Lash v. LemkeLash v. Lemke
- Reporters:
- ,
- Before:
- John D. Bates
Plaintiff Ryan Barton Lash brings this action against defendants Officer Jennifer Lemke and Sergeant Todd Reid of the United States Park Police. Lash claims that defendants’ actions violated his Fourth and First Amendment rights, and requests damages under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Now before the Court is [12] defendants’ motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the motion, the opposition and reply thereto, and the entire record, and for the reasons described below, the Court will grant defendants’ motion for summary judgment.
I. Background
On January 29, 2012, Lash was participating in the “Occupy DC” movement in McPherson Square, where protesters had set up tents and makeshift shelters. Defs.’ Stmt. of Mat‘l Facts [ECF 12] (“Defs.’ Stmt.“) ¶¶ 1, 2.1 On that date, United States Park Police (“USPP“) officers began posting notices on the tents and shelters to convey the government‘s intent to enforce no-camping regulations. Id. ¶ 2. In response, “some of the individuals in McPherson
According to Lash, Officer Jennifer Lemke informed him that if he took down another notice, he would be arrested for disorderly conduct. Pl.‘s Mem. in Opp‘n. to Defs.’ Mot. Dismiss or Summ. J. [ECF 15] (“Pl.‘s Opp‘n.“) at 6. Lash then ceased taking down notices and walked away. Id. As he walked away, he said to a group of USPP officers, “You want us to clean up the trash in the park, right? Well[,] here‘s your fucking trash[,] you fucking pigs.” Id. He then crumpled up the notices he had removed and put them in the trash. Id. Officers Lemke, Frank Hilsher, and Tiffany Reed, with Sergeant Todd Reid present, approached Lash, who said, “Why are you coming at me?” Id. Lash states that he “began walking around the park,” but “did not attempt to run away or escape.” Id. When the officers approached him, Lash claims that he did not see Officer Reed behind him and was “[s]tartled” when she tried to “grab[] his arms and pull[] them behind his back.” Id. at 6-7. “Because he was being grabbed from behind, [Lash] did not know who was touching him.” Id. Officer Hilsher then stepped in to help restrain Lash. Id. At that point, according to Lash, “[he] noticed it was Park Police Officers grabbing him [and] he allowed the officers to place his arms behind his back.” Id. Lash alleges that Officer Lemke then tased him. Id.
In contrast, defendants contend that when the officers approached Lash after seeing him remove the notices, Lash “tried to get away from them.” Defs.’ Stmt. ¶ 5. When the officers attempted to arrest Lash, he refused to cooperate and physically resisted. Id. ¶ 6. The officers then “tried to wrestle him to the ground,” but Lash continued to actively resist. Id. ¶ 7. Officer
In addition to their written accounts of the facts, the parties also submitted video exhibits—one submitted by Lash and two submitted by defendants—that depict the events leading up to and during the arrest and taser deployment. See Exs. A, B to Defs.’ Mot. Dismiss or Summ. J. [ECF 13]; Ex. 17 to Pl.‘s Opp‘n [ECF 16]. Lash‘s video exhibit begins with six USPP officers and several protesters standing next to tents in what appears to be McPherson Square. Ex. 17 to Pl.‘s Opp‘n at 0:00-0:12.2 The protesters use profanity and yell at the officers. Id. Lash, wearing a red shirt and patterned pajama pants, bursts out of one of the tents. Id. at 00:15-00:17. He approaches the officers and yells, “You guys want to come at us tomorrow . . . I‘m going to be one of the sleep strikers.” Id. at 00:20-00:33. He then continues to yell about how he plans not to sleep for days and proclaims, “this is our park,” while another protester yells, “bring it on, bitch,” to the officers. Id. at 00:33-00:42.
Lash then tries to pull a wooden stake out of the ground. Id. at 00:48-00:50. When two of the officers see Lash‘s activity, they make downward motions with their hands—apparently indicating that he should stop trying to pull out the stake. It is not clear if the officers say anything to Lash or touch him, but Lash repeatedly yells, “Get your hands off me.” Id. at 00:50-00:56. The officers then walk away and Lash yells at them to “get away from my tent.” Id. at 00:56-1:06.
Lash follows the officers, yelling that they should come back tomorrow morning and that he is not going to sleep for days. Id. at 1:06-1:17. The officers stop to turn around and face him, and Lash continues to yell, but it is difficult to hear what he is saying. It is not clear whether the
The camera focuses elsewhere for a few moments, and when it refocuses on Lash and the officers, Lash is repeatedly yelling, “fuck your notices,” and taking notices off the tents. Id. at 2:39-2:53. Lash quickly walks away from where the officers are standing and continues to tear down notices and yell. Id. at 2:53-3:16. The video then shows Lash walking by some tents with a handful of what appear to be crumpled notices as five USPP officers follow behind him in a single line, maneuvering between tents. Id. at 3:07-3:21. Lash yells, “What‘s a disorderly conduct on that,” and quickly walks away in the background. Id. at 3:21-3:29. The officers appear to briefly talk to each other in the foreground, but their voices are inaudible. Id. Lash then yells, “. . . fucking notices, watch how many I ripped down.” Id. at 3:29-3:35. The video then shows the officers walking in Lash‘s direction. Id. at 3:35-4:03. Lash yells something about “trash,” which may be when he throws the notices in the trash, as described in Lash‘s account of the events. Id.; see also Pl.‘s Opp‘n at 6; Compl. [ECF 1] ¶ 13. Throughout the video, there are many protesters standing around or following the officers, and sometimes yelling at the officers. It is not clear whether the officers ever say anything to Lash because their voices are inaudible
Defendants’ two videos were filmed closer to the arrest. Defendants’ Video Exhibit B begins with a view of the USPP officers in what appears to be the McPherson Square tent camp.3 Ex. B. to Defs.’ Mot. Dismiss or Summ. J. at 00:00-00:02. The person filming says: “Now someone is ripping down the notices that the police gave us.” Id. at 00:02-00:06. A voice that appears to be Lash‘s can be heard in the background yelling “tell them to clean up the trash in the fucking park” and, comporting with Lash‘s account of events, “here‘s your fucking trash, you fucking pigs.” Id. at 00:07-00:13; Pl.‘s Opp‘n at 6. Several officers walk toward Lash, who eventually enters the view of the camera in his red shirt and pajama pants. Id. at 00:13-00:59. Lash yells “officers coming at me” several times, and then quickly walks away from the officers and between various tents. Id. at 00:59-1:12. Lash yells “Why are you coming at me,” and continues to walk away from the officers. Id. at 1:18-1:25. Officer Lemke and Officer Reed, two female officers, try to approach Lash. Id. at 1:25-1:27. Lash yells “I‘ve done nothing wrong” several times while walking away from Officers Lemke and Reed, then turns around to see the two officers following him and resumes walking away from them. Id. at 1:27-1:31.
At that point, Officer Reed tries to grab Lash‘s arms from behind him. Id. at 1:32-1:33. Lash pulls his arms from Officer Reed‘s grasp and continues to yell that he has “done nothing wrong.” Id. Other protesters have gathered in the area and are yelling at the officers. Officer Reed tries to grab Lash‘s arms again, and Lash again pulls his arms out of her grasp. Id. at 1:34-1:35. Officer Hilsher, a male officer, then approaches Lash from Lash‘s front, right side and
After the arrest, Lash filed a Bivens claim for civil damages against the defendant officers, claiming that they violated the Fourth Amendment by unlawfully using excessive force against him, and violated the First Amendment both by arresting him and by using excessive force in retaliation for Lash calling the officers “fucking pigs.” Compl. ¶¶ 50-51, 53-55. Defendants moved to dismiss, or in the alternative, for summary judgment.
II. Standard of Review
To survive a
Summary judgment, in turn, is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant‘s statements as true and accept all evidence and make all inferences in the non-movant‘s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Moreover, “[i]f the evidence is merely colorable, or is not significantly probative,
A motion to dismiss must be treated as a motion for summary judgment if “matters outside the pleadings are presented to and not excluded by the court.”
III. Discussion
“Qualified immunity shields government officials from civil damages liability.” Reichle v. Howards, --- U.S. ---, 132 S. Ct. 2088, 2093 (2013) (citing Ashcroft v. al-Kidd, 563 U.S. ---, 131 S. Ct. 2074, 2080 (2011)). The doctrine of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” Ashcroft, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Officer Lemke and Sergeant Reid, who were acting in the course of performing their official duties during the events involving Lash, argue that they are entitled to qualified immunity on Lash‘s Bivens claims. Defs.’ Mot. Dismiss or Summ. J. [ECF 12] (“Defs.’ Mot.“) at 8. Those entitled to qualified immunity have “immunity from suit rather than a mere defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal quotation omitted). Thus, immunity should be granted or denied at the earliest possible stage in the litigation because its purpose is to shield from suit those government officials who
The qualified immunity doctrine is governed by the Supreme Court‘s analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001), as modified by the Court‘s later decision in Pearson v. Callahan, 555 U.S. 223 (2009). Saucier outlined a two-step approach, in which a court first decides whether the facts alleged demonstrate that the officer‘s actions violated a constitutional right. Saucier, 533 U.S. at 201. “If the facts alleged do not establish a constitutional violation, [a court] end[s] the inquiry and rule[s] for the officer.” Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008). But if the facts demonstrate a constitutional violation, a court then determines whether the right at issue was “clearly established” at the time of the officer‘s conduct. Id. Accordingly, to defeat a government official‘s claim of qualified immunity, a plaintiff must show both (1) that the facts alleged or shown make out a violation of a constitutional right, and (2) that the right was clearly established. See Saucier, 533 U.S. at 201. Pearson modified the Saucier approach such that lower courts may use their discretion to decide which of the two prongs to address first. See Pearson, 555 U.S. at 236; accord Reichle, 132 S. Ct. at 2093. Here, the Court will first examine whether Lash has demonstrated that Officer Lemke and Sergeant Reid violated his constitutional rights. And finding that Lash has failed to meet his burden, the Court need not reach the second prong and will grant summary judgment in favor of defendants.4
Lash claims that Officer Lemke used excessive force when she tased Lash during his arrest and that “Sergeant Reid[] fail[ed] to supervise the situation or intervene in Officer Lemke‘s use of excessive force.” Compl. ¶¶ 54-55. A claim of excessive force is “‘properly analyzed under the Fourth Amendment‘s objective reasonableness standard,’ which tracks the constitutional text by asking ‘whether the force applied was reasonable.‘” Johnson, 528 F.3d at 973 (quoting Graham v. Connor, 490 U.S. 386, 388 (1989), and Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993) (internal quotations omitted)). Thus, the relevant inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Scott v. District of Columbia, 101 F.3d 748, 758 (D.C. Cir. 1996) (quoting Graham, 490 U.S. at 397). Because the inquiry is objective, the subjective good or bad faith of the officers is irrelevant. Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (citing Whren v. United States, 517 U.S. 806, 812-13 (1996)). Stated differently, then, “[a]n officer will only be held liable if the force used was so excessive that no reasonable officer could have believed in the lawfulness of his actions.” Rogala v. District of Columbia, 161 F.3d 44, 54 (D.C. Cir. 1998) (citing Wardlaw, 1 F.3d at 1303); accord Scott, 101 F.3d at 759.
Courts determine the reasonableness of force based on the facts and circumstances of the case, including “the severity of the crime at issue,” whether the suspect was “actively resisting arrest or attempting to evade arrest by flight,” and whether the suspect “pose[d] an immediate threat to the safety of the officers or others.” Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
In Arrington v. United States, the court held that where a plaintiff was punched, beaten with a baton and a pistol grip, and attacked by a police dog, such force by the police was unreasonable if the suspect had already been disarmed and handcuffed. 473 F.3d 329, 331-33 (D.C. Cir. 2006); see also Casey v. City of Federal Heights, 509 F.3d 1278, 1280, 1282-83 (10th Cir. 2007) (finding that officers used excessive force when seizing a nonviolent misdemeanant who was neither dangerous nor fleeing by putting him into an arm lock, jumping on his back, tasing him, handcuffing him, and then repeatedly banging his head into the concrete and tasing him again). In contrast, the court in Wardlaw concluded that no reasonable jury could find excessive force was used where the plaintiff rushed down a courthouse stairway toward two United States Deputy Marshals who were forcibly removing his friend from a courtroom, and one of the deputies punched the plaintiff in the jaw and several times in the chest. Wardlaw, 1 F.3d at 1300, 1303-04. In evaluating the reasonableness of the use of force, the Wardlaw court noted the vulnerability of the marshals in the stairwell, the fact that the plaintiff had shouted at the deputies as he approached them, and that the Marshals Service reasonably could have
Here, defendants argue that Officer Lemke acted reasonably when she tased Lash because the USPP officers faced a “volatile situation” where “demonstrators or on-lookers in the park [crowded] near the officers and repeatedly yell[ed] and sw[ore] at them” while the officers attempted to arrest Lash, who had “aggressively attempted to evade arrest.” Defs.’ Mot. at 16, 18. The officers attempted to gain control over Lash, including by “wrestl[ing]” him to the ground, but Lash “vigorously” resisted and the officers were unable to handcuff him until the taser was used. Id. at 16.
Defendants also argue that Officer Lemke‘s actions were reasonable because USPP policies authorize the use of tasers “to gain control of an individual” or “to effect an arrest to ensure the protection of the public, the officer, and any arrestees.” Ex. 2 to Defs.’ Mot. (General Order No. 3605) [ECF 12-1] §§ 3605.01, 3605.02. Defendants contend that, during the arrest, Lash was “physically defying the officers to the point that a reasonable officer could have believed that plaintiff might inflict bodily harm on them.” Id. at 17. Furthermore, the “arrest clearly needed to be effectuated quickly as the situation grew more volatile and the on-lookers grew more numerous and hostile to the officers.” Id. at 18. In support of their stance, defendants cite an Eleventh Circuit case in which the court held that an officer‘s use of a taser was reasonable against a “hostile, belligerent, and uncooperative” individual who, despite being suspected of only having an improperly illuminated taillight, “used profanity, moved around and paced in agitation, and repeatedly yelled” at the officer. Id. at 19 (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)). Here, the officers were engaged in a physical struggle with a hostile, belligerent, and uncooperative individual—Lash—who had tried to evade them, had
Lash, on the other hand, argues that Officer Lemke‘s use of a taser during his arrest was unreasonable because the crime of which he was accused—disorderly conduct—was “relatively minor.” Pl.‘s Opp‘n at 15. Moreover, he contends that he did not resist arrest—rather, he was surprised when Officer Reed grabbed his arms and his “instinct” to pull away was not indicative of resistance. Id. 16-17. Instead, he was acting reflexively and the “officers would not have had any reason to think that [his] response was voluntary.” Id. at 17. Lash argues that he was unarmed and did not pose a threat. Id. at 16. In particular, he states that, because he was wearing pajamas, it should have been apparent to the officers that he was not armed. Id. Lash also contends that he never threatened the officers or took a “fighting stance.” Id.
After careful consideration of the facts and circumstances, the Court concludes that no reasonable jury could find that Officer Lemke‘s use of force was so excessive that no reasonable officer could have believed in the lawfulness of her actions. Viewing the situation from the perspective of an officer at the scene, as the court must, Officer Lemke‘s use of the taser gun to effectuate the arrest of Lash was reasonably proportionate to the difficult and uncertain situation that the USPP officers faced.
First, although Lash‘s crime was nonviolent, the officers were in a hostile environment where protesters were yelling at and following the officers while the officers attempted to arrest Lash. Lash does not dispute that the police were in a protest area with a large number of
Furthermore, Lash actively resisted arrest. Although he argues that he tried to “defuse” the situation, that he pulled his arms away from the officers when they tried to handcuff him only because he was “startled,” and that he “did not actively resist arrest,” Pl.‘s Opp‘n at 7; Pl.‘s Stmt. ¶¶ 1-2, that account does not comport with the parties’ video exhibits, which show that Lash was belligerent, aware of the officers’ approach, and physically resistant to the officers’ attempts to handcuff him, see Ex. 17 to Pl.‘s Opp‘n; Exs. A, B to Defs.’ Mot. It is appropriate to rely on that clear evidence of the events at issue here. Where the nonmoving party‘s evidence at summary judgment is “blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of summary judgment.” Scott, 550 U.S. at 380; see also White v. United States, 863 F. Supp. 2d 41, 49 (D.D.C. 2012) (granting defendant‘s motion for summary judgment where video evidence contradicted assertion that
The Court has carefully reviewed these video exhibits. As previously described, Lash‘s Video Exhibit 17 shows that, from the time the USPP officers encountered Lash, he was hostile and belligerent. Initially, Lash follows and yells at the officers as they repeatedly try to walk away from him. After Lash removes some notices, the officers turn their attention to him, and Lash then tries to evade them by quickly walking away. The officers pursue Lash through the park while he continues to walk away from them. Defendants’ Video Exhibit B shows Lash yelling, “officers coming at me“—indicating that he is aware that the officers are approaching him—and yelling “I‘ve done nothing wrong” as he moves away from Officers Lemke and Reed—also indicating that Lash is aware the officers are pursuing him. Lash continues to evade and yell at the officers when they try to approach him. And despite being aware of the officers’ approach, Lash twice pulls his arms away from Officer Reed, and then continues to resist by physically struggling with Officers Reed and Hilsher as they try to constrain him from either side.
The unbiased video evidence thus “blatantly contradict[s]” Lash‘s assertion that he did not actively resist arrest. See Scott, 550 U.S. at 380. Based on this evidence, no reasonable jury could believe Lash‘s version of these events, and hence, the Court will not adopt Lash‘s version for the purpose of summary judgment. See id.; see also Johnson v. Washington Metro. Area Transit Auth., 883 F.2d 125, 128-29 (D.C. Cir. 1989) (finding that summary judgment is appropriate “when a plaintiff‘s claim is supported solely by plaintiff‘s own self-serving testimony, and undermined by other credible evidence“), abrogated on other grounds by Belton v. Washington Metro. Area Transit Auth., 20 F.3d 1197 (D.C. Cir. 1994). The Court concludes that a reasonable officer on the scene would have believed that Lash was actively resisting arrest.
Moreover, a reasonable officer could have believed that Lash posed an immediate threat to the safety of the officers or others. Lash‘s contention that the officers should have known that he “never posed a risk of harm to anyone” and was unarmed and not a threat because he was in pajamas ignores that he was in close physical proximity to the officers and their weapons, and that he physically resisted their attempts to handcuff him. See Pl.‘s Stmt. ¶ 8; Pl.‘s Opp‘n at 16. As noted by defendants, “[t]here is always a potential threat to officers when they are that close to an individual who they are trying to arrest, because the individual may try to grab one of the officer‘s weapons or actually hit an officer trying to arrest him.” Defs.’ Reply at 7. In this situation, Officer Lemke was “forced to make [a] split-second judgment[]—in circumstances that [we]re tense, uncertain, and rapidly evolving—about the amount of force that [wa]s necessary.” Graham, 490 U.S. at 396-97. Additional attempts at physically handcuffing Lash “may well have, or would likely have, escalated a tense and difficult situation into a serious physical struggle in which the arresting officers” could be injured by Lash or other protesters. See Draper, 369 F.3d at 1278. Hence, viewing the situation from the standpoint of an objectively reasonable officer, the single, five-second taser deployment6 was reasonably proportionate to the need to subdue Lash and thereby to reduce the risk of further physical confrontation.
Accordingly, in light of all the facts and circumstances, no reasonable jury could find that Officer Lemke‘s use of force was so excessive that no reasonable officer could have believed it was lawful. Therefore, Officer Lemke did not violate Lash‘s constitutional rights during the arrest. Sergeant Reid, then, is also not liable for excessive force for his alleged failure to “adequately plan and direct the execution of the arrest of Mr. Lash,” and did not violate Lash‘s constitutional rights. See Pl.‘s Opp‘n at 18, n.2. Because Lash was not deprived of his constitutional rights, the Court need not proceed to the second prong of the analysis, and defendants are entitled to qualified immunity on Lash‘s Fourth Amendment claims.
B. First Amendment Claims
Lash initially alleged violations of his First Amendment rights under two theories: retaliatory arrest and retaliatory use of excessive force. Compl. ¶¶ 50, 51. However, Lash has conceded that his First Amendment claim for retaliatory arrest cannot proceed because of the
Lash maintains his other First Amendment claim, and argues that his “right to be free from the chilling effect of excessive force by police officers at a protest was well-established” at the time of the incident in question. Pl.‘s Opp‘n at 19. However, as discussed in the previous section, Lash was not subjected to excessive force in the course of his arrest. Hence, his allegation that he was subjected to excessive force as retaliation for his exercise of his First Amendment rights also fails, and defendants are entitled to qualified immunity on Lash‘s First Amendment claims.
CONCLUSION
For the reasons explained above, the Court will grant defendants’ motion for summary judgment, dismiss Lash‘s claims against defendants with prejudice, and enter judgment in favor of defendants on all of the claims against them. A separate order will be entered with this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: September 20, 2013