CRAIG B. SHAFFER, Magistrate Judge.
This matter comes before the court on Defendant Andrew Gatto's Motion to Dismiss (doc. # 29), filed on February 28, 2014. Plaintiff Terry Jackson filed her Response to Defendant's Motion to Dismiss (doc. #32) on March 18, 2014, which was followed by Defendant Gatto's Reply in Support of Motion to Dismiss (doc. #35) on April 1, 2014.
Ms. Jackson commenced this litigation on September 16, 2013. Her original Complaint (doc. #1) named as defendants the United States of America and Benjamin Gatto, and asserted six claims for relief under the Fourth Amendment and common law tort theories. Defendants moved to dismiss the original Complaint on January 30, 2014, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). More specifically, Defendant Gatto argued that the claims brought against him in his individual capacity failed to properly allege a Fourth Amendment violation and/or were barred by the doctrine of qualified immunity. The United States moved to dismiss for lack of subject matter jurisdiction, arguing that Plaintiff's negligence claims were barred by sovereign immunity or the discretionary function exception incorporated in the Federal Tort Claims Act. See 28 U.S.C. § 2680(a).
Rather than responding to that motion, Ms. Jackson filed an Amended Complaint (doc. # 28) on February 28, 2014, in which she asserted "Constitutional and Civil Rights" claims against Defendant Gatto and "Unknown Federal Law Enforcement Agents of the Fort Carson Military Police" pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Ms. Jackson's First Claim for Relief alleges that "[o]n or about September 22, 2011, in the absence of offensive physical force, the threat of force, attempted flight or threatened flight," Defendant Gatto used excessive force in violation of the Fourth Amendment by "pulling [Ms. Jackson] from her vehicle, forcing her against her vehicle, twisting her head, and intentionally shooting her with a Taser gun." See Amended Civil Complaint, at ¶ 70. Plaintiff's Second Claim for Relief alleges, as a separate Fourth Amendment violation, that on the same day, Defendant Gatto "and/or other agents of the Fort Carson Provost Marshall's office,
Id. at ¶ 73. In her prayer for relief, Ms. Jackson "requests judgment against the United States of America, against Benjamin Gatto, or against both of them."
Defendant Gatto has moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6), contending that Plaintiff has failed to allege facts that would "clearly establish" that his use of force on September 22, 2011 was excessive or that Ms. Jackson's subsequent detention violated the Fourth Amendment. Defendant Gatto further argues that neither his "use of force, including use of a Taser, against Plaintiff, who was noncompliant and resisting her apprehension, nor Plaintiff's subsequent arrest and detention violate clearly establish law or constitutional rights of which a reasonable person would have known." Not surprisingly, Ms. Jackson insists that Officer Gatto's actions, as alleged in the Amended Complaint and depicted on a contemporaneously created audio/video recording, were "`unreasonable' under established Fourth Amendment standards," thus precluding his reliance on the doctrine of qualified immunity.
On January 30, 2014, this matter was referred for disposition to this Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court has reviewed the pending motion and related briefing and exhibits, the entire case file, and the applicable law, and is sufficiently advised in the premises. The court does not believe that oral argument would assist its evaluation of the arguments raised in the parties' briefs. For the following reasons, I am granting in part and denying in part Defendant Gatto's motion.
Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." "The burden is on the plaintiff to frame `a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id. "Nevertheless, the standard remains a liberal one, and `a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of these facts is improbable and that a recovery is very remote and unlikely.'" Jordan v. Cooley, No. 13-cv-01650-REB-MJW, 2014 WL 923279, at 1(D. Colo. March 10, 2014) (quoting Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10
Generally, a court considers only the contents of the complaint when ruling on a Rule 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10
In the Amended Complaint, Ms. Jackson alleges that on September 22, 2011, "Officer Gatto activated the audio/video device in his vehicle and recorded the majority of the events that are the subject of this complaint." See Amended Complaint, at ¶ 33. Defendant Gatto offered a copy of this audio/video recording as Exhibit A to his first Motion to Dismiss (see doc. # 25) and cites that same audio/video recording (hereinafter "Defendant's Exhibit A") in the current Motion to Dismiss, reasoning that the recording is "central to [Ms.Jackson's] claims" and therefore can be considered in deciding the pending motion "without transforming it into a motion for summary judgment." See Defendant's Motion to Dismiss (doc. #29), at 2 n. 1. In his Response to Defendant's Motion to Dismiss (doc. # 32), Plaintiff's counsel "agrees with Defendant's position with respect to the Court considering the audio/video tape that was referenced in Plaintiff's Complaint." Neither side appears to challenge the authenticity of the audio/video recording. Cf. Scott v. Harris, 550 U.S. 372, 379 (2007) (in a case involving allegations of excessive force in connection with a high-speed chase, the Supreme Court considered the contents of a videotape "capturing the events in question" for which there were no allegations or indications of doctoring or tampering in any way). Plaintiff further asks me to consider, on the same basis, "the verbatim transcript of the audio/video that is attached" to her Response and previously provided to defense counsel.
At the parties' request, I have reviewed the time-stamped audio/video recording of the events on September 22, 2011 and will consider this exhibit in deciding the pending motion.
As noted, Defendant Gatto has raised the defense of qualified immunity to Ms. Jackson's claims. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1244 (2012) (internal quotation marks and citations omitted). See also Duncan v. Gunter, 15 F.3d 989, 992 (10
Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id. See also Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003) (once a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to show that (1) the defendant violated a constitutional or statutory right and (2) the constitutional or statutory right was clearly established when the alleged violation occurred). However, "[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than would apply on summary judgment," as the court must consider only the facts alleged in the plaintiff's complaint and must accept those well-pled facts as true and view the allegations in the light most favorable to the plaintiff. Sanchez v. Labate, No. 13-2109, ___ F. App'x ___, 2014 WL 1623050, at *2 (10
The first step in assessing the constitutionality of Defendant Gatto's actions "is to determine the relevant facts," cf. Scott, 550 U.S. at 378, which, in the context of this motion to dismiss, means Ms. Jackson's well-pled allegations, as well as the actions and statements clearly captured on the audio/video recording.
The Amended Complaint alleges that on September 22, 2011, Plaintiff was driving her son, Victor Williams, to work at the Post Exchange on Fort Carson Military Reservation. See Amended Complaint, at ¶¶ 28 and 29. At the same time, Defendant Gatto was parked in his patrol car near the intersection of Chiles and Evans Avenues performing traffic duties. Id. at ¶ 30. At approximately 9:55 am, Officer Gatto allegedly "clocked" Plaintiff's car traveling in excess of the posted speed limit and switched on the flashing lights of his vehicle. Id. at ¶¶ 31 and 32. In response, Ms. Jackson pulled into a parking lot and parked her car. Id. at ¶ 32. After approaching the driver's side window, Office Gatto told Ms. Jackson that he had observed her speeding. See Defendant's Exhibit A, at time-code 9:56:36. Ms. Jackson responded that she had not seen any posted limits and thought she had been driving within the speed limits. See Amended Complaint, at ¶ 34. Officer Gatto asked Ms. Jackson for her license, registration and insurance. Id. at ¶ 36. In response, Ms. Jackson said that she was sorry, but asked if Officer Gatto could let her off with a warning because she was trying to get her son to work on time.
When Officer Gatto asked again for her license, registration and proof of insurance, Ms. Jackson answered that she "[didn't] have it" and that Officer Gatto should "just write me up." See Defendant's Exhibit A, at time-code 9:57:20. Plaintiff then furnished her driver's license, but continued to insist that she did not have her registration or proof of insurance. See Amended Complaint, at ¶ 37. Although Ms. Jackson eventually provided her registration and some insurance documents, Officer Gatto noted that the proof of insurance had expired. See Defendant's Exhibit A, at time-code 9:58:37. Defendant explained to Ms. Jackson that he could not let her drive her car unless he could verify that insurance coverage was current. Id. at time-code 9:59:22 and 10:02:22. Officer Gatto eventually spoke to Ms. Jackson's insurance carrier by phone and confirmed that her policy was current. See Amended Complaint, at ¶ 39. Based on the time-code on the audio/video recording, approximately 16 minutes and 30 seconds elapsed from the time that Officer Gatto pulled Ms. Jackson over for speeding and he confirmed that Plaintiff had valid insurance. During this period of time, Ms. Jackson remained in and was not asked to leave her car. However, the Amended Complaint acknowledges that "from the outset of the traffic stop Plaintiff asked to be allowed to proceed and argued with Officer Gatto." Id at ¶ 41.
After speaking with Plaintiff's insurance representative and momentarily returning to his patrol car, Officer Gatto came back to Ms. Jackson's car and returned her documents, explaining that he was "going to cut [her] a break on the insurance" even though failure to carry proof of insurance was a "traffic misdemeanor" that required a mandatory court appearance. See Defendant's Exhibit A, at time-code 10:13:25. Ms. Jackson responded that her husband had printed the insurance documents, but then asked Officer Gatto if he could contact the Post Exchange or prepare a document explaining that Ms. Jackson was responsible for her son's delayed arrival at work. Id. at time-code 10:13:44. Officer Gatto said that he would not provide that statement and that Ms. Jackson could "deal with that on your own." Id. at time-code 10:14:02.
When Ms. Jackson continued to press her request for assistance in placating her son's employer, Officer Gatto pointed out that Plaintiff initially claimed that she did not have the required documentation. Id. at time-code 10-14-18. Defendant then accused Ms. Jackson of "l[ying] to a police officer by saying you didn't have the documents before you looked." Id. at time-code 10:14:31. Ms. Jackson repeatedly said "okay." At that point, Officer Gatto asked Ms. Jackson for her current address because that information was "required by law." Id. at time-code 10:14:45. Rather than immediately providing her address, Ms. Jackson responded with the apparent non-sequitur: "did you have a good day?" Id. at time-code 10:14:54. See also Amended Complaint, at ¶ 43. Officer Gatto said that he was going to ask one more time for Ms. Jackson's valid address "or then I'm going to apprehend you for failure to identify."
Although Ms. Jackson pointed out that she had given Officer Gatto her documents and that the required information was "all here," Defendant responded that "it's too late." Id. at time-code 10:15:43. See also Amended Complaint, at ¶¶ 45 and 46. At 10:15:54, Officer Gatto opened the driver's side door, reached into the vehicle and again told Plaintiff to "step out of the vehicle."
Over the next approximately 20 seconds, Officer Gatto and Ms. Jackson physically struggled beside the open driver's side door of the car. During this exchange, Officer Gatto grabbed Plaintiff with his right hand and then reached around her neck with his left hand. Although Ms. Jackson did not comply with Defendant's commands and maintained contact with the car with her left hand, the audio/video recording does not show Plaintiff taking any aggressive action against Officer Gatto. After Defendant was unable to handcuff Ms. Jackson or take her to the ground, he stepped away from Plaintiff's car and began reaching for his taser. While still holding her car with her left hand, Ms. Jackson asked Officer Gatto, "what is you doing." Id. at time-code 10:17:02.
At this point, Officer Gatto stepped farther away from Ms. Jackson's car and out of camera view. While facing across the roof of her car and away from Officer Gatto, Ms. Jackson asked "you know what?" Id. at time-code 10:17:05. Officer Gatto instructed Ms. Jackson to "put your hands behind your back now." Id. at time-code 10:17:07. Although Ms. Jackson did not comply with that specific command, she continued to look away from Officer Gatto's direction and said nothing. Approximately three second later, Officer Gatto discharged his taser, striking Ms. Jackson in the back with the taser darts.
The Amended Complaint further alleges that Ms. Jackson was taken from the scene of the traffic stop to Evans Army Community Hospital. See Amended Complaint, at ¶ 61. At the hospital, Ms. Jackson "was placed in handcuffs by Defendant Gatto and/or other unidentified federal agents," and subsequently transferred "to the Military Police station where she was hand-cuffed by Defendant Gatto and/or other unidentified federal agents, to a metal bench for about an hour." Id. at ¶¶ 62 and 63. While handcuffed to the bench, Ms. Jackson "cried continually" and "was not allowed to speak directly with her husband or daughter." Id. at ¶ 66.
The Fourth Amendment's "central requirement" is one of reasonableness. See Brower v. Cnty. of Inyo, 489 U.S. 593, 599 (1989) (emphasizing that seizure "alone is not enough for § 1983 liability; the seizure must be unreasonable") (internal quotation marks omitted). "[C]ourts have long recognized that the reasonableness of a seizure depends not just on why or when it is made, but also on how it is accomplished." Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (citation omitted). To state a constitutional violation, a plaintiff must allege both that a defendant's conduct constituted a seizure, and that the seizure was unreasonable. Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994).
Similarly, a claim that law enforcement officers employed excessive force to effect a seizure is governed by the Fourth Amendment's "objective reasonableness" standard.
Wilson v. City of Lafayette, 510 F. App'x 775, 778 (10
252 F.3d at 1133 (citing Wilson v. Meeks, 52 F.3d 1547, 1554 (10
As to the first Graham factor — the severity of the crime — the audio/video captures Officer Gatto's statement that he is allowing Ms. Jackson to leave with only a warning, notwithstanding her failure to have valid proof of insurance which Defendant characterized as a traffic misdemeanor. Thereafter, when Ms. Jackson repeatedly failed to disclose her current address, Officer Gatto placed her "under apprehension" for failing to provide her current address as requested and for "lying" to a police officer, offenses that Defendant later described on the audio/video recording as "misdemeanors." I note that Ms. Jackson's own Amended Complaint acknowledges that she resisted Defendant's initial attempts to remove her from the vehicle. See CRS § 18-8-103 (classifying resisting arrest as a class 2 misdemeanor). While the court is not condoning Plaintiff's actions, none of the foregoing offenses can be described as serious. Cf. Herrera v. Bernalillo County Board of County Commissioners, No. 09-2042, 361 F. App'x 924, 928 (10
The second Graham factor asks whether the suspect posed an immediate threat to the safety of the officer or others. Here again, this factor favors Ms. Jackson. An objective review of the audio/video recording does not reveal any immediate threat to Officer Gatto. Granted, the interactions between Ms. Jackson and Officer Gatto became more heated as the traffic stop progressed, particularly after Ms. Jackson refused to comply with Defendant's initial commands to leave her car. The escalating nature of the parties' interaction is evident in Officer Gatto's requests for backup assistance. However, the audio/video recording does not capture any actions by Ms. Jackson that seem to place Officer Gatto in physical danger, or any indication that Plaintiff possessed or brandished anything that could be considered dangerous or a weapon. Although Ms. Jackson was not compliant when told to place her hands behind her back, on the audio/video recording she doesn't appear to strike or attack Officer Gatto. Indeed, Ms. Jackson's left hand remains on her vehicle through the brief tussle. Officer Gatto had positioned himself several feet from Ms. Jackson and was not in any physical danger when he elected to fire his taser.
The third Graham factor — whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight — could be considered inconclusive in light of the facts alleged in the Amended Complaint and the audio/video recording. Ms. Jackson concedes that she physically resisted Officer Gatto's efforts to remove her from the vehicle. Although Ms. Jackson certainly frustrated Officer Gatto's brief attempt to apply handcuffs, her resistence largely took the form of non-cooperation. The audio/video recording shows that in the moments immediately preceding her tasing, Ms. Jackson was not aggressively confronting Officer Gatto, but rather had turned her back to the Defendant. Officer Gatto also requested assistance that was acknowledged and acted upon by the dispatcher. Cf. Harper v. Rose, No. 09-CV-153-TC, 2012 WL 1150463, at *7 (D. Utah April 5, 2012) (noting that while the plaintiff may have been a potential threat, he was not an immediate threat at the time he was tased; also noted that the arrival of a backup officer decreased any existing threat to the defendant and increased the officers' options for taking the plaintiff into custody).
On the limited record before the court, a reasonable jury could conclude that Officer Gatto's discharge of his taser was disproportionate to the need and, therefore, violated the Fourth Amendment. When the court applies the Rule 12(b)(6) standard and considers the limited record in a light most favorable to Plaintiff, I find that the Amended Complaint plausibly alleges a claim under the Fourth Amendment for use of excessive force.
Defendant Gatto has moved to dismiss Plaintiff's Second Claim for Relief, which alleges a Fourth Amendment claim based on Ms. Jackson's "unlawful detention." As factual support for that claim, Plaintiff contends that Defendant Gatto and/or other members of the Fort Carson Provost Marshal's office "unreasonably detained" her by "handcuffing her, taking her to a military police station and handcuffing her to a metal bench for a prolonged period of time during which the Plaintiff was emotionally traumatized and physically depleted." See Amended Complaint at ¶ 73. Defendant Gatto argues that Plaintiff has failed to state a Fourth Amendment claim in the absence of any factual allegations that would plausibly suggest that her detention after being released from the hospital was either "extraordinary" or "unusually harmful to [her] privacy or . . . physical interests." Plaintiff's Response to Defendant's Motion to Dismiss offers only a passing rebuttal to Defendant's challenge to the Second Claim for Relief.
The parties apparently agree that Plaintiff's Second Claim is governed by the Fourth Amendment's "objective reasonableness" standard. As the Supreme Court has acknowledged,
Whren v. United States, 517 U.S. 806, 809-10 (1996) (internal citations omitted). Similarly, "if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that plaintiff's warrantless arrest for the minor traffic offense of failing to wear a seat belt did not violate the Fourth Amendment).
The Amended Complaint and audio/video recording set forth facts that establish probable cause for Ms. Jackson's arrest on September 22, 20122. It is undisputed that Ms. Jackson did not have proof of current insurance at the time she was stopped by Defendant Gatto. See Amended Complaint, at ¶ 37. Cf. CRS § 42-40-1409(3) (noting that "when requested to do so following any lawful traffic contact, . . . an owner or operator of a motor vehicle. . . shall present to the requesting officer immediate evidence of a complying [insurance] policy or certificate of self insurance in full force and effect as required by law;" a violation of the foregoing provision is a class 1 misdemeanor traffic offense). Plaintiff further concedes that she initially refused to obey Officer Gatto's order to step out of her car, and then resisted his efforts to remove her from the vehicle. See Amended Complaint, at ¶¶ 47 and 48. Cf. CRS § 18-8-103(1) (a person commits resisting arrest if he or she knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of that person by using or threatening to use physical force against the officer, or by using any other means which creates a substantial risk of causing bodily injury to the officer).
The Second Claim does not appear to challenge the legality of Ms. Jackson's arrest, but rather the nature and circumstances of her detention once she arrived at the military police station. While "every Fourth Amendment case . . . turns upon a `reasonableness' determination" and arguably "involves a balancing of all relevant factors,"
[w]here probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, usually harmful to an individual's privacy or even physical interests.
Whren, 517 U.S. at 818. In this case, Ms. Jackson contends that her detention violated the Fourth Amendment because she was kept handcuffed to a bench for about an hour "while still suffering the physical effects of the Tasing," when she "posed no threat to anyone," and was denied access to her husband and daughter. I find, as a matter of law, that Ms. Jackson has failed to allege sufficient facts in her Amended Complaint to plausibly show that she was detained in "an extraordinary manner" under a Fourth Amendment balancing analysis.
The fact that Ms. Jackson was handcuffed to a bench for approximately an hour does not, without more, establish a Fourth Amendment violation. Cf. Atwater, 532 U.S. at 354-55 (finding that the circumstances surrounding the plaintiff's arrest and booking were not so extraordinary as to violate the Fourth Amendment where she was "handcuffed, placed in a squad car, and taken to the local police station, where she was asked to remove items of clothing and placed in a cell alone for about an hour before being released on bond); Petersen v. Farnsworth, 371 F.3d 1219, 1224 (10
It bears repeating, that the pending motion is brought under Rule 12(b)(6), which requires the court to construe the allegations and limited record in a light most favorable to Ms. Jackson. Nevertheless, I find that Plaintiff's Second Claim fails to properly allege a Fourth Amendment violation and must be dismissed.
To address the second prong of the qualified immunity analysis, this court must consider whether the rights asserted by Ms. Jackson was clearly established as of September 22, 2011. "The clearly established inquiry examines whether the contours of the constitutional right were so well-settled, in the particular circumstances presented, that every reasonable . . . official would have understood that what he is doing violates that right. Lane v. Yohn, No. 12-cv-02183-MSK-MEH, 2013 WL 4781617, at * 3 (D. Colo. Sept. 6, 2013) (internal quotation marks and citation omitted). "[T]he salient question . . . is whether the state of the law at the time of [the] incident provided `fair warning'" to Defendant Gatto that his alleged conduct was unconstitutional. Cf. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Where, as in this case, the plaintiff is alleging unreasonable conduct in violation of the Fourth Amendment, "courts should define the `clearly established" right at issue on the basis of the `specific context of the case.'" Id.
"To satisfy this prong, the burden is on the plaintiff to point to Supreme Court or Tenth Circuit precedent (or the clear weight of other circuit courts) that recognizes an actionable constitutional violation in the circumstances presented." Id. "It is not necessary for the plaintiff to adduce a case with identical facts, but the plaintiff must identify some authority that considers the issue not as a broad general proposition, but in a particularized sense. . . ." Id. There must be "a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Duncan, 15 F.3d at 992 (internal quotation marks and citations omitted).
In Mecham v. Frazier, 500 F.3d 1200 (10
In finding that the defendant officers were entitled to qualified immunity, the Tenth Circuit in Mecham noted that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Id. at 1205 (quoting Graham, 490 U.S. at 396). The appellate court acknowledged that an officer making an arrest "may inevitably `use some degree of physical coercion or threat thereof to effect it.'" Id. Under the particular facts in Mecham, the Tenth Circuit concluded that the defendants' actions were objectively reasonable, particularly given the plaintiff's repeated failure to comply with Officer Frazier's commands, the fact that she remained in her car with the keys, thereby exercising control over the vehicle at all times, and given that the encounter occurred on the narrow shoulder of a busy highway with high speed traffic passing only a few feet away. The Tenth Circuit also held that even if the officers' use of pepper spray was not objectively reasonable, Ms. Mecham had failed to show that Fourth Amendment law was clearly established at the time of the violation. After considering the cases cited by Ms. Mecham, the Tenth Circuit panel concluded those earlier cases were factually distinguishable and not "sufficiently analogous to satisfy the particularized context necessary to support liability." Id.
The facts in surrounding Ms. Jackson's arrest and Officer Gatto's discharge of his taser are distinguishable from Mecham. Ms. Jackson brought her car to a stop in a parking lot, which did not expose Officer Gatto to dangers associated with on-coming or high-speed traffic. Moreover, at the time she was tased, Ms. Jackson was standing outside her car and posed no realistic threat of flight or danger to Officer Gatto, who had stepped well back from the driver's side of the vehicle.
Three months after the decision in Mecham, the Tenth Circuit in Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10
In the instant case, Officer Gatto gave Ms. Jackson multiple warning that she might be tased. However, those warns were coupled with a specific instruction that Plaintiff should step outside her car. While Ms. Jackson failed to comply with Officer Gatto's final command to place her hands behind her back, that instruction did not include a warning that non-compliance would result in her tasing. Certainly, there was no warning to suggest that Ms. Jackson would be tased almost immediately.
The Tenth Circuit found in Wilson v. City of Lafayette, No. 11-1403, 510 F. App'x 775, 777 (10
I recognize that the foregoing cases present factual differences from the altercation involving Ms. Jackson and Officer Gatto. However, those distinguishing facts do not bar the court from finding that Ms. Jackson's Fourth Amendment right to be free from excessive force was clearly established as of September 22, 2011. See, e.g., Currier v. Doran, 242 F.3d 905, 023 (10
Defendant cannot dispute that the legal norms or Graham factors were clearly established on September 22, 2011. See, e.g., Harper v. Rose, No. 09-CV-153-TC, 2012 WL 1150463, at *5 (D. Utah April 5, 2012) ("the fact that use of a Taser might constitute excessive force was clearly established as early as Casey"). Plaintiff has come forward with factual allegations that Officer Gatto discharged his taser even though she was only accused of committing minor infractions, was outside of her car, was not in a position to flee, and was not assaulting or posing a threat to the Defendant. Given these allegations and the actions depicted on the audio/video recording, I find on this limited record that Ms. Jackson's Fourth Amendment right was clearly established on September 22, 2011. Accordingly, I cannot grant Officer Gatto relief under the qualified immunity doctrine or dismiss the First Claim for Relief under Rule 12(b)(6).
Having concluded that Ms. Jackson's Second Claim fails to plausibly allege a constitutional violation, the court need not reach the "clearly established" prong of qualified immunity to conclude that dismissal of that claim is correctly granted. Where a Fourth Amendment violation is not properly alleged, "the inquiry ends and the officer is entitled to qualified immunity." Wilder, 490 F.3d at 813.
For the foregoing reasons, Defendant Gatto's Motion to dismiss is denied in part and granted in part. The court finds that the Amended Complaint, when coupled with the audio/video recording of the September 22, 2011 incident, sets forth sufficient facts to plausibly state a Fourth Amendment claim for excessive force. Therefore, the court will deny Defendant Gatto's motion as it relates to the First Claim for Relief. Although the court is denying Defendant's motion as it relates to the First Claim, nothing in this Order is intended to preclude Defendant Gatto from renewing his qualified immunity defense in motion for summary judgment. Cf. Barnett v. Mount Vernon Police Department, No. 12-1381, 523 F. App'x 811, 814 (2d Cir. May 3, 2013). See also Springer v. Albin, No. 09-5088, 398 F. App'x 427, 431 (10