JAMES O. BROWNING, District Judge.
D. Tanner disputes some of Taylor's asserted facts. See Plaintiffs Response to Defendant Misty Taylor's Motion for Summary Judgment Based on Immunity at 5-10, filed June 27, 2011 (Doc. 21)("Response"). Taylor argues that D. Tanner does not properly controvert many of her asserted facts in compliance with the local rules. See Reply in Support of Defendant Misty Taylor's Motion for Summary Judgment Based on Immunity at 2-3, filed July 11, 2011 (Doc. 25)("Reply"). D.N.M.LR-Civ. 56.1(b) provides: "All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted." D.N.M.LR-Civ. 56.1(b). In contravention of D.N.M.LR-Civ. 56.1,
Taylor observed D. Tanner and another man who was D. Tanner's brother, M. Tanner, walking toward Frazier's vehicle, and heard Frazier instruct them to stop. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3-9, at 1; Taylor Interview ¶ 4, at 4-5; Response at 5 (not disputing this fact). It is disputed whether D. Tanner and M. Tanner were obeying Frazier's instructions, or attempting to leave the scene against Frazier's orders, although Frazier's dashboard camera indicates that the men were walking away from Frazier and someone immediately afterward said
Once she turned towards Frazier and saw D. Tanner on the hood of Frazier's vehicle, Taylor had an unobstructed view of the struggle between Frazier and D. Tanner, including Frazier pushing his flashlight against D. Tanner's throat — which lasted for approximately ten seconds before Frazier removed the flashlight from D. Tanner's throat. See Response ¶ 7, at
M. Tanner then took off his jacket and threw it on the ground. See Memorandum in Support of Motion ¶ 8, at 3 (setting forth this fact); Taylor Statement ¶ 15, at 2; Taylor Interview ¶ 9, at 6; Response at 7-8 (not disputing this fact). M. Tanner's action in taking off his coat was a reaction to the beating that his brother was taking and was intended to divert Frazier's attention away from his brother. See Response ¶ 10, at 8 (setting forth this fact); Affidavit of Myron Tanner ¶¶ 11-12, at 2-3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21-4)("M. Tanner Aff.").
Immediately after Frazier took D. Tanner to the ground, Frazier beat D. Tanner several times with the flashlight; after having D. Tanner on the ground for approximately twenty seconds, Frazier handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-47:55; Reply at 2-3 (not disputing this fact).
San Juan County Sheriff's Deputy McCoy arrived, and he and Taylor handcuffed M. Tanner. See Memorandum in Support of Motion ¶ 13, at 3 (setting forth this fact); Taylor Statement ¶¶ 18-19, at 2; Taylor Interview ¶ 11, at 7; Response at 9 (not disputing this fact). Taylor looked back in Frazier's direction several times before McCoy arrived and before Frazier had fully handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Descheeny Aff. ¶ 8-12, 14, 21 at 2-3.
"The entire amount of time between Officer Taylor's arrival at the scene and Deputy McCoy's arrival at the scene was, at most, 3 minutes and 38 seconds." Memorandum in Support of Motion ¶ 16, at 4 (setting forth this fact). See Internal Affairs Report at 8, 11 (not dated), filed June 6, 2011 (Doc. 17-2); Response at 9 (not disputing this fact). Captain Tim Black, in a report for internal affairs, noted that Frazier's use of a flashlight on D. Tanner's neck could have caused "serious injury" and that the head area is an "Avoid Zone in police baton training." Response ¶ 13, at 9 (setting forth this fact). See Complaint Investigation Report at 6 (dated March 17, 2011), filed June 27, 2011 (Doc. 21-5); Reply at 2-3 (not disputing this fact). The Farmington Police Academy trains officers that, when more than one officer is present, one is the "contact officer" and the other is the "cover officer." Memorandum in Support of Motion ¶ 17, at 4 (setting forth this fact). See Officer Positioning, Contact and Cover at 2-3, filed June 6, 2011 (Doc. 17-3); Reply at 2-3 (not disputing this fact). The cover officer is supposed to position himself or herself
D. Tanner filed his original complaint on April 21, 2011, asserting several causes of action against Taylor. See Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983, Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 8-10, 14, filed April 15, 2010 (Doc. 1). D. Tanner amended his pleadings on April 28, 2011, but did not assert any additional claims against Taylor as a result of this amendment. See First Amended Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983, Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 9-12, 15-16 (Doc. 5)("Amended Complaint"). He asserts two Counts against Taylor: (i) Count I: deprivation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; and (ii) Count VI: prima-facie tort under the New Mexico Tort Claims Act ("NMTCA"), N.M.S.A.1978, §§ 41-4-1 to -30. See Amended Complaint at 9-12, 15-16. The allegations against Taylor in Count I are as follows:
Amended Complaint ¶¶ 65-67, at 10. The allegations against Taylor in Count VI are as follows: "The Defendant law enforcement officers acted in an intentional, depraved and outrageous manner as described herein, and their actions shock the conscience. The Plaintiff was injured and wronged by the intentional and shocking acts of the Defendants and is entitled to damages." Amended Complaint ¶¶ 83-84, at 16.
On June 6, 2011, Taylor filed her Motion seeking summary judgment. She argues that she is entitled to summary judgment on Count I on the basis of qualified immunity and Count VI on the basis of sovereign immunity. See Memorandum in Support of Motion at 1-2. Taylor acknowledges that the United States Court of Appeals for the Tenth Circuit has recognized that "all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Memorandum in Support of Motion at 5 (quoting Hall v. Burke, 12 Fed.Appx. 856, 861 (10th Cir.2001)(unpublished)). She argues that, as a cover officer, she can be held liable for failing to intervene in only three circumstances: if she observed or had reason to know that (i) excessive force was being used; (ii) a citizen was unjustifiably arrested; or (iii) a law enforcement individual had committed any constitutional violation. See Memorandum in Support of Motion at 6. She emphasizes that a cover officer may be held liable only if the cover officer had a "realistic opportunity to intervene to prevent the harm from occurring," including when the officer does not have sufficient time to intervene or would be unable to prevent the harm the other officer causes. Memorandum in Support of Motion at 6 (quoting Hall v. Burke, 12 Fed.Appx. at 861). She contends that, under the facts presented, she cannot be held liable. See Memorandum in Support of Motion at 6-7. Taylor asserts that, in light of the circumstances and the facts presented to Taylor, including that D. Tanner was wrestling for control of the flashlight with Frazier, she did not observe or have reason to know that Frazier or McCoy were using excessive force. See Memorandum in Support of Motion at 6-8. She argues that she was fully occupied in dealing with M. Tanner and, thus, had no opportunity to intervene, even if she had the obligation to do so. See Memorandum in Support of Motion at 8-11. She also asserts that the facts in this case presented exigent circumstances, which she contends justify her conduct under the circumstances. See Memorandum in Support of Motion at 10-11. Taylor argues that the Farmington police training materials regarding how
Taylor asserts that, even if her conduct was mistaken, her mistake was reasonable. See Memorandum in Support of Motion at 12. She contends that this reasonable mistake supports summary judgment on the grounds that she did not violate any clearly established law. See Memorandum in Support of Motion at 12. Lastly, she argues that New Mexico has not waived sovereign immunity for the conduct D. Tanner bases his NMTCA cause of action. See Memorandum in Support of Motion at 12-14. She also argues that her conduct was reasonable and that she lacked any intent to injure D. Tanner. See Memorandum in Support of Motion at 14.
On June 27, 2011, D. Tanner filed his Response to the Motion seeking summary judgment. D. Tanner asserts that the force Frazier used was excessive. See Response at 14-15. He contends that Frazier's use of force was not objectively reasonable under the circumstances. See Response at 14-15. He argues that "Defendant Taylor was placed upon immediate notice that something was wrong with Defendant Frazier when she drove up and saw and heard his actions and yelling." Response at 15. He contends that she had an opportunity to intervene, because she observed Frazier's behavior and knew that "beating a person on the head was dangerous and forbidden." Response at 16. He asserts that "Defendant Taylor, who was within a few feet of Defendant Frazier during the incident, undoubtedly saw that Defendant Frazier had lost control yet she failed to restrain him and watched his back while he administered a beating on a helpless citizen." Response at 17. He argues that "[a] reasonable juror could conclude that [a reasonable officer in Taylor's position] would have checked on Defendant Frazier because of the shouts and the loud and distinctive screams from behind her." Response at 18. He contends that no exigent circumstances were present, because "[a]ny exigency was created by Defendant Frazier," who "was not in control of his emotions." Response at 18-19. He argues that, by the time Frazier's attack on D. Tanner took place, the crowd had dissipated, and that M. Tanner and Descheeny were the only people remaining at the scene. See Response at 19. D. Tanner contends that Descheeny "was obviously no threat to the officers, and any claim that she presented a danger is false." Response at 20. He asserts that he has established a violation of a constitutional right and that this violation is clearly established. See Motion at 22-23. He argues that, based on the Internal Affairs Report, "the prohibition against the use of a baton (or flashlight) to strike persons on the head and the danger of using choke holds and blocking a person's airway appears to be well-known in the law enforcement community." Response at 22.
On June 27, 2011, D. Tanner and Taylor filed a joint motion dismissing Count VI, in the Amended Complaint, asserted against Taylor. See Joint Motion to Dismiss Count VI Prima Facie Tort Claim Against Defendant Misty Taylor (Doc. 23). On July 11, 2011, Taylor filed her Reply. She contends that D. Tanner improperly relies on facts that were not known to Taylor that occurred before she arrived on the scene. See Reply at 4-5. She argues that courts cannot judge her conduct "with the luxury of 20/20 hindsight." Reply at 5. She asserts that a realistic opportunity to intervene exists when an officer "could have `called for a backup, called for help, or at least cautioned [the excessive force defendant] to stop.'" Reply at 8 (alteration in original)(quoting Abdullahi v. City of
At the hearing on February 16, 2012, Taylor emphasized that D. Tanner cannot establish that a reasonable officer knew or should have known that Frazier and McCoy were using excessive force. See Transcript of Hearing at 7:21-8:2 (taken February 16, 2012)(Mann)("Tr.").
D. Tanner first asserted that Taylor should have intervened and stopped Frazier's conduct as soon as she approached Frazier's vehicle. See Tr. at 20:4-14 (Stoker). D. Tanner then clarified that he did not expect Taylor to intervene until Frazier had struck him with the flashlight in the head. See Tr. at 22:24-23:14 (Court, Stoker). When posed with a hypothetical of how an officer should respond when thirty people in a crowd are rushing an officer who is acting improperly, D. Tanner conceded that a reasonable officer would focus on controlling the crowd in those circumstances as opposed to intervening in the officer's conduct. See Tr. at 23:15-24 (Court, Stoker). D. Tanner asserted that he believes that it is a question of fact whether Taylor should have intervened in the altercation between D. Tanner and Frazier rather than focus on M. Tanner. See Tr. at 30:13-20 (Court). Taylor argued that there is not clearly established law how an officer should react under these factual circumstances. See Tr. at 32:20-33:10 (Mann). Additionally, she contended that no constitutional violation occurred, because the force would not have appeared excessive to her under the circumstances. See Tr. at 33:13-34:7 (Mann). Taylor emphasized that she acted according to her training. See Tr. at 35:6-16
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment 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 movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his [or her] pleadings." Anderson v. Liberty Lobby,
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and
Qualified immunity shields government officials from liability where "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. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs" and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
The Supreme Court of the United States recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be 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 of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." Pearson v. Callahan, 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). Once the plaintiff has established the inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).
The Supreme Court recognized seven circumstances where district courts should
Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified immunity context. Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181. "In general, courts should think hard, and then think hard again, before turning small cases into large ones." Camreta v. Greene, 131 S.Ct. at 2032. Accord Kerns v. Bader, 663 F.3d at 1181. The Supreme Court has also recently emphasized in the qualified immunity context: "Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). The Tenth Circuit will normally remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182.
In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question ... unlawful." Anderson v.
The Supreme Court further clarified what a plaintiff must show to satisfy the clearly established requirement in Ashcroft v. al-Kidd. The Supreme Court held that, while a case directly on point is not required, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established." Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have "reasonable, but mistaken beliefs" as to the application of law to facts and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court's language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." Kerns v. Bader, 663 F.3d at 1183 (emphasis added). The Tenth Circuit reiterated that "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing law," but held that, where distinctions "might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.2007), the Tenth Circuit re-emphasized its sliding scale approach: "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298). Thus, "when an officer's violation... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010)(Browning, J.) (citation omitted).
Rhoads v. Miller, 352 Fed.Appx. 289, 291-92 (10th Cir.2009)(unpublished)(internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir. 1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). A consensual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally may "go to a person's home to interview him," United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990), because "[i]t is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business," 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed. 1996). Such encounters generally "are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing." Oliver v. Woods, 209 F.3d at 1186.
An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person "in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be "reasonable" under the Fourth Amendment. First, the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be "reasonably related in scope to the circumstances" which justified the stop in the first place, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the Fourth Amendment imposes "limitations on both the length of the detention and the manner in which it is carried out," United States v. Holt, 264 F.3d 1215, 1229 (10th Cir. 2001)(en banc).
"For reasonable suspicion to exist, an officer `need not rule out the possibility of innocent conduct;' he or she simply must possess `some minimal level of objective justification' for making the stop." United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009)(quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). This standard is met by information "falling `considerably short' of a preponderance standard." United States v. Winder, 557 F.3d at 1134. A police/citizen encounter that goes beyond the limits of a stop under Terry v. Ohio is an arrest which must be supported by probable cause or consent to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)("An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent.").
In United States v. Ceballos, 355 Fed. Appx. 226 (10th Cir.2009)(unpublished), the police officer observed a young girl
355 Fed.Appx. at 228-30. The Tenth Circuit did not require the officer to identify the particular crime for which he had reasonable suspicion, or even to acknowledge that he had reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that "Ceballos intended to assault or abduct the teenage pedestrian." 355 Fed.Appx. at 229. The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See 355 Fed.Appx. at 229.
A seizure that exceeds the investigative detention's limited scope or duration may nevertheless be justified as an arrest. An arrest is a seizure that is "characterized by highly intrusive or lengthy search or detention." Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.1984)). The
When an officer moves for qualified immunity on an excessive force claim, "a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law)." Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Accord Mata v. City of Farmington, 791 F.Supp.2d 1118, 1137-38 (D.N.M.2011)(Browning, J.). An excessive force claim "must ... be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized `excessive force' standard." Graham v. Connor, 490 U.S. at 394, 109 S.Ct. 1865. The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 ("[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard...."). The Supreme Court recognizes 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 v. Connor, 490 U.S. at 397, 109 S.Ct. 1865. Consequently, "the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on-scene perspective." Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. When an officer moves for qualified immunity on an excessive-force claim, "a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law)." Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir.2007).
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen ex rel. Sturdivan v. Murr, the Tenth Circuit stated:
511 F.3d at 1260. In Weigel v. Broad, 544 F.3d 1143 (10th Cir.2008), the Tenth Circuit also provided:
544 F.3d at 1151-52 (citations omitted). A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted). Additionally, "[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." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865.
"To avoid a `Monday morning quarterback' approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor." James v. Chavez, 830 F.Supp.2d 1208, 1236 (D.N.M.2011) (Browning, J.). The Fourth Amendment requires only that the defendant officers chose a "reasonable" method to end the threat that the plaintiff posed to the officers in a force situation, regardless of the availability of less intrusive alternatives. Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865.
In Michigan Department of State Police v. Sitz, 496 U.S. 444, 450-51, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Supreme Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated that Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979),
496 U.S. at 453-54, 110 S.Ct. 2481. See Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)("[T]he reasonableness of any particular government activity does not necessarily turn on the existence of alternative `less intrusive' means."). To avoid unrealistic second guessing, the Fourth Amendment does not require that an officer use the least-intrusive alternative available to protect himself or others so long as the method chosen is reasonable.
In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court examined the stop under Terry v. Ohio of a suspected drug courier in an airport. The Supreme Court rejected Sokolow's contention that the arresting officers were "obligated to use the least intrusive means available to dispel their suspicions that he was smuggling narcotics." 490 U.S. at 11, 109 S.Ct. 1581. Instead, the Supreme Court held: "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions... and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (internal quotations and citations omitted). Similarly, in United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568,
470 U.S. at 686-87, 105 S.Ct. 1568 (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)).
In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir.2005), the Tenth Circuit disagreed with the plaintiffs contention that expert testimony about when a police dog's use is objectively reasonable and about how defendant Lehocky's actions violated "well established law enforcement standards ... should have been admitted since it would have been helpful to the jury in determining whether Lehocky used a reasonable amount of force." 399 F.3d at 1222. In so holding, the Tenth Circuit explained:
Marquez v. City of Albuquerque, 399 F.3d at 1222.
In United States v. Melendez-Garcia, the Tenth Circuit stated: "We must avoid unrealistic second guessing of police officers' decisions in this regard and thus do not require them to use the least intrusive means in the course of a detention, only a reasonable ones." 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir.2001)(stating that "the reasonableness standard does not require that officers use alternative less intrusive means" (internal quotation marks omitted)); Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)("[T]he Fourth Amendment does not require officers to use the best technique
"Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not require an officer to use the least or a less forceful alternative." Jonas v. Bd. of Comm'rs of Luna Cnty., 699 F.Supp.2d 1284, 1296 (D.N.M.2010)(Browning, J.). See, e.g., Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir.) (quoting Medina v. Cram, 252 F.3d at 1133)("It is well settled that `the reasonableness standard does not require that officers use alternative, less intrusive means' when confronted with a threat of serious bodily injury."); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir.2004)(stating that, in police-shooting case, officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable). See also Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1st Cir.1994)("[I]n close cases, a jury does not automatically get to second guess these life and death decisions, even though plaintiff has an expert and a plausible claim that the situation could better have been handled differently."); Diaz v. Salazar, 924 F.Supp. 1088, 1100 (D.N.M.1996)(Hansen, J.). Moreover, the reasonableness standard does not require that officers use "alternative `less intrusive' means." Illinois v. Lafayette, 462 U.S. 640, 647-48, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). The Court has also rejected the consideration of a less intrusive alternative to end a threat. See Chamberlin v. City of Albuquerque, No. 02-0603, 2005 WL 2313527, at *2 (D.N.M. July 31, 2005)(Browning, J.)(precluding the plaintiff's police procedures expert from testifying at trial regarding alternative less intrusive means).
"An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights." Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir.1984), judgement vacated on other grounds by City of Lawton, Okla. v. Lusby, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985). In Hall v. Burke, 12 Fed.Appx. 856 (10th Cir.2001), the Tenth Circuit made clear that an officer's duty to intervene applies to instances involving excessive force and illegal arrests. See 12 Fed.Appx. at 861. The Tenth Circuit in Hall v. Burke stated:
12 Fed.Appx. at 861 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)). Accord Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.2008)(quoting almost identical language from a decision from the United States Court of Appeals for the Second Circuit); Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996)("[A] law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983."); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 (ruling that officer who did not prevent fellow officer's use of allegedly excessive force against an arrestee "may be liable [under § 1983] if he had the opportunity to intervene but failed to do so"). An officer thus may be liable if he had the opportunity to prevent or stop a constitutional violation but failed to do so. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433. Accord Mata v. City of Farmington, 791 F.Supp.2d at 1156.
The Court concludes that Taylor had no obligation to intervene in the investigatory detention and subsequent arrest that Frazier conducted, because a reasonable officer in her position would have believed that Frazier had both reasonable suspicion and probable cause that D. Tanner had committed several offenses. Based on the information available to Taylor, the level of force Frazier used, and the surrounding circumstances of the incident, Frazier's conduct never triggered a duty for Taylor to intervene in the context of D. Tanner's excessive force claim. In light of the minimal amount of force McCoy used and the surrounding circumstances of the incident, Taylor had no reason to believe that McCoy used excessive force. Assuming that some of Frazier's conduct triggered a duty for Taylor to intervene, she did not violate any clearly established law by failing to intervene. Assuming that Frazier's conduct triggered a duty to intervene, Taylor had no realistic opportunity to intervene, because she was occupied with M. Tanner. Finally, assuming that McCoy's conduct triggered a duty to intervene, that his conduct lasted for approximately three seconds prevented Taylor from having a realistic opportunity to intervene.
D. Tanner alleges as part of Count I:
Amended Complaint ¶ 65, at 10. When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden." Medina v. Cram, 252 F.3d at 1128. The plaintiff must demonstrate on the facts alleged: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d at 1107. The facts the parties have set forth indicate that a reasonable officer in Taylor's position would have believed Frazier had reasonable suspicion to detain D. Tanner based on the information she received from Kneier about the assault that occurred in the bar. An officer, such as Taylor, is also generally not required to second guess another officer's probable cause determination when there is an imbalance of information between the officers. Even if Frazier's probable cause determination was flawed, Taylor reasonably relied upon it under the circumstances.
The relevant facts are as follows. Shortly after Taylor arrived at the scene, Kneier obtained Taylor's attention, and Taylor stopped to talk with her. When Taylor talked with Kneier, Kneier said that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked whom. Kneier stated that someone other than the brother who punched the employee then fired pepper spray. While Taylor was speaking with Kneier, Taylor's back was towards Frazier, but she heard him yelling. During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle and slammed him on the hood of the vehicle and began to beat him shortly afterwards. Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. Once she turned towards Frazier and saw D. Tanner on the hood of Frazier's vehicle, she had an unobstructed view of the struggle, including Frazier pushing his flashlight against D. Tanner's throat. Taylor then observed both Frazier and D. Tanner holding Frazier's flashlight. D. Tanner asserts that he attempted to push the flashlight away from his throat and larynx, because his airway was blocked and he was unable to breathe.
Taylor did not have a duty to intervene in Frazier's initial investigatory stop of D. Tanner. "An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights." Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433. The Tenth Circuit in Hall v. Burke stated:
12 Fed.Appx. at 861.
As a preliminary note, none of the parties' asserted facts suggest that Taylor and Frazier had equal information about the events underlying this case. It is undisputed that Taylor arrived after Frazier was on the scene. It is also undisputed that she was communicating with Kneier while Frazier was interacting with D. Tanner and M. Tanner. Looking at the facts
The Tenth Circuit does not appear to have squarely addressed how liability for failure to intervene operates when the officer who allegedly should have intervened does not necessarily have all the information in the possession of the other officer who allegedly acts unlawfully. Conversely, a situation could arise where the officer who should have allegedly intervened has more information than the officer who allegedly acts unlawfully, which causes the observing officer to not intervene. The Tenth Circuit recently mentioned this issue in passing in a footnote, as part of a case where a secondary officer was at the scene for the entire duration of the allegedly unlawful conduct and who participated in some of the allegedly unlawful conduct, that it would not evaluate the secondary officer's liability differently in part because the secondary officer had not raised this argument. See Weigel v. Broad, 544 F.3d at 1143 n. 4 ("Trooper Henderson makes no argument that his liability should be addressed differently than that of Trooper Broad because he was in his car when Mr. Weigel went into cardiac arrest.").
Faced with a situation where the secondary officer had limited information about the other officer's conduct and knowledge, the United States Court of Appeals for the Sixth Circuit concluded that the secondary officer did not know or have reason to know that "excessive force would be or was being used," or have a realistic opportunity to intervene:
Turner v. Scott, 119 F.3d 425, 429-30 (6th Cir.1997). The United States Court of Appeals for the Eleventh Circuit reached a similar conclusion when plaintiffs failed to show that a secondary officer "could have observed or did observe excessive force," and found that the secondary officer was thus not "in a position to intervene." Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir.1998). The Court has located no circuit court authority that has taken a contrary position.
The Court believes the Tenth Circuit would find the Sixth Circuit and Eleventh Circuit's logic persuasive. First, the Tenth Circuit applies the same basic standard as these circuits, specifically that the secondary officer must observe or have reason to know that the primary officer is engaging in improper conduct. See Hall v. Burke, 12 Fed.Appx. at 861. Second, both the Tenth Circuit and the Supreme Court have emphasized that an officer can be held liable only for his or her own improper conduct. The Supreme Court stated in Ashcroft v. Iqbal: "Because vicarious liability is inapplicable to Bivens
The information available to Taylor would have led a reasonable officer to the conclusion that Frazier had reasonable suspicion to detain D. Tanner for further investigation. She saw D. Tanner and M. Tanner walking away from Frazier as he was talking to them, indicating that they were noncompliant. Additionally, Kneier told Taylor that one of these brothers had assaulted an employee in her bar, although she admitted that she had gotten most or all of this information secondhand from other employees. D. Tanner objects to the
"For reasonable suspicion to exist, an officer `need not rule out the possibility of innocent conduct;' he or she simply must possess `some minimal level of objective justification' for making the stop." United States v. Winder, 557 F.3d at 1134. This standard is met by information "falling `considerably short' of a preponderance standard." United States v. Winder, 557 F.3d at 1134. Here, Taylor had information from an employee asserting that D. Tanner or his brother had committed a crime — battery — against an employee at the bar.
The information available to Taylor also did not trigger a duty to intervene in D. Tanner's subsequent arrest, because she herself had probable cause to believe that a criminal offense had occurred and no reason to believe that Frazier had improperly concluded that there was probable cause that a criminal offense occurred. Notably, D. Tanner does not dispute Taylor's asserted fact that she had no involvement in the actual arrest. Probable cause to make an arrest requires only that there is "a fair probability that a crime was being committed." United States v. Traxler, 477 F.3d 1243, 1247 (10th Cir.2007). Likewise, "[p]robable cause is measured against an objective standard of reasonableness and may rest on the collective knowledge of all officers involved in an investigation rather than solely on the knowledge of the officer who made the arrest." United States v. Chavez, 660 F.3d 1215, 1224 (10th Cir.2011). The Fourth Amendment permits officers to arrest individuals for misdemeanors without a warrant if the officer has probable cause to believe that an offense has been committed. See Atwater v. City of Lago Vista, 532 U.S. 318, 340 n. 11, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)("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."); Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir.2005)("[A] warrantless arrest is lawful under the Fourth Amendment if there is probable cause to believe that the person arrested has committed an offense." (citing Atwater v. City of Lago Vista, 532 U.S. at 322, 121 S.Ct. 1536)).
In the Fourth Amendment context, a court must be "guided by the realities of the situation presented by the record," and should consider the facts from the viewpoint of "prudent, cautious, and trained officers." United States v. Porter, 594 F.3d 1251, 1258 (10th Cir.2010) (citation omitted). At the time Taylor arrived, she had limited, if any, information about what Frazier had observed and about how long the situation outside the bar had been occurring. She did not know or have reason to know that Frazier had not himself observed D. Tanner engage in some crime, including at the very least disorderly conduct. The Court must take into account that she had obtained information from Kneier indicating that at least one of the brothers had engaged in criminal behavior. There was also a great deal of commotion outside when she arrived on the scene-including Frazier yelling at D. Tanner and M. Tanner to stop. There were various people on the scene making loud noises that she could overhear. She personally observed and overheard these events. She
D. Tanner argues that, without citing any authority, "Defendant Taylor was placed upon immediate notice that something was wrong with Defendant Frazier when she drove up and saw and heard his actions and yelling." Response at 15. Particularly when a fellow officer arrives on the scene after a first officer has already been at the scene, it is reasonable for the fellow officer to assume that the first officer is more familiar with the situation and not to question that officer's conduct solely because the officer is yelling at individuals in the crowd — particularly when it is late at night outside a bar on St. Patrick's Day and the officers are responding to a violent altercation. See Stearns v. Clarkson, 615 F.3d at 1285 ("When one officer requests that another officer assist in executing an arrest, the assisting officer is not required to second-guess the requesting officer's probable cause determination, nor is he required to independently determine that probable cause exists."). Under those circumstances, even when drawing all reasonable inferences in D. Tanner's favor, the Court cannot reasonably conclude that the information available to Taylor was such that a reasonable officer would have concluded that he or she was observing an unlawful arrest or that he or she would have had reason to know that an unlawful arrest was occurring. An officer in Taylor's position, particularly in light of the information she obtained from Kneier corroborating that the Tanners had likely committed crimes, could have reasonably relied on Frazier's probable cause determination.
Furthermore, as the situation progressed, she observed D. Tanner and Frazier struggling with Frazier's flashlight. While D. Tanner asserts that he was attempting to remove the flashlight from his neck so he could breathe, courts cannot, in the Fourth Amendment context, consider a suspect's subjective intentions not known to officers when evaluating an officer's conduct. See Reeves v. Churchich, 484 F.3d 1244, 1253 (10th Cir.2007)("Thus, just as we objectively examine a police officer's conduct under the Fourth Amendment, the Reeves' subjective motives behind their failure to submit are irrelevant."). Taylor could see only the struggle, and there is no evidence indicating that D. Tanner had communicated his subjective intentions. She had also received information that one of these brothers had assaulted someone, and that either the other brother fired pepper spray at someone or that the employees sprayed pepper spray at the brother who punched the employee. A reasonable officer in Taylor's situation could have concluded that D. Tanner was resisting arrest
D. Tanner argues that both Frazier and McCoy were using excessive force and that D. Tanner should have intervened to stop them. To hold Taylor liable for Frazier and McCoy's conduct, she must have observed or had reason to know that the other officers were using excessive force and a realistic opportunity to prevent their use of excessive force. The Court concludes that, in light of the circumstances, the events Taylor observed did not trigger a duty to intervene in either officer's conduct.
In the context of excessive force, the Tenth Circuit has explained: "The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865). The Tenth Circuit has also recognized:
Lundstrom v. Romero, 616 F.3d at 1126 (quoting Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.2009)). When determining whether an officer's conduct constitutes excessive force during the process of an arrest, a court assumes that the
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen ex rel. Sturdivan v. Murr, the Tenth Circuit stated:
511 F.3d at 1260. In Weigel v. Broad, the Tenth Circuit also provided:
544 F.3d at 1151-52 (citations omitted). A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted). Additionally, "[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." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865.
As a preliminary manner, the Court will examine all of D. Tanner's excessive force claims as they relate to Taylor under the Fourth Amendment only, because the Supreme Court has mandated that this procedure is the appropriate one for excessive force claims. D. Tanner has alleged that, by failing to intervene in Frazier and McCoy's use of excessive force, she violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. See Amended Complaint ¶¶ 65-67, at 10. In Graham v. Connor, the Supreme Court held that courts should analyze all claims of excessive force in the context of an arrest or detention under the Fourth Amendment's reasonableness standard as opposed to a substantive due-process standard, because that constitutional provision expressly applies to that form of conduct. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865. Specifically, the Supreme Court said:
Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 (emphasis in original). The Supreme Court later clarified that this holding "simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219,
D. Tanner conceded at the hearing on February 16, 2012, that Taylor had no obligation to intervene in Frazier's use of force against D. Tanner until Frazier had struck D. Tanner in the head with the flashlight. D. Tanner first asserted that Taylor should have intervened and stopped Frazier's conduct as soon as she approached Frazier's vehicle. See Tr. at 20:4-14 (Stoker). D. Tanner then clarified that he did not expect Taylor to intervene until Frazier had struck him with the flashlight in the head. See Tr. at 22:24-23:14 (Court, Stoker)("I'm [not] saying that she could do anything until the two strikes."). Courts are entitled to rely upon counsel's concessions. See United States v. Ventura-Perez, 666 F.3d 670, 676 (10th Cir.2012)("Courts could not function properly if concessions by counsel cannot be relied upon."); Texaco, Inc. v. Hale, 81 F.3d 934, 938 (10th Cir.1996)("Even had the scope of the remand allowed the district court to consider this issue, it was entitled to rely upon Appellants' concession, and they are now without a basis for objection."). The Court otherwise agrees with the concession, because the Court concludes in a separate section of this Memorandum Opinion and Order that a reasonable officer in Taylor's position would not have believed that Frazier used excessive force against D. Tanner when he was choking D. Tanner on the hood of the vehicle and when he then struck D. Tanner with the flashlight. Consequently, based on the concession, the Court will grant the Motion on the issue of Taylor's obligation to intervene in Frazier's allegedly excessive force for the events up until Frazier had finished striking D. Tanner with the flashlight on the head on the hood of the vehicle, which includes the events where Frazier placed the flashlight against D. Tanner's neck allegedly choking him. See Frazier Dashboard Camera at 23:46:55-47:30.
At the time Frazier took D. Tanner to the ground, Taylor had not observed any conduct that would have made a reasonable officer in her position believe the force Frazier used was excessive. Based on the limited amount of time Frazier had his flashlight pressed up against D. Tanner in a choking manner and her knowledge that D. Tanner may have committed several offenses before the altercation — including aggravated battery — Taylor would not have known or had reason to know that Frazier was using excessive force against D. Tanner. Because Taylor observed D. Tanner grab at Frazier's flashlight and an ensuing struggle over the flashlight, she would not have known or had reason to know that Frazier was using excessive force when he hit D. Tanner in the head with the flashlight on the hood of the vehicle. In light of the struggle between D. Tanner and Frazier, the nature of Frazier's conduct while he had D. Tanner on the ground, and M. Tanner's presence at the scene, Taylor had no duty to intervene when Frazier had D. Tanner on the ground.
Finding a factually identical case to the current one is difficult, but many cases involve analogous factual situations and
922 F.2d at 1462-63.
In Weigel v. Broad, the Tenth Circuit addressed a comparable factual pattern to the current case where it evaluated whether an officer using a maneuver that restricted a suspect's airflow constituted excessive force. Two officers were traveling in separate cars, and an individual struck one of the officer's cars with a vehicle from behind. See 544 F.3d at 1147. The individual's vehicle then "careened through the median strip and re-entered I-25 south." 544 F.3d at 1147. One of the officers approached the individual's vehicle to assess his injuries. See 544 F.3d at 1147. The individual reported to officers that "he believed his vehicle's steering linkage had come loose or broken." 544 F.3d at 1147. The individual could not produce a driver's license, and both officers smelled alcohol on his breath. See 544 F.3d at 1147-48. The officers then asked the individual to submit to a field sobriety test, to which the individual agreed. See 544 F.3d at 1148. Officers planned to conduct the test on the other side of the interstate. See 544 F.3d at 1148. A van was approaching, and officers instructed the individual to wait to cross the highway. See 544 F.3d at 1148. The individual then darted in front of the van and was struck in the chest by the passing van's sideview mirror. See 544 F.3d at 1148. One of the officers called an ambulance, and the individual continued to try and cross the highway. See 544 F.3d at 1148. Onlookers described the individual's behavior as "strange," "bizarre," "odd," "not normal," and "erratic." 544 F.3d at 1148. Concerned for the individual's safety, one of the officers tackled him and wrestled him to the ground in a ditch alongside the highway. See 544 F.3d at 1148. There were conflicting reports of the struggle, but it was "generally agreed that [the individual] fought vigorously, attempting repeatedly to take the troopers' weapons and evade handcuffing." 544 F.3d at 1148. "In the midst of the melee, Trooper Henderson put [the individual] in a choke hold." 544 F.3d at 1148. The individual continued to resist and fight. See 544 F.3d at 1148. The other officer was able to put handcuffs on the individual while the individual was in the choke hold. See 544 F.3d at 1148. The individual continued to struggle while handcuffed. See 544 F.3d at 1148. A bystander laid on the individual's legs to restrict the individual's movement. See 544 F.3d at 1148.
The officers maintained the individual in a face down position, with the bystander sitting on the individual's legs, one of the officers positioned on the individual's thighs and buttocks holding the individual's arms in place, and another officer sitting on the individual's upper torso. See 544 F.3d at 1148. After the individual's legs were bound and hands handcuffed, the officer positioned on the individual's thighs and buttocks got up and "went to
In Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.1993), the Eleventh Circuit dealt with a case where an officer choked a suspect for approximately "five seconds." 7 F.3d at 1559-60. Officers arrived at a restaurant several times to investigate building code violations for having too many occupants inside the building. See 7 F.3d at 1555. One of the owner's was arrested during one of the investigations, and the manager was arrested for obstructing an officer and resisting arrest. See 7 F.3d at 1555. Bystanders said that the manager "was doing nothing to interfere with the code team when he was arrested." 7 F.3d at 1556. The manager admitted that he told an employee to turn down the radio after the owner was arrested, after which an officer told him to be quiet. See 7 F.3d at 1556. After the manager repeated this instruction to the employee, the officer told the manager he was under arrest. See 7 F.3d at 1556. At this time, the manager put his hands up — with the manager stating that he put his hands up to be handcuffed. See 7 F.3d at 1556. The officer then told the manager "to stop resisting arrest, spun him around, placed him against a display case, applied a choke hold, and handcuffed him." 7 F.3d at 1556. The manager kept speaking outside after officers told him to be quiet, and the same officer pushed the manager against a wall. See 7 F.3d at 1556. Before the night of the arrests, another officer had informed the arresting officer that he had recently arrested the manager for resisting arrest and that the manager's resistance had been violent. See 7 F.3d at 1559. The Eleventh Circuit concluded that the force used inside the restaurant was not excessive in light of the circumstances. See 7 F.3d at 1559. The Eleventh Circuit explained:
7 F.3d at 1559 (citations omitted). The Eleventh Circuit agreed with the manager that, once he was handcuffed and outside, "no further force was needed," but concluded that the push outside the restaurant "was not plainly unlawful" and did not violate clearly established law. 7 F.3d at 1559-60. The Eleventh Circuit reversed the district court's denial of summary judgment on qualified immunity grounds as to this officer — Sellers-Sampson. See 7 F.3d at 1561.
In Mann v. Yarnell, 497 F.3d 822 (8th Cir.2007), the United States Court of Appeals for the Eighth Circuit concluded that an officer did not act unreasonably when he used a brachial stun technique to immobilize a recalcitrant and potentially dangerous suspect. See 497 F.3d at 826. "The technique involves the application of an officer's forearm to an area of major muscle mass," in this case the side of the suspect's neck, "in order to induce temporary paralysis." 497 F.3d at 824 n. 3. Earlier in the evening of the night the incident took place, the suspect "fired a shot at pursuing police officers and fled to his home." 497 F.3d at 823-24. While at his home, the suspect "took a shower to `come down' off a methamphetamine high, and went to sleep." 497 F.3d at 824. The suspect's wife was at the home and traveled to the local police station to report that she had been a victim of domestic abuse earlier in the day. See 497 F.3d at 824. She told officers that her husband
497 F.3d at 824. Officers went to the home and asked the husband to leave the home, using a loudspeaker. See 497 F.3d at 824. After he would not come out of the home, officers fired tear gas into the home, after which time the husband came out. See 497 F.3d at 824. Officers ordered the man to get on his stomach and put his hands behind his back. See 497 F.3d at 824. The man moved to the designated location, but did not get down on his stomach or place his hands behind his back. See 497 F.3d at 824. Officers had a dog bite the man in the leg while they handcuffed him, but the man struggled and slipped away. See 497 F.3d at 824. In the process, the man knocked the handcuffs out of one of the officer's hands and grabbed the barrel of one of the officer's guns. See 497 F.3d at 824. When the man was on his feet and the officers continued to handcuff him, one officer "struck [the man] five times, with short pauses between blows," in what the officer described "as a repeated application of a `brachial stun' technique." 497 F.3d at 824. The Eighth Circuit affirmed the district court's grant of summary judgment on qualified immunity grounds as to the use of this force, stating:
497 F.3d at 826.
The Court must proceed in its excessive force analysis under the assumption that Frazier's arrest was lawful — or, more specifically, was lawful from a reasonable officer in Taylor's position. See Romero v. Story, 672 F.3d at 889-90. As the Court has previously discussed, Frazier could have potentially arrested D. Tanner, based on D. Tanner's conduct inside the bar and outside the bar, for: (i) battery; (ii) aggravated battery; and (iii) disorderly conduct. If the Court determines that, from a reasonable officer in Taylor's position, Frazier was not using excessive force at the time he began to choke D. Tanner with a flashlight on the hood of the vehicle and was otherwise properly pursuing an arrest, Frazier could have lawfully arrested D. Tanner for resisting arrest and attempting to assault a peace officer once D. Tanner began to struggle and had his hands on the flashlight. See Dixon v. Richer, 922 F.2d 1456, 1462-63 (10th Cir. 1991) ("As for resisting arrest, it bears reminding that the Dixons were not under arrest. They were ostensibly stopped in order to be asked some questions. That Willie Dixon resisted being choked and beaten does not retroactively justify it.").
As the Court has already discussed, the Court concludes that it should take into account an information imbalance between officers in evaluating whether a secondary officer had a duty to intervene in another officer's conduct. Thus, the Court will take into account any imbalances in information between Taylor and Frazier in its excessive force analysis. It is undisputed that Taylor arrived on the scene after Frazier. In the sequence of facts that the parties have set out, there is no indication that Taylor had a chance to communicate directly with D. Frazier before Kneier got Taylor's attention and began to speak to her. The extent of Taylor's communication with Frazier before he began using force on D. Tanner was that she overheard Frazier yell, and then instruct D. Tanner and M. Tanner to stop walking away. Even viewing the facts in the light most favorable to D. Tanner, the facts as presented do not support an inference that Frazier otherwise communicated substantive information about the situation to Taylor prior to Frazier's use of force on D. Tanner.
When Taylor talked with Kneier, Kneier stated that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked who. Kneier stated that someone fired pepper spray after the brother had punched an employee, but it was not clear from the conversation who fired the pepper spray other than that it was someone different than the brother who punched the employee. While Taylor was speaking with Kneier, Taylor's back was towards Frazier but she heard him yelling. During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. During the interview, she could hear Frazier's yelling. While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle, and slammed him on the hood of the vehicle and began to beat him shortly afterwards. Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. Once she turned towards Frazier and saw D. Tanner on the
Drawing all reasonable inferences in D. Tanner's favor, Taylor would have had a general familiarity with Frazier's interactions with D. Tanner and M. Tanner while she was talking with Kneier. Because, however, Taylor had her attention primarily focused on Kneier, had her back turned to much of what was going on, and was looking only over her shoulder to view interactions that were approximately twenty feet away — as opposed to directing her full attention to those interactions — it is not a reasonable inference that she had full awareness of what was going on between Frazier and the Tanners. See Hunt v. Cromartie, 526 U.S. at 551, 119 S.Ct. 1545 ("Reasonable inferences from the undisputed facts can be drawn in favor of a racial motivation finding or in favor of a political motivation finding." (emphasis added)). That Taylor had not directly communicated with Frazier would also support a conclusion that there is no reasonable inference that she had full awareness of what was going on between Frazier and the Tanners while she was talking to Kneier.
That Frazier used force to effectuate the arrest does not, by itself, make the force excessive. "The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Lundstrom v. Romero, 616 F.3d at 1126 (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865).
Lundstrom v. Romero, 616 F.3d at 1126. Courts give increased flexibility to officers who use force when an officer reasonably concludes that a suspect is likely to fight back, even if the officer is mistaken. See Jiron v. City of Lakewood, 392 F.3d at 415 ("If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back ... the officer would be justified in using more force than in fact was needed." (quoting Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151)); Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 ("A reasonable officer need not await the `glint of steel' before taking self-protective action; by then, it is `often ... too late to take safety precautions.'").
To determine whether Frazier's force was excessive from Taylor's perspective, it is necessary to consider several factors. For cases where the suspect has a weapon, the Tenth Circuit has provided the following factors:
Weigel v. Broad, 544 F.3d at 1151-52 (citations omitted). A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted).
Given that the facts do not suggest that D. Tanner was brandishing a weapon, putting aside the subsequent struggle for the flashlight, the Court will apply the factors outlined in Weigel v. Broad. First, from Taylor's perspective, the crimes at issue were moderately severe when Frazier slammed D. Tanner against the hood and began to choke him with the flashlight. There was no information suggesting to Taylor that D. Tanner had committed any felonies or violent felonies, such as robbery or murder. The crimes were violent in nature, however, given that Kneier had informed Taylor that one of the brothers had punched an employee in a bar and that someone had fired pepper spray shortly after that. It was unclear from the conversation who fired the pepper spray, so one of the brothers could have potentially fired the pepper spray. Additionally, the crimes are more severe than those in Dixon v. Richer, where there was some property damage to mirrors in a restaurant. See 922 F.2d at 1458. The crimes are also more severe than those in Post v. City of Fort Lauderdale, where the officer concluded the manager was obstructing an arrest for building code violations when the manager kept speaking after the officer told him to be quiet. See 7 F.3d at 1556.
Second, there were moderate indications to Taylor that D. Tanner may have posed an immediate risk to officer health or safety. Courts generally give officers more leniency in the excessive force context when they have specific information available to them indicating that a suspect has engaged in violent behavior in the past. For instance, the Eleventh Circuit gave greater deference to an officer's use of force in Post v. City of Fort Lauderdale when the defendant had information from a second officer that, "[b]efore the night of the arrests," the second officer "had recently arrested [the suspect] for resisting arrest and that [the suspect's] resistance had been violent." 7 F.3d at 1559. In a more extreme case with a particularly violent defendant, the Eighth Circuit explained:
Mann v. Yarnell, 497 F.3d at 826. While D. Tanner did not present the level of risk which the defendant presented in Mann v. Yarnell, Taylor was aware that
Post v. City of Fort Lauderdale, 7 F.3d at 1559.
Third, there were some indications to Taylor that D. Tanner sought to evade arrest, although she observed no signs that he intended to physically resist arrest until the struggle occurred on the hood of Frazier's vehicle. When she arrived, Taylor heard Frazier instruct the Tanners to stop while they were walking away, and she saw Frazier follow these individuals to talk to them. D. Tanner put forth an asserted fact that he and his brother did not intend to disobey Frazier's instructions when they initially walked away from him around the time of Taylor's arrival. That fact is not legally relevant in this context, however, as courts may not consider a suspect's subjective intentions for their actions when those intentions are unknown to the officer. See Reeves v. Churchich, 484 F.3d at 1253 ("Thus, just as we objectively examine a police officer's conduct under the Fourth Amendment, the Reeves' subjective motives behind their failure to submit are irrelevant."). The relevant video footage shows the brothers walking away from Frazier's direction. Nevertheless, they were not quickly running away from Frazier in a way that would suggest they were at risk of sprinting away. Thus, until the struggle occurred, there was a minor to moderate risk that D. Tanner would attempt to evade arrest. Applying the three factors in Weigel v. Broad indicates that there was a moderately heightened justification
Given the information known to Taylor and her observations, Frazier's placing of his flashlight against D. Tanner's throat for approximately ten seconds would not have constituted excessive force to a reasonable officer in Taylor's position. "The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Lundstrom v. Romero, 616 F.3d at 1126. Recognizing that any arrest or investigatory stop carries with it the right to use some degree of physical force or threat of force, there was a moderately heightened justification for the use of force under the circumstances. From Taylor's perspective, given the information she had received from Kneier, D. Tanner would have constituted a potentially violent suspect. A reasonable officer would have also thought it was likely that D. Tanner was at least moderately, and possibly highly, intoxicated. While Taylor had a general familiarity with Frazier's interactions with D. Tanner, it is not a reasonable inference that she observed everything that occurred between the two men before Frazier had D. Tanner on the vehicle's hood. She could have reasonably concluded, given the information she had received from Kneier and her other observations, that Frazier had observed D. Tanner take some threatening action or an action which could reasonably be construed as threatening, and which would justify the use of this force. See Dixon v. Richer, 922 F.2d at 1462-63; Post v. City of Fort Lauderdale, 7 F.3d at 1559. D. Tanner has conceded that Taylor had no obligation to intervene until after Frazier had struck D. Tanner with the flashlight, which did not occur until after the choking incident. See Tr. at 22:24-23:14 (Court, Stoker).
If Frazier had held the flashlight in a choking position for a much longer period of time, such as a period of minutes rather than seconds, there would potentially be a genuine dispute of material fact whether Taylor observed excessive force. See Weigel v. Broad, 544 F.3d at 1153-55 ("[T]here is evidence that for three minutes the troopers subjected Mr. Weigel to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death."). Unlike the situation in Weigel v. Broad, which involved an officer sitting for three minutes on a bound suspect's back causing him to become asphyxiated, this short period of choking did not create a significant danger of asphyxiation or death. See Weigel v. Broad, 544 F.3d at 1153-55. If officers had already handcuffed D. Tanner or otherwise subdued him at the point in time Frazier took this action, like the situation in Weigel v. Broad, there would also potentially be a genuine factual question whether Taylor observed excessive force. See Weigel v. Broad, 544 F.3d at 1153-55. Likewise, if several officers had been choking or otherwise assaulting D. Tanner, like the situation in Dixon v. Richer, there would potentially be a factual question whether Taylor observed excessive force. See 922 F.2d at 1458-59 ("Without warning, one of them kicked Mr. Dixon again, so forcefully that he started to fall. As Mr. Dixon fell, Richer hit him in the stomach with a metal flashlight. Once on the ground, the deputies got on top of him and began to beat and choke him."). Denial of summary judgment might also be appropriate if there was no information available to Taylor that D. Tanner had committed a crime or posed a threat of harm-such as if no one had reported that the Tanners had engaged in violent conduct or were intoxicated. See Dixon v. Richer, 922 F.2d at 1462-63 ("Although Richer had a reasonable basis for stopping the Dixons, they
This choking incident is most factually analogous to Post v. City of Fort Lauderdale, where the Eleventh Circuit concluded that the district court improperly denied summary judgment when an officer choked a suspect during an arrest for approximately five seconds. See 7 F.3d at 1559. Notably, the potential crimes D. Tanner committed, including aggravated battery, are more serious than the crimes the suspect in Post v. City of Fort Lauderdale committed, obstructing an arrest by continuing to talk after the officer had told the suspect to stop. See 7 F.3d at 1559-60. The increased severity of the crime makes Post v. City of Fort Lauderdale persuasive in that approximately ten seconds of choking is not materially different than five seconds of choking in light of the increased risk of violence D. Tanner posed. See 7 F.3d at 1559-60. Likewise, there were no facts indicating that the suspect in Post v. City of Fort Lauderdale posed any chance of being moderately to highly intoxicated. See 7 F.3d at 1559-60.
Lastly, simply because Frazier could have used some other less forceful method to restrain D. Tanner is not material, because his use of the flashlight in a choking maneuver would have appeared reasonable to a reasonable officer in Taylor's position. "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (citations omitted)(internal quotation marks omitted). Similarly, in United States v. Sharpe, the Supreme Court stated that
470 U.S. at 686-87, 105 S.Ct. 1568.
Based on the imbalance of information between Taylor and Frazier, the Court does not have to decide whether Frazier used excessive force in choking D. Tanner with a flashlight or in slamming D. Tanner against the vehicle's hood. The question before the Court is whether a reasonable officer in Taylor's position would have, based on the information known to her, concluded that Frazier was using excessive force. It may well be that the analysis would be different if the Court focused on the facts known only to Frazier — which are not clear on the record before the Court as the parties have focused on the facts known to Taylor. For instance, no parties have presented an affidavit from Frazier or any deposition testimony from Frazier. Depending on the facts known to Frazier, he may have used excessive force or there may have been genuine issues of material fact on that question. On the record before the Court, even when drawing all reasonable inferences in D. Tanner's favor, a reasonable, well-trained officer in Taylor's position would not have concluded that Frazier was using excessive force in slamming D. Tanner against the vehicle's hood and then choking him.
The Court must proceed in its excessive force analysis under the assumption that
Once D. Tanner and Frazier began to struggle for the flashlight, the justification for force would have increased in the eyes of a reasonable officer in Taylor's position. Officers are permitted to use a greater degree of force when they reasonably believe that a suspect is resisting arrest or attempting to harm them, even if that belief is mistaken — as long as the mistake is reasonable. See Jiron v. City of Lakewood, 392 F.3d at 415 ("If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back ... the officer would be justified in using more force than in fact was needed."); Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 ("A reasonable officer need not await the `glint of steel' before taking self-protective action; by then, it is `often... too late to take safety precautions.'"). The Tenth Circuit has recognized these considerations by incorporating them in its three-factor analysis for whether the force used was reasonable, which instructs courts to consider: (i) the severity of the crime at issue; (ii) whether the suspect poses an immediate threat to the safety of the officers or of others; and (iii) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. See Weigel v. Broad, 544 F.3d at 1151-52.
After assessing the level of justification for force, the Court must consider whether the force Frazier used, from the perspective of a reasonable officer in Taylor's position, was excessive in light of the level of justification for force. Courts have had some trouble deciding whether the use of a flashlight to beat someone constitutes deadly force. "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Carr v. Castle, 337 F.3d 1221, 1227 (10th Cir.2003)(quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). As the Tenth Circuit noted:
Carr v. Castle, 337 F.3d at 1227 (quoting Tennessee v. Garner, 471 U.S. at 11, 105 S.Ct. 1694). On the other hand, "[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Tennessee v. Garner, 471 U.S. at 11, 105 S.Ct. 1694. Courts should consider whether the officers were in danger at the moment that they used force, and whether the officers' reckless or deliberate conduct during the seizure unreasonably created the need to use such force. See Phillips v. James, 422 F.3d 1075, 1083 (10th Cir.2005).
In an unpublished opinion, the Eleventh Circuit noted the "dearth of case law" on the issue whether "the use of a flashlight to strike an arrestee over the head necessarily constitutes excessive force." Baltimore v. City of Albany, Ga., 183 Fed. Appx. 891, 898 (11th Cir.2006)(unpublished). It noted that "[a] few cases in this circuit and elsewhere have differed as to whether striking a suspect over the head with a blunt object could per se cause
Assuming the flashlight used in this manner could qualify as deadly force, the Court should also take into account that the weapon could become an instrument capable of deadly force in D. Tanner's hands. Courts give more flexibility to officers to use deadly force when they are threatened with the use or potential use of a weapon against them. See Phillips v. James, 422 F.3d at 1083. As the Tenth Circuit has stated, "if threatened by [a] weapon ..., an officer may use deadly force." Thomas v. Durastanti, 607 F.3d 655, 664 (10th Cir.2010). Taylor could have reasonably believed, based on the struggle between Frazier and D. Tanner, that Frazier was in danger and that D. Tanner could have acquired the weapon. To justify the use of deadly force, an officer must have "probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Carr v. Castle, 337 F.3d at 1227. Particularly because Frazier had to react to what both he and Taylor could have reasonably perceived as D. Tanner resisting arrest or attempting to harm Frazier, Frazier's hitting D. Tanner on the head with the flashlight would not have appeared to be excessive force to a reasonable officer in Taylor's position. All three of the factors from Weigel v. Broad indicate there was at least a moderate, and in some cases a relatively strong, justification for the use of force. Likewise, Taylor had probable cause to believe that D. Tanner posed a serious threat of physical harm to
Salim v. Proulx, 93 F.3d 86, 91-92 (2d Cir.1996)(emphasis in original). It is also undisputed that M. Tanner was standing immediately next to Frazier. Taylor could have reasonably concluded that, given that there was another large and potentially belligerent individual next to Frazier, Frazier was entitled to quickly defuse the situation for his own safety. See Salim v. Proulx, 93 F.3d at 91-92. If Frazier had repeatedly struck D. Tanner forcefully for a longer period of time, there might be genuine issues of fact whether Taylor observed excessive force. Here, however, he hit D. Tanner twice.
Lastly, whether Frazier could have used some other less forceful method other than hitting D. Tanner with the flashlight on the hood of the vehicle is not material, because his use of the flashlight in this manner would have appeared reasonable to a reasonable officer in Taylor's position. "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (internal quotations and citations omitted). Similarly, in United States v. Sharpe, the Supreme Court stated that
470 U.S. at 686-87, 105 S.Ct. 1568. While the head may have been treated as an "Avoid Zone in police baton training" during the training Frazier and Taylor received, Complaint Investigation Report at 6, "`violations of state law and police procedure generally do not give rise to a 1983 claim' for excessive force," West v. Keef, 479 F.3d 757, 759 (10th Cir.2007). The Court has also held in the past that "[t]he clearly established law also does not permit a plaintiff to establish a constitutional violation with evidence that the officers violated [standard operating procedures ("SOPs")] and their training" and that "[t]he clearly established law requires the exclusion of any evidence regarding the violation of SOPs and training, because such evidence is irrelevant to the Fourth-Amendment inquiry." Mata v. City of Farmington, 798 F.Supp.2d 1215, 1231 (D.N.M.2011)(Browning, J.). The Court in Mata v. City of Farmington "exclude[d] evidence that the Defendant Officers did not follow SOPs and police training, because this evidence [wa]s not relevant." Mata v. City of Farmington, 798 F.Supp.2d at 1234. The Tenth Circuit has also held:
Tanberg v. Sholtis, 401 F.3d at 1163-64 (10th Cir.2005) (citations omitted).
Once Frazier had taken D. Tanner to the ground, Taylor had a countervailing concern about protecting herself and Frazier from the potential threat M. Tanner posed. Because M. Tanner was also a suspect, she had discretion to detain and arrest him instead of intervening in any allegedly excessive force Frazier used against D. Tanner. Thus, she had no duty to intervene in any potentially excessive force Frazier used against D. Tanner while D. Tanner was on the ground. Lastly, assuming those countervailing concerns did not undercut her duty to intervene, she did not know or have reason to know that Frazier was using excessive force while D. Tanner was on the ground.
Relatively few cases have dealt with a comparable factual scenario to the one in this case, where another suspect, besides the one alleging that the secondary officer should have intervened, is on the scene and poses a potential threat to officer safety. The Eleventh Circuit is one of the courts that has dealt with a factually similar case. In Ensley v. Soper, 142 F.3d 1402 (11th Cir.1998), officers were investigating
142 F.3d at 1405. Ralph, one of the plaintiffs, alleged that Johnston should have intervened in the excessive force the other officers were using against him. See 142 F.3d at 1407. The Eleventh Circuit rejected this argument and concluded that summary judgment in favor of Johnston on qualified immunity grounds was appropriate. See 142 F.3d at 1407-08. It concluded that Johnston had no duty to intervene for the following reasons:
142 F.3d at 1407.
Other courts have recognized, at least in the context of intervening in altercations between inmates, that no duty to intervene into a constitutional violation arises when a government official would have to place themselves in danger to intervene. For instance, the United States Court of Appeals for the Fifth Circuit held that a district court should have entered summary judgment in favor of some unarmed prison guards who allegedly failed to intervene in a prisoner's beating, because "no rule of constitutional law requires unarmed officials to endanger their own safety in order to protect a prison inmate threatened with physical violence" by other inmates. Longoria v. Texas, 473 F.3d 586, 593 (5th Cir.2006). The Fifth Circuit recognized, however, that "it [wa]s well established," as a general matter, "that prison officials have a constitutional duty to protect prisoners from violence at the hands of their fellow inmates." Longoria v. Texas, 473 F.3d at 592. The Sixth Circuit reached a similar conclusion when it stated the following: "Although Patmon believes that the guards should have placed themselves between him and Lefler, prison guards have no constitutional duty to intervene in an armed assault by an inmate when the intervention would place the guard in danger of physical harm." Patmon v. Parker, 3 Fed.Appx. 337, 338 (6th Cir.2001)(unpublished). The United States Court of Appeals for the Fourth Circuit stated in Winfield v. Bass, 106 F.3d 525 (4th Cir.1997):
106 F.3d at 532. The United States Court of Appeals for the Eighth Circuit has also recognized: "[P]rison guards have no constitutional duty to intervene in the armed assault of one inmate upon another when intervention would place the guards in danger of physical harm." Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir.1995). The Tenth Circuit resolved a similar case on somewhat different grounds without squarely addressing the question of duty. See MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir.1995). It concluded that prison officials did not act with deliberate indifference in responding to a situation by attempting to defuse the situation verbally as opposed to physically intervening immediately when the situation arose:
MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir.1995).
The Court has concluded that, up until Frazier took D. Tanner to the ground, a reasonable officer in Taylor's position would not have observed or had reason to know that Frazier was using excessive force. Thus, no duty to intervene could have arisen by that time, because it would not have appeared, to a reasonable officer in Taylor's position, that a primary constitutional violation had occurred. See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 420 (4th Cir.1996). As the Fourth Circuit explained in a similar case:
81 F.3d at 420. While, depending on the facts known to Frazier, Frazier's force may have been excessive from a reasonable officer in Frazier's perspective or there could be genuine issues of material fact on that question, the question before the Court is whether a reasonable officer in Taylor's position would have concluded that Frazier's force was excessive based on the facts known to Taylor.
Taylor had discretion to pursue an arrest of M. Tanner, who was also a suspect in the investigation, as opposed to intervening in any excessive force Frazier may have been using while D. Tanner was on the ground. It is undisputed that M. Tanner was immediately next to Frazier during Frazier's altercation with M. Tanner. A reasonable officer in Taylor's position could have concluded that Frazier was in a more vulnerable position to defend himself from third parties while he was focusing on D. Tanner on the ground. A reasonable officer in Taylor's position could have concluded that it was a more prudent to secure M. Tanner rather than continue to observe Frazier or intervene in any potentially excessive force that Frazier used.
142 F.3d at 1407. Taylor did not receive information from Kneier clarifying which of the brothers assaulted the employee in the bar. She could have reasonably concluded that both brothers were moderately to severely intoxicated. M. Tanner was also likely in an agitated state after observing what had happened to his brother, as a reasonable officer in Taylor's position could have concluded from his shouting, and from his taking his jacket off and throwing it to the ground. M. Tanner asserted in his affidavit that he took the jacket off and threw it to the ground to get Frazier's attention. That fact is not legally relevant in this context, however, as courts may not consider a suspect's subjective intentions for their actions when those intentions are unknown to the officer. See Reeves v. Churchich, 484 F.3d at 1253 ("Thus, just as we objectively examine a police officer's conduct under the Fourth Amendment, the Reeves' subjective motives behind their failure to submit are irrelevant.").
The Court finds persuasive the Eleventh Circuit's logic that Taylor "had discretion to decide whether [M. Tanner] or the officer[] arresting [D. Tanner] deserved h[er] immediate attention." Ensley v. Soper, 142 F.3d at 1407. As Taylor has characterized the situation, she faced a difficult choice, with one of her choices being particularly undesirable, because she would have had to make herself and Frazier vulnerable to an attack from M. Tanner. She could either attempt to stop Frazier, giving M. Tanner a chance to escape or potentially attack both her and Frazier, or concentrate on M. Tanner until she had him in custody.
By the same token, a reasonable officer in Taylor's position would have no obligation to intervene when the officer could reasonably conclude that doing so would place that officer or a fellow officer in physical danger. Taylor did not receive information from Kneier clarifying which of the brothers assaulted the employee in the bar. She had obtained no information clarifying who fired pepper spray in the bar. She could have reasonably concluded that both brothers were moderately to severely intoxicated. M. Tanner was also in a potentially agitated state after observing what had happened to his brother, as a reasonable officer in Taylor's position could have concluded from his shouting, and from his taking his jacket off and throwing it to the ground. The Eleventh Circuit in Ensley v. Soper dealt with an analogous situation where the second suspect on the scene "attempted to come to [the] assistance" of the first suspect who was in an altercation with police officers. 142 F.3d at 1405. Officers who were not involved in the original altercation prevented the second suspect from attempting to intervene by restraining and arresting the second suspect. See 142 F.3d at 1405. The Eleventh Circuit concluded that these officers who restrained the second suspect were, as a matter of law, not "in a position to intervene." 142 F.3d at 1407-08. Other courts have treated analogous situations in the prison setting as the government official not having a duty to intervene as opposed to not being in a position to intervene. See, e.g., Prosser v. Ross, 70 F.3d at 1008 ("[P]rison guards have no constitutional duty to intervene in the armed assault of one inmate upon another when intervention would place the guards in danger of physical harm."). Because there is a dearth of authority on factually comparable situations and no Tenth Circuit authority on point, the Court will address this issue in the context of both duty and whether Taylor had a realistic opportunity to intervene.
Officer safety is a legitimate and weighty consideration in the Fourth Amendment context. See Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)("We think it too plain for argument that the State's proffered justification — the safety of the officer — is both legitimate and weighty. `Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.'"). Imposing a duty on officers to intervene when an officer could reasonably conclude that doing so would require that officer to put his or her safety, and the safety of other officers, at risk runs counter to this principle. Cf. Prosser v. Ross, 70 F.3d at 1008 ("[P]rison guards have no constitutional duty to intervene in the armed assault of one inmate upon another when intervention would place the guards in danger of physical harm."). The current situation is distinguishable from one "in which an officer is alleged to have stood idly by while a fellow officer mistreated a member of the public." Ensley v. Soper, 142 F.3d at 1407. Rather than standing by as an observer, Taylor was actively pursuing legitimate law enforcement goals. The Court concludes that, when an officer has a reasonable belief that intervening will put him or herself, or a fellow officer, in danger, that an officer has no duty to intervene until the potential danger abates. Thus, while Taylor was dealing with M. Tanner and then Descheeny who later appeared on the scene, which was at least until Frazier was almost done handcuffing D. Tanner,
Even if the Court were not to treat these countervailing concerns as a question of duty, Taylor would not have known or had reason to know Frazier was using excessive force. It is true that Frazier beat D. Tanner several times with the flashlight while D. Tanner was on the ground. Such beating occurred, however, for approximately twenty seconds until Frazier pulled out his handcuffs to place on D. Tanner. D. Tanner has not argued, and has put forward no facts to suggest, that Frazier used excessive force during the handcuffing process. During the beating, one can hear Frazier on the video footage telling D. Tanner to roll over on his stomach while Frazier is beating him, after which time Frazier gets in a position to handcuff D. Tanner. See Frazier Dashboard Camera at 23:47:15-47:55. D. Tanner put forth an asserted fact that Taylor could hear Frazier's yelling while dealing with M. Tanner. While it is possible that she also heard Frazier tell D. Tanner to roll over on his stomach, which would have led her to reasonably conclude that Frazier said to make D. Tanner get in a position where Frazier could handcuff him, the Court believes that drawing all reasonable inferences in D. Tanner's favor would support the conclusion that she did not hear what Frazier said. The Court reaches this conclusion in part because of how loud D. Tanner was yelling. Nevertheless, she had a limited amount of information about what was occurring even when drawing all reasonable inferences in D. Tanner's favor. While it is a reasonable inference that she looked back to see D. Tanner, based on the evidence D. Tanner presented, while she was dealing with M. Tanner, it is not a reasonable inference that she could have focused her full attention on what was occurring between them while also dealing with M. Tanner. D. Tanner's previous conduct indicated that he was an ongoing risk until properly restrained, which an officer in Taylor's position could have reasonably concluded qualified as resisting arrest and attempting to assault an officer. It was also unclear whether either D. Tanner or M. Tanner had pepper spray in their possession. She had probable cause to believe D. Tanner constituted a serious threat of physical harm either to her or to Frazier. She had received from Kneier that D. Tanner was potentially violent and potentially severely intoxicated. Under the circumstances, she did not observe or have reason to know that Frazier was using excessive force. Frazier struck D. Tanner several times while he was on the ground, but after a period of twenty seconds he began to handcuff D. Tanner. According to D. Tanner's asserted facts, she was at times looking back in Frazier and D. Tanner's direction, and thus would have at some point seen that Frazier stopped beating D. Tanner and was placing him in handcuffs.
Officers are permitted to use a greater degree of force when they reasonably believe that a suspect is resisting arrest or attempting to harm them, even if that belief is mistaken-as long as the mistake is reasonable. See Jiron v. City of Lakewood, 392 F.3d at 415 ("If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back ... the officer would be justified in using more force than in fact was needed."); Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 ("A reasonable officer need not await the `glint of steel' before taking self-protective action; by then, it is `often... too late to take safety precautions.'"). D. Tanner's conduct indicated that he could potentially be violent until properly restrained. While these extra blows while D. Tanner was on the ground "may later
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d at 1327. "In determining whether the right was `clearly established,' a court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186. The Tenth Circuit reiterated that "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing law," but held that, where distinctions "might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, the Tenth Circuit re-emphasized its sliding scale approach: "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298). Thus, "when an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of law are not inherently incapable of giving fair and clear warning." Hope v. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508.
In the context of excessive force cases, the Tenth Circuit has in the past held that the law regarding excessive force is clearly established, so any officer who uses excessive force violates clearly established law. See Casey v. City of Fed. Heights, 509 F.3d at 1284 ("In 1992, we held that Graham itself was enough to constitute clearly established law in an excessive force case."). The Tenth Circuit has more recently noted that the Supreme Court has since recognized that a clearly established standard that does not account for the facts of the individual excessive force cases is impermissible. See Casey v. City of Fed. Heights, 509 F.3d at 1284 ("More recently, however, the Supreme Court has held that Graham's `general proposition
Saucier v. Katz, 533 U.S. at 205-06, 121 S.Ct. 2151 (citations omitted). The Tenth Circuit recently elaborated on this principle when it stated: "That is, the question is not whether the general right to be free from excessive force is clearly established, but whether Morris had a clearly established right under the facts of this case." Morris v. Noe, No. 11-5066, 672 F.3d 1185, 1195-96 (10th Cir.2012).
Under the facts of this case, assuming Taylor's conduct violated the Fourth Amendment, she made a reasonable mistake whether Frazier's use of force was excessive. Given the short period of time over which Frazier's assault on D. Tanner occurred — a total of approximately forty-five seconds from the time Frazier slammed D. Tanner on the hood of the vehicle until Frazier began handcuffing D. Tanner — and the variety of circumstances indicating that D. Tanner posed a threat to the officers, any mistake Taylor made regarding Frazier's use of force was reasonable. Under the facts presented — with no more than forty-five seconds passing until Frazier stopped choking and beating Tanner to began handcuffing him, and with Taylor pursuing legitimate law enforcement duties during part of that time rather than standing by idly as an observer — any violation she may have committed was comparably minor to more egregious violations. A violation that is comparably minor requires a higher level of specificity from prior case law to put the officer on notice. "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Casey v. City of Fed. Heights, 509 F.3d at 1284. For example, a more egregious case would have occurred if Frazier was shooting a firearm at D. Tanner in response to the struggle on the hood of the vehicle.
Salinas v. Cooke, 103 F.3d 140, 1996 WL 692007, at *1-2 (9th Cir.1996)(unpublished table decision). The Tenth Circuit has also recognized that many police weapons may or may not qualify as deadly force depending on the facts of a given case: "It is no secret that many tools in law enforcement can potentially inflict serious bodily harm or even death. Some of these tools, however, also have great potential to resolve situations without resort to comparatively more lethal force." Thomson v. Salt Lake Cnty., 584 F.3d at 1315-16. While, viewing all the facts in the light most favorably to D. Tanner, the Court treated Frazier's beating of D. Tanner with a flashlight in the head as the use of deadly force, Taylor could have still made a reasonable mistake whether that use of force constituted deadly force. See Saucier v. Katz, 533 U.S. at 205-06, 121 S.Ct. 2151. Frazier's use of the flashlight would not have appeared, to a reasonable officer in Taylor's position, so egregious that any mistake she made regarding the appropriate level of force was unreasonable.
D. Tanner argues generally that "[t]he duty of a police officer to intervene when excessive force is being used in his or her presence and the officer has the ability to interceded is clearly established." Response at 22 (citing Vondrak v. City of Las Cruces, 535 F.3d at 1210). D. Tanner is correct that the Tenth Circuit has recognized
If the Court were to treat the situation where Taylor should have allegedly intervened while D. Tanner was on the ground as a question of duty, the Court does not believe that a duty to intervene was clearly established under the facts of this case given the countervailing concerns of officer safety and detaining M. Tanner. It is true that the Tenth Circuit has recognized that there is a general duty to intervene when a secondary officer observes or has reason to know that a primary officer is committing a constitutional violation. See Vondrak v. City of Las Cruces, 535 F.3d at 1210. Nevertheless, the Court has not located, and D. Tanner has not directed the Court to, any Tenth Circuit authority addressing a situation like the one in this case — where there is a potential threat to officer safety based on another suspect at the scene and where the other suspect may be responsible for criminal activity. The law is more complex than the general proposition that officers have a duty to intervene when they see a constitutional violation, particularly when the alleged improper conduct occurred over a brief period of time while the secondary officer faced a potentially dangerous situation. As the Eleventh Circuit has recognized, the situation before the Court is distinguishable from one "in which an officer is alleged to have stood idly by while a fellow officer mistreated a member of the public." Ensley v. Soper, 142 F.3d at 1407. The Tenth Circuit has recently reiterated that "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing law," but held that, where distinctions "might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). This case is one where those distinctions might make a constitutional difference, as Taylor faced genuine concerns that intervening into Frazier's conduct would have allowed M. Tanner to escape or would have opened herself and Frazier to an attack from M. Tanner. See Ensley v. Soper, 142 F.3d at 1407-08. Thus, the Court does not believe
After McCoy had arrived, he moved over to Frazier's vehicle where D. Tanner was in handcuffs. D. Tanner was banging his head against the hood of the vehicle. McCoy then placed his hands around D. Tanner's head and neck for approximately three seconds in a choking manner.
In the context of excessive force, the Tenth Circuit has explained: "The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Lundstrom v. Romero, 616 F.3d at 1126 (10th Cir.2010)(quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Tenth Circuit has also recognized:
Lundstrom v. Romero, 616 F.3d at 1126. When determining whether an officer's conduct constitutes excessive force during the process of an arrest, a court assumes that the arrest was lawful. See Romero v. Story, 672 F.3d at 890 ("Instead, the district court must then analyze the excessive force inquiry under the assumption the arrest was lawful.").
That McCoy placed his hands around D. Tanner's head and neck for approximately three seconds in a choking manner would not have made Taylor believe he was using excessive force. Taylor had already observed that D. Tanner posed a significant risk to officer safety and that he would resist arrest. While D. Tanner was handcuffed and thus posed a reduced risk of danger, he was violently banging his head against Frazier's vehicle before McCoy restrained D. Tanner in a choking manner. After McCoy took this action, there is no evidence indicating that McCoy had any other physical contact with D. Tanner. Under the circumstances, Taylor could have reasonably concluded that this force was necessary to prevent D. Tanner from harming himself or from attempting to harm the other officers present at the scene. See Tennessee v. Garner, 471 U.S. 1, 21, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)(recognizing that whether the suspect "posed any physical danger to himself or others" is an appropriate consideration in the excessive force analysis). From the perspective of a reasonable officer in Taylor's position, D. Tanner could have hurt himself if he continued to bang his head against the hood of the vehicle. Under the circumstances, a reasonable officer in Taylor's position would not have observed or had reason to believe that McCoy was using excessive force.
Additionally, even if a reasonable officer in Taylor's position would have observed or had reason to know that Frazier or McCoy used excessive force, Taylor did not have a realistic opportunity to intervene based on the short period of time
Hall v. Burke, 12 Fed.Appx. at 861.
Courts generally focus on how long the constitutional violation occurred when determining whether an officer had a realistic opportunity to intervene. For instance, the United States Court of Appeals for the Seventh Circuit held that a secondary officer did not have a realistic opportunity to intervene when he "did not have an opportunity to participate in the physical apprehension of Thompson or to assist or prevent Boggs from acting as he did because Officer Boggs' restraining and controlling of Thompson was accomplished before [the secondary officer] even had an opportunity to get out of his squad car." Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir.1994). The Ninth Circuit held that a group of prison guards had no realistic opportunity to intervene when they did not know force would be used and were physically incapable of preventing some incidents "which transpired in a matter of seconds." Ting v. United States, 927 F.2d 1504, 1511-12 (9th Cir.1991). The Second Circuit found that an officer did not have a realistic opportunity to intervene when "three blows were struck in such rapid succession." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). The Tenth Circuit found that there were genuine issues of material fact regarding whether an officer had sufficient time to intervene when the unlawful arrest lasted "between three and five minutes." Fogarty v. Gallegos, 523 F.3d 1147, 1164 (10th Cir.2008). The Eleventh Circuit concluded that a genuine issue of material fact existed whether an officer had sufficient time to intervene when two minutes had passed after another officer improperly allowed an attack dog to harm a suspect. See Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925 (11th Cir. 2000). The Court has concluded in the past that eleven seconds passing was, under the circumstances of that case, sufficient time to potentially create a realistic opportunity to intervene. See Mata v. City of Farmington, 791 F.Supp.2d at 1157.
Some courts have also focused on the surrounding circumstances to determine if an officer had a realistic opportunity to intervene — such as if there is another suspect at the scene or a potential risk of danger in intervening. The Eleventh Circuit recognized, as two alternative conclusions for its results in Ensley v. Soper, that the secondary officer did not have an opportunity to observe any excessive force the other officers used, and that the secondary officer "had little choice but to remain" with the other suspect until the suspect could be brought "under control and secured" in the secondary officer's vehicle:
142 F.3d at 1407-08.
While roughly twenty seconds passed until Frazier began handcuffing D. Tanner, Taylor had no realistic opportunity to intervene in any constitutional violation that Frazier may have committed while D. Tanner was on the ground, because she "had little choice but to remain with" M. Tanner while she brought him "under control and secured him." Ensley v. Soper, 142 F.3d at 1407-08. An officer in Taylor's position could have reasonably believed that, if an officer did not keep M. Tanner occupied, he could have posed a threat to both Taylor and Frazier. As Taylor has characterized the situation, she faced a dangerous choice. She could either attempt to stop Frazier, giving M. Tanner a chance to escape or potentially attack both her and Frazier, or concentrate on M. Tanner until she had him in custody. Particularly given the short period of time in which this entire event transpired, with Frazier having D. Tanner on the ground for approximately twenty seconds before he began formalizing the arrest and placing D. Tanner in handcuffs, imposing on Taylor a duty to take one course of action over the other would force officers to place themselves in harm's way to avoid civil liability. Such a rule might be appropriate if the events took place over a longer period of time, or if the danger had abated, but is not appropriate here. "Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581. "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d at 1230.
Taylor did not receive information from Kneier clarifying which of the brothers assaulted the employee in the bar. It was also unclear who fired the pepper spray in the bar. She could have reasonably concluded that both brothers were moderately to severely intoxicated. M. Tanner was also in a potentially agitated state after observing what had happened to his brother, as a reasonable officer in Taylor's position could have concluded from his shouting, and from his taking his jacket off and throwing it to the ground. The Eleventh Circuit in Ensley v. Soper dealt with an analogous situation where the second suspect on the scene "attempted to come to [the] assistance" of the first suspect who was in an altercation with police officers. 142 F.3d at 1405. Officers who were not involved in the original altercation prevented the second suspect from attempting to intervene by restraining and arresting
While the Court finds that summary judgment is appropriate, the Court will not rely on some of Taylor's arguments. She has argued that, because she and Taylor were from different law enforcement agencies, she would have been more hesitant to intervene. The Fifth Circuit has rejected an argument that, when two officers are from different law enforcement agencies, the officer who allegedly failed to intervene is as a matter of law entitled to summary judgment on qualified immunity grounds. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir.1995)("The fact that Fox and Fant were from different law enforcement agencies does not as a matter of law relieve Fant from liability for a failure to intervene."). Because the Tenth Circuit has held that it is generally a question of fact whether an officer has a realistic opportunity to intervene, the Court finds the Fifth Circuit's logic persuasive on this issue. See Hall v. Burke, 12 Fed.Appx. at 861. That officers are from different law enforcement agencies is a fact that may influence whether there is a realistic opportunity to intervene or the extent to which the secondary officer should have deferred to the primary officer, but that fact does not entitle Taylor to summary judgment as a matter of law. Taylor has also argued that both D. Tanner and Frazier were larger than her, making it more difficult for her to intervene. The parties have not, however, presented any asserted facts regarding the differences in height, weight, and size among the individuals involved in this case. The Court only has the information available on the video footage to assess the relative size differences in the individuals. Furthermore, the Court does not believe a size difference would, as a matter of law, entitle Taylor to summary judgment on the basis that she did not have a realistic opportunity to intervene. That question is generally a question of fact. See Hall v. Burke, 12 Fed.Appx. at 861. While the size difference may be a factor in that analysis, here it is neither a determinative nor necessary factor for the Court to use in its decision to grant summary judgment for Taylor.
Lastly, McCoy had D. Tanner in a choking position for approximately three seconds. Officers cannot realistically be expected to stop conduct "which transpired in a matter of seconds." Ting v. United States, 927 F.2d at 1511-12. This period of time is even shorter than that the Court saw in Mata v. City of Farmington — eleven seconds. See Mata v. City of Farmington, 791 F.Supp.2d at 1157. Three seconds — from the time McCoy placed his hands around D. Tanner's head until the time McCoy removed his hands — is too short of a period of time for an officer to have a realistic opportunity to intervene, particularly when the undisputed facts indicate that Taylor was not participating in D. Tanner's arrest when Frazier and McCoy were finalizing the arrest.
D.N.M.LR-Civ. 56.1(b).
N.M.S.A.1978, § 30-3-4.
A. Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.
B. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.
C. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.
N.M.S.A.1978, § 30-3-5.
Disorderly conduct consists of:
A. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace; or
B. maliciously disturbing, threatening or, in an insolent manner, intentionally touching any house occupied by any person.
Whoever commits disorderly conduct is guilty of a petty misdemeanor.
N.M.S.A.1978, § 30-20-18.
United States v. Giangola, No. 07-0706, 2008 WL 6020505, at *23 (D.N.M. July 24, 2008)(Browning, J.).
Violations of state law do not support a federal cause of action for violations of the United States Constitution. As this Court has stated:
Mata v. City of Farmington, 798 F.Supp.2d 1215, 1230-31 (D.N.M.2011)(Browning, J.) (citations omitted)(quoting Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). Thus, whether Frazier or Taylor violated New Mexico law is irrelevant as long as Taylor acted reasonably under the Fourth Amendment. See Franklin v. Thompson, 981 F.2d 1168, 1170 n. 3 (10th Cir.1992)("A claim of false arrest is premised on a lack of probable cause, a constitutional right under the Fourth Amendment. However, in Oklahoma, the standard for deciding the legality of a warrantless arrest for a misdemeanor is whether the offensive conduct occurred in the presence of the arresting officer. It can be presumed as a matter of law that if the higher standard is met, the officer had probable cause to arrest." (citations omitted)). Accord Knight v. Jacobson, 300 F.3d 1272, 1276-77 n. 3 (11th Cir.2002)(noting that every circuit that has addressed the issue has held that the Fourth Amendment does not include an in-the-presence requirement for warrantless misdemeanor arrests); 2 W. LaFave et al., Criminal Procedure § 3.5(a), at 202 (3d ed. 2007)("It appears that the Fourth Amendment presents no barrier to abolition of the felony-misdemeanor distinction so as to permit warrantless arrests on probable cause in all cases.").
A. Assault upon a peace officer consists of:
B. Whoever commits assault upon a peace officer is guilty of a misdemeanor.
N.M.S.A.1978, § 30-22-21.
