Casey v. City of Federal Heights

• Decision Date: 10 December 2007
• Docket Number: No. 06-1426.,06-1426.
• Citation: 509 F.3d 1278
• Parties: Edward CASEY, Plaintiff-Appellant, v. CITY OF FEDERAL HEIGHTS, Les Acker, Kevin Sweet, and Malee Lor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

509 F.3d 1278

Edward CASEY, Plaintiff-Appellant, v. CITY OF FEDERAL HEIGHTS, Les Acker, Kevin Sweet, and Malee Lor, Defendants-Appellees.

No. 06-1426.

United States Court of Appeals, Tenth Circuit.

December 10, 2007.

Michael J. Thomson, Purvis, Gray & Murphy, LLP, for Plaintiff-Appellant.

Thomas S. Rice (Gillian M. Fahlsing with him on the briefs), Senter Goldfarb & Rice LLC, for Defendants-Appellees.

Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Edward Casey went to the Federal Heights, Colorado, municipal courthouse to contest a traffic ticket. After losing his case, he walked to the parking lot to retrieve money from his truck to pay the fine, carrying with him the court file. On his way back to the courthouse he was grabbed, tackled, Tasered, and beaten by city police officers. The question presented is whether his claims for excessive force under the Fourth Amendment and 42 U.S.C. § 1983 survive summary judgment. We hold that they do.

I. FACTS¹

Mr. Casey unsuccessfully challenged a traffic ticket at the Federal Heights courthouse on August 25, 2003. He told the judge that he wanted to appeal, and the judge gave him his court file and told him to take it to the cashier's window along with his money. Because Mr. Casey had left his money in his truck, he sent his daughter to the restroom and headed for the parking lot. A person later identified as the court clerk — although Mr. Casey says that at the time he did not know who she was — told him not to remove the file from the building. He replied that his daughter (who was eight years old) was in the bathroom and he would be right back. Mr. Casey left the building still holding his file, which may have been a misdemeanor under Colorado law.²

Officer Kevin Sweet learned from the clerk that Mr. Casey had taken the file into the parking lot and moved to intercept him as he returned. By this time Mr. Casey had been to his truck, obtained his money to pay the fine, and was returning to the courthouse. Officer Sweet accosted him and told him to return to his truck. Mr. Casey explained that he needed to get back to the courthouse to return the file and attend to his daughter. Officer Sweet then asked Mr. Casey for the file, and Mr. Casey held out his briefcase with the file "clearly visible . . . in an outside pocket." App. 100. Officer Sweet did not take the file, so Mr. Casey moved around him to take the file to the cashier. Without further explanation or discussion, Officer Sweet then grabbed Mr. Casey's arm and put it in a painful arm-lock. Confused, Mr. Casey moved his arm without breaking the officer's grip and started to walk to the courthouse with the file. Officer Sweet then jumped on Mr. Casey's back. Mr. Casey's shirt was ripped in the process. Mr. Casey did not understand why Officer Sweet was tackling him and asked, "What are you doing?" Id. Officer Sweet never told him that he was under arrest, and never advised him to stop resisting.

At that point, Officer Malee Lor arrived in her patrol car. Concluding that Mr. Casey "needed to be controlled," she fired her M26 Taser at him. This Taser model shoots wire-attached hooks and can deliver a shock for up to five seconds. Id. at 117. Both of these hooks attached to Mr. Casey. There is conflicting testimony on how quickly Officer Lor fired. One independent eyewitness testified that "[s]he wasn't there longer than a couple seconds." Id. at 176. Another testified that Officer Lor was there for a minute at the most, and a third that it was "no more than twenty seconds" before she fired. Id. at 199. Officer Lor testified that she spent two or three minutes watching the conflict before firing.

Mr. Casey disengaged the Taser wires, later testifying that "all [he] could think of was making that electricity stop," all the while asking the officers what they were doing. Id. at 103. Shortly thereafter, several other officers arrived on the scene. According to the witnesses, the officers brought Mr. Casey to the ground, handcuffed him tightly, and repeatedly banged his face into the concrete. After Mr. Casey was on the ground, one of the officers, Clint Losli, also Tasered him by pressing the electrical barbs at the end of the Taser directly into him without launching them. Officer Lor discharged her Taser again and shocked another officer, Jim Wright; Officer Sweet then told her to "put the thing away." Id. at 216. Mr. Casey testified that during this time he "kept trying to get up," although the officers eventually overpowered him and forced him into a patrol car. Id. at 103.

The officers took Mr. Casey into custody and charged him with resisting arrest and obstructing a peace officer, two Colorado misdemeanors. Colo.Rev.Stat. §§ 18-8-103, -104. A year and a half later he was also charged with "obstructing government operations," to which he pleaded guilty and received a deferred sentence.³ Id. § 18-8-102.

Mr. Casey then filed this suit for excessive force under the Fourth Amendment and 42 U.S.C. § 1983. He sued Officer Sweet and Officer Lor under § 1983 for causing him to be subjected to excessive force, and sued the City of Federal Heights and Police Chief Les Acker under § 1983 on theories of municipal and supervisory liability, respectively. He did not sue any of the other officers. The district court dismissed all of these claims on summary judgment. Casey v. City of Fed. Heights, No. 05-cv-01013, 2006 WL 2711760 (D.Colo. Sept.21, 2006). It held that the force used by Officers Sweet and Lor was not excessive, and that because the underlying excessive-force claims against the individual officers failed, Chief Acker and the City were not liable either. Id. at *4. This appeal followed.

II. ANALYSIS

The Fourth Amendment forbids unreasonable seizures, including the use of excessive force in making an arrest. To determine whether the force used in a particular case is excessive "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). The ultimate question "is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them." Id. at 397, 109 S.Ct. 1865 (internal quotations marks omitted). This determination "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S.Ct. 1865. Before discussing the liability of Officers Sweet and Lor individually, we consider how these factors frame the inquiry. In this case, all three factors suggest that the officers used excessive force.

Mr. Casey's conduct was not a severe crime — if it amounted to a crime at all. First, removing a record is a Class One misdemeanor under Colorado law, carrying a sentence of six to eighteen months and a fine of $500-$5000. Colo.Rev.Stat. §§ 18-1.3-501(1)(a), -8-114(1)(b). Obstructing government operations, the crime to which Mr. Casey pleaded guilty in state court, is even more minor — a Class Three misdemeanor punishable by as little as a fifty dollar fine and six months' imprisonment at most. Id. §§ 18-1.3-501(1)(a), -8-102(3). Neither offense was violent, and defendants conceded at oral argument that these offenses were not severe. Further, Mr. Casey's behavior falls toward the least culpable side of the covered conduct. He removed the file from the hallway of a building to its parking lot, and his conduct would not have impaired the operation of the government in any way if he had been allowed to bring the file back, as he was attempting to do. Officer Sweet was faced with somebody who had committed a misdemeanor in a particularly harmless manner, which reduces the level of force that was reasonable for him to use.

Nor did Officer Sweet have any reason to believe that Mr. Casey posed "an immediate threat to the safety" of anybody present. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Mr. Casey maintained in his testimony that Officer Sweet simply grabbed and tackled him without provocation. Three independent eyewitnesses to the confrontation all confirmed that Officer Sweet was the aggressor, and that Mr. Casey was not violent during the encounter. At oral argument, the only evidence the defendants cited to suggest that Mr. Casey seemed dangerous was the fact that he had been argumentative during his hearing at the Federal Heights Courthouse earlier. Witnesses, however, described his demeanor in court as "slightly upset" but not disrespectful, and not out of the ordinary, App. 172 — and we assume their story to be accurate for purposes of summary judgment. On the facts before us, Mr. Casey could not reasonably have been seen as dangerous.

Finally, when Officer Sweet initiated the use of force, Mr. Casey was neither "actively resisting arrest" nor "attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (emphasis added). Although Officer Sweet was in uniform, he never told Mr. Casey that he was under arrest. Even after Officer Sweet grabbed him, Mr. Casey was not attempting to flee from the scene but rather to return to the Federal Heights courthouse. The Fourth Amendment permits increased force when a subject is attempting to run away and thereby evade capture. If anything, by returning to the courthouse rather than to his truck Mr. Casey would have made himself easier to capture, not harder.

In sum, we are faced with the use of force — an arm-lock, a tackling, a Tasering, and a beating — against one suspected of innocuously committing a misdemeanor, who was neither violent nor attempting to flee. In that context, we examine the...