Filed: Mar. 18, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1503 AMANDA DEANNE SMITH, Plaintiff - Appellee, v. OFFICER R. R. RAY, Defendant – Appellant, and OFFICER JAY KEATLEY, Defendant, and CITY OF VIRGINIA BEACH; CITY OF VIRGINIA BEACH POLICE DEPARTMENT; ALFRED M. JACOCKS, JR., Chief of Police, City of Virginia Beach; SERGEANT T. T. YARBROUGH; KEVIN MURPHY, MPO; SERGEANT ARMAND RUBBO; SERGEANT JARVIS LYNCH; OFFICER SCOTT STEIN; DONALD AUTSIN, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1503 AMANDA DEANNE SMITH, Plaintiff - Appellee, v. OFFICER R. R. RAY, Defendant – Appellant, and OFFICER JAY KEATLEY, Defendant, and CITY OF VIRGINIA BEACH; CITY OF VIRGINIA BEACH POLICE DEPARTMENT; ALFRED M. JACOCKS, JR., Chief of Police, City of Virginia Beach; SERGEANT T. T. YARBROUGH; KEVIN MURPHY, MPO; SERGEANT ARMAND RUBBO; SERGEANT JARVIS LYNCH; OFFICER SCOTT STEIN; DONALD AUTSIN, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT, ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1503
AMANDA DEANNE SMITH,
Plaintiff - Appellee,
v.
OFFICER R. R. RAY,
Defendant – Appellant,
and
OFFICER JAY KEATLEY,
Defendant,
and
CITY OF VIRGINIA BEACH; CITY OF VIRGINIA BEACH POLICE
DEPARTMENT; ALFRED M. JACOCKS, JR., Chief of Police, City of
Virginia Beach; SERGEANT T. T. YARBROUGH; KEVIN MURPHY, MPO;
SERGEANT ARMAND RUBBO; SERGEANT JARVIS LYNCH; OFFICER SCOTT
STEIN; DONALD AUTSIN, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT,
MPO; TONY F. BULLARD,
Consolidated Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Douglas E. Miller, Magistrate
Judge. (2:08-cv-00281-DEM)
Argued: January 27, 2015 Decided: March 18, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Gregory and Judge Agee joined.
ARGUED: Michael Beverly, OFFICE OF THE CITY ATTORNEY, Virginia
Beach, Virginia, for Appellant. Darren Marshall Hart, HART &
ASSOC., P.C., Richmond, Virginia, for Appellee. ON BRIEF: Mark
D. Stiles, Christopher S. Boynton, OFFICE OF THE CITY ATTORNEY,
Virginia Beach, Virginia, for Appellant.
2
TRAXLER, Chief Judge:
Officer R. R. Ray appeals a district court order denying
his motion for summary judgment on the basis of qualified
immunity concerning Amanda Smith’s excessive force claim.
Finding no error, we affirm.
I.
“In reviewing the denial of summary judgment based on
qualified immunity, we accept as true the facts that the
district court concluded may be reasonably inferred from the
record when viewed in the light most favorable to the
plaintiff.” Waterman v. Batton, 393 F.3d 471, 473 (4th Cir.
2005). “To the extent that the district court has not fully set
forth the facts on which its decision is based, we assume the
facts that may reasonably be inferred from the record when
viewed in the light most favorable to the plaintiff.”
Id.
Application of these rules produces the following facts. 1
On the afternoon of September 21, 2006, Officer R. R. Ray,
a uniformed police officer for the City of Virginia Beach, was
assisting private citizen Tony Bullard in finding T., who
Bullard had represented was his missing juvenile stepson.
Bullard and Ray had information that T. was at a house on
Marlewood Way, which was an area with a high occurrence of
1
We note that the accounts of Officer Ray and other
witnesses are very different from Smith’s.
3
criminal activity involving juveniles. When they arrived there,
they looked through a window and saw several young men standing
inside the residence. Bullard tentatively identified one of the
young men as T. Ray then knocked on the door of the house and
heard “scurrying” sounds coming from inside.
Smith opened the main door of the home. When Ray
instructed her to come outside, she opened the screen door and
stepped out. Both doors closed behind her.
At that point, Smith was standing on the front stoop, which
was two or three steps up from the ground and which extended
about one foot wider than the front door on each side. Ray
asked Smith a few questions, as Bullard stood a few steps back.
Smith answered all of Ray’s questions clearly and cogently. He
first asked her name and age and whether she owned the home.
Smith told Ray her first name and that she was 22 years old, and
she explained that she did not reside in the home. Ray then
asked if T. was inside, and Smith answered that he was not.
Ray next asked if “Joel,” an adult acquaintance of T.’s,
was in the home. Smith told Ray that Joel was there and that
she would get him. She asked Ray to “hold on,” as she turned
back toward the door. J.A. 1077. As she opened the screen
door, Ray reached over her right shoulder and slammed the door
shut. Startled, Smith took a single step away from the house
off the small stoop but did not turn her back to Ray. According
4
to Smith, Ray grabbed her arm with no verbal communication.
Smith pulled her arm away, and, facing Ray, asked what he was
doing. Rather than responding verbally, Ray tried to grab Smith
again, and she again pulled her arm away. In the process of
pulling away and asking what Ray was doing, Smith called Ray –
who is white – a n****r. However, she did not turn away from
Ray or run.
Rather than explain his actions, Ray grabbed Smith and
threw her to the ground. When she hit the ground, he jumped on
her, jamming his full weight into her back with his knee, and
painfully twisting her right arm behind her back.
At that point, Ray ordered Smith to show him her arms. Ray
already had her right arm, however, and Smith was using her left
arm to press against the ground to try to relieve pressure from
her chest so that she could breathe. As Smith resisted Ray’s
attempts to force her to submit, Ray continued to demand that
she show her hands, and she repeatedly responded that she needed
to keep her arm under her to breathe because he was pressing
down so hard on her. Ray subsequently punched her three times
in her right side to try to gain her compliance. He then
succeeded in yanking her left arm around and handcuffing her. 2
2
Another officer may also have arrived on the scene and
assisted Ray in handcuffing Smith.
5
Once she was handcuffed, he grabbed her ponytail and yanked her
to her feet by her hair, ripping chunks of hair from her scalp.
At some point during this struggle, a small pocketknife
fell to the ground from Smith’s sweatshirt, although Ray did not
notice the knife until Smith was standing and in handcuffs.
Throughout the encounter, Smith never struck out at Ray, and Ray
never explained that Smith was subject to an investigative
detention or under arrest.
Ray brought Smith to his police car, searched her, and put
her into the back seat. He eventually drove her to the police
station. She was taken before a magistrate and charged with
obstruction of justice and unlawfully carrying a concealed
weapon.
As a result of Ray’s actions, Smith suffered visible
bruising and a broken rib, and she also complains of continuing
shoulder pain and limited range of motion due to the arm
twisting. She further claims that she suffered psychological
injuries.
Smith brought suit in Virginia state court alleging
multiple claims against Ray and another unknown officer, and the
case was removed to federal district court. The somewhat
complicated procedural history of this case and Smith’s other
claims and the factual basis therefor are fully explained in our
opinion disposing of a prior appeal and in the district court’s
6
opinion at issue in this appeal. See Smith v. Ray, 409 Fed.
App’x 641, 644-45, 2011 WL 317166, at *2-3 (4th Cir. 2011);
Smith v. Ray,
855 F. Supp. 2d 569, 573-74 (E.D. Va. 2012). The
only claims remaining at this stage of the litigation, however,
are Smith’s § 1983 claim against Ray for excessive force and her
state-law claim against Ray for assault and battery. See
Smith,
855 F. Supp. 2d at 594. Both parties moved in the district
court for summary judgment on these claims, with Ray seeking
summary judgment on the excessive-force claim on the basis of
qualified immunity. The district court denied both motions.
See
id.
In denying Ray’s motion, the court noted that Smith was not
suspected of any crime prior to the encounter, Ray had no arrest
warrant, and Smith was lawfully on the porch of the private
residence. See
id. at 580. Viewing the record in the light
most favorable to Smith, the court added that “she was not
intoxicated, or belligerent,” and that Ray did not learn that
she was carrying a knife until after she was in handcuffs.
Id.
The court concluded that, in light of these facts, a reasonable
jury could find that Ray employed excessive force in detaining
Smith. See
id. Considering the state of the law as it existed
at the time of the incident, the court also determined that any
reasonable officer in Ray’s position would have known that the
force used was excessive. See
id. at 580-82.
7
II.
On appeal to us, Ray argues that the district court erred
in denying his summary judgment motion concerning the excessive-
force claim. We disagree.
We review de novo a district court’s decision to deny a
summary judgment motion asserting qualified immunity. See
Danser v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
The doctrine of qualified immunity “balances two important
interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). It “gives government officials breathing room
to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.”
Stanton v. Sims,
134 S. Ct. 3, 5 (2013) (per curiam) (internal
quotation marks omitted).
In determining whether an officer is entitled to summary
judgment on the basis of qualified immunity, courts engage in a
8
two-pronged inquiry. 3 See Tolan v. Cotton, 134 S. Ct. 1861, 1865
(2014) (per curiam). The first asks whether the facts, viewed
in the light most favorable to the plaintiff, show that the
officer’s conduct violated a federal right. See Saucier v.
Katz,
533 U.S. 194, 201 (2001). When a plaintiff has alleged
that an officer employed excessive force in making an arrest,
the federal right is the Fourth Amendment right against
unreasonable seizures. See
Tolan, 134 S. Ct. at 1865.
The second prong of the qualified-immunity inquiry asks
whether the right was clearly established at the time the
violation occurred such that a reasonable person would have
known that his conduct was unconstitutional. See Ridpath v.
Board of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir.
2006). “We do not require a case directly on point” in order to
conclude that the law was clearly established so long as
“existing precedent [has] placed the statutory or constitutional
question beyond debate.” Ashcroft v. al–Kidd,
131 S. Ct. 2074,
2083 (2011).
An order denying summary judgment on the basis of qualified
immunity is immediately appealable under the collateral order
3
Courts are “permitted to exercise their 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.” Pearson v. Callahan, 555 U.S.
223, 236 (2009).
9
doctrine because qualified immunity provides not only immunity
from liability, but also immunity from suit. See Mitchell v.
Forsyth, 472 U.S. 511, 526-30 (1985). However, the conclusion
of the district court that a disputed issue of fact exists as to
a particular point is not appealable under the collateral order
doctrine. See Behrens v. Pelletier,
516 U.S. 299, 313 (1996).
Rather, on appeal from the denial of summary judgment on the
basis of qualified immunity, we merely decide whether on the
facts assumed by the district court for summary judgment
purposes, the defendant was entitled to qualified immunity. See
id.
A claim that a police officer employed excessive force is
analyzed under the Fourth Amendment under an “objective
reasonableness” standard. Henry v. Purnell,
652 F.3d 524, 531
(4th Cir. 2011) (en banc). The officer’s actions do not amount
to excessive force if they “are ‘objectively reasonable’ in
light of the facts and circumstances confronting [him], without
regard to [his] underlying intent or motivation.” Graham v.
Connor,
490 U.S. 386, 397 (1989). In considering the
reasonableness of an officer’s actions, we must consider the
facts at the moment that the challenged force was employed. See
Henry, 652 F.3d at 531.
Evaluating the reasonableness of the officer’s actions
“requires a careful balancing of the nature and quality of the
10
intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Graham,
490 U.S. at 396 (internal quotation marks omitted). To properly
consider the reasonableness of the force employed we must “view
it in full context, with an eye toward the proportionality of
the force in light of all the circumstances. Artificial
divisions in the sequence of events do not aid a court’s
evaluation of objective reasonableness.”
Waterman, 393 F.3d at
481 (internal quotation marks omitted). We also must give
“careful attention to the facts and circumstances of each
particular case, including” three factors in particular: “the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”
Graham, 490 U.S. at 396. Ultimately, the
question to be decided is “whether the totality of the
circumstances justifie[s] a particular sort of . . . seizure.”
Tennessee v. Garner,
471 U.S. 1, 8–9 (1985).
Here we conclude that the district court properly denied
Ray’s summary judgment motion. The facts of this case are
strikingly similar to those we considered in Rowland v. Perry,
41 F.3d 167 (4th Cir. 1994). In that case, a police officer
witnessed a woman drop a five-dollar bill in a bus station and
saw Rowland, a 37-year old, “mildly retarded” man, pick it up
11
without returning it. Id. at 171. The officer approached
Rowland and told him to return the money to the woman who had
dropped it. See
id. Rowland walked over to the woman and
offered it to her but she stated that it was not hers. See
id.
Rowland then left the bus station. See
id.
Rowland was standing at a street corner when the officer
approached, and Rowland never attempted to flee. See
id.
Without being provoked, the officer grabbed Rowland’s collar,
jerked him around, and yelled at him. See
id. at 172.
Frightened by the sudden assault, Rowland instinctively tried to
escape the officer’s grasp. See
id. The officer responded by
punching Rowland and throwing him down, “throwing his weight
against Rowland’s right leg and wrenching the knee until it
cracked,” tearing Rowland’s anterior cruciate ligament.
Id.
As is relevant here, we reviewed a denial by the district
court of the officer’s motion for summary judgment on Rowland’s
excessive-force claim on the basis of qualified immunity. The
officer argued that we should take a “segmented view of the
sequence of events” and hold that each step taken by the officer
was reasonable based on Rowland’s immediately preceding actions.
Id. at 173. We rejected this approach, however, concluding that
it “miss[es] the forest for the trees.”
Id. Rather, we
determined that “[t]he better way to assess the objective
reasonableness of force is to view it in full context, with an
12
eye toward the proportionality of the force in light of all the
circumstances.” Id.
Viewing the officer’s actions in this manner, we concluded
that the crime at issue was a minor one and that there was no
evidence that the “relatively passive, retarded man was a danger
to the larger, trained police officer.”
Id. at 174. We also
noted that “Rowland maintain[ed] that he resisted only to the
extent of instinctively trying to protect himself from the
defendant’s onslaught.”
Id. With the Graham factors so
unfavorable to the officer, we concluded that the district court
properly determined that he was not entitled to summary judgment
on the basis of qualified immunity. See
id.
A similar analysis leads to the same conclusion in the
present case. 4 Regarding the first Graham factor, severity of
the suspected crime, at the time Ray grabbed Smith’s arm without
explanation, he at most had reason to suspect that she may be
guilty of the misdemeanor of contributing to the delinquency of
a minor, see Va. Code § 18.2-371; Smith, 409 Fed. App’x at 648,
2011 WL 317166, at *6 (concluding that “a reasonable officer . .
. would have had a basis for suspecting that Smith was
contributing to the ‘delinquency of a minor’”). As in Rowland,
4
The distinction between Rowland (and this case) and the
cases of Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005), and
Brockington v. Boykins,
637 F.3d 503 (4th Cir. 2011), is
explained in Waterman. See
Waterman, 393 F.3d at 481.
13
this nonviolent misdemeanor offense was not of the type that
would give an officer any reason to believe that Smith was a
potentially dangerous individual. See Young v. County of Los
Angeles, 655 F.3d 1156, 1165 n.8 (9th Cir. 2011) (“While the
fact that Young was suspected only of misdemeanor offenses
weighs against a finding that the use of significant force
against him was justified, it is ultimately the nonviolent and
relatively minor nature of his suspected offenses that is of
more importance.”); Parker v. Gerrish,
547 F.3d 1, 9 (1st Cir.
2008) (“Though driving while intoxicated is a serious offense,
it does not present a risk of danger to the arresting officer
that is presented when an officer confronts a suspect engaged in
an offense like robbery or assault.”).
The second Graham factor, whether the suspect poses an
immediate threat to the safety of the officers or others, weighs
even more strongly in Smith’s favor. Ray “is a pretty good size
man,” while Smith “is a smaller woman.” J.A. 1143; see also
J.A. 1086 (Smith’s testimony that she “was being attacked by a
200-something-pound man”). Ray did not have any reason to
believe that Smith was armed. And, up to the point that Ray
grabbed Smith, Smith had answered Ray’s questions clearly and
cogently and given no indication that she was at all inclined to
cause him any harm or that she had any capacity to do so,
especially with Bullard standing only a few steps away.
14
The third Graham factor, whether the suspect was actively
resisting arrest or attempting to evade arrest by flight, also
strongly favors Smith. Before Ray slammed the screen door shut,
Smith had been fully compliant and responsive to Ray’s
instructions and questions. Even when Ray surprised her by
slamming the screen door closed, she took only a single step
back off of the small stoop in front of the door. In so doing,
she neither turned her back to Ray, nor attempted to flee. When
Ray grabbed Smith without warning or explanation, Smith’s
reaction, like Rowland’s, was to instinctively attempt to pull
herself from his grasp. But even at this point, she did not
strike at Ray, attempt to flee the scene, or even turn her back
to him. Rather, she simply pulled her arm away and, as she
stood facing him, demanded (angrily) to know what he was doing.
Ray argues that he reasonably perceived Smith to be
attempting to flee. Even assuming arguendo that he might have
reasonably perceived her as attempting to flee in the moment in
which she took one step off of the stoop, she took no further
steps after that one, and remained facing Ray as she demanded an
explanation for why he was trying to grab her. A reasonable
jury could find that at that moment any perception by Ray that
Smith had attempted or was attempting to flee would have been
unreasonable. See Tolan, 134 S. Ct. at 1866-68 (on appeal of
grant of summary judgment on basis of qualified immunity,
15
holding that court must draw inferences in favor of plaintiff
where officers’ testimony concerning what they perceived was at
odds with testimony of other witnesses regarding how dark the
area was, whether a woman spoke to officers in an agitated tone,
whether her son was screaming, whether his words amounted to a
threat, and whether the son was “looking as if he was going to
move forward” to intervene in an officer’s altercation with his
mother).
Especially in light of Rowland, no reasonable officer could
have believed that, rather than answer the previously compliant
young woman’s legitimate question concerning why Ray was
suddenly grabbing her, Ray was justified in throwing her to the
ground, slamming his knee into her back, and wrenching her arm
behind her. Not only did that violent response subject Smith to
an obvious risk of immediate injury, it also created the very
real possibility that, as in Rowland, the attack would continue
to meet with frightened resistance, leading to an even further
escalation of the violence. See Rowland, 41 F.3d at 174
(“Rowland maintains that he resisted only to the extent of
instinctively trying to protect himself from the defendant’s
onslaught.”). Indeed, under Smith’s version of the facts, that
is exactly what happened.
Nor could a reasonable officer believe that Smith’s initial
act of pulling her arm away when Ray grabbed her without warning
16
or explanation justified Ray’s decision to throw her down, jam
his leg into her back, and wrench her arm behind her. Such a
“segmented” approach is exactly the one we rejected in Rowland.
Id. at 173. Smith had been fully compliant and responsive up to
the point that Ray attempted to grab her without warning or
explanation. That she instinctively took one step back when he
startled her by suddenly slamming the door shut or that she
pulled her arm from Ray’s grasp and angrily demanded that he
explain himself did not give him license to significantly
escalate the situation by throwing her down and jumping on her,
as any reasonable officer would have known.
For similar reasons, Smith’s refusal to submit after he
threw her down cannot justify Ray’s decision to punch Smith
repeatedly, breaking her rib. Under her version of events, she
was simply defending herself against a sudden all-out physical
assault from an officer who had not given her any indication
that he was acting with any legal justification. She never
struck out at Ray, but was struggling to keep her arm under her
so that she could breathe, and she told Ray as much. Given the
obvious excessiveness of the force Ray had employed up to that
point, he cannot use her slight resistance to the attack to
justify his escalation of the conflict. Nor could he justify
17
yanking her up by her hair once she was handcuffed and under his
control. 5
In arguing that the unconstitutionality of his conduct was
not clearly established on the day in question, Ray attempts to
draw fine distinctions between the facts of the present case and
those of Rowland. However, our determination that the officer
was not entitled to qualified immunity in Rowland was not based
on any case that was factually on all fours. Rather, it was
based on the simple fact that the officer took a situation where
there obviously was no need for the use of any significant force
and yet took an unreasonably aggressive tack that quickly
escalated it to a violent exchange when the suspect
instinctively attempted to defend himself. See id. at 174.
Moreover, the factual distinctions that Ray attempts to
draw are of little or no significance. Ray argues that, unlike
the facts we considered in Rowland, he perceived Smith to be
intoxicated. But, the district court concluded that the record,
viewed in the light most favorable to Smith, demonstrated that
Smith did not appear impaired. See Smith, 855 F. Supp. at 580
5
In arguing that the unconstitutionality of his conduct was
not clearly established, Ray argues that it was not clearly
established that the hair pulling by itself would constitute
excessive force. Because the hair pulling was only part of the
force Ray utilized here in the course of arresting Smith, we
need not consider whether a reasonable officer would have known
that the hair pulling, by itself, was excessive.
18
(rejecting Ray’s argument defending the reasonableness of the
force employed based on his perceptions of Smith’s conduct when
“[a]ccepting her version of events as true, she was not
intoxicated”); see also id. at 575 (“Smith denies being impaired
or otherwise unresponsive”). 6 See also
Tolan, 134 S. Ct. at
1866-68; Rogers v. Pendleton,
249 F.3d 279, 292 & n.6 (4th Cir.
2001) (at summary-judgment stage, concluding that district court
likely assumed correctness of suspect’s testimony that he was
unaware of any aspects of his appearance that would have given
the impression that he was intoxicated, even though officer
testified that suspect appeared intoxicated). We lack
jurisdiction to review this conclusion in the context of this
interlocutory appeal. See
Behrens, 516 U.S. at 313. Moreover,
even if Smith had appeared to be intoxicated, it would not
change the fact that she was promptly and cogently answering his
questions and responding to his requests. Just as in Rowland,
every indication was that there was no justification for a
resort to force.
Ray next contends that, unlike in Rowland, the incident in
the present case occurred in an area of town with a high
6
Ray testified that when he asked whether T. was in the
house, Smith “just stared at [Ray] or stared right through
[him].” J.A. 990. Bullard testified similarly. But, according
to Smith, she “answered . . . Ray’s questions clearly, promptly
and cogently,” “had been awake and alert all day,” and “was not
intoxicated.” J.A. 438.
19
prevalence of juvenile crime. With regard to the threat that
Smith presented, that is hardly a distinction of much
significance, particularly considering the compliant demeanor
and responsiveness that Smith had displayed up to that point.
Ray also points to the fact that, unlike in Rowland, where
there was never any concern that the suspect was armed, Ray
became concerned that Smith had a weapon when, during their
struggle, she refused to show him her left hand. This concern
is of little help to Ray most basically because he did not
develop it until he had already thrown Smith to the ground,
jammed his knee into her back, and twisted her arm behind her.
Moreover, while an officer of course may legitimately be
concerned that a suspect is holding a weapon any time the
officer cannot see the suspect’s hands, Ray offered no reason
for actually believing Smith had a weapon other than the fact
that she refused to submit to him by giving him her hands. Cf.
Anderson v. Russell, 247 F.3d 125, 131 (4th Cir. 2001) (holding
officer reasonably believed suspect was armed when, responding
to report that man appeared to have a gun under his sweater at a
mall, officer observed a bulge under the suspect’s clothing on
his left side near his waist band; officers approached suspect
with guns drawn and demanded that he get on his knees and raise
his hands, and the suspect raised his hands but then lowered
them without explanation); McLenagan v. Karnes,
27 F.3d 1002,
20
1005, 1007-08 (4th Cir. 1994) (holding that although officer
could not see whether arrestee had a gun, officer had probable
cause to believe arrestee running at him in a crouched position
had a gun when another officer was yelling, “The man has got a
gun!”); Slattery v. Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991)
(holding that officer could have reasonably believed he had
probable cause to believe that suspect posed a deadly threat as
suspect turned toward him; suspect was passenger in car stopped
during a sting operation in an open-air drug market where there
had been past incidents involving weapons and gun violence;
suspect refused officer’s repeated requests to show his hands
and officer could see that the hand farthest from the officer
“appeared to be partially closed around an object”). Ray never
saw anything in Smith’s hand that looked like a weapon before or
during the physical encounter. He saw no suspicious bulge in
her clothing or any other indication that she was armed. After
he threw her down and jumped on her, Smith repeatedly told Ray
that he was crushing her – which we must assume he was – and
that she needed to keep her hand under her to be able to
breathe. To the extent Ray takes the position that he believed
on those facts that she had a weapon, a reasonable jury could
have concluded that his perception was unreasonable. See Tolan,
134 S. Ct. at 1866-68. Further, Ray cannot artificially
“segment” his use of force and defeat her excessive force claim
21
by using Smith’s simple refusal to submit to his unexplained and
violent assault to justify his escalation of the violence. See
Rowland, 41 F.3d at 173.
Ray also relies on Smith’s “admission” that she was
attempting to “avoid[] [Ray] at all costs.” J.A. 439. However,
that “admission” in her affidavit is of no help to Ray at this
stage of the litigation. The context of her statement was her
contention that when he initially grabbed her, “[a]lthough I
pulled my arm away, I did not run,” but rather, “stayed and
questioned my arrest.” J.A. 439. She maintained that “Ray
simply ignored me and tried again to grab me” and she “tried
avoiding him at all costs.” J.A. 439. A fact finder could
reasonably conclude that Smith’s statement that she was trying
to avoid Ray at all costs referred only to her pulling her arm
away when he grabbed her and did not indicate she engaged in any
other evasive behavior.
Ray also argues that he was justifiably concerned that
Smith could possibly run toward the road and be hit by a car if
he did not immediately physically seize her, but that is not
much of a factor here either. Ray’s claimed concern was based
on the premise that Smith appeared to be impaired, which, as we
have explained, we cannot accept for purposes of this
interlocutory appeal. And even if she had appeared to be
intoxicated, she had not indicated any inclination to flee the
22
scene, even after Ray started to grab her. Just as in Rowland,
where the suspect was standing on a street corner at the time
force was employed, it was of course possible that the suspect
could take off running into traffic if the officer took a moment
to explain why he was authorized to detain the suspect.
However, on the facts before us at this stage, there was no
reason for Ray to expect that the previously compliant suspect
would suddenly take that course. 7
As in Rowland, the weakness of the Graham factors was so
apparent that any reasonable officer would have realized that
the force employed was excessive. Accordingly, the district
court correctly denied Ray’s motion for summary judgment.
We certainly note, however, that our conclusion that Ray is
not entitled to qualified immunity at this stage is no
indictment of Ray, who denies many of the facts on which Smith’s
claim is based. Most significantly, he contends that he did
clearly explain why he needed to detain Smith, that she
responded by physically attacking him, and that he did not pull
7
Ray contends that an unpublished district court opinion,
Dunn v. Vanmeter, 2010 WL 3154972 (W.D. Va. Aug. 9, 2010), could
have led a reasonable officer to believe that Ray’s actions did
not constitute excessive force. However, the facts of Dunn were
entirely different from those before us, most basically because
the physical confrontation in that case occurred after the
officer informed the suspect that he was arresting him pursuant
to a warrant and the suspect turned away from the officer and
began walking into the carport of his house. See
id. at *1.
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her hair. However, as the district court recognized, it is the
jury’s role, not ours, to decide whose version of facts is
correct. 8
III.
In sum, finding no error, we affirm the district court’s
order denying Ray’s summary judgment motion.
AFFIRMED
8
Ray also points to a number of cases in which some of the
actions that Ray took here were found not to constitute
excessive force. In most of these cases, the officer resorted
to force only when a suspect refused to comply with the
officer’s requests. See Sullivan v. City of Pembroke Pines,
2006 WL 63959, 161 Fed. App’x 906 (11th Cir. 2006) (per curiam)
(suspect and officer had a loud and angry exchange and suspect
approached officer, ignoring his multiple requests for her to
get back into her van); Lee v. Hefner,
2005 WL 1385930, 136 Fed.
App’x 807 (6th Cir. 2005) (suspect continued running in an alley
after officer asked suspect to talk to him); Karadi v. Jenkins,
2001 WL 320893, 7 Fed. App’x 185 (4th Cir. 2001) (per curiam)
(angry shoplifting suspect refused officer’s request to
accompany him to the store’s security office). In another, the
court merely held that “[p]ainful handcuffing, without more, is
not excessive force in cases where the resulting injuries are
minimal.” Rodriguez v. Farrell,
280 F.3d 1341, 1351 (11th Cir.
2002). Of course, we do not hold that the level of force Ray
employed here was per se unconstitutional in all circumstances.
Rather, we merely hold that any reasonable officer would have
known that, on the particular facts of this case, Ray’s actions
constituted excessive force.
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