Morris v. NoeMorris v. Noe
Plaintiff Donna Morris brought this
I.
Before proceeding to the merits, we must address Plaintiff‘s argument that we have no jurisdiction over this appeal. We have jurisdiction only over “final decisions” by the district courts.
Because our jurisdiction is limited, we “take, as given, the facts that the district court assumed when it denied summary judgment.” Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). “[W]e may review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right, but we may not consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.” Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002) (Alito, J.) (internal quotation marks omitted). Falling squarely within our jurisdiction is the district court‘s “legal determination that certain alleged actions violate clearly established law. Defendants may therefore assert on appeal that all of the conduct which the [d]istrict court deemed sufficiently supported for purposes of summary judgment meets the applicable legal standards.” Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir.2001) (internal quotation marks and citations omitted).
Here, the district court denied summary judgment for two reasons, one appealable, and one not. First, the district court determined that fact issues remained on Plaintiff‘s constitutional claims. Morris v. City of Sapulpa, 2011 WL 1627098, at *7, *8 (N.D.Okla. April 28, 2011). Second, the court held that Defendant was not entitled to qualified immunity based on the facts viewed most favorably to Plaintiff. Id. at *12. We have jurisdiction over only the latter determination. Ortiz, 131 S.Ct. at 892. “Within this limited jurisdiction, we review de novo the district court‘s denial of a summary judgment motion asserting qualified immunity.” Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir.2010) (internal quotation marks omitted).
II.
The facts assumed by the district court are as follows. A motorist alerted Sapulpa Police Officer Jamie Noe to a domestic disturbance at a residence on Muskogee Street. Upon his arrival at the residence, Noe encountered three persons: Plaintiff, Misty Rowell, and Quinton Bell. Bell was Rowell‘s former boyfriend and the father of her child. Rowell‘s then-current boyfriend was William Morris IV (“William“), Plaintiff‘s son. Officer Noe learned Bell and William had engaged in an altercation that resulted in William ransacking the Muskogee Street residence, burning some of Bell‘s clothing in the front yard, and damaging Rowell‘s vehicle with a tire iron. Plaintiff heard of the incident and went to the Muskogee Street residence. After Plaintiff arrived, Bell parked his truck behind Plaintiff‘s vehicle, preventing her from leaving.
By the time Noe arrived, William was gone, but Plaintiff, Rowell, and Bell were in the front yard, yelling at each other. Rowell‘s vehicle showed signs of significant body damage. Glass lay on the ground. A pile of clothing was smoldering in the front yard. Noe sought to calm the participants down and take statements. Two other officers arrived to assist him. About twenty minutes later, Plaintiff‘s now-deceased husband, William Morris III (“Morris“), arrived on the scene. Morris was six
The situation was “calm and under control” when Morris arrived. Morris first spoke with Plaintiff, and she assured him she was not hurt. Morris then approached Bell, but was never closer to him than eight to ten feet. From that distance, Morris asked Bell “Why was you talking to Mama that way?” He also told Bell that Plaintiff had been feeding Bell‘s kids. Bell approached Morris, at which point Morris put his hands up and started backing toward the police officers, “for help, I guess.” 2011 WL 1627098, at *6. Then “two of the police officers lunge[d] towards [Morris] and put their hands on his shoulders, twisted him around and ran him into the bushes ... throwing him to the ground.” Id. The officers then “put their knees—fell into his midsection and his back and handcuffed him.” Id.
Morris‘s version of the events differed slightly from Plaintiff‘s, but the district court relied on Morris‘s testimony as well. Morris said he asked Plaintiff upon his arrival “is that him?” in reference to Bell. Plaintiff responded it was. Morris then “called ‘hey’ to Bell.” According to Morris,
[Bell came] running at me ... I just threw my hands up because I didn‘t know what he was going to do.... And then the next thing I know, I‘m eating dirt. Sapulpa—two Sapulpa policemen grabbed—I didn‘t even know they was around. They grabbed me from behind and threw me into some branches.... They handcuffed me, picked me up three times by the handcuffs and stood me up and each time they did, I fell.
Noe, after handcuffing Morris, noticed Morris smelled of alcohol and exhibited signs of intoxication, such as slurred speech. Morris admitted to consuming “a couple of drinks” two hours earlier. Noe therefore issued Morris a citation for public intoxication. Morris was then taken to the hospital for treatment of hip injuries he suffered as a result of the encounter. Morris stayed at the hospital approximately thirty days. Because he was hospitalized, Morris was unable to appear in court on his public intoxication citation. Plaintiff appeared in court for him and paid the fine, although she could not remember whether she entered a guilty plea. The court records reflect a guilty plea being entered on Morris‘s behalf.
Approximately three years after the events in question, Morris died. Plaintiff then brought this
III.
Defendant Noe raises three issues on appeal. First, he argues he was entitled to qualified immunity because he had reasonable suspicion Morris was committing an assault and the force he used to restrain Morris was reasonable. Second, he claims the district court erred in relying on unpublished opinions in determining whether the law was clearly established for purposes of qualified immunity. Third, he argues the district court erred
Qualified immunity requires a “two-step sequence.” Pearson v. Callahan, 555 U.S. 223, [232], 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). Only if the plaintiff has satisfied both steps is qualified immunity defeated. We conduct the two-step qualified immunity inquiry for the unlawful arrest and excessive force claims separately. See Cortez v. McCauley, 478 F.3d 1108, 1126-27 (10th Cir.2007) (en banc).
A.
We turn first to Plaintiff‘s unlawful arrest claim. Such claims are based on the settled proposition that “a government official must have probable cause to arrest an individual.” Fogarty v. Gallegos, 523 F.3d 1147, 1158-59 (10th Cir.2008) (internal quotation marks omitted). Before we turn to the probable cause inquiry, however, we must determine when the arrest took place. Whether Defendant Noe had probable cause depends on the facts he knew at the time of arrest, and Defendant acquired additional facts as the situation unfolded. Defendant argues Morris was only arrested when he was cited for public intoxication, not when he was tackled. He claims “the initial detention by ‘tackle’ and the subsequent arrest for public intoxication were t[w]o separate and distinct events.” If this is correct, the arrest was undoubtedly valid because by the time he cited Morris, Defendant had probable cause to believe Morris was intoxicated. Plaintiff, on the other hand, has maintained throughout the litigation that the arrest took place when Defendant “threw down” Morris. Plaintiff points out Defendant did not “arrest” Morris for public intoxication, but rather issued him a citation for that offense. To resolve this dispute, we must consider the distinction in Fourth Amendment jurisprudence between arrests and investigative detentions.
1.
The Supreme Court has identified three categories of police-citizen encounters: consensual encounters, investigative stops, and arrests. Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). “Consensual encounters are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Id. An investigative detention, also called a Terry stop, is an encounter in which police may “stop and briefly detain a person for investigative purposes.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Such a stop is a Fourth Amendment seizure, but does not require probable cause. Oliver, 209 F.3d at 1186. Rather, a Terry stop is justified “if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer
When Defendant “threw” Morris to the ground, Defendant certainly seized Morris within the meaning of the Fourth Amendment. “A person is seized by the police ... when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (internal citations, quotation marks, and emphasis omitted). See also California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (“[The defendant] was not seized until he was tackled.“). Defendant then further restrained Morris by handcuffing him. The question facing us is whether this seizure should be characterized as a Terry stop or a full arrest. “[T]he use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994) (emphasis added). But we have said such techniques ”generally exceed the scope of an investigative detention.” Cortez, 478 F.3d at 1116 (emphasis added). Officers may restrain an individual in order to “maintain the status quo during the course of a Terry stop.” Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir.1997) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). We have approved both a takedown and the use of handcuffs during the course of a Terry stop, where the officers reasonably feared for their safety. See, e.g., Id. at 1030-31 (arm-bar takedown); United States v. Albert, 579 F.3d 1188, 1194 (10th Cir.2009) (handcuffs).
But these cases have involved traditional investigatory stops, such as traffic stops, that presented additional concerns for officer safety. Here, the facts indicate a full custodial arrest. Defendant Noe did not merely “maintain the status quo” when he took Morris to the ground. Under the facts relied on by the district court, Defendant threw Morris to the ground despite the fact Morris presented no threat to officer safety and had not engaged in any suspicious activity. Because “an unreasonable level of force transforms a Terry detention into an arrest requiring probable cause,” United States v. Shareef, 100 F.3d 1491, 1507 (10th Cir.1996), Defendant‘s actions in throwing down Morris constituted an arrest, rather than a detention. This brings us to the next question—whether the arrest was supported by probable cause.
2.
“Probable cause to arrest exists where, under the totality of the circumstances, a reasonable person would believe that an offense has been committed by the person arrested.” United States v. Martin, 613 F.3d 1295, 1302 (10th Cir.2010) (internal quotation marks omitted). The probable cause inquiry is an objective one. “An arrest is not invalid under the Fourth Amendment simply because the police officer subjectively intended to base the arrest on an offense for which probable cause is lacking, so long as ‘the circumstances, viewed objectively, justify’ the arrest.” Howards v. McLaughlin, 634 F.3d 1131, 1142 (10th Cir.2011) (quoting Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). That is, an arrest is lawful as long as probable cause exists for some offense.
Defendant argues he had probable cause to arrest Morris for assault. Under Oklahoma law, “[a]n assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”
Defendant argued in the district court that, in addition to assault, he had probable cause to arrest Morris for several municipal offenses, including disturbing the peace, disorderly conduct, public intoxication, resisting a police officer, and failing to obey orders of a police officer.1 Defendant referenced none of these offenses in his opening brief, and we need not consider them because “[a]n issue or argument insufficiently raised in the opening brief is deemed waived.” Becker v. Kroll, 494 F.3d 904, 913 n. 6 (10th Cir.2007). But even if we addressed these other offenses, we would agree with the district court that the facts at the time of the arrest, as the district court construed them, did not support probable cause for any of these offenses. Officer Noe testified he only noticed signs of Morris‘s intoxication after he had taken him down and handcuffed him. Morris‘s behavior up to the point of the arrest was not threatening, loud, or disorderly. Nor did Morris fail to comply with any officer orders. Thus, Noe had no reason to arrest Morris for any offense. Accordingly, Plaintiff has satisfied the first step of the qualified immunity analysis as to his unlawful arrest claim.2
The second step in our qualified immunity inquiry is whether Morris‘s right to be free from an unlawful arrest was clearly established. “When a warrantless arrest is the subject of a
Having resolved the issue of qualified immunity on Plaintiff‘s unlawful arrest claim, we now turn to her claim for excessive force. “Excessive force claims are governed by the Fourth Amendment‘s ‘objective reasonableness’ standard.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th Cir.2010). Under this standard, “the question 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.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether the use of force is reasonable in a particular situation, we consider (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to flee. Id. at 396, 109 S.Ct. 1865. Although Plaintiff has introduced evidence the officers “fell into [Morris‘s] midsection and back” and “picked [him] up three times by the handcuffs,” Plaintiff has focused her excessive force claim entirely on the initial tackle or “throw down.” Accordingly, we too focus there.
1.
At least two of the Graham factors weigh strongly in Plaintiff‘s favor, while one weighs slightly in Defendant‘s favor. Under the first factor, we consider the severity of the crime at issue. Although we have concluded Defendant had no probable cause to arrest Morris for any crime, we do not merely assume no crime was at issue. Cortez, 478 F.3d at 1126. We judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Thus, in an excessive force inquiry, we ask whether the force used “would have been reasonably necessary if the arrest or the detention were warranted.” Cortez, 478 F.3d at 1126. See also Fogarty, 523 F.3d at 1160 (assuming “for the purposes of our independent excessive force analysis” that the defendant had committed a crime, even though no probable cause existed to arrest for the crime).
Here, Defendant asserts he had probable cause to arrest Morris for assault, which in Oklahoma is a misdemeanor punishable by up to thirty days in jail, a fine of up to $500, or both.3
Finally, under the third Graham factor, Morris was neither resisting arrest nor attempting to flee. In fact, he was backing toward the officers when they grabbed him from behind. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir.2007) (plaintiff walking toward a courthouse to return a mistakenly removed folder “made himself easier to capture, not harder“). Morris did not struggle with the officers before or after they took him to the ground. See Cortez, 478 F.3d at 1128 (finding excessive force where plaintiff did not “actively resist[ ] seizure” and “cooperated fully“). Thus, based on the facts assumed by the district court, Plaintiff can meet her burden on the first qualified immunity prong. Yet even if Noe violated a constitutional right, he is still entitled to qualified immunity if the right was not clearly established at the time. We turn now to the second prong.
2.
“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The question of whether a right is clearly established must be answered “in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. That is, the question is not whether the general right to be free from excessive force is clearly established, but whether Morris had a clearly established right under the facts of this case. “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Klen v. City of Loveland, Colo., 661 F.3d 498, 511 (10th Cir.2011). Because the existence of excessive force is a fact-specific inquiry, however, “there will almost never be a previously published opinion involving exactly the same circumstances.” Casey, 509 F.3d at 1284. Thus, we have adopted a sliding scale: “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004). In fact, we do not always
The district court discussed, and Plaintiff cites, a number of cases involving police tackles or takedowns. Most of these cases are of limited usefulness, however, because the facts are dissimilar to this case. Several cases found excessive force based on abusive conduct subsequent to the takedown. In Gouskos v. Griffith, 122 Fed.Appx. 965, 967-68 (10th Cir.2005) (unpublished), an officer threw to the ground a man who was picking up his daughter from a rowdy party.5 The officer allegedly choked the man almost to unconsciousness and continued to step on his back so he could not breathe after he was handcuffed and totally subdued. Id. at 975. The district court granted the officer qualified immunity, but we reversed, holding the facts showed a violation of a clearly established right. Id. at 977. In support of our holding, however, we cited cases dealing with “post-arrest kicking, beating and choking.” Id. Gouskos is not particularly helpful here, because it focused on the subsequent beating, rather than the initial takedown. This same problem arises with other cases Plaintiff cites. See Dixon v. Richer, 922 F.2d 1456 (10th Cir.1991) (police officers stopped a man suspected of having information about a fight and beat him with a flashlight, despite his compliance); Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993) (three officers tackled plaintiff and beat him with a flashlight for about a minute).6 In short, we have found no cases addressing the type of force used here—a forceful takedown that by itself caused serious injury.
Ultimately, however, we may conclude a constitutional right was clearly established, even in the absence of similar prior cases, if the force is clearly unjustified based on
A reasonable officer ... would not have needed prior case law on point to recognize that it is unconstitutional to tackle a person who has already stopped ... and who presents no indications of dangerousness. Such conduct is a major departure from reasonable behavior under both the Graham factors and the officer‘s training.
Here, as we discussed above, the first Graham factor only marginally supported using force against Morris, and the second two factors weighed heavily against it. So a reasonable officer would know based on his training that the force used was not justified. ”Graham establishes that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest.” Casey, 509 F.3d at 1285. See also Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir.1998) (holding where arrestees had not committed a serious crime, posed no immediate threat, and did not actively resist arrest, “the officers were not justified in using any force, and a reasonable officer thus would have recognized that the force used was excessive“). Noe had reason to believe Morris was, at most, a misdemeanant. But Morris posed no threat to Noe or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, Morris‘s right to be free from a forceful takedown was clearly established under Graham. Defendant is not entitled to qualified immunity on either of Plaintiff‘s claims.
AFFIRMED.