July 22, 2019

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

Tenth Circuit: Officers Not Entitled to Qualified Immunity for Use of Excessive Force After Suspect Subdued

The Tenth Circuit Court of Appeals issued its opinion in McCoy v. Meyers on April 10, 2018.

Mr. DeRon McCoy sued three of the officers who participated in his arrest—Tyson Meyers, Darrin Pickering, and Brice Burlie (collectively, Appellees)—under 42 U.S.C. § 1983, alleging that they violated his Fourth Amendment right to be free from excessive force during his arrest on March 22, 2011. Appellees moved for summary judgment on qualified immunity grounds. The district court granted the motion, determining that (1) Appellees had acted reasonably under the circumstances, and (2) the relevant law was not clearly established at the time of Appellees’ alleged conduct.

Mr. McCoy appealed the district court’s decisions. The Tenth Circuit affirmed in part and reversed in part, finding Appellees were entitled to qualified immunity for their conduct before Mr. McCoy’s arms and legs were bound while he was unconscious, but not for their conduct after this point.

On March 20, 2011, Mr. McCoy, his infant daughter, and his sister checked into the Budget Inn in Hutchinson, Kansas. Later, Leanna Daniels, the mother of Mr. McCoy’s daughter, and Gwendolyn Roby, Ms. Daniels’s friend, arrived at the motel. Ms. Roby called the police when Mr. McCoy did not allow Ms. Daniels to take her daughter, and stated that Mr. McCoy had a gun. In response to the call, Hutchinson police arrived at the Budget Inn around 4:38 p.m. and were unable to get Mr. McCoy to respond or exit the room. Around 6:40 p.m., the police requested assistance from the Emergency Response Team (ERT), a special law enforcement unit trained to respond to unusually dangerous circumstances, including hostage situations. In response to this request, Officers Meyers, Pickering, and Burlie, all ERT members, reported to the Budget Inn with the rest of the ERT. Around 9:05 p.m., the five-member team entered Mr. McCoy’s motel room with a master key. As the door opened, Appellees and several other officers heard Mr. McCoy yell “[g]et back.” The team then entered in a “stack” formation, one after another, with Officer Pickering leading. When the team entered the room, Mr. McCoy was on the bed with his sister and his daughter, and each of the five officers saw Mr. McCoy holding a gun that he alternated between pointing in his sister’s direction and pointing at the first three officers to enter, including Officers Pickering and Burlie. Officer Meyers was holding back with a ballistic blanket, and heard several officers shouting, “Drop the gun, drop the gun,” immediately after they entered the room. Approximately 30 to 45 seconds after the officers first shouted out “drop the gun,” Mr. McCoy dropped the gun and it was removed from the room by an officer. After the gun was removed, Officer Burlie jumped onto the bed, attempting to arrest Mr. McCoy. After Mr. McCoy’s sister and daughter were removed from the room, Officer Burlie pulled Mr. McCoy off the bed to arrest him. Officer Burlie perceived that Mr. McCoy was reaching for his duty weapon and yelled out, “He’s grabbing my gun.”

To this point, Mr. McCoy does not allege that the Appellees used any excessive force. He alleges their use of force became excessive only after Mr. Burlie pulled him onto the ground. The Tenth Circuit divided its legal analysis into two periods and referred to the two periods as “pre-restraint” and “post-restraint.”

During the pre-restraint period, Mr. McCoy was on the ground, lying face-down with his hands behind his back, and Officer Pickering “immediately” placed him in a carotid restraint. Unidentified officers “simultaneously” pinned Mr. McCoy down and hit him in the head, shoulders, back, and arms. Officer Pickering maintained the carotid restraint for approximately five to ten seconds and increased pressure, even though Mr. McCoy was not resisting, thereby causing Mr. McCoy to lose consciousness. While Mr. McCoy was unconscious, the officers handcuffed his hands behind his back and zip-tied his feet together.

Officer Meyers entered the motel room while Mr. McCoy was unconscious to perform a revival technique known as a “kidney slap,” which consists of “a slight tap to the lower back.” Officer Meyers positioned himself behind Mr. McCoy, moved Mr. McCoy into a sitting position, and performed the kidney slap. As Mr. McCoy regained consciousness, unidentified officers again struck him—more than 10 times—on his head, shoulders, back, and arms. Mr. McCoy tried to shield himself but realized he was handcuffed and zip-tied. Officer Meyers then placed Mr. McCoy, who was not resisting, in a second carotid restraint for less than 10 seconds, maintaining pressure until Mr. McCoy lost consciousness again. Mr. McCoy was then removed from the motel room and put into a police car outside. Less than ten minutes had elapsed between the five-member team’s entry into the room and Mr. McCoy’s removal.

Before being taken to the police station, Mr. McCoy was transported to the hospital, where doctors determined that nothing was broken or twisted. His arms, shoulders, and back were visibly bruised and cut.

Mr. McCoy sued the Appellees under 42 U.S.C. § 1983 in the U.S. District Court for the District of Kansas, alleging violations of his Fourth Amendment rights by using excessive force in effecting his arrest. After the parties completed discovery, Appellees moved for summary judgment, asserting qualified immunity. The district court granted summary judgment for Appellees, holding that Mr. McCoy had failed to show a Fourth Amendment violation, and that in any event, the law was not clearly established at the time of the Appellees’ alleged violation.

Mr. McCoy appealed, alleging four acts of excessive force: Appellees’ strikes and Officer Pickering’s carotid restraint before he was handcuffed and zip-tied, and Appellees’ strikes and Officer Meyers’ carotid restraint after he was handcuffed and zip-tied.

The Circuit’s qualified immunity analysis relied heavily on three Tenth Circuit decisions that applied the Graham balancing test. For each of these three cases, all of which involved excessive force allegations against law enforcement officers under § 1983, the court applied the Graham test and held that the plaintiff had shown sufficient facts to plead a Fourth Amendment violation.

In the case at hand, Mr. McCoy contended that Appellees’ use of force both before and after he was handcuffed and zip-tied violated clearly established Fourth Amendment law. The Tenth Circuit agreed with him in part, concluding that the pre-restraint force did not violate clearly established law, but the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued.

Appellees were entitled to qualified immunity as to Mr. McCoy’s pre-restraint excessive force claims based on lack of clearly established law. When applying the two-prongs, the Circuit

skipped prong one of the qualified immunity analysis because Mr. McCoy’s failure to show clearly established law provided a sufficient basis to affirm. For the second prong, Mr. McCoy failed to show clearly established law because no reasonable jury could conclude that Mr. McCoy was effectively subdued in the pre-restraint period, and preexisting precedent would not have made it clear to every reasonable officer that using the force employed here on a potentially dangerous individual—who had not yet been effectively subdued—violated the Fourth Amendment.

According to Mr. McCoy’s testimony, as soon as he hit the ground, Officer Pickering “immediately” placed him in a carotid restraint while, “simultaneously,” unidentified officers hit him in the head, shoulders, back, and arms. Even if Mr. McCoy was lying face down with his hands behind his back and with several officers pinning him, a reasonable officer in Appellees’ position could conclude that he was not subdued when the allegedly excessive force occurred. Under these circumstances, the preexisting precedent would not have made it clear to every reasonable officer that striking Mr. McCoy and applying a carotid restraint on him violated his Fourth Amendment rights. Based on the foregoing, Mr. McCoy failed to show clearly established law prohibiting the Appellees’ pre-restraint use of force. Appellees were therefore entitled to qualified immunity for the pre-restraint force as to Mr. McCoy’s claims based on this conduct.

The Appellees are not entitled to qualified immunity as to Mr. McCoy’s post-restraint excessive force claims because the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued. For the first prong of the qualified immunity analysis, when viewing the evidence in the light most favorable to Mr. McCoy, a reasonable jury could conclude that the post-restraint force violated his Fourth Amendment rights. A reasonable jury could conclude based on this record that the Appellees should have been able “to recognize and react to the changed circumstances.”

In this case, viewing the evidence in the light most favorable to Mr. McCoy, any resistance on his part had fully ceased by the time of the post-restraint force. Even if Appellees had previously perceived that Mr. McCoy pointed a gun at them and reached for Officer Burlie’s duty weapon, Mr. McCoy had been rendered unconscious, handcuffed, and zip-tied before he was revived. And as he regained consciousness, even though he did not resist, the Appellees struck him more than 10 times and placed him in a carotid restraint with enough pressure to render him unconscious again. The cessation of active resistance on Mr. McCoy’s part weighs in favor of finding that the post-restraint force was unreasonable.

Viewing the evidence in the light most favorable to Mr. McCoy, preexisting Tenth Circuit precedent made it clear to any reasonable officer in the Appellees’ position that the post-restraint force was unconstitutional.

In sum, qualified immunity applied to Mr. McCoy’s claims based on the pre-restraint force, due to the lack of clearly established law, but not to the claims based the post-restraint force, which violated Mr. McCoy’s clearly established right to be free from continued force after he was effectively subdued.  The Tenth Circuit affirmed in part and reversed in part the district court’s grant of summary judgment on qualified immunity grounds and remanded for further proceedings consistent with this opinion.

Tenth Circuit: Officers Reasonably Believed Use of Deadly Force was Necessary

The Tenth Circuit Court of Appeals issued its opinion in Carabajal v. City of Cheyenne, Wyoming on February 6, 2017.

This case arose out of an instance involving the Plaintiffs, Mathew Carabajal and his son, V.M.C., being pulled over by several officers, including Officer Thornton and Officer Sutton. On September 19, 2011, Mr. Carabajal was driving a vehicle containing his infant son, V.M.C., and two others. A police vehicle with its lights and sirens activated followed him, but he continued to drive for approximately six blocks, obeying the speed limit. After Mr. Carabajal pulled over, Officer Thornton, one of two officers who later arrived at the scene, stood in front of the vehicle, while a police vehicle was positioned behind Mr. Carabajal’s vehicle and two other vehicles were parked in front of Mr. Carabajal’s. Officer Thornton shouted at Mr. Carabajal, “Don’t start the car or I’ll shoot.” Mr. Carabajal’s vehicle began to move forward and, after three seconds, Officer Thornton fired two rounds from his shotgun at Mr. Carabajal, injuring him. The car then stopped and Officers Thornton and Sutton removed Mr. Carabajal from the vehicle. Mr. Carabajal fell to the ground and Officers Sutton and Thornton slowly dragged Mr. Carabajal out of the vehicle.

Plaintiffs sued the City of Cheyenne, Wyoming, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities. The district court dismissed V.M.C.’s claim that he was unlawfully seized when Officer Thornton shot into the vehicle he was an occupant in. The district court granted summary judgment on Mr. Carabajal’s excessive force claims, finding that the officers were entitled to qualified immunity. The district court also held that the complaint did not plead a negligence claim against the City based on the alleged hiring of Officer Thornton, due to a lack of evidentiary support.

The Tenth Circuit first addressed Mr. Carabajal’s challenge of the district court’s grant of qualified immunity on his excessive force claims. In this case, the events were captured on video, and the Tenth Circuit states that it relied on that evidence. The Tenth Circuit articulated the two-part analysis required when a defendant asserts qualified immunity. First, the plaintiff must allege facts to demonstrate that a violation of a constitutional right occurred. Second, if that demonstration is made, the court must determine whether the right at issue was “clearly established” at the time of the incident. The plaintiff must show both of these factors.

Mr. Carabajal alleged that Officers Thornton and Sutton violated his Fourth Amendment rights through the use of excessive force.  The Fourth Amendment protects individuals against “unreasonable searches and seizures.” A “seizure” must have occurred and the plaintiff must prove that is was “unreasonable.” Mr. Carabajal made two claims of excessive force.

Mr. Carabajal’s first excessive force claim regarded Officer Thornton’s shooting of Mr. Carabajal. The district court held that the use of force in this case was reasonable. The Tenth Circuit agreed. The Tenth Circuit cited the facts that Mr. Carabajal had eluded police for several blocks, was ordered not to start the vehicle, and that Mr. Carabajal appeared to deliberately drive his vehicle in Officer Thornton’s direction. Additionally, because of the positions of the three police vehicles, in those close quarters, the Tenth Circuit held that a reasonable officer could conclude that his life was in danger and employ deadly force to stop the vehicle. It was reasonable for Officer Thornton to have perceived that Mr. Carabajal’s driving was deliberate. Therefore, Officer Thornton’s conduct was reasonable.

Next, the Tenth Circuit held that, even if Officer Thornton’s conduct was excessive under the Forth Amendment, it was not clearly established that his conduct was unlawful at the time of the shooting. The Tenth Circuit addresses a circuit split regarding the issue and a lack of Supreme Court precedent to hold that the unlawfulness of Officer Thornton’s conduct was not clearly established.

Therefore, the Tenth Circuit held that qualified immunity was warranted regarding Mr. Carabajal’s first excessive force claim.

Mr. Carabajal’s second excessive force claim regarded Officers Thornton and Sutton’s removal of Mr. Carabajal from the vehicle after he was shot. The Tenth Circuit held that the video evidence revealed that the officers did not use an unreasonable amount of force, nor was it unreasonable to remove Mr. Carabajal from the vehicle under those circumstances. When Mr. Carabajal was removed, the officers were aware that he had been non-compliant with police instructions at least twice. Accordingly, the Tenth Circuit held that Mr. Carabajal did not demonstrate a violation of a constitutional right and that Officers Thornton and Sutton were entitled to qualified immunity regarding Mr. Carabajal’s second excessive force claim.

The Tenth Circuit next addressed V.M.C.’s claim that he was unlawfully seized by Officer Thornton when he shot into the vehicle that V.M.C. occupied. The Tenth Circuit held that even if V.M.C. did plead a plausible unreasonable seizure claim, Officer Thornton would have been entitled to qualified immunity because the law does not clearly establish whether firing a weapon into a car constitutes a Fourth Amendment seizure.

Finally, the Tenth Circuit addressed the district court’s dismissal of the Plaintiffs’ negligent hiring claim against the City. A plaintiff must show that the City was reckless or negligent in its employment of improper persons in work that posed a risk of harm to others, for the City to be liable. Here, the City engaged in an extensive investigation into Officer Thornton that demonstrated he qualified under Wyoming standards for employment as a police officer. The Plaintiffs presented no evidence that the City was on notice that Officer Thornton was likely to use unnecessary or excessive force against a member of the public. Thus, the Tenth Circuit held that the City owed no legal duty to protect Plaintiffs as they alleged.

Tenth Circuit: Officer Lacked Reasonable Basis to Effect Felony Stop Based on Mistaken Information

The Tenth Circuit Court of Appeals issued its opinion in Maresca v. Bernalillo County on Thursday, October 22, 2015.

Stephen Maresca, a former police officer, and his family were returning from a family hike when they were pulled over by Bernalillo County Sheriff’s Deputies J. Fuentes, G. Grundhoffer, and four other officers. Officer Fuentes, who had completed her training as a new officer approximately two months earlier, initiated the stop. Mr. Maresca waved to Officers Fuentes and Grundhoffer as he drove by, and Officer Fuentes randomly decided to follow the Marescas’ truck—a red 2004 Ford F-150 pickup. She attempted to type their license plate number into her onboard computer, but got a digit wrong and received a message that the vehicle, a maroon 2009 Chevrolet four-door sedan, had been stolen.

Without double-checking the license plate number or verifying that the information on her screen matched the Marescas’ vehicle, she initiated a “felony stop.” She called the Marescas actual license plate number into dispatch, stating that the vehicle was stolen, but did not wait for dispatch to verify the information before initiating the felony stop. As a result of this call, other officers were dispatched to assist. For the felony stop, she and Officer Grundhoffer, who was following her in a different vehicle, stood behind the open doors of their vehicles with weapons drawn and shouted orders at the Marescas. She ordered Mr. Maresca to turn off the truck, throw his keys out of the window, exit the truck with his hands in the air, lift his shirt above his waistband so she could check for weapons, and lay on the highway on his stomach. She repeated this procedure with Mrs. Maresca. The Marescas complied fully with Officer Fuentes’ commands. While they were laying on the ground, Mrs. Maresca informed the officers that there were children and a dog in the truck. Mr. Maresca also told them that there had to be a mistake and to check everything again. The officers ignored the Marescas.

The officers ordered the boys out of the car the same way as Mr. and Mrs. Maresca, and ordered 9-year-old M.M. to exit the vehicle and lift her shirt. The evidence is disputed whether they forced her to lay on her stomach or sternly told her to stay at the side. After all the Marescas were out of the truck, the dog became upset and jumped out of the vehicle, running into the highway. Mr. Maresca called the dog and the officers allowed him to hold onto her. Two more deputies arrived and one began directing traffic around the “felony stop.” Two additional deputies arrived next, and the Marescas presented disputed evidence that one of them pointed his gun directly at 14-year-old C.M.’s head, leading C.M. to freak out and start crying to his mom that they were going to kill him. There was also disputed evidence that an officer stood over Mrs. Maresca with his gun cocked in a sideways gangster-style hold. Mrs. Maresca began to panic, and the children and Mrs. Maresca were all crying.

Finally, between seven and fifteen minutes after initiating the stop, Officer Fuentes returned to her vehicle and re-ran the Marescas’ plate, at which point she discovered her error. Fuentes asked one of the other deputies whether she was going to get into trouble. The deputy told her to uncuff the Marescas, let them return to their vehicle, and call a sergeant. Sergeant Bartholf explained to the Marescas that Fuentes was a new officer. The parties dispute whether he ever apologized. Mrs. Maresca asked Officer Quintana why he thought it necessary to point his gun at her when she was already laying on the ground, at which point Quintana smiled and walked away.

The Marescas filed suit in New Mexico state court, alleging the officers violated their 42 U.S.C. § 1983 rights to be free from unlawful arrest and excessive force. The Marescas also asserted state law claims against the officers for assault, false imprisonment, battery, and negligence, and asserted claims against Bernalillo County for negligent training. Defendants removed the case to the U.S. District Court for the District of New Mexico. The Marescas filed a motion for summary judgment on their federal claims, and the defendants moved for summary judgment on all claims. The district court denied the Marescas’ motion, granted defendants’ motion, and dismissed the Marescas’ state law claims without prejudice. The Marescas appealed.

The Tenth Circuit analyzed qualified immunity and found it inapplicable to Officer Fuentes. The Marescas argued Officer Fuentes violated their Fourth Amendment rights by arresting them without probable cause and by using excessive force. The officers argued that they did not arrest the Marescas, but the Tenth Circuit disagreed, finding the duration of the stop, the use of firearms, and rough treatment to which they subjected the Marescas indicated that the stop was an arrest. The Tenth Circuit further concluded the arrest was not supported by probable cause because the officers lacked an objectively reasonable basis to believe the truck was stolen. The Tenth Circuit noted that the sole basis for the arrest was Officer Fuentes’ “mistaken and unreasonable belief” that the truck was stolen. The Tenth Circuit clarified that it was not holding that a mere typing error deprives officers of a reasonable basis to effect an arrest, but rather based the holding in this case on all the facts taken together. However, in this case, the undisputed facts established that Fuentes violated the Marescas’ Fourth Amendment rights. The Tenth Circuit held that Officer Fuentes was not entitled to qualified immunity, and in fact that the Marescas were entitled to summary judgment against Officer Fuentes.

Turning to Officer Grundhoffer’s role, the Tenth Circuit concluded it was reasonable for him to rely on the information he was given by Officer Fuentes in assisting with the felony stop. The Tenth Circuit found no evidence that Officer Grundhoffer’s conduct was in bad faith or unreasonable under the circumstances. It therefore upheld qualified immunity as to Officer Grundhoffer.

Turning to the excessive force claim, the Tenth Circuit concluded that the Marescas were entitled to have their claims evaluated by a jury. The Tenth Circuit reiterated that although it granted summary judgment to the Marescas on their Fourth Amendment claims against Officer Fuentes, there were still questions of fact regarding whether the officers used force that was unreasonable under the circumstances. The Tenth Circuit reminded the officers that the use of force must be justified under the circumstances, especially when directed at children as it was here. The Tenth Circuit also found that the Marescas presented evidence of more than de minimus injury.

The Tenth Circuit reversed the district court’s grant of summary judgment to Officer Fuentes based on qualified immunity, and also reversed the court’s denial of summary judgment to the Marescas as related to Officer Fuentes. It remanded for further proceedings consistent with its opinion. The Tenth Circuit affirmed the grant of summary judgment as to Officer Grundhoffer’s qualified immunity. On the excessive force claims, the Tenth Circuit affirmed the denial of summary judgment to the Marescas and remanded for further proceedings.

Tenth Circuit: Denial of Qualified Immunity Appropriate Where Victim Not Threatening Officers

The Tenth Circuit Court of Appeals issued its opinion in Tenorio v. Pitzer on Tuesday, October 6, 2015.

Hilda Valdez called 911 to report that her sister-in-law’s husband, Russell Tenorio, had a knife to his throat and was intoxicated. Officers Moore, Hernandez, and Liccione of the Albuquerque Police Department were dispatched to the call, and Officer Pitzer also responded. The 911 operator relayed to the officers that Tenorio had a knife to his own throat but no one was injured, he had broken some windows, he had been violent in the past (this was incorrect but was relayed to the officers), was waving the knife around, takes medication for seizures, and several other people were around. When the officers arrived, they met Ms. Valdez on the front lawn. Ms. Valdez was panicked and frightened. The officers entered the house without announcing themselves. Officer Pitzer was in front with his handgun drawn, and announced that he was “going lethal.” Officer Moore was behind Pitzer with his Taser, Officer Liccione was third and also had his gun drawn, and Officer Hernandez had a shotgun with bean bags but stayed behind to talk to Ms. Valdez.

When the officers entered the house, they asked Mrs. Tenorio to step out of the way and hustled her outside. On her way out, she said, “Russell, put that down.” She was followed by Tenorio, who had a blank stare and was holding a kitchen knife loosely by his side. Officer Pitzer shouted at Tenorio to drop the weapon, and two or three seconds later Pitzer shot Tenorio, Moore tased him, and he fell to the ground. Tenorio was hospitalized for months for the life-threatening injuries he suffered that night, and later brought 42 U.S.C. § 1983 excessive force claims against Pitzer, other officers, and the City of Albuquerque. Pitzer moved for summary judgment based on qualified immunity, but the district court denied his motion, concluding the evidence could show Pitzer violated clearly established law under two theories: (1) Pitzer lacked probable cause to believe that Tenorio presented a serious risk of harm to himself or others when he shot Tenorio, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in use of deadly force. Pitzer appealed the denial of his summary judgment motion.

The Tenth Circuit found interlocutory jurisdiction by accepting the facts as agreed to by the parties and using the court’s construction of the evidence in the light most favorable to Tenorio. The Tenth Circuit evaluated Pitzer’s claim for qualified immunity based on a standard of objective reasonableness as judged from the perspective of a reasonable officer on the scene. The district court weighed four factors in denying Pitzer’s motion, including (1) whether the officers ordered the victim to drop his weapon, (2) whether the victim made hostile motions with the weapon toward the officers, (3) the distance between the officers and the victim, and (4) the manifest intentions of the victim. The court concluded the first factor was neutral because although the officers ordered Tenorio to drop his knife, they did not give him sufficient time to comply, the second factor weighed against probable cause because Tenorio was holding a small knife loosely by his thigh, the third factor weighed against probable cause because Tenorio was not within striking distance when he was shot, and the fourth factor weighed against probable cause because the only person Tenorio was said to have threatened was himself. The Tenth Circuit accepted the district court’s findings concerning the evidence and agreed that it sufficed to bar summary judgment against Tenorio’s claims.

The Tenth Circuit evaluated circuit precedent and determined that its prior holdings on probable cause supported the district court’s denial. Because Tenorio was not charging the officers, was not holding the weapon in a threatening gesture, was not speaking or moving aggressively, and was not within striking distance of the officers, it was unreasonable under circuit precedent for Officer Pitzer to use lethal force.

The Tenth Circuit affirmed the district court’s denial of qualified immunity, noting that a contrary judgment may be permissible after a jury trial. Judge Phillips wrote a scathing dissent. He would have granted qualified immunity based on the fact that Tenorio had a weapon and was in the same small room as the officers.

Tenth Circuit: Plaintiff Cannot Bring § 1983 Claim for Damages if it Renders Conviction Invalid

The Tenth Circuit Court of Appeals issued its opinion in Havens v. Johnson on Wednesday, April 15, 2015.

In January 2007, the Denver Metro Auto Theft Team Task Force planned a sting to arrest Darrell Havens, who had arranged to sell a stolen Audi in an alcove behind a Target store. Havens drove the Audi into the icy alcove, where officers surrounded him in other vehicles and on foot. Several vehicles rammed into the Audi from many directions. At one point, Officer Johnson, who was not in a vehicle, was directly in front of the Audi and fired shots at the driver, leaving him a paraplegic. Havens testified at deposition that he did not have control of the Audi after it was hit the first time and did not make any other maneuvers, but other officers testified the Audi was accelerating toward Officer Johnson and about to pin him against another vehicle when he fired the shots. Officer Johnson testified that he thought he was about to be crushed by the Audi, which was accelerating toward him, and fired into the windshield to stop the driver. Havens was left a quadriplegic after the shooting.

After the incident Havens was charged with multiple crimes. He pleaded guilty to attempted first-degree assault of Johnson, among other charges. At the plea hearing, the court insisted on a record that Havens admitted committing the crimes and was pleading guilty to them. His attorney said he had no recollection of the incident because of the serious injuries he suffered that night. The court then asked Havens if he knew what he was pleading guilty to and he said yes. Havens filed a motion for postconviction relief in state court, arguing that his plea was not knowing, intelligent, or voluntary. The state court denied the motion and the court of appeals affirmed. The Colorado Supreme Court denied certiorari. Havens then filed a § 1983 action against Johnson in federal district court, denying any wrongdoing by Havens and asserting the criminal prosecution was bogus. The district court granted summary judgment to Johnson, finding Havens failed to establish a prima facie case of excessive force and Johnson was entitled to qualified immunity. Johnson argued in the alternative that Havens’ guilty plea supported summary judgment on grounds of issue preclusion, judicial estoppel, and Heck, but the district court denied the other grounds.

The Tenth Circuit affirmed summary judgment on a different ground, finding that Heck required judgment for Johnson and that the Heck defense was properly before the Tenth Circuit because it had been raised and fully briefed below and he raised it again on appeal. Heck was a Supreme Court case where the Court ruled a plaintiff could not bring a § 1983 claim for damages if it rendered a criminal conviction invalid. In this case, Havens’ § 1983 claim asserted no wrongdoing on the part of Havens, instead attributing all fault to the officers. Havens’ version of the events could not sustain a conviction for attempted first-degree assault, and his theory of innocence is barred by Heck.

The Tenth Circuit acknowledged that Havens’ plea was a nolo contedere plea, not a typical guilty plea, but found the Heck doctrine survived by the existence of a valid conviction, not the mechanism by which that conviction was obtained. In a lengthy footnote, Judge Hartz related his concerns with the effect the nolo contendere plea would have on Johnson’s issue preclusion and judicial estoppel arguments, but this footnote was not joined by the rest of the panel.

The Tenth Circuit affirmed the district court’s summary judgment.

The Colorado Lawyer: Abraham Lincoln—150 Years Later

Editor’s Note: This article originally appeared in the April 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Charles F. Garciacharley garcia

Where justice is denied, where poverty is enforced, where
ignorance prevails, and where any one class is made to feel
that society is an organized conspiracy to oppress, rob and
degrade them, neither persons or property will be safe.

—Frederick Douglass, Emancipation Celebration
Washington, DC, 1886

April 15, 2015 marks the 150th anniversary of President Abraham Lincoln’s death. Lincoln served as U.S. President for little more than one term, and during that period, he worked to make all people of this country equal. He wrote the Emancipation Proclamation in 1862, declaring that “all persons held as slaves within any State or designated part of a state . . . shall be . . . forever free.” On April 4, 1864, the Thirteenth Amendment to the U.S. Constitution abolishing slavery passed the Senate, and on January 31, 1865, it passed the House of Representatives. It was ratified after Lincoln’s death on December 6, 1865.

Mindful of this powerful history, I began to reflect on recent events involving racial conflict occurring in the United States, including in Colorado, and to contemplate how far we have come in 150 years. We should not shy away from discussing racial conflict and related social and legal injustices simply because it is a difficult and sensitive subject for which there may be no single or immediate solution. I firmly believe that it is our duty as members of this honorable profession to reflect on the inescapable fact that people of color are over-criminalized, and constructively work toward reform. I hope this Message advances the discussion of the role we must play to ensure equality for all.

Atticus Revisted

On July 11, 1960, To Kill a Mockingbird by Harper Lee was published. Lee attended law school at the University of Alabama but chose to pursue a career in writing instead of the law. (She did receive an Honorary Special Membership to the Alabama Bar in 2008.[1])

To Kill a Mockingbird was published during a time of much racial tension in the United States. For example, in 1955, the black teenager Emmett Till was murdered in Mississippi for allegedly flirting with a white woman, and the Montgomery bus boycott of 1955 occurred after Rosa Parks was arrested for not giving up her seat on a bus to a white man. The book has been hailed by many in the civil rights movement for moving forward the dialogue on race and justice. For example, former Atlanta Mayor Andrew Young, who was the first African American since Reconstruction to represent Georgia in the U.S. Congress, stated that Lee’s book “inspired hope in the midst of chaos and confusion.”[2]

Searching for Answers

President Abraham Lincoln sought to bring racial justice to this country, and Harper Lee sought to bring social awareness to the fact that ninety-five years after the Emancipation Proclamation, equality was not a reality. Now, 150 years after Lincoln’s death and the ratification of the Thirteenth Amendment, there may be some sense of legal equality on the books, but equality across society is not a reality, and that is evident in the criminal justice system. For example, according to information as recent as November 2014:

Arrest rates are hard to come by, but African Americans are arrested at rates far exceeding their white counterparts. In many cities, the rate is 10 times higher and in some, it is as much as 26 times higher.[3]

According to the Bureau of Justice Statistics, “African American males are incarcerated at a rate 6.7 times higher, and Hispanic males 2.5 times higher, than their white non-Hispanic counterparts.”[4]

On February 22, 2015, when singer–songwriter John Legend accepted the Oscar for co-writing the song “Glory” from the film Selma, he commented, “There are more black men under correctional control today than there were under slavery in 1850.” The events highlighted by the death of a young African American man in Ferguson, Missouri have again focused national attention on the issue of race and justice in America. Similar events in Colorado have spurred protests in recent months. As citizens and as lawyers, we are striving to find answers to the questions raised by these events.

In December 2014, the Sam Cary Bar Association, in conjunction with the CBA and other bar associations, presented a program entitled “Community Forum—Waiting to Exhale: A Conversation About Race and Our Justice System.” The Forum was a panel discussion on long-ignored race-related issues brought to light by the events of Ferguson. Questions raised at the Forum focused largely on the manner in which our three branches of government should address these issues and the degree to which it is the responsibility of our justice system to rectify the unfair, unequitable imposition of punishment. Forum presenters focused on the Denver Police and Sheriff’s Departments, but the discussion also ventured into the role of our courts and legislature in addressing issues that ranged from excessive force by law enforcement to minority overrepresentation in our criminal justice system. The Forum itself provided no easy solutions to the problems raised by the community, but it continued to advance the conversation.

Legislating on Behalf of Children

The prevailing question is what lawyers can do to better address the issues pertaining to racial injustice in our society. It seems everyone has suggestions in these trying times, and one entity that is looking for answers is the Colorado Legislature, where, during the 2015 legislative session, it will be considering a bill dealing with petty tickets for juveniles. This bill began as a recommendation from the Juvenile Justice Task Force of the Colorado Criminal and Juvenile Justice Commission. The intention of the bill is to find a way to keep our children from becoming part of the criminal justice system. The belief is that once a child becomes part of the criminal justice system, it is very difficult to remove him or her from the system.

Tackling the overrepresentation of people of color in our criminal justice system begins with how we address the treatment of our children. It is a fact that our juvenile courts are overcrowded. The number of people of color adjudicated in those courts does not reflect our society as a community. We must begin our search for answers by looking at our courts and determining how our children reach the courts in the first place. This bill is a start to addressing the bigger issue of racial injustice.

The Challenge to the Justice System

We must begin to collaborate to solve the problems of over-criminalization, mass imprisonment, and minority overrepresentation in our criminal justice system. Although most people may agree on what the bigger problems are, they may differ on the causes. This should not stop us from working with our legislators, governors, mayors, judges, prosecutors, and defense attorneys to find solutions.

> A New York Times column on February 18, 2015 stated:

Usually bitter adversairies, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken. Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group are coming together to back a new organization called the Coalition for Public Safety. The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.[5]

> In her book The New Jim Crow,[6] Michelle Alexander focuses on how the enactment and enforcement of drug laws have created a society in our country where we legalize discrimination. She argues in the book that the U.S. criminal justice system functions as a contemporary system of racial control, and writes that “we have not ended racial caste in America; we have merely redesigned it.” The United States currently represents 5% of the world population but represents 25% of the world’s incarcerated population.[7] In her January 2012 appearance on the National Public Radio program Fresh Air, Alexander told host Dave Davies that “[p]eople are swept into the criminal justice system—particularly in poor communities of color—at very early ages.”[8]

> George F. Will wrote about the death of Eric Garner in New York for the Washington Post Writers Group (WPWG). On December 14, 2014, when talking about the death of Eric Garner in New York for selling illegal cigarettes, Will wrote:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.[9]

> Professor Stephen L. Carter of Yale Law School has stated that [o]vercriminalization matters [because] making an offense criminal also means that the police will go armed to enforce it. However, today’s political system takes bizarre delight in creating new crimes for enforcement.[10]

> George Will states further in his WPWG article: The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism.[11]

> A group known as Right on Crime,[12] a project of the Texas Public Policy Foundation and in cooperation with the Justice Fellowship, has brought together former U.S. Speaker of the House Newt Gingrich, political advocate Grover Norquist, Texas Governor Rick Perry, and others to examine the causes of mass incarceration in Texas and across the United States. A look at Right on Crime’s website, www.rightoncrime.com, will lead you to articles on attempts at criminal justice reform in such states as Ohio, Georgia, and West Virginia.

The Rule of Law—The Guiding Premise to Repairing Injustices

Racial injustice exists outside the criminal justice system, as well. Inequalities in our educational system, in the employment arena, and in housing serve as breeding grounds for racial injustice in the criminal justice system. We need to constantly work at airing and addressing the problems that exist in all areas of society. At the same time, we need to address the reasons behind the staggering rate of incarceration of people of color and the poor in our country. The answer to societal injustices does not rest in any one of the three branches of our government, but in all three.

Our legislators need to address over-criminalization, mass incarceration, and overrepresentation of people of color in the criminal justice system. Legislators around the country are now rushing to enact laws around police body cameras, excessive force laws, and grand juries for police misconduct. These are perhaps good ideas, but they may be no more than Band-Aids for a much larger wound in our society.

Our Executive Branch needs to examine the enforcement of our laws to find a way to enforce them without doing harm to society. Many of the issues are particular to the local community, and this is where change needs to begin. We need to take a new approach to law enforcement, especially as it relates to people of color. It is the job of our mayors, city councils, and county commissioners to examine our methodology of law enforcement and assure the words “Serve and Protect” have meaning.

Finally, the third branch of government, and the one we lawyers know best—the Judicial Branch—plays a vital role in questioning and responding to the many issues raised here. The acts of our legislators and of our Executive Branch will eventually be tested in our courts. The criminal justice system is unworkable if it is not vetted in our courts.

There is one thing that is paramount in effecting change in our criminal justice system, and that is adherence to the rule of law. Many believe—and rightly so—that the rich and poor are treated differently in our criminal justice system. This has to change.

The rule of law is simple: the same laws must apply to each and every one of us. It is the duty of our courts to look out into the audience of the courtroom and the cells of our jails and ask why there is such a broad discrepancy among those who are criminalized. Colorado comprises district, county, and municipal courts. The county courts handle misdemeanor criminal matters and are frequently referred to as “our people’s courts.” The municipal courts handle municipal ordinance violations. These are the cases that are the subject of George Will’s reference to the “broken windows” method of police oversight of our communities. These are the courts Michelle Alexander speaks of when she talks about sweeping people into the criminal justice system. Once they are swept in even at the municipal level, they become branded for life, thus creating hurdles to employment, housing, and other opportunities that lead to the vicious circle that keeps them in the criminal justice system.


As stated in The New York Times article, in writing about the Koch brothers and the center coalition:

With the huge costs to the public of an expanding 2.2 million person prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opposites joining together.[13]

We must continue to correct inequality in this country and we can begin by bringing equality to the justice system. Atticus Finch stated in his closing argument:

Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system—that’s no ideal to me. That is a living, working reality.[14]

I am an idealist, and I firmly believe our courts are the great levelers. I also believe that we as lawyers and citizens, together with our communities, must begin the difficult work of collaboration, because the courts are not the only solution. President Lincoln stated in the Gettysburg Address that “all men are created equal.” Our Declaration of Independence also states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . . .” We must reexamine what has occurred during the past 150 years and constructively work toward improving the direction we take toward a better future.


[1] “Alabama Supreme Court Awards Harper Lee Honorary Special Membership,” The Alabama Lawyer 252 (July 2008), www.alabar.org/assets/uploads/2014/08/Lawyer-July-2008_Web.pdf.

[2] See, e.g., American Masters: Harper Lee: Hey Boo (2010), www.pbs.org/wnet/americanmasters/episodes/harper-lee-hey-boo/about-the-documentary/1972.

[3] Heath, “Racial Gap in U.S. Arrest rates: ‘Staggering disparity,’”USA Today (Nov. 19, 2014), www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207.

[4] See West, “Prison Inmates at Midyear 2009—Statistical Tables” (June 2010),www.bjs.gov/content/pub/pdf/pim09st.pdf.

[5] See Hulse, “Unlikely Cause Unites the Left and the Right: Justice Reform,” The New York Times(Feb. 18, 2015), www.nytimes.com/2015/02/19/us/politics/unlikely-cause-unites-the-left-and-the-right-justice-reform.html?_r=1.

[6] Alexander, The New Jim Crow (New Press, 2010).

[7] See NAACP, “Criminal Justice Fact Sheet,” www.naacp.org/pages/criminal-justice-fact-sheet. See also Ehrenfreund, “There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery,” The Washington Post (Feb. 23, 2015), www.washingtonpost.com/blogs/wonkblog/wp/2015/02/23/theres-a-disturbing-truth-to-john-legends-oscar-statement-about-prisons-and-slavery/?tid=sm_tw.

[8] See “Legal Scholar: Jim Crow Still Exists in American,” Fresh Air (NPR Radio, Jan. 16, 2012), www.npr.org/2012/01/16/145175694/legal-scholar-jim-crow-still-exists-in-america.

[9] Will, “Eric Garner, criminalized to death,” The Washington Post (Dec. 10, 2014), www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html.

[10] Carter, “Law puts us all in same danger as Eric Garner,” Bloomberg News (Dec. 14, 2014), www.commercialappeal.com/opinion/national-and-world-commentary/stephen-l-carter-law-puts-us-all-in-same-danger-as-eric-garner_29242740.

[11] Will, supra note 9.

[12] See www.rightoncrime.com. See also Denver Post Editorial Board, “Common ground on criminal justice reform,” The Denver Post (Feb. 20, 2015), www.denverpost.com/editorials/ci_27568775/common-ground-criminal-justice-reform?source=infinite. See also Hulse, supra note 5.

[13] Hulse, supra note 5.

[14] Lee, To Kill a Mockingbird (Grand Central Publishing, 1960).

Charles F. Garcia, Esq., CBA President, is a graduate of the University of Wisconsin. He worked in international tax as a CPA for Arthur Andersen & Co. and Price Waterhouse for ten years. He then went on to graduate from the University of Denver College Of Law and joined the Office of the Colorado State Public Defender, where he practiced as a criminal defense trial attorney for twenty-five years. He is an Adjunct Professor of Law at the University Of Denver Sturm College of Law and a teacher for the National Institute of Trial Advocacy. Charles retired in 2007 as the Office Head for the Denver Office of the Colorado State Public Defender. Charles was a campaign policy advisor and a co-chair to the transition team for Governor Hickenlooper and is currently Special Counsel to Governor Hickenlooper. In 2011, Charles came out of retirement to be appointed by Mayor Vidal as the Manager of Safety for the City and County of Denver.

Tenth Circuit: Use of Force Against Physically and Mentally Unstable Person Excessive so No Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Aldaba v. Pickens on Wednesday, February 4, 2015.

Johnny Leija went to a hospital in Oklahoma and was diagnosed with dehydration and severe pneumonia in both lungs, causing hypoxia (low oxygen levels, known to cause altered mental status). He was pleasant when he was admitted at 11 a.m., but by 6 p.m. his behavior had changed—he was complaining of extreme thirst and a nurse discovered he had disconnected his oxygen and cut his IV, and he was bleeding from the arms. The nurse reconnected the IV and the oxygen, but Leija seemed confused and anxious. Leija became increasingly aggressive and disoriented, the doctor was increasingly concerned for his health due to the behavioral and mental status changes, and eventually law enforcement was called “for help with a disturbed patient.”

Leija, who had willingly come to the hospital, exited his hospital room and was walking toward the exit when law enforcement arrived. The doctor expressed concern that Leija could die if he left the hospital, given the severity of his symptoms. The officers tried to persuade Leija to return to his room, but he was agitated and insisted the nurses were trying to kill him. The officers repeatedly tried to get Leija to his knees and warned him they would use a taser. Leija removed his IVs and shook his arms, stating “this is my blood.” A deputy fired the taser, striking Leija in the torso, but it appeared ineffectual and a struggle ensued. The officers shoved Leija face-first against the wall and tased him again, this time making direct contact with Leija’s skin, but again the taser appeared ineffectual. A deputy shoved his leg into the back of Leija’s knee, bringing all three officers and Leija down. The officers handcuffed Leija while the doctor administered calming medications, but at that point Leija became limp and the doctors began CPR. Leija died that evening. The medical examiner testified that the cause of death was pneumonia, but the taser shots “certainly could have increased Leija’s need for oxygen,” and the treating physician testified that the position Leija was forced into by the officers made it difficult for him to breathe.

Erma Aldaba, Leija’s mother and next of kin, brought a 42 U.S.C. § 1983 action against the officers. The district court granted summary judgment to the officers, deciding that Leija was lawfully seized, since probable cause existed for taking him into protective custody due to his altered mental status. However, the district court denied qualified immunity on the excessive force claim, holding that several material disputes existed about the reasonableness of the force used against Mr. Leija. The officers filed an interlocutory appeal.

The Tenth Circuit first analyzed the constitutional violation regarding the officers’ use of excessive force against Leija. The Tenth Circuit first enumerated the Graham factors for determining whether force was excessive, then added factors relating to the reasonableness of using force against a person who is to be taken into protective custody for mental health reasons. The Tenth Circuit found that where, as here, the person has committed no crime and poses a threat only to himself, it is especially egregious to use force to take the person into protective custody. The Tenth Circuit also admonished against the use of force or positional restraints when a person has special characteristics making him especially susceptible to harm, such as known medical conditions. Weighing the factors, the Tenth Circuit found the first factor weighed for the use of some force in restraining Mr. Leija, since he was clearly mentally disturbed and could die if he left the hospital. However, the rest of the factors weighed against the use of force, and particularly against the use of a taser.

Mr. Leija’s altered mental status and compromised physical condition weigh against the use of any force in restraint. Perhaps more importantly, weighing against the use of force was the fact that Mr. Leija committed no crime and voluntarily arrived at the hospital for medical treatment. Finally, the Tenth Circuit found disputed material facts regarding the last Graham factor—whether the defendant resisted seizure. Here, testimony varied on whether Mr. Leija complied with the officers’ orders to get down on his knees. Surveillance video showed no struggle from Leija, who simply continued walking when the officers commanded him to kneel. The deputy made the initial showing of force by tasing Mr. Leija. The officers were not justified in using the level of force shown on the surveillance video. The Tenth Circuit found the officers were not entitled to summary judgment on the excessive force claim, and that the law was clearly established at the time of the violation.

The Tenth Circuit affirmed the district court’s denial of summary judgment to the officers.

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

Tenth Circuit: Denver Police Officers Not Entitled to Qualified Immunity on Excessive Force Claims at Summary Judgment Stage

The Tenth Circuit Court of Appeals published its opinion in Estate of Marvin L. Booker v. Gomez on Tuesday, March 11, 2014.

Denver police arrested Marvin Booker on a warrant for failure to appear at a hearing regarding a drug charge. During booking, Mr. Booker died while in custody after officers restrained him in response to his alleged insubordination. Several officers pinned Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased him. After the officers sought medical help for Mr. Booker, he could not be revived.

Mr. Booker’s estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp, Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively “Defendants”) under 42 U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to provide him with immediate medical care, which resulted in Mr. Booker’s untimely death. The Defendants moved for summary judgment on qualified immunity grounds. The district court denied their motion because disputed facts precluded summary judgment. Defendants appealed.

42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law. Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials  from damages actions unless their conduct was unreasonable in light of clearly established law. Generally, when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.

The court discerned five issues from the Defendants’ appeal: (A) whether the district court erred by considering Plaintiffs’ excessive force claim under both the Fourth and the Fourteenth Amendment standards; (B) whether the district court erred in failing to conduct an individualized analysis of each Defendant’s actions; (C) whether the district court erred in denying qualified immunity on Plaintiffs’ excessive force claim; (D) whether the district court erred in denying qualified immunity on Plaintiffs’ claim for failure to provide medical care; and (E) whether the district court erred in failing to grant qualified immunity to Sergeant Rodriguez on the Plaintiffs’ supervisory liability claim.

(A)   The District Court Did Not Err by Considering Plaintiffs’ Excessive Force Claim Under Both the Fourth and the Fourteenth Amendments

Determining which amendment applies to an allegation of excessive force requires consideration of where the plaintiff finds himself in the criminal justice system. It is well-established that the Fourteenth Amendment governs any claim of excessive force brought by a “pretrial detainee.” On the other hand, the Fourth Amendment governs excessive force claims arising from treatment of an arrestee detained without a warrant and prior to any probable cause hearing. The Tenth Circuit concluded the district court did not err in considering Plaintiffs’ excessive force claim under both the Fourth and Fourteenth Amendments. Rather, the district court did what many courts do: it analyzed the case under more than one legal rule and made alternative rulings, holding that Defendants were not entitled to qualified immunity on Plaintiffs’ excessive force claim under either the Fourth or Fourteenth Amendment.

The court held the Fourteenth Amendment applied to Plaintiffs’ excessive force claim in any event, because Mr. Booker was a pre-trial detainee.

(B) Individualized Analysis of Each Officer’s Use of Force

Defendants argued the district court should have assessed their actions individually, rather than judging the conduct of all the deputies as a whole. The Tenth Circuit disagreed and concluded that individualized analysis was not necessary at the summary judgment stage: all Defendants actively and jointly participated in the use of force, and even if a single deputy’s participation did not constitute excessive force, that deputy could be liable under a failure-to-intervene theory. The court concluded that the district court did not err in failing to consider each officer’s use of excessive force individually.

(C)   Qualified Immunity on Plaintiffs’ Excessive Force Claim

The Defendants were entitled to qualified immunity unless the Plaintiffs could show  (a) a reasonable jury could find unconstitutional the deputies’ use of force—a carotid restraint, pressure on Mr. Booker’s back, and application of a taser—once Mr. Booker was fully restrained; and (b) this use of force violated clearly established law.

The Tenth Circuit concluded Plaintiffs met both burdens. The court looked to these three factors in evaluating the excessive force claim under the Fourteenth Amendment: (1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor.

The evidence, when viewed in the light most favorable to the Plaintiffs, showed the deputies used various types of force—including substantial pressure on his back, a taser, and a carotid neckhold—on Mr. Booker while he was not resisting. Because Mr. Booker was handcuffed and on his stomach, the court concluded the force was not proportional to the need presented. Second, the autopsy report concluded that Mr. Booker died of cardiorespiratory arrest as a result of restraint. A reasonable jury could conclude this evidence of Mr. Booker’s cause of death supported the Plaintiffs’ claim of excessive force. Next, the subjective intent standard for an excessive force due process violation is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness. A reasonable jury could conclude that the Defendants’ use of substantial pressure on Mr. Booker’s back, a two-minute carotid hold on his neck, and a taser while Mr. Booker was subdued and struggling to breathe in a prone position demonstrated the requisite level of culpability for a due process violation. The Tenth Circuit held that the Plaintiffs met their burden to show the Defendants violated Mr. Booker’s constitutional rights because a reasonable jury could conclude the Defendants engaged in excessive force in violation of the Due Process Clause.

Second, the legal norms underlying the three-factor due process analysis—proportionality, injury, and motive—were clearly established at the time of Mr. Booker’s death. The court therefore affirmed the district court’s denial of summary judgment on Plaintiffs’ excessive force claim.

(D)   Defendants Were Not Entitled to Qualified Immunity on Plaintiffs’ Claim for Failure to Provide Medical Care

Prison doctors and prison guards may be liable under § 1983 for indifference manifested in their response to the prisoner’s needs or by intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed. This standard applies to pretrial detainees. First, the detainee must produce objective evidence that the deprivation at issue was in fact sufficiently serious. A medical need is sufficiently serious if it is one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Second, under the subjective component, the detainee must establish deliberate indifference to his serious medical needs by presenting evidence of the prison official’s culpable state of mind.

First, Plaintiffs’ experts provided sufficient evidence for a jury to conclude that the Defendants’ delay in seeking medical care contributed to Mr. Booker’s death, which was without doubt, sufficiently serious to meet the objective component necessary to implicate the Fourteenth Amendment. Second, the disputed facts regarding Mr. Booker’s condition after the use of force ended precluded summary judgment.

There is little doubt that deliberate indifference to an inmate’s serious medical need violates a clearly established constitutional right. The court stated that any reasonable officer in the Defendants’ position (and with their training) would have known that failing to check Mr. Booker’s vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants’ use of force could violate the Constitution.

(E)    Sergeant Rodriguez Was Not Entitled to Qualified Immunity on the Plaintiffs’ Supervisory Liability Claim

A plaintiff must satisfy three elements to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind.

The court held that a reasonable jury could find Sergeant Rodriguez actively participated in—and failed to intervene and prevent—the use of excessive force to satisfy the first and second elements. Similarly, the court’s earlier conclusion that a reasonable jury could find Sergeant Rodriguez exhibited excessive zeal—by using the taser on Mr. Booker for 60 percent longer than the recommended time period when he was no longer resisting and fully subdued by handcuffs, and the carotid neck hold, satisfied the third element. Finally, the court’s previous conclusion regarding clearly established law, also precluded summary judgment on this claim.


Tenth Circuit: Qualified Immunity Summary Judgment in 42 U.S.C. § 1983 Claims Reluctantly Affirmed

The Tenth Circuit Court of Appeals published its opinion in Rojas v. Anderson on Tuesday, July 9, 2013.

Plaintiff Oliver Rojas appealed the district court’s order granting summary judgment to Defendants on his 42 U.S.C. § 1983 claims. Plaintiff filed a complaint under § 1983 against Defendants asserting claims of unlawful seizure and excessive force. The district court granted summary judgment to Defendants based on qualified immunity, concluding Officer Anderson had probable cause to arrest Plaintiff and, in light of the exigent circumstances surrounding the event, his warrantless entry into Plaintiff’s home was therefore justified. The district court also concluded that Defendants’ act of dropping Plaintiff did not violate the Fourth Amendment.

The Tenth Circuit agreed that the Defendants were entitled to qualified immunity as the Plaintiff failed to show that the defendant’s actions violated a constitutional or statutory right and that this right was clearly established at the time of the conduct at issue. The court pointed out that it may have reached an entirely different result but was forced to affirm because of the lack of proper argument and failure to provide supporting authority below or on appeal on the Plaintiff’s behalf.

Tenth Circuit: In § 1983 Action Where Qualified Immunity Is Not at Issue, Excessive Force Question Is For Jury

The Tenth Circuit Court of Appeals published its opinion in Cavanaugh v. Woods Cross City on Wednesday, June 12, 2013.

Shannon Cavanaugh suffered a serious head injury after being tasered by Daniel Davis, a police officer for Woods Cross City, Utah. She filed an excessive force claim under 42 U.S.C. § 1983 against the City and Davis. The jury found for the City and Davis, and the district court entered judgment in their favor.

Cavanaugh argued that the district court’s refusal to exclude testimony from Officer Davis concerning his perceptions and beliefs prior to the tasering incident was error because whether force was excessive is an objective test. The Tenth Circuit held that allowing Davis’s testimony was harmless error because the district court gave a correct jury instruction.

The court also rejected Cavanaugh’s argument that her F.R.C.P. 59 motion for a new trial should have been granted because there was insufficient evidence that she was an immediate threat. Given the testimony that she left the house with a kitchen knife, had been drinking and taken drugs, her refusal to answer Officer Davis’s questions, and rush to get back in the house, sufficient evidence she was an immediate threat was shown.

The district court’s refusal to give Cavanaugh’s proposed jury instruction on resisting arrest was also not error as use of force may be appropriate when a person is actively resisting seizure, not just arrest.

Finally, Cavanaugh argued that the district court erred in submitting to the jury the question whether Officer Davis used excessive force. Cavanaugh contended the court should have given the jury special interrogatories to decide the factual disputes and made the legal determination itself whether Davis’s conduct was reasonable under the circumstances. The court held that because there were disputed issues of material fact, it was proper for the district court to send the question of whether Officer Davis’s use of force was reasonable to the jury. The use of special interrogatories may be appropriate in some cases but was not required here. The court affirmed.