Cruz v. City of Laramie Wyoming, PLAINTIFF-APPELLEE

• Decision Date: 15 February 2001
• Docket Number: DEFENDANTS-APPELLANTS,99-8049,Nos. 99-8045,PLAINTIFF-APPELLEE,s. 99-8045
• Citation: 239 F.3d 1183
• Parties: (10th Cir. 2001) RONALD J. CRUZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THOMAS C. CRUZ,, v. CITY OF LARAMIE, WYOMING; BONNIE NOEL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; RICHARD D. MICHEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; TROY JENSEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; BEN FRITZEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT,, AND BILL WARE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, LARAMIE POLICE DEPARTMENT, DEFENDANT. & 99-8050
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1183

239 F.3d 1183 (10th Cir. 2001)

RONALD J. CRUZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THOMAS C. CRUZ, PLAINTIFF-APPELLEE, v. CITY OF LARAMIE, WYOMING; BONNIE NOEL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; RICHARD D. MICHEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; TROY JENSEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT; BEN FRITZEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFICER, LARAMIE POLICE DEPARTMENT, DEFENDANTS-APPELLANTS, AND BILL WARE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, LARAMIE POLICE DEPARTMENT, DEFENDANT.

Nos. 99-8045, 99-8049 & 99-8050

U.S. Court of Appeals, Tenth Circuit

February 15, 2001

Appeal from the United States District Court for the District of Wyoming (D.C. No. 98-CV-65-D) (D.C. No. 98-CV-65-D) (D. Wyoming) [Copyrighted Material Omitted] Vonde M. Smith (Kent W. Spence with her on the brief) of Lawyers & Advocates for Wyoming, Jackson, Wyoming, for Plaintiff-Appellee.

Karen A. Byrne, Byrne Law Offices, Cheyenne, Wyoming for Defendant-Appellant City of Laramie; Elizabeth Zerga of Herschler, Freudenthal, Salzburg, Bonds & Zerga, Cheyenne, Wyoming for Defendant-Appellants Bonnie Noel, Richard D. Michel, Troy Jensen and Ben Fritzen.

Before Baldock, Lucero, and Politz,¹ Circuit Judges.

Politz, Circuit Judge.

The City of Laramie, Wyoming, and four of its police officers appeal the denial of their motions for summary judgment. For the reasons assigned we affirm in part and reverse in part.

BACKGROUND

On June 10, 1996, in late afternoon, the Laramie Police Department received a complaint that a man, later identified as Thomas C. Cruz, was running around naked. Officer Troy Jensen, the first to arrive on the scene, found the naked Cruz on an exterior landing of an apartment building, jumping up and down, yelling, and kicking his legs in the air. Officer Bonnie Noel then arrived and, immediately upon seeing Cruz, called for an ambulance. A few seconds later Officer Richard Michel reached the scene. The officers sought to calm Cruz and tried to persuade him to come down the steps. Their efforts initially were not successful. After several minutes, however, Cruz descended and approached the officers who met him at the bottom of the steps with their batons drawn. Cruz attempted to go past the officers. During the ensuing struggle the officers wrestled Cruz to the ground and handcuffed him face down. Cruz continued to yell and flail about. The officers asked Cruz what kind of drugs he had taken but received no response.

Officer Ben Fritzen then arrived and, after assessing the situation, applied a nylon restraint around Cruz's ankles to abate the kicking. The officers fastened the ankle restraint to the handcuffs with a metal clip. The parties dispute the resulting distance between Cruz's ankles and wrists. The district court found sufficient evidence in the record to support an inference that Cruz was "hog-tied" because the separation was one foot or less. If that distance were two feet or more, it appears that it would have been deemed a "hobble restraint." Appellee contends that the terms are interchangeable, both referring to the technique whereby officers' fasten an individuals hands and feet together behind the individual's back.

Shortly after Officer Fritzen applied the restraint, Officer Michel turned Cruz's head to check the reaction of his pupils to sunlight. Cruz had calmed markedly after officers completed the arm-leg restraint. Just before the ambulance arrived, Officer Noel noticed that Cruz's face had blanched. The restraint was removed. Immediately upon reaching the scene the ambulance emergency team began CPR. Cruz was pronounced dead on arrival at the hospital. Autopsy results showed a large amount of cocaine in his system.

Ronald Cruz, the decedent's brother, brought the instant action against the officers, individually and in their official capacities, the City of Laramie, and Chief of Police Bill Ware, both individually and in his official capacity. The action invokes 42 U.S.C. § 1983, and advances a state law negligence claim under the Wyoming Governmental Claims Act. The affidavits of experts provide two different causes of death, one concluded that Cruz's position while on the ground contributed to his death, the other concluded that his death resulted solely from cocaine abuse. Defendant police officers' and the City of Laramie's motions for summary judgment were denied and these appeals followed.

ANALYSIS

A. Qualified Immunity For Fourth Amendment Claim

1. Jurisdiction

Before reaching the merits, we must first briefly address our appellate jurisdiction. After the denial of their motion, the officers appealed. Thereafter, the City of Laramie sought a reconsideration of the initial order of denial. The trial court then issued a corrective order, modifying the factual basis for its original order, but again denying qualified immunity to the officers. The officers appealed the corrective order. The City of Laramie timely appealed both orders. We consolidated the appeals.

Typically, orders denying qualified immunity before trial are appealable only to the extent they resolve issues of law.² The issue of jurisdiction over such appeals, in the summary judgment setting, has been the subject of significant controversy, one addressed recently both by the Supreme Court and this circuit. The predicates for determining whether review is appropriate are intertwined with the qualified immunity analysis, requiring application of a two-part test. A plaintiff bears the burden of showing that: (1) the defendants' actions violated a constitutional or statutory right; and (2) the right was clearly established and reasonable persons in the defendants' position would have known their conduct violated that right.³

2. Constitutional Violation

In applying the qualified immunity standard, the Supreme Court has directed that appellate courts may not review a district court's resolution of disputed facts, but may review only purely legal determinations.⁴ Consistent therewith, we have noted that the scope of an interlocutory appeal from a denial of qualified immunity is limited to:

"purely legal" challenges to the district court's ruling on whether a plaintiff's legal rights were clearly established, and cannot include attacks on the court's "evidence sufficiency" determinations about whether there are genuine disputes of fact. That is, we can only review whether the district court "mistakenly identified clearly established law...given [] the facts that the district court assumed when it denied summary judgment for that (purely legal) reason."⁵

Accordingly, we may review the trial court's ruling as to whether the law was clearly established, but we lack authority "to the extent that Defendants [ ] seek interlocutory review of the district court's ruling that genuine disputes of fact precluded summary judgment based on qualified immunity."⁶

Applying that rubric herein, the first part of the trial court's decision found sufficient facts to support a claimed violation of appellee's fourth amendment rights. We therefore lack jurisdiction over the portion of the appealed decision precluding summary judgment based on disputed facts relating to a constitutional violation.

3. Clearly Established Law

The district court also found, in applying the second part of the test, that the constitutional right allegedly violated was clearly established and that defendants acted unreasonably. This portion of the ruling decides an issue of law over which we have interlocutory appellate jurisdiction.

We review de novo the decision that the decedent's rights were clearly established.⁷ "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."⁸ The plaintiff is not required to show, however, that the very act in question previously was held unlawful in order to establish an absence of qualified immunity.⁹

The district court correctly noted that the issue at bar involves excessive force under the fourth amendment. "[C]laims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop or other `seizure' of a free citizen are most properly characterized as involving the protection of the Fourth Amendment."¹⁰ In Mick v. Brewer, we upheld the denial of summary judgment, concluding that "the district court did not err by ruling that the law governing excessive force cases was clearly established on June 18, 1992."¹¹ We therein held that the fourth amendment "reasonableness" inquiry turned on whether the officers' actions were "objectively reasonable" in light of the facts and circumstances confronting them, without regard for their underlying intent or motivation.¹² While Mick unqualifiedly denotes that objectively unreasonable actions by officers constitute a violation of an individual's constitutional rights, it remains for us to determine whether the contours of this fourth amendment right were sufficiently clear that reasonable persons in the officers' position would have known their conduct violated that right.¹³

The conduct at issue involves the tying of the decedent's arms behind his back, binding his ankles together, securing his ankles to his wrists, and then placing him face down on the ground. We note that while sister circuits may characterize the hog-tie restraint somewhat differently, we understand such to involve the binding of the ankles to the wrists, behind the back, with 12 inches or less of separation.¹⁴ We have not heretofore ruled on the validity of this type of restraint. We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold...