IRA LEE WILKINS, Plaintiff - Appellant, v. CITY OF TULSA, OKLAHOMA; OFFICER WILL MORTENSON; OFFICER ANGELA EMBERTON; OFFICER EDEL RANGEL, Defendants - Appellees.
No. 21-5052
United States Court of Appeals for the Tenth Circuit
May 3, 2022
PUBLISH. Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:19-CV-00069-TCK-JFJ). FILED May 3, 2022. Christopher M. Wolpert, Clerk of Court.
Robert M. Blakemore (Daniel Smolen with him on the briefs) Smolen & Roytman, Tulsa, Oklahoma, for Plaintiff - Appellant.
T. Michelle McGrew (Kristina L. Gray with her on the brief) City of Tulsa, Tulsa, Oklahoma for Defendants - Appellees.
Before MATHESON, EBEL, and BACHARACH, Circuit Judges.
Three Tulsa police officers, dispatched late at night to a parking lot, found Ira Lee Wilkins asleep in the driver‘s seat of a running vehicle. They smelled alcohol on his person, ordered him out of his car, and eventually forced him to the ground, where they pepper sprayed him.
Mr. Wilkins sued the officers under
Exercising jurisdiction under
I. BACKGROUND
A. Factual History
We draw the following facts from the parties’ statements of undisputed facts, video evidence, the officers’ deposition testimony, and Mr. Wilkins‘s declaration.1 On review of summary judgment, we view the facts in the light most
favorable to the non-moving party, here Mr. Wilkins, and draw reasonable inferences in his favor. See Rowell v. Bd. of Cnty. Comm‘rs of Muskogee Cnty., Okla., 978 F.3d 1165, 1171 (10th Cir. 2020). But when a “videotape quite clearly contradicts the version of the story told by [the non-moving party],” we cannot “adopt that version of the facts.” Scott v. Harris, 550 U.S. 372, 378, 380 (2007); see also Emmett v. Armstrong, 973 F.3d 1127, 1131 (10th Cir. 2020) (“[W]e will accept the version of the facts portrayed in the video, but only to the extent that it ‘blatantly contradict[s]’ the plaintiff‘s version
1. Initial Encounter with Mr. Wilkins
The Tulsa Police Department employed Will Mortensen,2 Angela Emberton, and Edel Rangel as police officers. Mr. Mortensen was an Officer-in-Training assigned to Officer Rangel, his Field Training Officer. On February 5, 2017, at approximately 12:30 a.m., all three officers were dispatched to a Tulsa car dealership parking lot. After arriving, Officer Rangel activated his body camera. Mr. Wilkins
was asleep in the driver‘s seat of his vehicle. The vehicle was running, and the radio was playing loudly. Rangel BodyCam Footage, pt. 1 at 0:53-1:14.
The officers testified that they smelled alcohol on Mr. Wilkins‘s person, Aplt. App., Vol. I at 130-32, 151, 159, 162, but Mr. Wilkins stated that he “had not consumed any alcohol,” Aplt. App., Vol. II at 285 ¶ 2.3 Officer Mortensen believed Mr. Wilkins was committing the crime of actual physical control of a vehicle while intoxicated and ordered him to exit the vehicle. See
2. The Search and Takedown of Mr. Wilkins
Officer Mortensen began to search Mr. Wilkins. He and Officer Emberton stood on each side of Mr. Wilkins, with his back turned to them. Rangel BodyCam Footage, pt. 1 at 2:16-3:58. About one minute into the search, Officer Mortensen forced Mr. Wilkins against the vehicle. Id. at 3:30. Mr. Wilkins asked what he was doing, id. at 3:28-31, and asked why he was “bending [his] wrists,” id. at 3:32-34. Officer Mortensen laughed and said, “I‘m going to bend a lot more if you keep acting like that.” Id. at 3:34-38. Officers Emberton and Mortensen contend that while he
was standing and handcuffed, Mr. Wilkins “grabbed [Officer Mortensen‘s] hand.” Aplt. App., Vol. I at 170; id. at 162. Mr. Wilkins disputes “forcefully grab[bing] any officer‘s hand during the incident.” Aplt. App., Vol. II at 285 ¶ 6. We resolve this factual dispute in Mr. Wilkins‘s favor. See Est. of Taylor v. Salt Lake City, 16 F.4th 744, 756 (10th Cir. 2021) (“[A]ll disputed facts must be resolved in favor of the party resisting summary judgment.” (quotations omitted)).
Mr. Wilkins then leaned against the car. Rangel BodyCam Footage, pt. 1 at 3:38. Officer Mortensen grabbed his upper body and said, “Quit flexing up on me.” Id. at 3:48-55. At this point, Officer Mortensen and Officer Emberton held Mr. Wilkins‘s upper arms. Id. at 3:54-4:02. Officer Rangel testified that he “could see the two officers . . . about to lose physical control of Ira Wilkins.” Aplt. App., Vol. II at 299. All three officers forced Mr. Wilkins to the ground. Rangel BodyCam Footage, pt. 1 at 3:59-4:06.
3. On the Ground after the Takedown
Following the takedown, Mr. Wilkins was facedown on his stomach. Id. at 4:07. Officer Emberton testified that the officers were “on him” and that she held his legs. Aplt. App., Vol. II at 343, 338-40. Mr. Wilkins said, “Okay, man. [Inaudible.] I‘m
Approximately 30 seconds after the officers forced Mr. Wilkins to the ground, Officer Rangel instructed Officer Mortensen to use pepper spray on Mr. Wilkins.4 Rangel BodyCam Footage, pt. 1 at 4:34-39. Without warning, Officer Mortensen sprayed pepper spray in Mr. Wilkins‘s face and stopped when Officer Rangel said, “That‘s enough.” Id. at 4:43-45. Officer Mortensen then continued searching Mr. Wilkins. Id. at 5:18-44. Officer Rangel told Mr. Wilkins to “quit moving” and repeatedly asked, “You [want to] get some more spray?” Id. at 5:26-37. Officer Mortensen completed the search.
Mr. Wilkins was charged with assault and battery upon a police officer, actual physical control of a vehicle while intoxicated, and resisting arrest. All charges were later dismissed.
B. Procedural History
Mr. Wilkins filed his § 1983 complaint in the United States District Court for the Northern District of Oklahoma. He claimed the officers used excessive force in violation of the Fourth Amendment when they forced him to the ground, sat on top of him, and pepper sprayed him. Mr. Wilkins also sued the City, alleging an affirmative
link between the deprivation of his constitutional rights and Tulsa Police Department policies, practices, and/or customs.
Defendants moved for summary judgment. The officers invoked qualified immunity, arguing they did not violate Mr. Wilkins‘s Fourth Amendment rights and that his rights were not clearly established. The City argued that without a constitutional violation, it could not be liable and that any alleged violation was not the result of a City policy or custom. In his opposition to summary judgment, Mr. Wilkins clarified his municipal liability claim, alleging that the City (1) failed to train its employees and (2) ratified the officers’ unconstitutional conduct. Aplt. App., Vol. II at 280.
The district court granted summary judgment for all Defendants. It held that the officers were entitled to qualified immunity because they did not use excessive force. The court determined the officers’ takedown of Mr. Wilkins was reasonable “in light of [his] failure to heed the officers’ commands that he stop flexing and moving around.” Id. at 448. It further concluded that the use of pepper spray was reasonable due to Mr. Wilkins‘s “continued movement and resistance” on the ground. Id. at 448-49. The court did not address whether the law was clearly established. It granted summary judgment for the City on the municipal liability claim because there was no constitutional violation.
II. DISCUSSION
“We review a district court‘s grant of summary judgment de novo, applying the same legal standard as the district
We address below whether the district court correctly granted qualified immunity to the officers and conclude it did not because (1) a reasonable jury could find they used excessive force on Mr. Wilkins and (2) they violated clearly established Fourth Amendment law. Because the officers were not entitled to qualified immunity, we reverse summary judgment in their favor. As for the municipal liability claim, because a jury could find a constitutional violation by the officers, we also reverse summary judgment for the City and remand for further proceedings.
A. Qualified Immunity for the Officers
1. Legal Background
a. Qualified immunity
Section 1983 of Title 42 provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”
“Persons sued under § 1983 in their individual capacity may invoke the defense of qualified immunity.” Duda v. Elder, 7 F.4th 899, 909 (10th Cir. 2021). Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). When a defendant asserts qualified immunity in a summary judgment motion, the plaintiff must show that (1) a reasonable jury could find facts supporting a violation of a constitutional right and (2) the right was clearly established at the time of the violation. See id. at 232; Duda, 7 F.4th at 909.
“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quotations omitted). “A Supreme Court or Tenth Circuit decision on point or the weight of authority from other courts can clearly establish a right.” A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1197 (10th Cir. 2019) (quotations omitted). “[A] case directly on point” is not necessary if “existing precedent [has] placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quotations omitted).
b. Excessive force under the Fourth Amendment
“When a plaintiff alleges excessive force during an investigation or
In Graham v. Connor, the Supreme Court identified three non-exclusive factors to evaluate whether a use of force was excessive: (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 evade arrest by flight.” Id.
Under the first factor, a minor offense supports only the use of minimal force. See Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). A misdemeanor committed in a “particularly harmless manner . . . reduces the level of force that [is] reasonable for [the officer] to use.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007).
The second factor “is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer‘s use of force.” Pauly v. White, 874 F.3d 1197, 1215-16 (10th Cir. 2017) (quotations omitted). “We must look at whether the officers or others were in danger at the precise moment that they used force.” Emmett, 973 F.3d at 1136 (quotations and alterations omitted). “[A]n officer may use increased force when a suspect is armed, repeatedly ignores police commands, or makes hostile motions towards the officer or others.” Mglej v. Gardner, 974 F.3d 1151, 1168 (10th Cir. 2020) (quotations omitted).
As to the third factor, we evaluate whether the suspect “attempt[ed] to flee or actively resist[ed] the arrest or search.” Harte v. Bd. of Comm‘rs of Cnty. of Johnson, Kan., 864 F.3d 1154, 1191 (10th Cir. 2017). We consider any resistance during the suspect‘s encounter with officers. See McCoy v. Meyers, 887 F.3d 1034, 1051 (10th Cir. 2018) (evaluating whether the suspect engaged in “active resistance” after he had been handcuffed); Dixon v. Richer, 922 F.2d 1456, 1462-63 (10th Cir. 1991) (analyzing suspect‘s resistance during and following the officer‘s frisk and noting suspect was not under arrest). We “have consistently concluded that a
suspect‘s initial resistance does not justify the continuation of force once the resistance ceases.” McCoy, 887 F.3d at 1051 (collecting cases).
2. Application
Mr. Wilkins argues the officers used excessive force when they forced him to the ground and sprayed him with pepper spray.6 Addressing the two prongs of qualified
a. Prong one - constitutional violation
Under the Graham factors, even assuming the officers acted reasonably when they forced Mr. Wilkins to the ground, a reasonable jury could find that the officers’ use of pepper spray was objectively unreasonable. Mr. Wilkins thus showed he suffered a constitutional violation. We address the Graham factors below.
i. Severity of the crime
Under the first factor—severity of the crime—only minimal force was warranted. The officers suspected Mr. Wilkins of committing the crime of actual physical control of a motor vehicle while intoxicated, a misdemeanor in Oklahoma.
See
ii. Immediate threat
The second factor weighs against the officers because Mr. Wilkins did not pose an immediate threat after the takedown. He was facedown on his stomach, handcuffs secured his arms, officers were on him, Officer Emberton held his legs, and he did not resist. Aplt. App., Vol. I at 102, 167; Aplt. App., Vol. II at 261, 338, 340; Rangel BodyCam Footage, pt. 1 at 4:27. During the nearly 30 seconds preceding the pepper spray, Mr. Wilkins said “please, man,” “you‘re breaking my f---ing wrists,” and “I‘m not doing nothing to you.” Rangel BodyCam Footage, pt. 1 at 4:08-4:35. He did not present an immediate threat when Officer Mortensen sprayed him with pepper spray. See Emmett, 973 F.3d at 1136 (after tackling suspect, officer “had effectively neutralized any safety concerns“); see also Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021) (no immediate threat because suspect was under the officers’ control).
Officer Mortensen testified that “[t]here was a possibility [Mr. Wilkins] could hurt [the officers] with a weapon” before he was fully searched. Aplt. App., Vol. I at 146-47; see also id. at 167 (Officer Emberton testifying that there is a safety risk before an officer completes a search because “there could be a weapon” and Mr. Wilkins “was a risk . . . since he had not been fully searched“). Even so, it was not
reasonable to pepper spray Mr. Wilkins “solely on the basis of that suspicion.” Dixon, 922 F.2d at 1463. And nothing in the record shows the officers believed or had reason to believe that Mr. Wilkins had a weapon or even that they asked if he was armed. No gun was reported or seen, Mr. Wilkins was not suspected of committing a crime involving a weapon, his hands were handcuffed behind his back, and he did not threaten harm. Officer Mortensen‘s detailed incident report, completed within hours of the incident, does not indicate that any officer believed Mr. Wilkins was armed. Aplt. App., Vol. I at 170.
Even assuming the officers reasonably believed Mr. Wilkins was armed, they neutralized any immediate threat by taking him to the ground, gaining control over him, and preventing him from reaching a weapon. Indeed, Officer Emberton testified that officers take suspects to the ground “to prevent the individual from accessing a weapon of any sort.” Aplt. App., Vol. I at 167.7
iii. Resistance and attempt to flee
Under the third factor, no force was justified after the takedown based on resistance of attempt to flee. Mr. Wilkins was on the ground in a prone position, secured by three officers, and pleading with the officers to stop. Rangel BodyCam Footage, pt. 1 at 4:04-4:44.
The officers contend Mr. Wilkins resisted while on the ground by “grabbing [Officer] Mortensen‘s fingers and . . . attempting to stand.” Aplee. Br. at 6. But Mr. Wilkins stated he did not “grab any officer‘s hand” or “resist the searching of his person.” Aplt. App., Vol. II at 285 ¶¶ 5, 6. The video does not contradict Mr. Wilkins‘s statement. Indeed, in the seconds leading up to the officers’ use of pepper spray, the video does not even show Mr. Wilkins. Rangel BodyCam Footage, pt. 1 at 4:38-4:44. We must credit his version of the events on summary judgment. See Emmett, 973 F.3d at 1135. “At trial, the factfinder will have to decide” whether Mr.
Wilkins resisted, id., but at this stage, we view the facts in the light most favorable to Mr. Wilkins and draw all reasonable inferences in his favor, Rowell, 978 F.3d at 1171. Mr. Wilkins was effectively subdued and not resisting when Officer Mortensen sprayed him. See Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006) (reasonable jury could decide suspect not resisting when pepper sprayed because he was handcuffed and face down on the ground even if he had previously resisted). The third Graham factor thus weighs against the officers’ use of force following the takedown.
* * * *
In sum, the use of pepper spray was unreasonable. Mr. Wilkins was not resisting, was not a threat to officer safety, and was under the officers’ control. See Emmett, 973 F.3d at 1136-37.
On summary judgment, the district court was required to accept Mr. Wilkins‘s
b. Prong two - clearly established law
The law clearly established that the use of pepper spray on Mr. Wilkins was unconstitutional.
i. Legal background
Two of our cases—Weigel v. Broad and Perea v. Baca—are analogous to this case. In both, we evaluated officers’ additional use of force after they had tackled suspects to the ground.
In Weigel, we held that two officers used excessive force by applying pressure to a suspect‘s back when he was facedown, handcuffed, and his legs were bound. 544 F.3d at 1154-55. Officers encountered the suspect following a traffic accident. Id. at 1147. He appeared intoxicated and agreed to complete a field sobriety test. Id. at 1147-48. But the suspect instead walked across the interstate, so an officer tackled him to the ground. Id. at 1148. After the takedown, the suspect “fought vigorously, attempting repeatedly to take the [officers‘] weapons and evade handcuffing.” Id. at 1148. The suspect “continued to struggle” after the officers applied handcuffs. Id. A bystander bound the suspect‘s legs, and an officer applied pressure to the suspect‘s back. Id. We concluded force was excessive when the officer continued to apply pressure to the suspect‘s back after he stopped struggling. Id. at 1153. We explained that the officers used force “even after it was readily apparent for a significant period of time (several minutes) that [the suspect] was fully restrained and posed no danger.” Id. at 1154.
In Perea, we held officers used excessive force by tasing a suspect “after he was effectively subdued and brought under the officers’ control.” 817 F.3d at 1204. Two officers had responded to calls that the suspect was on drugs and pacing in his yard. Id. at 1201. They saw the suspect commit a minor traffic violation on his bicycle. Id. at 1203. The officers tackled him to the ground and tried to detain him, but the suspect “struggled and thrashed while holding a crucifix.” Id. at 1201. One of the officers repeatedly tased him, and “[a]t some point before the taserings stopped, [the officers] were able to get [the suspect] on the ground on his stomach, with both officers on top of him, effectively subduing him.” Id. We explained that “[e]ven if [the suspect] initially posed a threat,” the justification for additional force “disappeared when [he] was under the officers’ control.” Id. at 1204. “[I]t is . . . clearly established that officers may not continue to use force against a suspect who is effectively subdued.” Id.
Our more recent decisions reenforce that the law was clearly established when Mr. Wilkins was pepper sprayed.8 In Emmett,
notice that using a taser without providing an adequate warning against a misdemeanant who had ceased actively resisting was unconstitutional.” Id. at 1139. In McCoy, we said that as of 2011, it was “clear that the use of force on effectively subdued individuals violates the Fourth Amendment” and concluded that using force on a suspect who was handcuffed, zip-tied, and had ceased resisting was excessive. 887 F.3d at 1051, 1052.
ii. Analysis
On February 5, 2017, a reasonable officer would have known that use of pepper spray on Mr. Wilkins when he was facedown, handcuffed, legs secured, and not resisting was unconstitutional. Our precedent clearly established that force against a subdued suspect who does not pose a threat violates the Fourth Amendment.
Weigel and Perea both involved suspects who initially resisted but were subdued when officers used additional force. See Weigel, 544 F.3d at 1148 (suspect struggled with officers after tackled); Perea, 817 F.3d at 1203 (suspect resisted after tackled). Here, for over thirty seconds, Mr. Wilkins, like the suspect in Weigel, was on his stomach, his arms and legs secured, officers on him, and not resisting. See 544 F.3d at 1152. A reasonable jury could conclude based on the record that Mr. Wilkins was subdued when the officers used pepper spray.
The officers contend that no reasonable officer would have thought the use of pepper spray on a “suspect who continued to resist and prevent the search of his pockets would be unlawful.” Aplee. Br. at 26. But their argument presumes their version of the facts, not Mr. Wilkins‘s, which we must accept at summary judgment.
See Scott, 550 U.S. at 380. Under the proper view of the facts, Mr. Wilkins did not resist after the officers forced him to the ground. Shooting pepper spray into his face violated clearly established law. We thus reverse summary judgment for the officers on Mr. Wilkins‘s excessive force claim because they were not entitled to qualified immunity.
B. Municipal Liability
To state a municipal liability claim against the City, Mr. Wilkins must show (1) an official policy or custom, (2) causation, and (3) deliberate indifference. See Est. of Burgaz v. Bd. of Cnty. Comm‘rs for Jefferson Cnty., Colo., 2022 WL 1112761, at *6 (10th Cir. Apr. 14, 2022). In his summary judgment briefing before the district court, Mr. Wilkins argued (1) the City failed to train its officers and (2) final City policymakers ratified their subordinates’ decisions. Aplt. App., Vol. II at 281 (“[T]here is significant evidence establishing a shocking failure to train TPD officers with respect to the use of force” and “the City ratified the unconstitutional conduct by determining that the officers’ unconstitutional use of force was within policy.“).
For Mr. Wilkins to succeed on either theory, he must make a threshold showing of an underlying constitutional violation by an individual officer. See Burgaz, 2022 WL 1112761, at *6 (under failure-to-train theory, individual officer must have committed a
[must] ratif[y] an employee‘s specific unconstitutional actions“).9 Because it found no constitutional violation by the individual officers, the district court granted summary judgment for the City on Mr. Wilkins‘s municipal liability claim.
The district court erred in granting summary judgment to the City on this ground because, as we have discussed, a reasonable jury could find that the officers violated the Fourth Amendment. We decline to address the remaining elements of Mr. Wilkins‘s municipal liability claim. The district court did not do so. Neither does Mr. Wilkins on appeal. We remand for the district court revisit the municipal liability claim. See Rife v. Oklahoma Dep‘t of Pub. Safety, 854 F.3d 637, 654 (10th Cir. 2017) (remanding for district court to evaluate municipal liability claim because a reasonable jury could find constitutional violation); Becker v. Bateman, 709 F.3d 1019, 1027 (10th Cir. 2013) (same).
III. CONCLUSION
We reverse the district court‘s grant of summary judgment and remand for further proceedings consistent with this opinion.