523 F.3d 442 (4th Cir. 2008), 07-1696, Orem v. Rephann

Docket Nº:07-1696.
Citation:523 F.3d 442
Party Name:Sonja OREM, Plaintiff-Appellee, v. Matt REPHANN, Individually and in his Official Capacity, Defendant-Appellant.
Case Date:April 28, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 442

523 F.3d 442 (4th Cir. 2008)

Sonja OREM, Plaintiff-Appellee,


Matt REPHANN, Individually and in his Official Capacity, Defendant-Appellant.

No. 07-1696.

United States Court of Appeals, Fourth Circuit.

April 28, 2008

Argued: March 20, 2008.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Irene M. Keeley, Chief District Judge. (3:05-cv-00098)

Page 443


Bridget M. Cohee, Steptoe & Johnson, Martinsburg, West Virginia, for Appellant.

Gregory A. Bailey, Arnold, Cesare & Bailey, Shepherdstown, West Virginia, for Appellee.


Lucien G. Lewin, Steptoe & Johnson, Martinsburg, West Virginia, for Appellant.

Before GREGORY and SHEDD, Circuit Judges, and WILLIAM L. OSTEEN, JR., United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge OSTEEN joined. Judge SHEDD wrote a separate concurring opinion.


GREGORY, Circuit Judge

On March 26, 2005, Sonja Orem ("Orem") was arrested for disrupting and

Page 444

assaulting an officer after being served with a Family Protective Order ("FPO"). During her transport to a West Virginia regional jail, Deputy Matt Rephann ("Deputy Rephann") twice tased Orem. Because Deputy Rephann's use of the taser constituted excessive force in violation of the Fourteenth Amendment, we affirm the district court's denial of summary judgment.


The day Orem was served with a FPO, she had ransacked her husband's offices.1 She destroyed phones, a computer keyboard and kicked a hole in the wall. She also had assaulted her husband and thrown his clothing and belongings into their front yard.

Once served with the FPO, she initially left the residence. Under the influence of prescription drugs, marijuana, and alcohol, Orem quickly became enraged and, in her words, started "flipping out" when she discovered that she would not be allowed to see her son for six months. She drove back to the house, at a high-rate of speed, skidded into a ditch, left her car and charged at a police officer. Three officers restrained Orem, placed her in handcuffs, a foot restraint device ("hobbling device"), and put her in a police car. The foot hobbling device was fastened around her ankles and secured by extending its strap out the front and back passengers' doors of the police vehicle.

While being transported to the Eastern Regional Jail ("ERJ"), Orem yelled, cursed and banged her head against the police car window three or four times. Her jumping and banging around in the back seat was so intense that the vehicle rocked, loosening the hobbling device and requiring Deputy T.E. Boyles, the transporting officer, to pull the vehicle over. Deputy Rephann was voluntarily following Deputy Boyles to ERJ; Deputy Boyles had not requested assistance. Deputy Rephann knew that Deputy Boyles was transporting a prisoner who was charged with battery and obstruction of a police officer, and who reportedly was "unruly or combative." When Deputy Boyles pulled to the side of the road, Deputy Rephann, along with a third deputy, pulled in behind Deputy Boyles's vehicle.2

Deputy Rephann exited his vehicle and approached Deputy Boyles' car with his taser gun drawn. Deputy Boyles got out of his car, opened the front passenger door of the car, unlocked the rear door and attempted to tighten the hobbling device. Deputy Rephann opened the rear door and the following exchange occurred between him and Orem:

Deputy Rephann: Unlock your door. She's got a hobble on her. You need to calm down, Nikki.3

Orem: No, they're taking my son. John beat the fuck out of me! And this is what I - -fucking me. John hit me! Look at my back. Look at (inaudible) --

Deputy Rephann: Well, calm down, and take care of it somewhere else.

Orem: I can't. I'm going to jail. They took my son.

Deputy Rephann: Stop it.

Orem: Fuck you!

Page 445

Deputy Rephann: I'm telling you, you'd better stop it. [taser gun clicking]

Orem: (Scream.) Don't hit me.

Deputy Rephann: Calm down now.

Orem: I'm suing everybody, you mother fucker.

Deputy Rephann: You need to respect us. Right now you're not.

Orem: (Cries.)

(J.A. 590.) During this exchange, Deputy Rephann shocked Orem twice with a taser gun - -underneath her left breast and on her left inner thigh. Orem then became compliant and was transported to the ERJ without further incident. However, a permanent sunburn-like scar was left where the taser had been applied to her thigh. At the time of this incident, Orem was 27 years old and weighed 100 pounds. Deputy Rephann, on the other hand, weighed 280 pounds.

Orem sued Deputy Rephann, in his official capacity as an officer of the Berkeley County Sheriff's Department and his personal capacity, alleging that he had used excessive force while she was being transported in the police vehicle. The district court denied Deputy Rephann's motion for summary judgment on the basis that Deputy Rephann's use of force was unreasonable and in violation of Orem's Fourth Amendment rights. Deputy Rephann filed this interlocutory appeal challenging the district court's denial of summary judgment and his Rule 52 Motion to amend the court's findings.


We review de novo a district court's denial of summary judgment and qualified immunity, construing all facts in the light most favorable to the nonmovant. American Civil Liberties Union of Maryland, Inc. v. Wicomico County, Md., 999 F.2d 780, 784 (4th Cir. 1993). Notwithstanding the absence of a final judgment, we have jurisdiction to review "a district court's denial of a claim of qualified immunity" because "to the extent that it turns on an issue of law, [it] is an appealable 'final decision' within the meaning of . . . [28 U.S.C. § 1291] ...." Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).


"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In deciding whether Deputy Rephann is entitled to qualified immunity, we examine: (1) whether the facts demonstrate that Deputy Rephann violated Orem's constitutional right to be free from excessive force; and, (2) if so, whether Deputy Rephann's conduct was objectively reasonable in light of the then clearly-established constitutional right. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). With these principles in mind, we first consider whether the facts, when viewed in Orem's favor, demonstrate that Deputy Rephann used excessive force.


Our analysis of an excessive force claim brought under § 1983 begins with "identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here, the district court analyzed Orem's claim that Deputy Rephann used excessive force under the

Page 446

Fourth Amendment's "objective reasonableness standard." However, we have made clear that Fourth Amendment protections do not extend to arrestees or pretrial detainees. Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) (en banc). Indeed, in Riley, we held that "[t]he Fourth Amendment [only] governs claims of excessive force during the course of an arrest, investigatory stop, or other 'seizure' of a person." Id. at 1161. Whereas, "excessive force claims of a pretrial detainee [or arrestee] are governed by the Due Process Clause of the Fourteenth Amendment." Young v. Prince George's County, Maryland, 355 F.3d 751, 758 (4th Cir. 2004) (quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998)).

The point at which Fourth Amendment protections end and Fourteenth Amendment protections begin is often murky. But here, Orem's excessive force claim arises during her transport to EJR, after she was arrested. While she had not been formally charged, her status as an arrestee requires application of the Fourteenth Amendment to her claim. The district court erred in applying the Fourth Amendment.4We, nevertheless, affirm its denial of summary judgment on alternative grounds. See United States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005) ("We are not limited to evaluation of the grounds offered by the district court to support its decision, but may affirm on any grounds apparent from the record.").


Deputy Rephann argues that the district court erred in denying summary judgment. He contends that his use of the teaser gun was not excessive because Orem was unruly and uncooperative. To the contrary, Orem maintains that the Deputy Rephann's use of the taser was unnecessary and excessive given that she was handcuffed and in foot restraints. We agree and, therefore, cannot conclude, as a matter of law, that the force used by Deputy Rephann was constitutionally permissible.

To succeed on an excessive force claim under the Due Process Clause of the Fourteenth Amendment, Orem must show that Deputy Rephann "inflicted unnecessary and wanton pain and suffering." Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998) (citing Whitley, 475 U.S. at 320, 106 S.Ct. 1078). "In determining whether [this] constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).

From the facts as...

To continue reading