*2 SHEDD, Circuit Before GREGORY OSTEEN, JR., L. Judges, and WILLIAM Judge for the States District United Carolina, sitting North District of Middle by designation. opinion. Judge published
Affirmed majority opinion, wrote the GREGORY joined. Judge Judge which OSTEEN concurring separate wrote a SHEDD opinion.
OPINION GREGORY, Judge: Circuit Sonja Orem On March (“Orem”) disrupting was arrested assaulting an after being banging officer served seat around the back (“FPO”). Family rocked, with a Protective Order so intense that the vehicle loosen- Virginia to a During transport ing West and requiring Dep- device jail, regional Rephann (“Dep- uty Boyles, officer, T.E. transporting Matt *3 uty Rephann”) pull twice tased Orem. Because the vehicle over. voluntarily following Boyles the taser consti- was Deputy ERJ;
tuted in Deputy excessive force violation the Boyles requested had not Fourteenth we affirm the dis- assistance. Deputy Rephann knew that trict court’s denial of judgment. Deputy prisoner was transporting a was charged
who battery ob- officer, police struction I. and who re- portedly “unruly or combative.” day FPO, Orem was served with a Deputy Boyles pulled When to the side of she had ransacked her husband’s offices.1 road, Deputy Rephann, along with a destroyed She phones, computer key- deputy, pulled Deputy third behind board and kicked a hole the wall. She Boyles’s vehicle.2 also had assaulted her husband and Deputy exited his vehicle and thrown his clothing and into belongings approached Deputy Boyles’ ear with his yard. their front gun drawn. Deputy Boyles got out FPO, Once served initially with the car, opened of his the front passenger door left the residence. Under influence of car, of the unlocked the rear door and marijuana, alcohol, prescription drugs, attempted to tighten device. Orem quickly enraged and, became in her Deputy opened the rear door and words, started out” “flipping when she dis- following exchange occurred between covered she would not be allowed to him and Orem: see son her for six months. She drove Deputy Rephann: Unlock your door. house, back high-rate speed, at a got She’s a hobble on her. You ditch, into a skidded left her car down, need to calm Nikki.3 charged police officer. Three officers No, they’re taking my Orem: son. John Orem, placed handcuffs, restrained beat the fuck out of me! And a foot device”), restraint (“hobbling device is fucking what me. her in put police car. The foot I— John my hit me! Look at back. hobbling device was fastened around her (inaudible)— Look at ankles and by extending secured strap its Rephann: Well, down, Deputy out front calm and back passengers’ doors take of it police vehicle. care somewhere else. I Orem: can’t. I’m going jail. They being While transported to the Eastern my took son. Regional (“ERJ”), Jail yelled, cursed Deputy Rephann: Stop it. and banged against her head police car window three or four times. jumping Her you! Orem: Fuck husband, 1. Orem’s 3.Deputy Rephann John is a Sonja former refers to Orem in- deputy department. sheriff's formally ostensibly as ''Nikki” because husband, knew her and her John Orem. incident This was recorded phann’s dashboard camera. Both the district videotape and this Court reviewed the retrieved from the camera. judgment, standing the absence a final telling you, you’d Rephann: I’m “a district jurisdiction have review clicking] gun it. stop [taser
better immu- of a claim of court’s denial (Scream.) hit me. Don’t Orem: that it turns nity” because “to extent down now. Rephann: Calm law, appealable [it] on an issue of you everybody, mother suing I’m Orem: of ... meaning ‘final decision’ within fucker. ” Purnell, Henry § 1291].... U.S.C. [28 to respect You need Rephann: (citing you’re Right now not. us. 511, 530, Forsyth, Mitchell v. (Cries.) Orem: (1985)). 2806, L.Ed.2d 411 *4 (J.A. 590.) exchange, Deputy During this III. twice with a taser shocked
Rephann Orem and on her left breast gun—underneath performing officials “Government then inner Orem became thigh. her left are discretionary generally functions ERJ transported and was compliant liability damages civil shielded from However, per- further incident. without conduct does not violate insofar as their left where scar was manent sunburn-like clearly statutory or constitu established to her applied thigh. taser had been person rights tional of which reasonable incident, 27 Orem was At the time of this Fitzger v. would have known.” Harlow pounds. Depu- 100 years weighed old and ald, 818, 2727, 800, 73 457 102 S.Ct. U.S. hand, weighed on the other ty Rephann, (1982). In deciding L.Ed.2d whether 396 pounds. 280 qualified Deputy Rephann entitled in Deputy Rephann, (1) his offi- sued Orem immunity, we examine: whether Berkeley as an officer of capacity cial that Deputy facts demonstrate Department per- County Sheriffs right to be violated Orem’s constitutional alleging so, that had used capacity, force; and, sonal free from excessive being trans- force while she was excessive Rephann’s conduct was whether police in the vehicle. district ported in the then objectively light reasonable motion for denied right. court clearly-established constitutional Dep- 200, the basis that summary Katz, 194, 121 v. 533 U.S. Saucier (2001). force was unreason- uty Rephann’s use of 2151, L.Ed.2d 272 With mind, in of Orem’s Fourth violation able first consider principles these we Rephann filed rights. Deputy facts, Amendment in Orem’s when viewed whether the interlocutory challenging the appeal favor, that demonstrate summary judg- court’s denial force. used excessive and his Rule 52 Motion amend ment A. findings.
court’s force excessive analysis an Our II. § begins brought claim under specific constitutional “identifying the a district de novo review We challenged infringed by the right allegedly denial court’s Connor, Graham v. application of force.” construing all facts immunity, 1865, 109 S.Ct. 490 U.S. to the nonmovant. most favorable (1989). Here, Mary Civil Liberties Union American that Md., analyzed Orem’s claim land, County, v. Wicomico Inc. Cir.1993). under excessive force Rephann used Notwith- “objective contrary, Fourth Amendment’s reason- maintains However, we have Rephann’s ableness standard.” use of unneces- pro- clear that Fourth Amendment sary made given and excessive that she was pre- do not extend to tections arrestees and in handcuffed foot restraints. We Dorton, Riley trial v. 115 F.3d and, therefore, conclude, detainees. agree cannot as a (4th Cir.1997) (en banc). Indeed, law, matter of force Dep- used Riley, “[t]he held that Fourth Amend- uty Rephann constitutionally permissi- [only] governs ment claims of excessive ble. arrest, during of an force the course inves- To succeed on force excessive tigatory stop, per- or other ‘seizure’ of a claim under the Due Process Clause Whereas, Id. at son.” “excessive Fourteenth Orem must show claims of a pretrial force detainee ar- [or “inflicted unneces governed by the Due restee] Process sary wanton pain suffering.” Clause the Fourteenth Amendment.” Taylor McDuffie, 155 F.3d Young George’s County, Mary- Prince (citing Whitley, 475 land, 355 F.3d 1078). determining “In whether (quoting Taylor McDuffie, *5 crossed, constitutional line has [this] been (4th Cir.1998)). a court must look to such as the factors point The at which Fourth Amend force, application need for the the rela protections ment end and Fourteenth tionship between the need and the amount protections begin
Amendment is often used, injury force extent murky. here, But Orem’s excessive force inflicted, ap and whether the force was EJR, claim her during transport arises to plied in a faith good effort to maintain and after she was arrested. she While had not discipline restore maliciously and sadis formally charged, been her status as an tically very for the purpose causing requires application arrestee Four Glick, harm.” Johnson teenth Amendment her claim. The dis (2d Cir.1973). trict in applying court erred the Fourth We, nevertheless, Amendment.4 affirm its From the facts as we must view denial of summary them, alternative jury Deputy reasonable could infer Smith, grounds. See United States v. 395 Rephann’s “good actions were not a faith Cir.2005) (4th (“We 518-19 are but, rather, effort to restore order” wanton grounds not limited to evaluation of the unnecessary. Deputy Boyles When by the support offered district court to its pulled exited, his vehicle it over was decision, may any grounds but affirm on clear that necessary some action was record.”). apparent from the calm and safely transport Orem her to Deputy Boyle began EJR. immediately
B.
hobbling
Deputy
re-secure the
device.
Rephann argues
Deputy
Rephann,
hand,
that the district
on the other
began talking
Orem,
court erred in denying summary
judg-
whom he knew
because
He
ment.
contends that
use of
deputy.
his
husband was a former sheriff
was
gun
Deputy
not excessive because
attempt
Orem
did not
assist
unruly
uncooperative.
To the
in tightening
court, however,
district
pretrial
The
did state in a
lation for
detainment
treatment.
that the
could
analysis
footnote
case
have been framed
limited
its
to the Fourth
process
parties’
as a Fourteenth Amendment
pleadings.
due
vio-
Amendment based on the
Instead,
telling
began
Orem whether
the use of force was excessive
device.
he
refrain from
calm down and
under the Fourteenth Amendment.
she needed to
See
Landen,
moving
the vehicle. While
Moreover, Deputy Rephann acknowl-
facts, here,
(1989), the
door, at explanation we find this tenuous best. Nevertheless, Deputy Rephann proper argues taser under that
Deputy Rephann placed the
only
de minimus
thigh.
because Orem
suffered
Orem’s left breast and inner
Con-
injury can
right
injury. Although
de minimus
sidering his reach was closer
claim,
body, a
a Fourteenth Amendment
parts
and other
of her
reason-
foreclose
side
properly recognized
juror
could
able
also infer
far
injury
ar-
consisted of
more than
of force
these
Orem’s
Rephann’s application
Riley,
resulting
scar.
115
very purpose
for the
sunburn-like
eas was done
It is
that a
embarrassing
well settled
harming
Orem—motives
at 1167-68.
de
factors,
only
minimus
despite Deputy
pretrial detainee
that are relevant
challenged
if the
contentions,
injury may only recover
determining
Rephann’s
See,
“in an
in
impermissible
e.g.,
resulted
of excessive force.
Bell v.
conduct
Wolf-
ish,
520,
1861,
pain”
fliction of
otherwise “of a sort
U.S.
S.Ct.
was
(1979). Deputy Rephann
mankind.” L.Ed.2d 447
repugnant
to the conscience of
1259,
(4th
and,
properly
point
concedes this
Taylor,
n. 4
there-
Norman v.
fore,
Cir.1994) (en banc);
no further
necessary
Hudson v.
discussion is
McMilli
an,
1, 10,
995,
however,
Deputy Rephann,
117 this matter.
U.S.
that he
im-
Whitley, 475 asserts
is entitled to
(quoting
1078).
munity
327,
objectively
because his conduct
Depu
U.S.
While
ty
much of
reasonable.
Rephann makes
the fact that
seconds,
only applied
1.5
the taser was
‘police
“Because
officers
often
forced
shock,
electric
experience
pain,
Orem did
to make
cir
split-second judgments —in
Eighth
As
developed
scar.
Cir
tense, uncertain,
cumstance that are
poignantly explained:
cuit
evolving,’
rapidly
the facts must be evalu
gun
stun
inflicts a painful
[A]
from
perspective
ated
reasonable
blow,
frightening
temporarily
which
par-
scene,
officer at the
and the use of hind
large
body,
alyzes the
muscles of the
sight must be avoided.”
v.
Waterman
rendering
helpless.
victim
This is
Button,
471,
393 F.3d
476-77
exactly the sort of torment without
Connor,
(quoting
Graham
which,
marks ...
le-
inflicted without
109 S.Ct.
Because the taken most Orem, favorable to show that And, indeed, Deputy Boyles, who was phann unnecessary inflicted and wanton transporting bearing Orem and the brunt pain and suffering, alleged has request of her did rage, not assistance violation of her Fourteenth Amendment try fit to first to saw secure her hobble to right be free from excessive force. restraints —not use electric re- shock to officer, store order. The other who stood
IV. directly Deputy Rephann, behind not did Having attempt found that Re to restrain Orem or assist Deputy phann’s conduct violated Orem’s in tightening constitu the device— right, tional turn gun. to whether that alone con let taser Notwithstand- right “clearly immunity stitutional was the ing qualified established” am- standard’s 2005, at the In ple time of the violation. room judgments, for mistaken is there clearly bearing heavily established or against arrestee evidence pretrial that, detainee is protected circumstances, from the use these the
449
custody”),
legitimate
pretrial
restees or
detainees
not used for a
gun was
officers,
parties
the
continued maintain that the
the
as
purpose;
protecting
such
However,
applies.
Fourth Amendment
as
Orem,
Orem’s es
preventing
protecting
holds,
(“The
correctly
is un
majority
the
this
229,
Id. at
112 S.Ct.
cape.
a Fourteenth Amendment
questionably
‘gives ample
immunity standard
qualified
case because
the time
by protect
judgments’
for mistaken
room
used
taser on Ms.
had
his
been
incompetent
the
ing’
plainly
all but
arrest;
law.’”)
consequently, the
placed under
act
violate the
knowingly
those who
seizing
complete,
see Scott v.
335,
Briggs,
(quoting Malley
U.S.
—
Harris,
-,
U.S.
S.Ct.
(1986)).
341, 106
L.Ed.2d 271
“(a
1776,
Cty. Inyo, 489 U.S. (1989)), Y. longer ap the Fourth was no Amendment reasons, the foregoing For the plicable, George’s Cty., see Robles Prince affirmed.5 Md., AFFIRMED (“Once single detaining the act of an indi accomplished, vidual has been the [Fourth] SHEDD, Judge, concurring: Circuit Despite to apply.”). Amendment ceases in the majority’s I concur decision parties’ recognize refusal to this rather conclusion, affirm the denial of not by we are bound obvious summary judgment motion and subse- law, their erroneous characterization of 52(b)” quent sepa- Servs., Inc., motion. I write “Rule Fin. Kemper see Kamen rately explain my rationale. 111 S.Ct. (1991) (“When an issue or L.Ed.2d Throughout litigation, parties this court, properly claim is before case one pled argued have as particular legal not limited to the court is involving Fourth Amendment excessive parties, but rath theories advanced Even district court force claim. after the independent power to identi er retains applicability potential noted fy apply proper construction of in its Fourteenth Amendment law.”), may and we affirm on governing order, requested and after we record, in the in *8 any ground appearing briefing specifically and cited supplemental upon by cluding not relied the theories appli- precedent circuit that indicates the States, court, v. United Scott Amendment, see cability of the Fourteenth (4th Cir.2003). 132, 137 F.3d (4th Dorton, F.3d Riley v. Cir.1997) (en banc) Therefore, proceeding to review dis- “the (holding that denying Deputy Re- a trict order does not embrace court’s Fourth Amendment summary judgment motion under phann’s and not theory ‘continuing of seizure’ does must we first of ar- the Fourteenth alleged extend to the mistreatment asking amend the district court to of Re- and The district court's denial summary ruling is also correct its phann’s pursuant Motion to Fed.R.Civ.P. 52(b) findings requesting of fact affirmed. additional met arguments consider whether Ms. has her record and based on the pre- presenting burden of sufficient evidence in sented whether concerning record establish Fourteenth phann in good-faith used his taser effort Amendment violation. See v. Henry Pur discipline, maintain or restore or mali- nell, (4th Cir.2007) 377-78 F.3d ciously sadistically for very pur- (explaining parties’ respective burdens pose causing my of harm. I base conclu- qualified immunity analysis). in a In order (1) following Orem, sion on the facts: Ms. to succeed on Fourteenth Amendment unruly, mostly while restrained in the claim, excessive force Ms. Orem must (2) car; back patrol Deputy Re- “ show that Deputy ‘inflicted un phann used immediately the taser in re- necessary pain suffering.’ and wanton sponse to Ms. of profanity Orem’s use proper inquiry is whether the force (3) him; toward applied good was ‘in faith effort to main twice made contact with Ms. discipline tain restore or maliciously both times the contact was in a sensitive sadistically very purpose (ie., body just area below her breast and ” causing Taylor McDuffie, harm.’ thigh); on her (quoting F.3d Whit told Ms. Orem that she needed to “re- Albers, 312, 320-21, ley 475 U.S. 106 spect” immediately the officers after he (1986)). used his taser. As majority explains, the record es- In foregoing, addition to the Ms. Orem reprehensible tablishes that Ms. Orem’s must injury resulting also show that her riding Deputy Boyles’ conduct while from Deputy Rephann’s infliction of force patrol car warranted some use of force to minimis, is more than de or that the force restrain her. Ms. Orem does not contest “ used is ‘of a repugnant sort to the con- and, fact in light this the videotape science ... pain of mankind or the itself incident, this not required would be properly [is] such it can be said to accept her version even she so. did See ” constitute more than de injury.’ minimis Harris, 127 at 1776 on (holding sum- Deeds, (4th Carr v. 605-06 mary judgment that when the non-moving Cir.2006) (quoting Norman v. Taylor, 25 party’s utterly version events is “so (en n. 4 by videotape] [a discredited no rea- banc)). view, In my the district court jury sonable him,” could have believed correctly concluded Ms. Orem met rely then court should not on “such but burden based visible fiction” instead view should Specifically, “in record.1 she has facts testified depicted by the video- that Deputy Rephann’s tape”). Generally, the taser recognized we have left a thigh. Moreover, scar on her the Fourteenth Amendment context that pain law associated being enforcement must shocked officers be accorded twice (as by a body “due taser in deference” when sensitive areas comes their was) attempts to restrain seems to to fall disorderly me within the detainees level See, Peed, e.g., Grayson force. that we have recognized more constitutes Cir.1999). 696-97 than injury regardless Notwith- de minimis *9 standing general this principle, inju- I believe whether Ms. any enduring Orem has that a jury question ry. sufficient in exists this Although
1. analyzed the district court injuries eluded that Ms. Orem’s more than case under the it Fourth con- de minimis. suffi- presented has
Because Ms. jury question as to create a cient evidence America, UNITED STATES Rephann violated to whether Plaintiff-Appellee, to shifts right, the burden constitutional quali- his entitlement to him to establish F.3d at Henry, 501 immunity. See
fied Darryl BOYNES, Jr., Defendant- he establish regard, In this must 378. Appellant. clear to a reason- not have been would No. 06-4841. was unlawful that his conduct able officer at 377. he confronted. Id. the situation of Appeals, United States Court majority with the agree I Fourth Circuit. to his has failed meet burden. April 2008. reasons, I short, foregoing In for Duffey, City Richmond Peter Sinclair majority that the district agree with the Richmond, VA, Attorney, Commonwealth denying Deputy Rephann’s court’s order Plaintiff-Appellee. for af- summary motion should be judgment every give a taser will Not
firmed. Walker, Jr., Robert Robert Edwin violation, Depu- a constitutional rise to PC, Richmond, VA, Associates, Walker & very at trial ty may well be able DefendanWAppellant. for in this jury a that his conduct to convince lawful, but he is not entitled instance ORDER summary on this record.2 judgment requested a poll A member Court en banc. whether to rehear case
on Judges Wilkin- Judge Chief Williams son, Traxler, King, Niemeyer, Shedd and against rehearing en banc. Duncan voted Michael, Gregory Motz and voted Judges rehearing grant en banc. banc poll rehearing en Because majority judges in a produce failed rehearing en service in favor active banc, Judge is denied. rehearing en banc v. American Nat’l orally Ins. Co. denied motion. the district court After Pacific Co., motion, Cir. summary un- Fire Ins. Rephann's 59(e) 52(b) 1998). "Although not itself Rule does successfully under Fed.R.Civ.P. moved a district provide under which find- a standard court to make additional for amend a may grant a motion to alter or apparently change ruling, and he ings and its recognized that there judgment, we have ... first time several affidavits for the submitted amending own) grounds an earlier (including Rule are three with that motion. (1) intervening 52(b) applicable judgment: to accommodate an in a that is not trial rule law; (2) however, change controlling account for proceeding; trial; 52(b) at not available erroneously new evidence filed under Rule motion 59(e) prevent mani error of law alter correct a clear motion to may be treated as Rule injustice.” Id. 403. I find that Mercury Co. fest St. Paul Ins. or amend. See that the Rephann has failed to demonstrate Corp., Grounds Fair denying discretion Cir.1997). court abused its abuse discretion We review for 59(e) this motion. decision on Rule a district court's