SAM A. CROW, Senior District Judge.
The case comes before the court on the defendant Christopher Janes's motion for summary judgment (ECF# 17) on this 42 U.S.C. § 1983 action brought by the plaintiff Timothy C. Harris. Harris alleges Janes as a City of Topeka police officer used excessive force in arresting him. ECF# 17. The defendant Janes argues he is entitled to qualified immunity because the force he used during the arrest did not violate the plaintiff's constitutional rights. ECF# 18, pp. 1-2. For all the reasons discussed below, the court denies the defendant Janes's motion.
Summary judgment is appropriate if the moving party demonstrates that "no genuine dispute [about] any material fact" exists and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A disputed issue of fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the non-moving party" on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed issue concerns a material fact "if under the substantive law it is essential to the proper disposition of the claim or defense." Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotation marks and citations omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48.
The following account is taken from the record and from the parties' uncontroverted facts as viewed in the light most favorable to the non-moving plaintiff and with inferences drawn in his favor too. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). Put another way, the "disputed facts must be resolved in favor of the party resisting summary judgment." McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018) (internal quotation marks and citation omitted). "In qualified immunity cases, this usually means adopting . . . the plaintiff's version of the facts." Scott v. Harris, 550 U.S. 372, 378 (2007). This does not mean the court may "ignore clear, contrary video evidence in the record depicting the events as they occurred." Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1207 (10th Cir.) (citing Scott, 550 U.S. at 380, and quoting, "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."), cert. denied, 138 S.Ct. 211 (2017). Thus, a court may rely on video evidence of record but must be "mindful" when the video evidence does "not capture all that occurred." Id. at 1207. It should not be overlooked that the court continues to view the evidence in the light most favorable to the plaintiff. Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010).
Both sides have overreached in objecting to the other side's affidavits as being conclusory and self-serving. The general rule is that information within affidavits must have a "certain indicia of reliability" and be more than allegations based on "`mere speculation, conjecture, or surmise.'" Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015) (quoting Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)). Thus, affidavits are to be "`based on personal knowledge and [must set] forth facts that would be admissible in evidence" otherwise they will be subject to an objection for being "`conclusory and self-serving affidavits.'" Id. (quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002)); see API Americas Inc. v. Miller, 380 F.Supp.3d 1171, 1150 (D. Kan. Apr. 5, 2019). The parties' objections for conclusory and self-serving will be decided on whether the facts are based on reliable and admissible statements of personal knowledge.
The following comes from applying the above procedural rules governing summary judgment and from viewing the record in the light most favorable to the plaintiff. On the afternoon of January 23, 2018, Topeka Police Officer Christopher Janes answered a call and spoke with Katie Adkins who reported that Timothy Harris wrongfully possessed her laptop computer and a Victoria secret bag. Ms. Adkins's father also spoke with Officer Janes telling him that Harris drove away in a blue Chevrolet Cobalt. Officer Janes next ran a warrant check on Harris finding a "probation violation warrant" from underlying 2017 misdemeanor convictions which included unlawful interference with a law enforcement officer. Officer Janes looked at a photograph of Harris so that he could identify Harris later.
That evening at 7:13 p.m., Officer Janes saw a blue Chevrolet Cobalt with two occupants. The car was parked and facing the wrong way in 2600 block of SE 10th Street. Officer Janes drove up behind the Cobalt, shined a light on it, and activated his emergency lights. From the photo review, Officer Janes recognized the person in the driver's seat as Mr. Harris. Officer Janes called dispatch reporting a car stop and requesting a backup unit. Before Officer Janes reached the car on foot, Mr. Harris opened the car door and stepped outside of the vehicle. Officer Janes found Mr. Harris's behavior to be unusual for a car stop and ordered him back inside the car. Mr. Harris complied by sitting down in the car's seat, but he kept the door open with his left foot outside the car.
When he reached the car, Officer Janes indicated the stop was related to the car being illegally parked and asked for identification. Harris removed his driver's license from his wallet and handed it over. Officer Janes looked at the license and asked Harris why his girlfriend keeps calling the police and saying he has her "stuff." Harris said her Victoria Secrets bag with clothes was inside, but that this was all he had of her stuff. Officer Janes followed up that the girlfriend said Harris also had her computer and that his possession of it would be felony theft. Harris replied, "like I'm telling you that's what I have in my house" and they can come by and get it. Harris then observed, "so you know who I am," and the officer replied, "yes." Harris then asked if that is why he was stopped. Janes replied "yes" and because of the illegal parking. At this point, Harris began arguing that he was not parked there because the car's engine was running, and his passenger, later identified as Airel Gatewood, also began arguing this point with the officer.
The video captures Officer Janes radioing dispatch to request he "stay on channel one," because "they're a little signal 2, and I'll have a 29 for you." Signal 2 means the subject is not cooperating. Harris asked Janes, "so what's going on," and Janes replied that, "he was being detained." While Janes radioed dispatch with Harris's information for a warrant check, Harris dropped his lit cigarette on the ground and took off his jacket. The air temperature at that time was 30 degrees Fahrenheit. Janes explained in his report that he considered Harris's throwing away a lit cigarette and taking off his jacket to be "abnormal" conduct and possibly an effort to free oneself for moving "more effectively." Harris said his conduct was taken in response to being told of his arrest, as he knew he could not take his jacket or cigarette with him.
Janes asked Harris why he was "taking his stuff off." Harris did not reply but grabbed his wallet. Janes told Harris to keep his hands from his pockets. Harris then extended his hand with the wallet toward Janes. Janes asked, "why are you handing me your stuff." At this point, Harris stands up from the car seat while saying, "I'm being detained right." The video shows Janes's gloved hand on Harris's chest to stop him from moving closer while Janes tells Harris to "have a seat." Harris did not comply by sitting back down. Janes began using both hands on Harris who is heard to say, "whoa, what are you doing?" Officer Janes immediately requested "run 10-39" which means the units should run in emergency mode with lights and sirens. According to Janes, Harris had tensed his body requiring Janes to become more physical after Harris refused to sit back down. Harris does not expressly deny tensing his body, but he does aver that he "did not resist or attempt to flee." ECF# 26-2, ¶ 12. As of that date, Harris was 34-years old with a height of six feet and one inch and a weight of 180 pounds, while Janes's height was five feet and eight inches.
The video captures Officer Janes stepping back from Harris and twice instructing him to put his hands behind his back. As Harris started to turn around, Janes finished turning him, and says, "I didn't ask you to get out of the car." Harris replied that he was "getting out of the car because," and while he spoke Harris tried to turn around. Janes restrained Harris from turning around while instructing him "do not move for me" and "bring back your arms for me." Harris replied twice, "calm down" but continued trying to turn toward Janes whenever he spoke. Janes kept instructing Harris to face away during the handcuffing while Harris keeps saying, "jeez," "calm down," and, "Jesus Christ, you really, really, really." When the handcuffing was completed, then Harris spun around and looking at Janes said, "Thank you, are you happy now?" Janes then spins Harris around to face away toward the car. Notwithstanding the plaintiff's averment that, "[a]t all times, I was cooperative and willing to be taken into custody as quickly and smoothly as possible," the above statements are established by the video recording.
The video shows Harris trying to turn around as he is up against the car. He then says, "what are you doing?" Janes replies, "I'm trying to take you to my car." Harris then turns around the other way and says, "No you're not, I'm walking with you." The passenger Gatewood gets out of the car and looking at them shouts, "James" to Harris. The video does not show what then happens but the audio portion indicates a struggle. The video resumes with an image of the sidewalk which is consistent with Janes's takedown of Harris. During this segment of the recording, Gatewood is shouting loudly, "no you need to chill," while Harris is shouting, "what are you doing." Gatewood continues shouting, "Jim, stop," and is then seen on the video near Janes and Harris. She is shouting at the officer that he cannot do this. Janes instructs the passenger "to step back" and "I need you to step back please." Gatewood responds three times demanding that the officer, "ask me nicely" and continues to step toward Janes while shouting. Janes tells the passenger to step back and lifts his arm warning her that she's about to be pepper sprayed. The passenger steps back while continuing to berate the officer with comments and questions asking if the officer's "body cam was on." The officer kept warning her to stop.
The recording of the following events is only audio with no video confirmation. Officer Janes is heard telling Harris to stop trying to get up. Harris replies, "okay," but Janes again instructs Harris to stay on his stomach. The passenger Gatewood then demands that the officer get off Harris, and Janes again orders the passenger to back away. Janes tells Harris to get his legs out and to stop trying to get up. Janes shouts, "do not try and get up," and Harris replies, "I'm not." Janes shouts two more times to stop trying to get up. Gatewood again tells the officer to get off Harris' back. Janes repeatedly instructs Harris to stop trying to get up and even asks, "dude what is your deal." Harris answered, "I'm not trying to get up, you're laying on me." Officer Janes is then heard saying to Harris, "do not do that," and the passenger Gatewood is heard saying, "why are you punching him." Janes shouts at Gatewood who repeats her question, "why are you punching him."
There are more struggling sounds with officer Janes shouting, "stop" and "stop trying to get up." Harris replies, "get off of me" and "stop punching me." Sirens are heard, and Gatewood says she can't wait for the other officers to get here. Harris says for the first time, "that he can't breathe." Janes responds that he can. Gatewood starts screaming repeatedly, that Harris "can't breathe and get off of him." Harris begins pleading with the officer that he can't breathe and to get off, "please," and Janes again tells Harris that he can breathe. More struggling sounds are heard, and Janes repeats the order to "stay there." Harris begins saying that he's "just trying to breathe, sir. Please sir, I don't want no trouble." There are still more struggling sounds, and again Janes says, "stop," and Harris says he "can't breathe." Gatewood yells at Janes to get off the top of Harris, and Janes says he's not on top. At which point, there are more struggling sounds and Janes shouts, "stop," and "stop trying to get up." Harris says, "I don't want to die" and "I can't breathe." Officer Janes repeats the order to "stop trying to get up" and says, "it's the pepper spray." The other officers arrive on the scene.
The video does confirm that during the apparent struggle on the ground the plaintiff's body position moved 180 degrees. It also shows the side of Harris's face is cut and bleeding, and there is blood on the street. The video captures the plaintiff's failure to obey the officer's order to sit back down in the car and his physical resistance to the officer's effort to have him get back in the car. The video also confirms that Janes had to repeatedly order the plaintiff to turn around and to remain facing away for the handcuffing. The video likewise shows after the handcuffing Harris spun around and said to Janes's face, "Thank you, are you happy now."
From this point forward, the video is less than clear about what happened. The audio certainly indicates a struggle and more resistance, but without a video confirmation, the court must accept the plaintiff's version following the handcuffing because it is not "blatantly contradicted" by the video recording. Scott v. Harris, 550 U.S. 372, 380 (2007). The plaintiff avers:
ECF# 26-2. Concerning the struggle that ensued after the takedown, the plaintiff avers:
ECF# 26-2. The summary judgment record on Harris's plea of "no contest" to "Interference with Law Enforcement—Process Service" does not necessarily create an irreconcilable conflict with Harris's affidavit regarding his cooperation after he was handcuffed.
The plaintiff was charged with disobeying lawful orders, obstruction, battery on a law enforcement officer and parking facing traffic. Harris pleaded no contest to unlawful parking and interference with law enforcement, and the other charges were dismissed. The plaintiff submits records from Shawnee County Correctional Facility showing he received medical care and treatment at Stormont Vail hospital. The plaintiff alleges he had surgery for a fractured jaw sustained during this arrest.
"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." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). The Tenth Circuit recently summarized the analysis guiding this defense on summary judgment:
McCoy v. Meyers, 887 F.3d 1034, 1044-45 (10th Cir. 2018). In short, the defendant's assertion of qualified immunity creates a presumption that the plaintiff must overcome by showing that, "(1) the officers' alleged conduct violated a constitutional right, and (2) it was clearly established at the time of the violation, such that `every reasonable official would understood that such conduct constituted a violation of that right." Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016) (citation omitted).
Among Fourth Amendment protections is [t]he right of the people to be secure in their persons ... against unreasonable ... seizures." U.S. Const. amend. IV. The allegation of excessive force used during an arrest falls under the "Fourth Amendment right against unreasonable seizures." Tolan, 134 S.Ct. at 1865 (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The court's analysis "proceeds by (1) identifying the applicable unreasonableness test in the excessive force context, the Graham balancing test, and (2) providing an overview of relevant Tenth Circuit cases applying the Graham test." McCoy v. Meyers, 887 F.3d at 1045.
"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. at 396 (internal quotation marks omitted). To apply properly this reasonableness test "requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Id. The consideration of these factors and other relevant factors is guided by, "[t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The inquiry "is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (internal quotation marks omitted). "In other words, `[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.'" McCoy, 887 F.3d at 1045 (quoting Graham, 490 U.S. at 397)). Further, "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97.
The plaintiff's complaint alleges excessive force was used after he was handcuffed when Janes took him down face-first against the curb, placed a knee in his back, punched him in the face, and sprayed him with pepper spray. In applying the Graham factors to these four alleged acts of excessive force, the court considers the totality of the circumstances from a reasonable officer's perspective and determines if the officer's actions were objectively reasonable. Perea, 817 F.3d at 1202. "An assessment of the degree of force actually used is critical to the question of whether the force was excessive." Id. (internal quotation marks and citations omitted). This assessment is made mindful of these points:
Serrano v. United States, 766 Fed. Appx. 561, 568 (10th Cir. 2019).
The court's analysis of the qualified immunity question is guided by the Tenth Circuit's published decision of McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018), and the three published decisions discussed therein, all of which discuss the use of force after the suspect/detainee is handcuffed on the scene. The plaintiff in McCoy alleged that among the acts of excessive force used after he was handcuffed and zip-tied were the officers reviving him from unconsciousness, beating him multiple times, and placing him into a second carotid restraint that again rendered him unconscious. Before analyzing the Graham factors, the panel summarized three precedent, all of which also share some factual similarity to the case pending here:
McCoy v. Meyers, 887 F.3d at 1045-47 (footnotes omitted). In applying the Graham factors, the panel in McCoy noted that the severity of the suspected crime and the reasonable suspicion of a firearm being pointed at an officer weighed against the plaintiff. The panel noted that completed crimes could be considered in weighing the first factor. The panel, however, found that the second factor favored McCoy because he was handcuffed and zip-tied and that a reasonable jury could find that the officers "should have been able to recognize and react to the changed circumstances." 887 F.3d at 1050. The court noted:
887 F.3d at 1050 n.19. The court also found that the third factor of active resistance favored McCoy observing:
887 F.3d at 1051.
The court also has reviewed the Tenth Circuit's recent unpublished decision in Osterhout v. Morgan, 763 Fed. Appx. 757 (10th Cir. Feb. 19, 2019). After a car chase in which Osterhout did not realize he was being pursued by a law enforcement vehicle, Osterhout pulled over his motorcycle upon seeing the law enforcement markings on the car chasing him. The sheriff's car pulled up hitting the motorcycle and throwing Osterhout into the ditch. Osterhout did not resist or attempt to flee and stood up with his hands in the air. Officer Morgan approached Osterhout hitting him in the face with such force that it knocked him to the ground and broke his nose. While he was on the ground, the officer handcuffed Osterhout and then kneed him several times in the ribs. The first two factors favored a finding of unreasonable force, and on the third factor, the panel found:
Osterhout v. Morgan, 763 Fed. Appx. at 762.
The first factor, the severity of Harris's crime, weighs against using any more force than necessary to detain him on the outstanding probation violation warrant on non-serious offenses. Janes concedes the severity of the crime "is on the low end." ECF# 29, pp. 29-30. This factor does not favor tackling, punching, or applying pepper spray absent other circumstances like Harris actively resisting or evading arrest. On the summary judgment record, the second factor of immediate threat to officer safety also does not favor finding Janes's use of force to be objectively reasonable. There were several circumstances that may have initially supported this concern when Harris got out of the car, refused to sit back down, and kept turning around during the handcuffing. But when Harris was fully handcuffed behind his back and announced he would be cooperating by walking with Janes to the patrol car, circumstances appear to have changed. The recording does not contradict Harris's affidavit that he was not physically resisting being arrested and taken to the patrol car at that point. A reasonable jury could conclude that Janes "should have been able to recognize and react to the changed circumstances." McCoy, 887 F.3d at 1050 (internal quotation marks and citation omitted). The dissipation of an immediate threat weighs against the force used in taking Harris to the ground and putting a knee in his back. As for the struggling on the ground, Harris denies reaching for Janes's belt or weapons, and nothing in the recording directly contradicts this averment. Thus, the lack of immediate threat weighs against the increased use of force—punching and pepper spray. Accordingly, the final Graham factor of active resistance or attempts to flee also weighs in favor of finding excessive force in tackling the handcuffed Harris who may have been passively resisting, "are you happy now," but he was no longer actively resisting and appeared to be cooperating in accompanying Janes to the patrol car. As far as the struggle on the ground and the increased use of force, the video does not confirm what happened such that it directly contradicts Harris' affidavit regarding his cooperation. The cessation of resistance following Harris's handcuffing and his announcement that he was cooperating in going to the patrol car weigh in favor of finding the officer's force after this point was unreasonable. The court is satisfied that Harris has come forward with sufficient facts to make out a Fourth Amendment violation based on Janes's use of force following the handcuffing in taking down Harris, putting a knee in his back, punching him, and using pepper spray. The dangers that had existed before handcuffing and apparent cooperation do not justify this later use of increasing force. McCoy, 887 F.3d at 1052 ("See Cavanaugh v. Woods Cross City, 625 F.3d 661, 666 (10th Cir. 2010) (concluding that while `our role is not to second guess on-the-ground decisions with the benefit of 20/20 hindsight[,] . . . [i]t is not objectively reasonable to ignore specific facts as they develop (which contradict the need for [a particular] amount of force), in favor of prior general information about a suspect")."). Viewing the evidence in the light most favorable to Harris, therefore, a reasonable jury could find that this force violated his Fourth Amendment rights.
Moving to the other prong of the qualified immunity analysis, the court here "asks whether the right in question was clearly established at the time of the violation." Tolan, 572 U.S. at 656. The Supreme Court "has repeatedly told courts . . . not to define clearly established law at a high level of generality." Kisela v. Hughes, 584 U.S. ___, ___, 138 S.Ct. 1148, 1152 (2018) (per curiam). The Supreme Court recently observed the importance of specificity in "excessive force cases":
City of Escondido, Cal. v. Emmons, 139 S.Ct. 500, 503 (2019). The Court in Emmons was critical of the appellate court for its "high level of generality" in speaking of the "right to be free of excessive force" when it "should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances." Id. The Court quoted from its decision in District of Columbia v. Wesby, 583 U.S. ___. 138 S.Ct. 577, 581 (2018):
Emmons, 139 S.Ct. at 504. The court finds that the question here is whether it was clearly established that an arrestee on a probation violation warrant would have a right not to be tackled to ground, kneed in the back, punched in the face, and pepper-sprayed after he was handcuffed, was cooperating with the officer's request to go to the patrol car, was not physically resisting or attempting to evade the officer, and was not attempting to reach for the officer's belt or weapons.
For the precedent cited by Janes, Simpson v. Kansas, 593 Fed. Appx. 790 (10th Cir. Nov. 26, 2014), and Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007), he relies on the resemblances in the kind of force used during a car stop to arrest for misdemeanor offenses when the arrestee is actively resisting. Neither case, however, addressed the reasonableness of that force when the arrestee is handcuffed and has become cooperative. In McCoy, the Tenth Circuit looked to Dixon, Casey, and Weigel as the clearly established law in 2011 making "it clear to any reasonable officer in the Appellees' position that the post-restraint force was unconstitutional." The court added:
887 F.3d at 1052-53 (footnote omitted).
Viewing the evidence in the light most favorable to Harris, the court finds the Tenth Circuit precedent existing as of January of 2018-Dixon, Casey, Weigel, Perea, and Estate of Booker-made it clear to any reasonable officer in Janes's position that it was unconstitutional to take down the arrestee face-first, to apply knee pressure to his back, to punch him in the face, and to pepper spray him when the arrestee is restrained by handcuffs, is cooperating by walking to the patrol car, and is not resisting. The defendant Janes is not entitled to qualified immunity on summary judgment.
IT IS THEREFORE ORDERED THAT the defendant Christopher Janes's motion for summary judgment (ECF# 17) is denied.
