THOMAS MLODZINSKI; TINA MLODZINSKI, individually and as mother and next friend of J.M., Plaintiffs, Appellees, v. MICHAEL F. LEWIS, in his individual and official capacities as Bristol Police Department Sergeant; TIMOTHY J. WOODWARD, in his individual and official capacities as Bristol Police Department Officer; GORDON C. RAMSAY, in his individual and official capacities as Bristol Police Department Officer; RICHARD ARELL, in his individual and official capacities as Northfield Police Department Officer; CENTRAL NEW HAMPSHIRE SPECIAL OPERATIONS UNIT, a/k/a CNHSOU; ROBERT CORMIER, in his individual and official capacities as Plymouth Police Department Officer; CHRIS TYLER, in his individual and official capacities as Littleton Police Department Officer; RICK TYLER, in his individual and official capacities as Grafton Sheriff‘s Department Officer, Defendants, Appellants.
Nos. 10-1966, 10-1967
United States Court of Appeals For the First Circuit
June 2, 2011
Hon. Joseph N. Laplante, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Charles P. Bauer, with whom Gallagher, Callahan & Gartrell, P.C. was on brief, for appellants Lewis, Woodward, and Ramsay.
Matthew J. Lahey for appellees.
LYNCH, Chief Judge. This
Seeking to avoid a trial, both sets of law enforcement officers moved for summary judgment, arguing that they did not violate plaintiffs’ rights, and that even if they had, they were entitled to qualified immunity on the grounds that their actions were not clearly unlawful. Plaintiffs opposed, citing a number of material issues of disputed fact. Indeed, on most of the key issues, the two sides offer vastly different versions of the facts. The district court denied the motions. Mlodzinski v. Lewis, 731 F. Supp. 2d 157, 184 (D.N.H. 2010). Defendants have appealed from the denial of qualified immunity. We affirm in part and reverse in part.
I.
An interlocutory appeal from a denial of summary judgment on qualified immunity grounds lies only if the material facts are taken as undisputed and the issue on appeal is one of law. Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 39 (1st Cir. 2004).
This court has explored this aspect of Johnson on several occasions, initially in Stella v. Kelley, 63 F.3d 71 (1st Cir. 1995). There, we held that we had interlocutory jurisdiction over the legal question of whether a particular constitutional right existed, but not over the fact-based question of whether the evidence showed that a defendant‘s actions violated that right.1 Id. at 75. We explained that Johnson “permits immediate review of the rejection of a qualified immunity claim when the issue appealed concerns not what facts the litigants might (or might not) be able to prove, but, rather, whether a given set of facts shows a violation of a federally protected right.” Id.
II.
While a claim of qualified immunity requires deference to the objectively reasonable beliefs and actions of the defendants, even if they are mistaken, the summary judgment standard requires that we draw all reasonable inferences in plaintiffs’ favor, as long as they are based on facts that “are put forward on personal knowledge or otherwise documented by materials of evidentiary quality.” Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“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.“). We identify the “version of events that best comports with the summary judgment standard and then ask[] whether, given that set of facts, a reasonable officer should have known that his actions were unlawful.” Morelli, 552 F.3d at 19. Here, the facts of the events leading up to the execution of the search and arrest warrants are undisputed and common to all defendants. Thereafter, the parties’ versions diverge, as do the actions of the two groups of defendants and the claims of the individual plaintiffs.
On these grounds, Sergeant Lewis applied for warrants to arrest Rothman for second-degree assault and to search his residence for the nightstick. The Plymouth District Court issued the warrants at around 9:30 p.m. on August 1, 2006, authorizing execution of the warrants “at any time of day or night.”
After discussing the situation with Lewis, Cormier decided to use the assembled CNHSOU team to execute the warrants, entering the apartment before sunrise in order to catch Rothman by surprise and “thereby reduce the possibility of injury to police officers and third parties and to limit Rothman‘s opportunity to escape and dispose of the nightstick.” It is standard operating procedure for CNHSOU members to carry automatic assault rifles, with the safety catches off, and to wear military-style camouflage uniforms and helmets.
During the preparations for the execution of the warrants, two surveillance teams kept the apartment, which was on the second floor of a two-family house, under observation; they saw nothing of note. Sergeant Lewis knew that Rothman‘s stepfather, plaintiff Thomas Mlodzinski, and his mother, plaintiff Tina Mlodzinski, lived in the apartment, potentially with other family members, and that they would likely be home at the time of the execution of the warrants.
After this point, the parties sharply dispute the facts, but we recite plaintiffs’ version, as defendants have conceded--in order to obtain these interlocutory appeals--that all facts and inferences should be taken in plaintiffs’ favor. We assume in plaintiffs’ favor that Rothman was removed prior to all or most of the following events, although the evidence is unclear.
Plaintiff Jessica Mlodzinski, who is Rothman‘s sister and was fifteen years old at the time, was alone in her bedroom and also got out of bed in response to the noise. When she opened her bedroom door, she encountered men in camouflage with assault rifles yelling, “Get down, palms in air!” and “search warrant!” Defendant Richard Arell of the CNHSOU was one of these men. He entered Jessica‘s room, and she got down on the floor. Jessica testified that while she was on the floor, she thought Arell said that she could get up and she started to do so, rising into a crouched position, but that Arell then put his hand on her back and forcefully pushed her toward the floor screaming “Get down.”2 She lost her balance, and her left kneecap was severely injured as it struck the floor.3
In the meantime, a CNHSOU officer wearing military fatigues and carrying an assault rifle had also entered the bedroom of plaintiffs Tina and Thomas Mlodzinski. This officer was defendant Chris Tyler. He ordered Thomas, who had gotten out of bed when he heard the door breaking, to get on the floor. Thomas and Tina testified that another CNHSOU officer in military fatigues, who has not been identified by plaintiffs, handcuffed Thomas behind his back with zip ties, kneeing him in the back in the process.6 This officer held a gun to Thomas‘s head for what he described as a “short time,” after which he was taken into the living room.
When Tina arrived downstairs, Jessica and Thomas were already there, as was Rothman‘s girlfriend, Amy Furmanick, and their baby.9 Jessica estimated that her mother arrived three to five minutes after she, Jessica, was brought down.
Plaintiffs testified that they remained in handcuffs for forty-five minutes to an hour while the house was searched and they were questioned in the living room.11 During this time, Officer Ramsay took Jessica and Amy into the kitchen at separate points to ask them questions. Jessica estimated that her interview occurred approximately ten minutes after they were all assembled in the living room.12 Both Tina and Jessica estimated that at least some of the CNHSOU officers left thirty-five to forty minutes after they were all assembled in the living room.
In the meantime, Jessica‘s handcuffs were also removed, and she and Officer Ramsay accompanied Amy in going outside for a cigarette. During this cigarette break, Ramsay allegedly told Jessica and Amy that if the police could not find the nightstick, they were going to take away Amy‘s baby. At some point, Tina came onto the porch as part of her walk around the house with the officer. She spent five to ten minutes talking with Jessica, who told her about Rothman‘s fight.
At around 5 a.m., Tina provided a Bristol police officer with a “voluntary statement,” stating the limited information she knew about Rothman‘s fight with Stachulski. Tina testified that after she provided the statement, all of the remaining officers left.13 This included Lewis, Woodward, and another Bristol officer, as well as two CNHSOU officers. Tina and Jessica testified that the “head guy” in the CNHSOU also did not leave until this point.14
III.
We review a district court‘s denial of summary judgment on qualified immunity grounds de novo. Guillemard-Ginorio v. Contreras-Gómez, 490 F.3d 31, 38 (1st Cir. 2007).
Under the doctrine of qualified immunity, police officers are protected “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation marks omitted). They receive “immunity from suit and not a mere defense to liability.” Maldonado, 568 F.3d at 268.
Following Pearson, we employ a two-prong analysis in determining whether a defendant is entitled to qualified immunity. We ask “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant‘s alleged violation.” Id. at 269. The second prong, in turn, has two parts. We ask (a) whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable officer would have understood that his conduct violated the right. Decotiis v. Whittemore, 635 F.3d 22, 36 (1st Cir. 2011). The salient question is whether the state of the law at the time would have given a reasonably competent officer “clear notice that what he was doing was unconstitutional.” Id. at 37 (quoting Costa-Urena v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009)) (internal quotation mark omitted).
Immunity will not issue if “it is obvious that no reasonably competent officer would have concluded” that an action was lawful, but if “officers of reasonable competence could disagree” on the lawfulness of the action, defendants are entitled to immunity. Malley, 475 U.S. at 341. This test imposes an objective standard of reasonableness.
IV.
We divide our analysis into two parts. We first consider the
Although excessive force is by definition unreasonable force, “reasonable people sometimes make mistaken judgments, and a reasonable officer sometimes may use unreasonable force.” Morelli, 552 F.3d at 24. When this occurs, “qualified immunity gives an officer the benefit of a margin of error.” Id.; see also Saucier v. Katz, 533 U.S. 194, 205-06 (2001) (“Qualified immunity operates . . . to protect officers from the sometimes ‘hazy border between excessive and acceptable force’ . . . .” (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000))); Jennings v. Jones, 499 F.3d 2, 18 (1st Cir. 2007) (“[O]fficers receive protection if they acted reasonably in exercising unreasonable force.“). For plaintiffs to defeat a qualified immunity defense, they must show “an incommensurate use of force beyond that needed to establish a garden-variety excessive force claim and, further, beyond the ‘hazy border’ noted by the Saucier Court.” Morelli, 552 F.3d at 24 (quoting Saucier, 533 U.S. at 206).
A. The Bristol Police Officers and CNHSOU Commander Robert Cormier
All three plaintiffs bring claims of unreasonable seizure against the Bristol officers and Commander Cormier on the theory that there was no justification for keeping them in handcuffs in the living room for forty-five minutes to an hour while the police searched the apartment. The qualified immunity question before us is whether a reasonably competent officer could have thought, even mistakenly, that in light of the clearly established law at the time, it was reasonable to keep plaintiffs in handcuffs for this duration while the search was executed.
Whether a seizure is reasonable depends on “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, 490 U.S. at 396. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
After Rothman was removed and most of the CNHSOU officers left, it appears that six officers remained in the house. These officers had the combined task of searching a three bedroom apartment, including adjoining areas and a basement, and ensuring that the occupants did not interfere with that search. This itself
Defendants rely heavily on Mena, which at the time was the most recently established Supreme Court case on detention in handcuffs during execution of a search warrant. In Mena, a qualified immunity case, the Supreme Court held that there was no
The warrant in that case was executed by a SWAT team at 7 a.m. Id. at 96. Mena was found asleep in bed, and placed, at gunpoint, in handcuffs. Id. Three other individuals living on the premises were also put in handcuffs, and all four were moved to a garage. Id. Although they were allowed to move about in the garage, the four detainees remained cuffed. Id. They were guarded by one or two officers, while the other officers performed the search. Id.
The Court concluded that the “use of force in the form of handcuffs to effectuate Mena‘s detention in the garage . . . was reasonable because the governmental interests outweigh the marginal
The Court recognized that handcuffing was a more intrusive form of detention than that which it had previously upheld and that Mena‘s claim was not about mere detention and handcuffing, but rather about the two- to three-hour duration. But it rejected her argument that this violated the
Appropriately, defendants here do not contend that Mena‘s approval of the use of handcuffs for the two- to three-hour period
Defendants could have reasonably thought that officer safety concerns justified the use of the handcuffs to avoid any danger, however small, that the detained occupants would use the hidden nightstick or possibly a gun to harm them. See id. (“[T]his safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs . . . .“); see also Summers, 452 U.S. at 702-03 (“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.“).
Defendants also had a valid interest in conducting an unimpeded search thoroughly and efficiently, and the use of handcuffs assisted in this. The handcuffs prevented the occupants of the house from interfering with the search, and from attempting to dispose of the nightstick. See Mena, 544 U.S. at 98; see also Summers, 452 U.S. at 702-03 (recognizing that the government‘s interest in “the orderly completion of the search” and preventing “frantic efforts to conceal or destroy evidence” may justify
A reasonable officer could have also taken into account the fact that the plaintiffs did not—on this record—complain that the handcuffs were painful. As Justice Kennedy explained in his Mena concurrence, which he wrote to provide more guidance to police and “help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged,” Mena, 544 U.S. at 102 (Kennedy, J., concurring), there are special concerns raised when handcuffs hurt the person cuffed:
If the search extends to the point when the handcuffs can cause real pain or serious discomfort, provision must be made to alter the conditions of detention at least long enough to attend to the needs of the detainee. . . . The restraint should also be removed if, at any point during the search, it would be readily apparent to any objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search.
Id. at 103. Here, there is no evidence that any of the plaintiffs made any complaints about the handcuffs. Indeed, the cuffs on Tina apparently loosened so much that when the police said they would cut them off, she said they did not need to. She apparently slipped them off. The absence of complaints was a factor a reasonable officer could have taken into consideration.
In light of Mena, we conclude that the question of qualified immunity must be decided in favor of these officers.
We say the question was fairly debatable because, as the district court carefully noted, there are some obvious differences from Mena which we believe reasonable officers should have considered. First, the number of detainees did not, as in Mena, outnumber the number of officers throughout the period of their detention. Cf. id. (noting that the detainees outnumbered those supervising them, “and this situation could not be remedied without diverting officers” from the search). Second, plaintiffs’ home was not a gang house known to have firearms in it, but rather an apartment known to house a family that included a fifteen-year-old girl; other than Rothman, the remaining members of the family were not known or even suspected to be violent. Cf. id. at 100 (majority opinion). Third, the object of the search was a nightstick used when two teenagers attacked another one over a girl, rather than a gun possessed by a gang member who had recently been involved in a drive-by shooting; although the officers had a fear that there was a firearm on the premises that could be used against them, that fear did not have the same foundation as in Mena. Cf. id. at 95-96. Based on these differences, a reasonable
However, these factors are not so substantial that no competent officer could have thought that the use of handcuffs during the search was permissible. “Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available.” Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir. 2005); see also Malley, 475 U.S. at 341 (stating that qualified immunity is available when “officers of reasonable competence could disagree“).
We reverse the denial of immunity on all claims arising out of this handcuffing and order entry of judgment granting qualified immunity. To be clear, we are not holding that on plaintiffs’ version of the facts there was no constitutional violation, but rather that if there was a violation, it was not so clear as to give the officers fair warning.
B. CNHSOU Officers Richard Arell, Robert Cormier, Chris Tyler, and Rick Tyler
Plaintiffs Jessica and Tina claim that they were subjected to excessive force in violation of the
For Jessica, the claim of excessive force is based on the fact that she was shoved to the floor by Officer Arell, severely damaging her kneecap, and that she was then handcuffed behind her back with metal handcuffs and detained with an assault rifle held to her head for seven to ten minutes, far beyond the time it took to locate, arrest, and remove Rothman. We do not separate these facts out but rather take them as a whole.17 On plaintiffs’ version of events, Jessica, a fifteen-year-old girl, was in no way a threat to the officers. She was not a suspect and made no efforts to resist, but rather complied with all commands. And the officers’ actions are alleged to have caused her serious physical injury, which required two surgeries and extensive treatment, as well as psychological injury, including Post Traumatic Stress Disorder.
First, the facts are sufficient to support a finding that a
Although not “every push or shove” will reach the level required for an actionable excessive force claim, Alexis v. McDonald‘s Rests. of Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995), no reasonably competent officer would have thought the totality of force used against Jessica was permissible given the facts of her situation, taking all inferences in plaintiffs’ favor. Cf. Morelli, 552 F.3d at 24 (finding that no reasonable officer could have thought it reasonable to yank the arm of an unarmed and non-violent person, suspected only of the theft of $20, and pin her against a wall for three to four minutes with sufficient force to tear her rotator cuff).
A reasonably competent officer also would not have thought that it was permissible to point an assault rifle at the head of an innocent, non-threatening, and handcuffed fifteen-year-
Defendants have not even come forward with a justification for pointing a gun at Jessica‘s head.18 Their defense is that they did not use the force they are alleged to have used. Assuming Jessica‘s version of the relevant facts to be true, we cannot say that a reasonable officer would have used such force. On Jessica‘s account, defendants’ actions are “outside the universe of protected mistakes.” Morelli, 552 F.3d at 24.
As for Tina, her case turns on her claim that an assault rifle was pointed to her head for up to half an hour. In that period of time, her son was removed from the house, her husband was taken downstairs, and she was handcuffed and lying partially nude in bed. While the CNHSOU officers did initially have to make split second decisions to assess Tina‘s threat level and the possible need for restraint, that does not characterize the entire period in the bedroom, which she says was half an hour. Rather, it quickly became clear, on plaintiffs’ version of the facts, that Tina was not the suspect, that she was not trying to resist arrest or flee, that she was not dangerous, and that she was not trying to dispose
The circumstances of Tina‘s detention in bed are unlike those in which a reasonable officer could have thought that keeping a gun pointed at her head was lawful. Cf. Los Angeles Cnty. v. Rettele, 550 U.S. 609, 610 (2007) (finding qualified immunity on the grounds that there was no constitutional violation when police entered bedroom with guns drawn, ordered plaintiffs out of bed, forced them to stand naked at gunpoint for one to two minutes, and detained them for a few more minutes, before realizing that they had made a mistake and leaving the house). There was no reasonable danger that Tina, who was not a suspect and was nearly naked in bed and without a sheet, was concealing a weapon. Cf. id. at 614. The officers were not carrying out a warrant for a group of individuals who might have been engaged in joint criminal activity with Rothman. Cf. id. at 610. And the gun pointed at Tina was not, on her version, lowered as soon as it was clearly safe to do so. Cf. id. at 615.
Defendants had fair notice that under the circumstances alleged, the detention of Tina with an assault rifle at her head was objectively unreasonable. See, e.g., Baird v. Renbarger, 576 F.3d 340, 347 (7th Cir. 2009) (denying qualified immunity to officer who pointed gun at plaintiff when “there was no hint of
The CNHSOU officers also argue that the doctrine of official immunity protects them from Jessica‘s and Tina‘s related state law assault and battery claims. We reject this argument for the same reasons identified by the district court. See Mlodzinski, 731 F. Supp. 2d at 183. Under the doctrine of official immunity, “municipal police officers are immune from personal liability for decisions, acts or omissions that are: (1) made within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner.” Everitt v. Gen. Elec. Co., 932 A.2d 831, 845 (N.H. 2007). Given defendants’ failure to establish that a reasonable officer in their position would have believed his
A more fleshed-out record on summary judgment than the bare-bones details with which we have been presented could well have affected the outcome of each of the immunity issues. For example, the situation would be very different if, given the execution of these warrants, Tina had been detained with a weapon pointed at her for only a very short period needed while she was being cuffed, her husband was being escorted out of the room, and her son was being apprehended. Our denial of immunity on plaintiffs’ version of the events leaves these claims for trial, where defendants may try to persuade the jury that they did not do what they are accused of doing.
V.
We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.
One-half of the costs are awarded to the plaintiffs, to be taxed against the CNHSOU defendants.