Toby R. TRUSDALE, Plaintiff-Appellant, v. Kerry BELL; Craig Platt, Logan County Sheriff; Norman McNickle, Chief of Police Stillwater Oklahoma; James Bishop; Dewade Langley, Director of OSBI; Risk Management Administrator; Attorney General of the State of Oklahoma; Dee Cordry, Defendants-Appellees.
No. 02-6398
United States Court of Appeals, Tenth Circuit
Dec. 30, 2003
Cliff Shilling, Stillwater, OK Chris J. Collins, Robert E. Applegate, John Kevin Behrens, Collins, Zorn, Wagner & Gibbs, David W. Kirk, Dan M. Peters, Carter & Kirk, Oklahoma City, OK for Defendants-Appellees.
Before MURPHY, HARTZ, and MCCONNELL, Circuit Judges.
ORDER AND JUDGMENT*
MCCONNELL, Circuit Judge.
Toby Ray Trusdale, a federal prisoner, appeals pro se the district court‘s dismissal of his
As to the allegedly invalid search warrant, the district court granted Officer Bell‘s, Officer McNickle‘s, and Agent Cordry‘s 12(b)(6) motions, and dismissed Sheriff Platt pursuant to
This court reviews de novo a district court‘s grant of 12(b)(6) motions and summary judgment motions. Hartman v. Kickapoo Tribe Gaming Comm‘n, 319 F.3d 1230, 1234 (10th Cir.2003). We review a district court‘s decision to dismiss a complaint for failure to state a claim under
It is well-settled that a prisoner cannot recover damages in a § 1983 suit for an allegedly unconstitutional conviction or sentence until and unless his conviction or sentence is invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994) (If “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed.“). But a suit for damages attributable to an allegedly unreasonable search “may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff‘s still outstanding conviction.” Id. at 487 n. 7; Beck v. City of Muskogee Police Dep‘t, 195 F.3d 553, 559 n. 4 (10th Cir.1999) (“[U]se of illegally obtained evidence does not, for a variety of reasons, necessarily imply an unlawful conviction.“).
Here, however, we are faced with the “rare situation” where, as far as we can tell from the record before us, all of the evidence obtained (i.e., the methamphetamine and shotgun), was the result of execution of the allegedly invalid no-knock search warrant. Beck, 195 F.3d at 559 n. 4; see also United States v. Trusdale, 38 Fed.Appx. 485, 486 (10th Cir. Feb.25, 2002) (Mr. Trusdale pled guilty to one count of possession with intent to distribute methamphetamine in violation of
Mr. Trusdale‘s excessive-force claims against Officer McNickle, Agent Cordry, and Sheriff Platt flow from their allegedly supervisory roles and from their involvement in procuring the no-knock search warrant.2 Because Mr. Trusdale fails to show any personal participation on the part of any of these defendants in the use of excessive force, the magistrate judge properly advised the district court to grant Officer McNickle‘s and Agent Cordry‘s 12(b)(6) motions, and Sheriff Platt‘s
We next turn to Mr. Trusdale‘s excessive-force claim against Officer Bell. Mr. Trusdale alleges that the district court erred in granting Officer Bell summary judgment based on qualified immunity because “his actions were unreasonable under the circumstances and could be found differently by [a] jurist of reason.” Aplt.‘s Traverse to Br. of Defs./Aplees. Bell and McNickle at 7. We review summary judgment orders deciding qualified immunity questions de novo, but our review is different[] from [the way we review] other summary judgment decisions.... When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the burden shifts to the plaintiff to show that 1) the official violated a constitutional or statutory right; and 2) the constitutional or statutory right was clearly established when the alleged violation occurred. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1311-12 (10th Cir.2002) (internal quotation marks and citation omitted). “If the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity.” Id. at 1312. On the other hand, we have stressed that “this court will not approve summary judgment in excessive force cases-based on qualified immunity or otherwise-if the moving party has not quieted all disputed issues of material fact.” Id. at 1314.
The right to be free from excessive force is violated only if the force employed is objectively unreasonable. See Saucier v. Katz, 533 U.S. 194, 202 (2001); Olsen, 312 F.3d at 1313-14. “Because police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation, the reasonableness of the officer‘s belief as to the appropriate level of force should be judged from that on-scene perspective.” Saucier, 533 U.S. at 205 (internal quotation marks and citation omitted); see also Olsen, 312 F.3d at 1314. Factors to be considered include the “degree of potential threat that the suspect poses to an officer‘s safety and to others’ safety,” and whether the suspect attempts to resist or evade arrest. Olsen, 312 F.3d at 1314.
Although Officer Bell‘s perception of the threat turns out, in hindsight, to have been tragically mistaken, the objective reasonableness of his actions must be viewed from the “on-scene perspective.” Saucier, 533 U.S. at 205. So viewed, the undisputed evidence in this case supports the objective reasonableness of his actions. In advance of entry into Mr. Trusdale‘s home, Officer Bell was briefed that Mr. Trusdale “was a homicide suspect with a violent criminal history,” “was known to carry a firearm at all times, even from room to room in his residence,” and that he had “shot a police officer in Kansas.” Br. of Defs./Aplees. Bell and McNickle at 4. Officer Bell was told that the suspects were heavily armed and were conducting a methamphetamine laboratory. The warrant Officer Bell was executing was a no-knock, high-risk warrant. After entering the premises, Officer Bell proceeded to the doorway of a dimly lit
Ultimately, it turned out that Mr. Trusdale was not carrying a gun, but only a Bic cigarette lighter. The legal question, however, is not whether the Officer was mistaken, but whether his actions were objectively reasonable in light of what he perceived at the time. We agree with the district court that the undisputed evidence supports summary judgment in favor of the officer. As stated by the magistrate judge in his supplemental report and recommendation, “[t]he fact that a no-knock, night-time warrant was issued alone indicates the potential existed for a violent confrontation.” R., Doc. 75 at 11-12; see also
Attempting to refute the reasonableness of Officer Bell‘s actions, Mr. Trusdale points to several disputed factual issues. The question is whether any of those disputed issues is material. Mr. Trusdale states that he was in prison at the time of the homicide and therefore could not be a suspect, that he was not in possession of any firearms except for a wall-mounted shotgun, and that he had never shot a police officer in Kansas. These claims are beside the point, however. Officer Bell may have been misinformed, but he was reasonable to act on the basis of the information provided to him.
Additionally, Mr. Trusdale argues that his “residence was not dark.” Aplt.‘s Traverse to Br. of Defs./Aplees. Bell and McNickle at 2. The darkness issue is more a question of characterization than of disputed fact; the facts show that the only light in the bedroom came from a lamp in the corner of the room, behind Mr. Trusdale, and from another room. More significantly, Mr. Trusdale claims that he had raised his hands to the level of his head by the time Officer Bell had entered the room, and that he did not advance toward Officer Bell. Even if true, this does not negate Officer Bell‘s testimony that he observed Mr. Trusdale raising his arm with what appeared to be a gun pointing at the Officer. Finally, in Mr. Trusdale‘s view, if officer Bell was close enough to tell or guess the size and caliber of the imagined firearm he thought he saw, then he should clearly have been able to see that no firearm in fact existed, and that plaintiff was holding only a Bic lighter in his hand with his hands above his head in peaceful surrender. Aplt.‘s Opening Br. at 11. What Officer Bell “should clearly have been able to see,” however, cannot be the basis for imposing liability. The question is whether his actions were reasonable in light of the circumstances. The Supreme Court has “cautioned against the ‘20/20 vision of hindsight’ in favor of deference to the judgment of reasonable officers on the scene.” Saucier, 533 U.S. at 205 (quoting Graham v. Connor, 490 U.S. 386, 393 (1989)). This was a close case, but we do not think the district court erred in granting summary judgment.
In closing, we note that the district court did not consider Mr. Trusdale‘s bare allegations that his Fifth and Sixth Amendments rights were violated, and neither will we. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.“).
The judgments of the district court are AFFIRMED.