasmussen v. 863 F.2d 603 Id.; Musich, Chapman v. enough. not 726 (8thCir.1988); City Gonzalez v. Chicago, (8thCir.1984), 405, cert. denied 469 F.2d 407 (N.D.Ill.1995); F.Supp. 888 Morton 890 83 L.Ed.2d 262 Rock, v. Little F.Supp. 728 546 (1984). (E.D.Ark.1989), 934 F.2d 180 aff'd course, use of [¶ 13] Of “excessive (8thCir.1991). impermissible during force is even a lawful Okst, Weyant action, v. given [¶ 14] In arrest.” (2dCir.1996). DU judge proceed. To bears the burden to 1983 excessive Co., Mfg. AL v. Amendment, Co. Sioux Falls Constr. force claim under the Fourth (S.D.1989); Duncan v. Pen the test is whether the officer’s actions were N.W.2d Auth., nington County “objectively Hous. considering reasonable” the cir 382 N.W.2d cumstances, (S.D.1986). regard “without Plеadings [the officer’s] must include n guide resisting attempting 3. Some factors which a court in deter- arrest or to evade arrest include, mining Connor, objective reasonableness "the se- flight.” v. Graham issue, verity suspect of the crime at whether the poses safety an immediate threat to the of the others, actively officers or and whether he is motion, simple prima of the facie ele To survive a statement put a Horne must facts to show give proper notice to forth ments of the claim disregard acted conscious of his v. constitu Biddle Sartori Memorial defendant. (Iowa 1994); rights. tional His claim cannot transcend Hosp., 518 N.W.2d Sherwood, testimony. Connelly Omaha, оwn v. Bakody Dev. v. Homes & (S.D.1978). (1994); proof N.W.2d Horne’s Neb. 516 N.W.2d Stess simply fails to rise to the level of a constitu Broadcasting, 416 man v. Am. Black Hawk Caldwell, (Iowa 1987). tional violation. plead Cottrell Horne’s N.W.2d Cf. (11thCir.1996)(denial F.3d ing gross negligence prima fails to state a judgment on claims of force and respon excessive facie case under 1988. We bear no custody deficiency mistreatment reversed in case where sibility “[A] to restate his ease. leg individual handcuffed and in restraints supplied by not pleadings] will [in Stuck, “gross neg of “positional asphyxiation;” died Appling court.” N.W.2d (Iowa 1969); ligence” part judging not standard v. Catholic Arch Schieffer mistreatment). custody Omaha, Consequently, we diocese Nеb. qualified need not reach the issue of immuni (1993)(noting a court cannot assume ty because Horne has failed to establish a alleged). not the existence facts On hand, Applying sufficient claim. the stan while in most instances errone other assessing defect, dard for Fourth Amendment exces pleadings may be mortal it is ous claims, sive force ac liberally officer’s well courts must construe settled “objectively they conclusory light tions were reasonable” if not civil actions circumstances, regard all the without un forth facts that state claim as “set intent, Kierst, derlying no genuine there was issue matter of law.” A.J. L.B. fact, 854 (8thCir.1995). material and Crozier was entitled summary judgment as matter of law. Beyond pleading defi mere Handcuffing Policy 16] 3. Police [¶ however, testimony ciency, Horne’s sworn city “may 17] A not be sued “gross negligence.” are we to asserts What injury solely by § under for an inflicted § in make case which the claimant of Instead, employees agents. or it its is when declaring negligence persists in forms custom, government’s policy of a or execution only pleadings, but claim not basis or whether made its lawmakers those. summary judg deposition, in his his may fairly or to whose edicts acts be said was deposed, ment affidavit? When Horne injury represent policy, inflicts the official asked: entity is government responsi that the as an Now, Q. you Brian do claim that § under Monell v. New York ble 1983.” you was to hurt or that he intended Services, Dept. Social way he just in the handcuffed careless 2018, 2037-38, S.Ct. you? (1978); Hafner, 520 N.W.2d at Con negligent A. I believe he was little however, trary ruling, to the circuit court’s way that he handcuffed me. protected by qualified immuni cities not are a result of the Q. you Indepen think that was ty Do under 1983. Owen just dence, 638, 100 very careful that he was not fact night prop- municipali that not been that or he’s 685-86 city directly of Sioux Falls? “the action erly ty trained liable when imple alleged to be unconstitutional

that statement, policy ordi ments or executes a say, I don’t know A. Like I believe —I nance, officially regulation, or decision man. city. promulgаted” by the Mo adopted and Q. I understand. nell, Compare Michigan him, he L.Ed.2d at 635. Will A. I know but at time don’t Police, Dept. very way I State negligent in the was (1989)(in treated. was city county, a injury contrast to a or state is not a tional at the hands of the individual 1983). person subject officer, to suit under police Treat departmental the fact that the pursuant policy, judged ment of arrestees regulations might have authorized the use of framework, within the constitutional will dic constitutionally quite excessive force is be governments tate local point.”). liable side the Horne cites no incidents of Billingsley 1983. See v. St. alleged misconduct, Louis except his own (8thCir.1995)(lia County, 70 F.3d singular experience. given Nor has he us bility municipality revolves around viola any authority support position his “clearly statutory tion of a established or handcuffing cooperative arrestee, by DUI Harlow, right[ ]”)(citing otherwise, su policy objectively or unreason pra). contrary, handcuffing able. theOn drunk driving practice arrestees is routine in South Nothing in evidence even [¶ 18] alludes to misdemeanor, Dakota. DUI is a first class any policy the actual terms of official in Sioux carrying penalty up year jail, one handcuffing Falls on DUI arrestees. Yet addition to a fine and loss of license. SDCL argued, counsel for Crozier “Sioux Falls Po- Although 32-23-2. the circuit court incor Department lice SOP standard rectly applied qualified immunity, we con operation procedure handcuffing all DWI properly granted clude it suspects protection of for the the officer.” for Sioux Falls because whether Officer Cro fact, Accepting this as the circuit court then negligently zier fastened the handcuffs too stated, just following policy “the officer' tight, there was no link direct causal between undisput- and I think that’s clear and that’s alleged policy actions and or custom. ground reality, privi- ed.” Yet in on the lege, plaintiffs discovery the court disallowed Policy City’s Conclusion Police Procedures Manu- appealed ruling, al. Horne has not this [¶ 20] waived his 1983 unlawful

whiсh our review. tethers pled guilty arrest claim when he to a reduced pleadings charge. Under His excessive force action is defi- however, City’s policy proof, is immateri cient as a matter of law and so whatever “gross policy might pled implicated al. Horne have been Crozier’s is irrele- using misap That insinuates a vant. handcuffs. -plication policy, not fulfillment of it. [¶ 21] Affirmed. police isolated incident misconduct “[A]n by subordinate officers is insufficient to es MILLER, C.J., [¶ 22] and AMUNDSON municipal policy tablish or custom.” Wede GILBERTSON, JJ., and concur. Ballwin, Mo., meier v. 931 F.2d (8thCir.1991)(citing City Oklahoma SABERS, J., part [¶ 23] in concurs and Tuttle, 808, 823-24,105 City v. 471 U.S. part. in dissents 2427, 2436, (1985)(plural 85 L.Ed.2d Burkett, ity)); Patzner v. 779 F.2d SABERS, (concurring part Justice in & 1367 (8thCir.1985)(countycannot be held liаble dissenting part). where a failed to establish the coun agree [¶ 24] I guilty Issue as Horne’s ty prior had notice of misbehavior of plea probable was a waiver of lack of cause steps). officers take remedial and failed to § aas basis for suit under 42 U.S.C. 1983. claim, To establish his Horne must show procedures Sioux Falls “had notice that its I majority [¶ 25] dissent on Issue 2. The Horne, inadequate likely were by asserting and to result concludes that ‍​​​‌​‌​​‌​‌‌​​​​‌‌‌​​‌​​‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​‌​‌‍“gross rights.” violation of constitutional Thelma in Crozier’s use of excessive Educ., force, byD. A v. Delores Board has failed to state a claim under (8thCir.1991). Angeles § also See Los 1983. This conclusion is incorrect because Heller, during 106 S.Ct. an assertiоn of “excessive force” arrest, 811(1986)(per cu- in violation of the Fourth Amendment riam)(“If person standing has suffered no constitu to the States United Constitution — construed, claim, remedy, broadly against and Crozier’s state

alone —states federally essentially all forms of official violation of irrelevant. of mind is protected rights. of Crozier’s I would reach the merits [¶ 26] (citations immunity claim and con- qualified (Emphasis original) defense & internal omitted). to him under these is not available majority clude it quotations The effective- by circumstances. ly § narrows the construction of deposition testimony and focusing on Horne’s Additionally, it is incredible that the interpretation See his of Crozier’s actions. its Falls to withhold is allowed Sioux supra when do our Since we allow manual, yet police procedure policy written analysis by party’s to be un- controlled majority proceed as court and the the circuit legal informed Horne’s com- conclusion? concluding produced, if it were that plaint alleges that Crozier used excessive “policy” simply following or “routine was him, handcuffing resulting perma- force in majority’ The even states “there practice.” wrists, damage nent in violation of the his link causal between actions direct Fourth Amendment to the United States policy How any alleged or custom.” complaint is Constitution. His sufficient that in the absence possibly deduce could we language § state a claim under Therefore, only I can policy? of written “gross negligence” superfluous irrele- in result affirmance of concur analysis.5 to the vant City. judgment to Supreme THE USE OF “EXCESSIVE [¶ 28] The United States Court [¶30] “ § AN ARREST DURING CON- not FORCE” instructs that 1983 ‘is itself source RELIEF FOR rights,’ merely provides STITUTES GROUNDS ‘a of substantive but § vindicating UNDER U.S.C. federal else- method ” Connor, where conferred.’ Graham Supreme The States Court United 386, 393-94, § to be repeatedly stated (1989) (quoting 453-54 Baker Higgins, broadly construed. See Dennis v. McCollan, 137, 145 n. 99 S.Ct. 868-70, 433, 442 n. 3 2695 n. (1991) (collecting (1979)). cases): addressing an excessive force claim is com- construction broad 1983, analysis begins brought under language, pelled statutory which right identifying the specific “any speaks deprivations rights, priv- challenged infringed appli- allegedly by the ileges, or immunities secured Con- inquiry cation of force. first Accordingly, have stitution and laws.” precise consti- 1983 suit is to isolate coverage repeatedly held that the defendant tutional violation with which construed, The broadly must be charged. history of also legislative the section statute, it as a remedial stresses 104 L.Ed.2d at Id. at beneficiently “liberally con- should be and omitted). (citation quotation & internal 454 strued.” by inquiry” majority skips The “first this

assuming analysis is conducted under the specific instead of a given full its effect to broad [W]e have provides provision. recognizing language, Horne, ruling. appeal subpoena produce he did not this See the In to the resistance infra procedure poli- Department's Sioux Falls Police note 8. manual, City Attorney cy Shawn Tor- Assistant that "this is a confidential record now asserted 14, statement, supra majority's that "A 5. The Department." He the Sioux Falls Police within negligent inflict force and choice to conscious claimed, authority, that there even without species wholly different exercise of force are confidentiality authority its "case law Only implicates a constitution- conduct. the first granted Incredibly, trial court would resist." the infringement,” incorrect and made without al subpoena, quash motion to the the defendant's authority. supporting Unfortunately for apparently on this basis. Graham Court held that them, The regard fronting the without to their un- arresting amount of force which an officer derlying intent or motivation. An offi- may employ is limited the Fourth Amend cer’s evil intentions will not amake Fourth ment to the United States Constitution. objectively Amendment violation out of an “Today explicit we make implicit what was force; reasonable use of nor will an offi- Garner, 1, [Tennessee v. 471 U.S. 105 S.Ct. good cer’s objectively intentions make an (1985) 1694, ], and hold that all unreasonable use of force constitutional. claims that law enforcement officers have Graham, 490 U.S. at 109 S.Ct. at deadly used excеssive or not —in the force — added) (cita- (emphasis L.Ed.2d at 456 arrest, investigatory course stop, of an omitted). tions other ‘seizure’ of free citizen should be majority [¶ 32] The is correct that “mere Amendment!).]” analyzed under the Fourth enough is not to sustain a Id. L.Ed.2d at claim asserting when the depri- provides, 454. The Fourth Amendment other than those vation of certain pro- part: right people relevant “The to be However, tected the Fourth Amendment. houses, persons, papers, secure their above, as stated arresting officer’s state effects, against unreasonable searches and of mind is irrelevant in a Fourth Amendment seizures, shall not be violated[.]” U.S. Const. Therefore, excessive force case.6 the eases question Amend. The IV. is whether ¶¶ upon by majority relied 14^-16 force used to effect a seizure is “reasonable” inapposite to the analy- under the Fourth Fourth Amendment Amendment. Graham, supra. A review of sis set forth in inAs other Fourth Amendment con- those texts, however, cases demonstrates none dealt inqui- the “reasonableness” arrest, during with excessive force ry in objective an excessive is an force ease therefore, question one: none conducted is whether a Fourth Amend- officers’ “objectively analysis.7 case, actions are reasonable” in ment may this light of the facts and circumstancеs con- incorrectly have “gross negligence” inserted exception Tex., Heights, 6. The to this was stated the Graham 503 U.S. 112 S.Ct. (1992) (Fourteenth Court: L.Ed.2d 261 Amendment Due Process Clause & Texas Hazard Communication course, assessing credibility Of of an Act); Rock, Morton v. F.Supp. Little officer’s account of the circumstances that (E.D.Ark.1989), aff'd, 934 F.2d 180 force, prompted may the use of a factfinder (8thCir.1991) (Fourteenth Amendment ‍​​​‌​‌​​‌​‌‌​​​​‌‌‌​​‌​​‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​‌​‌‍Due Pro consider, factors, along with other evidence Clauses). Equal cess & Clearly, Protection these that the officer have harbored ill-will to- govern analysis. cases do not our ward the citizen. Graham, Larson, majority 490 U.S. at 399 n. also cites Rasmussen v. (8thCir.1988), n. 863 F.2d 603 L.Ed.2d at 457 n. 12. a case in which a claim of plain excessive force was made. The example, majority following alleged For arresting cites the tiffs that the officers acted-with support gross negligence, cases to its conclusion: thereby depriving Daniels their dece Williams, 474 U.S. 106 S.Ct. liberty dent of his interest under the Fourteenth (1986) (Fourteenth "Negligent L.Ed.2d 662 Amendment Due grossly negli Amendment. or even Clause); Village Arlington Heights gent trigger Process process actions do not the due clause Metropolitan Corp., added). Hous. Dev. 429 U.S. (emphasis Id. at [.] As for the (1977) claim, (Equal 50 L.Ed.2d 450 Appeals Protec excessive force the Court of sim Amendment); agreed ply tion Clause of the Fourteenth Es with the trial court that there was Gamble, telle v. prove insufficiеnt evidence to a constitutional (1976) (Eighth prohibi L.Ed.2d 251 Amendment violation. Id. at 605-06. Without a Fourth Rasmussen, punishment); Chap too, analysis, tion of cruel and unusual Amendment inappo- Musich, (8thCir.), man v. 726 F.2d 405 cert. site to this case. As for Gonzalez denied, (N.D.Ill.1995), Chicago, F.Supp. (Sixth (1984) right (again, Amendment to effective not a Fourth Amendment excessive force counsel); case), County, despite assistance of Davis Fulton plaintiff's that case held that incor Ark., (8thCir.1996) (Four "gross rect assertion super of in the Amendment); officers, Metropolitan teenth Lewellen vision of the court would not Nashville, (6thCir.1994), Gov't 34 F.3d 345 complaint dismiss that count of the because the ce of denied, rt. did state a cause of action with his (Fourteenth (1995) allegation L.Ed.2d 787 Amendment Due of "deliberate indifference” in that Clause); portion Process complaint. Collins v. Harker of is language is no Even the trial court stated “there complaint, [¶ 35] but that of in his the of ... I don’t no doubt about issues fact plain reading complaint of his moment. talking a lot time think we have to waste of a claim of excessive force violation states controversy Amendment, are in about whether the facts and 1983liabili- of the Fourth ” they I because think are.... Horne claims imposed for such a violation. Gra- ty be ham, using.the used excessive force at at ignored pleas handcuffs to loosen and L.Ed.2d at 454-55. them, debilitating causing him severe and еxplains why analysis of an [¶ 33] Graham injury. testimony sup- He offers medical complaint the force under an excessive majority, the port his claim. As noted is in- Amendment conducted without Fourth ¶ 3, supra at “As there were no factual sub- subjective the quiry the intent of arrest- into defendants, including depo- missions from no officer, on ing while excessive force inflicted the sition or affidavit from either Crozier or subject analysis: is to a different prisoner nurse, Horne’s version rests uncontradicted.” and Differing standards under the Fourth not meet the Because Crozier did Eighth hardly surpris- Amendments8 for sum- standard a successful motion “punishments” ing: terms “cruel” the mary judgment, we reverse and re- should subjec- inquiry into clearly suggеst some mand trial he used to determine whether mind, term “un- tive state of whereas the arresting Horne. This will excessive force Moreover, less reasonable” does not. the require analysis an of Eighth Amendment standard protective case, the facts circumstances of [the] complied applies only has after the State issue, including severity the of the crime at guarantees tradi- with the constitutional suspect poses an whether the immediate tionally prosecu- criminal associated with safety the oth- of officers or threat the is inquiry The Amendment tions. Fourth ers, actively resisting is and whether he “objective one reasonableness” of attempting tо evade arrest arrest circumstances, subjective concepts the flight. question is the to- [T]he “whether place inquiry. no in that proper ... have justifies par- tality of circumstances at Id. at ticular sort of seizure.” (citation omitted). at 457 Graham, of light standard [¶34] correct (citations & 104 L.Ed.2d at 455 alterations arresting when an officer’s actions review of omitted). force, it sum- of excessive is obvious accused SUMMARY JUDGMENT WAS [¶ 37] mary judgment not be affirmed should THE ON IMPROPERLY GRANTED failed this basis.9 He has favor Crozier on QUALIFIED IMMUNITY. OF BASIS genuine of a issue to demonstrate absence applied the incorrect court trial Walz v. Fireman’s material fact. See determining defense standard ¶ Co., SD 556 N.W.2d Fund Ins. to Crozi- qualified immunity is availablе proof (stating is that “the burden Delano, 520 N.W.2d er.10 In is Hafner that there upon the movant show (S.D.1994), adopted Eighth Circuit we and that he genuine issue of material fact three-part Appeals’ test to deter- Court of law.”) judgment as a matter of entitled to immunity precludes a qualified mine whether Thiewes, Dep’t Revenue v. (quoting State claim: (S.D.1989)). The evidence First, plain- determine whether the favorably to non- must viewed most of consti- a violation moving tiff asserted party and reasonable doubts should right; against moving party. Id. tutional be resolved supra majority, already Eighth prohibits noted the infliction 10. As 8. The Amendment granting punishments.” trial court erred of "cruel and unusual judgment Sioux Falls the basis to the immunity, is not quаlified as that defense to the defense Whether Crozier entitled municipality. ¶¶ to a immunity available qualified 38-41. discussed infra Second, the al- (providing, 2. we determine whether ‍​​​‌​‌​​‌​‌‌​​​​‌‌‌​​‌​​‌‌‌​​​​​‌​‌​‌​‌‌‌‌‌​​‌​‌‍23A-3-5 in part, SDCL relevant right

legedly violated constitutional person subject person “No shall an arrested established; clearly physical to reasonably more restraint than is arrest.”). necessary to effect the if, Third, given determine the facts plaintiff, to most favorable there Third, viewing the facts most favor genuine are no issues of fact material Horne, genuine able to there of are no issues as to a official whether reasonable fact material as to whether reasonable alleged known ac- would have that the alleged official would have known that right. tions violated that actions, handcuffing tightly so as to cause (quoting Cty., Id. at 592 Foulks v. Cole physical permanent injuries, violated that (8thCir.1993) F.2d (citing Cross v. right. While Horne the burden on carried Moines, City Des of prongs, the first two bears Crozier the bur (8thCir.1992))). extraordinary that den to show there were discussed, First, already [¶39] as or that circumstances he neither knew nor adequately asserted a violation of his legal known should have of the relevant stan right Fourth Amendment to be free from Qualified immunity dard. is an affirmative seizures, i.e., right unreasonable to be defense, proving and the burden of the de free from a enforcement use of law officer’s asserting fense lies with the official it. Har during an excessive force arrest. low, at S.Ct. Second, 411; right [¶40] this constitutional L.Ed.2d accord Johnson-El Schoe (8thCir.1989). mehl, established. The burden is on Horne F.2d As noted, previously to show Crozier’s violated that conduct Crozier offered no facts to “clearly statutory support or judgment. established constitution his motion for argued al person granted of which reasonable would court Crozier and the trial Fitzgerald, summary judgment have Harlow v. alleged known.” on the of an basis 2727, 2738, policy handcuffing drunk drivers. Even if exists, light policy “[I]n L.Ed.2d of we such a it assume would not pre-existing must liability law unlawfulness be relieve 1983 for Creighton, apparent.” using Andersоn v. excessive force the course of hand cuffing cooperative L.Ed.2d arrestee.11 Crozier is (1987) (citations omitted). qualified immunity Obvious to not entitled the ab 1) ly, showing extraordinary know of a reasonable officer should sence of either cir 2) un proscription the Fourth cumstances or knew Amendment’s he neither nor legal art. known reasonable seizures. See also SD Const. should have of the relevant stan (“The VI, right people neither, to be dard. Because he demonstrated ... persons against genuine unreason remain secure their issues material fact wheth violated!)]”); ... shall not in handcuffing able seizures be er he used excessive force granting adopted promulgated by municipality's incorrect in sum The trial court was mary judgment deprivation Crozier on the of his or that to basis officers a constitutional signifi alleged police policy. pursuant governmental adherence was visited "cus- policy though cance of a 1983 action concerns even tom" such a custom has not re- Supreme City’s liability. The United States approval through body's ceived formal offi- municipality "person” Court stated that is a decision channels. cial liability purposes under v. De Rock, Ark., 1983 in Monell Marchant Little N.Y., partment Services Social (8thCir.1984) Monell, supra). (quoting of 2018, 2035-36, court, docketing this In his statement to Home (1978). municipality may aрpeal an issue for listed as the trial municipal policy only or held liable if custom by quashing subpoena court erred duces te- deprivation caused the of the constitutional or cum, requested copies City’s po which he statutory right. Id. at 2035- However, procedure policy lice manual. he did 636. The must show 56 L.Ed.2d at argue appeal not brief this issue in this and it Therefore, is waived. I concur result of affir- City. alleged mance I to be do not [t]he action that unconstitution- statement, agree majority policy implements policy al or executes a with that the "imma ordinance, officially supra. regulation, or decision terial.” Horne, improp Amott v.

erly granted on this basis. See (8thCir.1993) (genuine

Mataya, F.2d 121 engaged as to conduct

issue of material fact judgment precluded summary officers qualified immunity); accord ground Newsom,

Washington v. denied,

(6thCir,1992), cert. (1993); see also Norman, F.2d 1053

Butler v. (10thCir.1993) (upholding denial of ground qualified immunity

judgment on plaintiffs testimony was sufficient

when

support estab a claim violation of Graham, supra). We

lished law for a trial.

should reverse and remand SD 67 LEWIS, Applicant

Alvia O. Appellant, CLASS, Dakota Warden South

Joe Penitentiary, Appellee.

State

No. 19651. Dakota.

Supreme Court South 15, 1997. on Briefs Jan.

Considered

Decided June

Case Details

Case Name: Horne v. Crozier

Court Name: South Dakota Supreme Court

Date Published: Jun 4, 1997

Citation: 565 N.W.2d 50

Docket Number: None

Court Abbreviation: S.D.