Lara ROOSEVELT-HENNIX, Plaintiff-Appellee, v. Officer Shane PRICKETT, in his individual and official capacities, Defendant-Appellant, and The City of Florence, a municipal corporation; Officer James Barr, in his individual and official capacities, Defendants.
No. 12-1307
United States Court of Appeals, Tenth Circuit
May 16, 2013
751
In short, we see no basis for concluding that the County‘s conduct in terminating Koessel rose to the level of a substantive due process violation.
III. Conclusion
For the foregoing reasons, the district court‘s judgment is AFFIRMED.
Eriс M. Ziporin (Sarah E. McCutcheon with him on the briefs), Senter Goldfarb & Rice, L.L.C., Denver, CO, for Defendant-Appellant.
Kim Welch, William Muhr Law Firm, Colorado Springs, CO (L. Dan Rector, Rector Law Firm, Colorado Springs, CO, on the brief), for Plaintiff-Appellee.
Before LUCERO, MURPHY, and MATHESON, Circuit Judges.
MURPHY, Circuit Judge.
Officer Shane Prickett of the Florence City Police Department used a Taser on Lara Roosevelt-Hennix while Roosevelt-Hennix‘s hands were cuffed behind her back and she was seated in the back seat of a police car. Roosevelt-Hennix brought suit pursuant to
Orders denying summary judgment are ordinarily not appealable final orders for purposes of
As the Supreme Court has recognized, however, it will not always be easy “to separate an appealed order‘s reviewable determination (that a given set of facts violates clearly еstablished law) from its unreviewable determination (that an issue of fact is ‘genuine‘).” Johnson, 515 U.S. at 319. This is particularly true when district courts “deny summary judgment motions without indicating their reasons for doing so.” Id. In denying Prickett qualified immunity, the district
With two notable exceptions, the facts leading up to Prickett‘s use of a taser on Roosevelt-Hennix аre largely undisputed. Those facts, stated in the manner most favorable to Roosevelt-Hennix, are as follows. Prickett and James Barr are offi-
At Barr‘s request, Roosevelt-Hennix agreed to step out of her vehicle and perform standard roadside sobriety tests. Barr conducted the horizontal gaze nystagmus test, which indicated Roosevelt-Hennix might be intoxicated. Barr also began to instruct Roosevelt-Hennix through additional tests, but stopped when Roosevelt-Hennix indicated a back injury prevented her from performing some physical tasks. At that point, Barr handcuffed Roosevelt-Hennix‘s arms behind her back and placed her under arrest for DUI. Although she was angry Barr ignored her request to employ the handcuffs outside her daughter‘s line of sight, Roosevelt-Hennix voluntarily presented her hands for cuffing. Barr placed Roosevelt-Hennix in the back seat of a patrol vehicle and closed the door. Barr testified Roosevelt-Hennix was compliant as he placed her in the patrol vehicle. Although the exact timing of his arrival is less than clear, Roosevelt-Hennix testified Prickett arrived on the scene by the time Barr placed her in the patrol car.
Roosevelt-Hennix began to panic after Barr placed her in the police car. She testified as follows: “I‘m claustrophobiс, and with the windows up, doors locked, hands behind my back handcuffed, and I didn‘t know what was going on with my daughter. . . .” She yelled at the officers to return to the patrol vehicle and tell her what was going on with her daughter, but Barr and Prickett initially ignored her request. During this outburst, Roosevelt-Hennix banged her head against the window of the patrol vehicle to try and get the officers’ attention.5 Prickett returned to the patrol vehicle and opened the door. According to Roosevelt-Hennix, she asked Prickett if “one of [the officers] could stand by the car with [her] so that the door [could] remain open so [she would not] go into a full panic because of being in a confined space.” Prickett refused her request and told Roosevelt-Hennix to calm down and stop banging her head against the window.
Prickett determined Roosevelt-Hennix should be “hobbled”6 prior to transport to
Prickett contends that both of the key factual assertions underpinning Roosevelt-Hennix‘s appellate arguments7 are blatantly contradicted by the record.8 According to Prickett, Roosevelt-Hennix admitted during her deposition that the
In any event, Prickett placed the taser against Roosevelt-Hennix‘s thigh and activated it in drive stun mode.9 After Prickett employed the taser, Barr removed Roosevеlt-Hennix‘s legs from the patrol car and placed them in restraints. Immediately thereafter, Roosevelt-Hennix advised Barr she could not feel her legs. Barr contacted dispatch and requested that medical personnel meet him at the police department to evaluate Roosevelt-Hennix. Medical personnel met Barr and Roosevelt-Hennix at the police department and then transported her to the hospital. The next day, Roosevelt-Hennix underwent back surgery for paralysis in her lower еxtremities.
III. DISCUSSION
As should be apparent from the discussion set out above, the resolution of this appeal turns entirely on questions of evidentiary sufficiency. Put simply, Prickett‘s arguments as to both prongs of the qualified immunity analysis—the existence of a constitutional violation that is clearly established—depend entirely on the assertion Roosevelt-Hennix actively resisted the officers’ proper attempts to place her in leg restraints. Accordingly, as required by Lewis, this court turns to the record to determine whether it contains sufficiеnt evidence from which a reasonable juror could find: (1) Roosevelt-Hennix informed the officers she was physically incapable of complying with the request to place her feet outside the patrol vehicle for hobbling; and (2) the officers did not attempt to aid her in moving her feet outside the patrol vehicle before applying the taser. See Lewis, 604 F.3d at 1225.
This court first addresses Prickett‘s assertion Roosevelt-Hennix confirmed during her deposition “that the officers attempted to physically manipulate her legs аnd remove them [from] the vehicle—prior to the use of the TASER.” Reply Br. at 10. In support of this assertion, Prickett points to a portion of Roosevelt-Hennix‘s deposition attached to his motion for summary judgment. The portion of the deposition attached to Prickett‘s summary judgment motion, however, omits a key part of the exchange. The entire relevant portion of the deposition is attached to Roosevelt-Hennix‘s memorandum in opposition to summary judgment. Roosevelt-Hennix testified as follows:
Q. Isn‘t it true that Officer Bаrr at one point reached his hands into the car to grab your feet to pull your feet out, and you prevented him from doing that?
A. I don‘t remember preventing him from doing that. I do remember them grabbing my leg right before I was Tased.10
Q. And
A. That‘s all I knew, I was being Tased.
Q. And did they tell you, we need to get your feet and get them out of the car?
A. I remember them asking me to put my legs out of the car, but I don‘t remember why. I don‘t remember them telling me why.
Q. Do you remember keeping your feet still and locking them and preventing them from getting your feet out of the car?
A. Not locking. I couldn‘t lift myself and turn. They grabbеd me and pulled me.
Q. But they weren‘t able to do that, correct?
A. They were able to do that.
Q. They were able to?
A. They grabbed my leg and pulled it. That‘s when they Tased me.
Q. Let me make sure you and I are on the same page. I asked you if at some point an officer reached in and grabbed your feet to pull your legs out of the car, correct?
A. Yes.
Q. And you recall that happening?
A. I remember my leg being grabbed.
Q. You don‘t remember why they were doing it, but you recall that it happened?
A. Yes.
Q. And the police report indicates that Officer Barr grabbed your feet and tried to pull your feet out of the car, but that you prevented him from doing that?
A. No.
Q. You dispute that?
A. Yes.
Q. And is it your testimony that before you were Tasеd, the officers were actually able to grab your feet, turn you, and place your feet outside the patrol car?
A. I don‘t remember them grabbing me and turning me. I remember them grabbing my leg and Tasing me.
Q. And so the Tasing occurred before your feet were outside of the vehicle right?
A. Yes.
As should be abundantly clear, at no point in this deposition testimony did Roosevelt-Hennix admit the police attempted to manipulate her legs and remove them from the patrol car prior to application of the taser. Prickett‘s contrary assertion is meritless.11 More importantly, a reasonable juror could find—based on Roosevelt-Hennix‘s testimony, Barr‘s testimony, and the audio recording of the incident—that the officers never attempted to aid Roosevelt-Hennix in removing her feet from the vehicle prior to application of the taser. That being the case, the first key factual averment underpinning Prickett‘s appeal cannot be reconciled with the record.
Drawing all reasonable inferences in Roosevelt-Hennix‘s favor, this court likewise concludes a reasonable juror could find Roosevelt-Hennix informed the offi-
Having rejected, as at odds with the record, the factual underpinnings of Prickett‘s appeal, we take this opportunity to urge district courts to heed Johnson‘s admonition to state the facts the court is assuming for purposes of resolving a summary-judgment based request for qualified immunity. 515 U.S. at 319. Such a consistent course of action preserves the district courts‘s institutional advantage, at this interlocutory stage, in determining “the existence, or nonexistence, of a triable issue of fact.” Id. at 316. It will also help prevent the waste of judicial resources, as the Supreme Court has made clear evidentiary sufficiency appeals simply do not advance the purposes of qualified immunity. Id. (noting that interlocutory appeals involving evidentiary sufficiency “are less likely to bring important error-correcting benefits“). The caveat here, of course, is that Prickett‘s appellate brief makes clear he would have brought this appeal under the blatantly-contradicted exception to Johnson even if the district court had set out the facts it assumed for purposes of resolving Prickett‘s summary judgment motion. For that reason, we emphasize that the exception means what it says. Litigants should be cognizant of the limited nature of the exception, and of their duty of candor to this court, before bringing such an appеal.
IV. CONCLUSION
This court‘s de novo review of the record reveals sufficient evidence for a jury to conclude Roosevelt-Hennix informed the officers she was physically unable to comply with their request to move her feet outside the patrol vehicle. It likewise contains sufficient evidence for a jury to conclude the officers never attempted to aid Roosevelt-Hennix in moving her feet before applying the taser. Unsurprisingly, Prickett does not assert an entitlement to qualified immunity under that version of the facts. Accordingly, the order of the
Misti Lee SCHNEIDER, Plaintiff-Appellant/Cross-Appellee, v. The CITY OF GRAND JUNCTION POLICE DEPARTMENT, an agency of the City of Grand Junction; Bill Gardner; John Camper; William D. Baker; John A. Zen; Rick Dyer, Defendants-Appellees/Cross-Appellants, and John and Jane Does, 3-10, in their official and individual capacities, Defendants.
Nos. 12-1086, 12-1115.
United States Court of Appeals, Tenth Circuit.
June 5, 2013.
Notes
We do not read either the district court‘s oral ruling or its written order as standing for the proposition that the reasonableness of Prickett‘s actions is invariably a fact question for the jury. As this court has made clear, “the question of objective reasonableness is not for the jury to decide where the facts are uncontroverted.” Mecham v. Frazier, 500 F.3d 1200, 1203 (10th Cir.2007). It is only when objective reasonableness turns on unresolved factual disputes that reasonableness is submitted to the jury. Id. We read the district court‘s statements as consistent with the rulе set out in Mecham.There is clearly established law that a police officer violates the Fourth Amendment when he uses excessive force against a person in his custody and the test is what a reasonable officer would do under the same circumstances. In this case, there is a factual dispute concerning the conduct of the plaintiff and the reasonableness of the use of force against her, including the use of the Tаser device.
Lewis, 604 F.3d at 1225-26.Johnson‘s rule has attracted exceptions that we must also consider. . . .
First, the Court has indicated that, when the district court at summary judgment fails to identify the particular charged conduct that it deemed adequately supported by the record, we may look behind the order denying summary judgment and review the entire record de novo to determine for ourselves as a matter of law which factual inferences a reasonable jury could and could not make. See Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); see also Johnson, 515 U.S. at 319 (If a district court does not state the facts a reasonable jury could find at summary judgment, “a court of appeals may have to undertake a cumbersome review of the record to determine [those] facts.“). Second, when the “version of events” the district court holds a reasonable jury could credit “is blatantly contradicted by the record,” wе may assess the case based on our own de novo view of which facts a reasonable jury could accept as true. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).