656 F.3d 1198 (10th Cir. 2011), 10-7005, Mascorro v. Billings

Docket Nº:10-7005, 10-7006.
Citation:656 F.3d 1198
Opinion Judge:O'BRIEN, Circuit Judge.
Party Name:Christina MASCORRO; Jose Mascorro, Plaintiffs-Appellees, v. Craig A. BILLINGS, as an individual and as Murray County deputy sheriff, Defendant-Appellant, and Steve Watkins, Individually and as Sulphur police officer; Tony Simpson, Individually and as a Sulphur police officer, Defendants. Christina Mascorro; Jose Mascorro, Plaintiffs-Appellees, v. S
Attorney:Edmond Geary, Attorney at Law, Oklahoma City, OK, for the Mascorros. David W. Lee (Emily B. Milan with him on the briefs) of Lee Law Center, P.C., Oklahoma City, OK, for Watkins and Simpson. Ambre C. Gooch of Collins, Zorn & Wagner, Oklahoma City, OK, for Billings.
Judge Panel:Before MURPHY, HOLLOWAY, and O'BRIEN, Circuit Judges.[*]
Case Date:August 31, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1198

656 F.3d 1198 (10th Cir. 2011)

Christina MASCORRO; Jose Mascorro, Plaintiffs-Appellees,

v.

Craig A. BILLINGS, as an individual and as Murray County deputy sheriff, Defendant-Appellant,

and

Steve Watkins, Individually and as Sulphur police officer; Tony Simpson, Individually and as a Sulphur police officer, Defendants.

Christina Mascorro; Jose Mascorro, Plaintiffs-Appellees,

v.

Steve Watkins, Individually and as Sulphur police officer; Tony Simpson, Individually and as a Sulphur police officer, Defendants-Appellants,

and

Craig A. Billings, Defendant.

Nos. 10-7005, 10-7006.

United States Court of Appeals, Tenth Circuit.

August 31, 2011

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Edmond Geary, Attorney at Law, Oklahoma City, OK, for the Mascorros.

David W. Lee (Emily B. Milan with him on the briefs) of Lee Law Center, P.C., Oklahoma City, OK, for Watkins and Simpson.

Ambre C. Gooch of Collins, Zorn & Wagner, Oklahoma City, OK, for Billings.

Before MURPHY, HOLLOWAY, and O'BRIEN, Circuit Judges.[*]

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O'BRIEN, Circuit Judge.

Relying mostly on their version of events, Craig Billings, a Murray County Oklahoma deputy sheriff, and Steve Watkins and Tony Simpson, police officers with the City of Sulphur, Oklahoma police department, appeal from the district court's denial of their motion for summary judgment based on qualified immunity. But the Mascorros have a different version. Because, as the district court concluded, the issues are fact bound, we lack jurisdiction to consider the officers' arguments with respect to all but one claim of error. As the evidence and reasonable inferences regarding that single claim, hot pursuit of a traffic offender, taken in the light most favorable to the Mascorros demonstrates a violation of a clearly established constitutional right, we affirm.

I. FACTUAL BACKGROUND1

Joshua Burchett is Christina Mascorro's son and Jose Mascorro's stepson. At the time of these events, Joshua was 17 years old. At 11:30 p.m. on July 23, 2007, Billings noticed Joshua was driving without taillights and turned around to pull him over. Joshua did not stop but drove two blocks to his parents' house, ran inside, and hid in the bathroom.

The front door is the only door to the Mascorro house. The Mascorros claim they woke to Billings kicking the door in a rage, swearing, threatening and ordering someone to open it and come outside. Christina testified to the following. She did not at first understand to whom Billings was referring. When Jose opened the door, Billings drew his gun, pointed it at Jose's head and yelled, " On your knees, mother f* * * *r!" (Appellant Billings Appendix at p. 115.) Christina raised her voice to ask Billings to calm down and tell them what he wanted because she could not understand him. Billings answered, " I want the mother F'er driving that car out here now." (Appellants Watkins & Simpson Appendix at 158.) After asking Billings what car he meant, Christina noticed her son's car in the driveway and said " That's my son's car. Oh, my gosh, what did he do?" ( Id. at 158). Jose asked Billings if he had a warrant. As Christina started to turn away from the door Billings sprayed her in the face with pepper spray, and then stepped into the house and sprayed her again. Billings then sprayed Jose and Christopher, Christina's 14-year-old son, directly in the face as Christina retreated to the back bedroom to call 911. At some point after she completed her call, Officer Watkins retrieved her from the bedroom and led her outside.

According to Jose's testimony he retreated to the kitchen to try to wash the pepper spray from his face. " [A]s soon as [he] kn[e]w" another officer, later identified as Simpson, entered the kitchen and led him out of the house. 2 (Watkins and Simpson Appendix at p. 232.)

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Billings informed Watkins and Simpson that Joshua had locked himself in the bathroom. The officers ordered Joshua to come out and, when he refused, Simpson drew his gun, kicked down the bathroom door, and took him into custody. The Mascorros contend Billings was visibly angry during the entire encounter, screaming at the top of his lungs and spitting with rage as he tried to speak and they did nothing to threaten or physically resist Billings in any way.

A number of other officers were present at the house when the Mascorros were taken outside. According to Christina's testimony, before Joshua was removed from the home, Billings approached her, pushed her up against a wall, and demanded to know where he was. When one of the officers suggested calling an ambulance Billings said, " No one is calling any ambulance." (Appellants Watkins & Simpson Appendix at p. 259). At some point, she requested an ambulance but Billings responded she did not need one. Nevertheless, an ambulance was called to the scene. Billings arrested Christina and Jose and cuffed them in the ambulance. Other officers escorted them with Christopher to the hospital. The three Mascorros were treated and released from the hospital, at which point officers took Christina and Jose to jail. They were both charged with obstructing a police officer in the performance of his duties and Christina was charged with aggravated assault and battery on a police officer because Billings alleged and subsequently testified that she poked him in the chest when he was standing at the front door before he sprayed her. They were released on bond later the same day. The state court eventually quashed the arrest and dismissed the charges, concluding Billings had entered the house illegally because no exigent circumstances justified his warrantless entry. 3 When they returned home, they found their belongings strewn about, trash cans upended, and a hole kicked in one wall.

II. PROCEDURAL HISTORY

The Mascorros brought this action against Billings, Watkins and Simpson 4 asserting claims of unlawful entry, excessive use of force, false arrest, false imprisonment, and malicious prosecution. Watkins and Simpson moved for dismissal on the excessive force and malicious prosecution claims. The district court dismissed the Mascorros' claims of malicious prosecution against Watkins and Simpson under Rule 12(b)(6) of the Federal Rules of Civil Procedure but left all other claims intact. The Mascorros moved for partial summary judgment and Billings, Simpson, and Watkins moved for summary judgment based on qualified immunity and other grounds. The district court denied the Mascorros' summary judgment motion. It granted Billings, Simpson, and Watkins' motions as to claims against them in their official capacities, but denied summary judgment on all other issues, including their qualified immunity defense. The officers brought this interlocutory appeal on the single issue of whether they are entitled to qualified immunity.

III. DISCUSSION

A. Issues We Cannot Address

The officers contend the district court erred in denying them qualified immunity

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on each of the Mascorros' claims. However, their arguments concerning the excessive force, false arrest, false imprisonment and (against Billings) malicious prosecution claims are based solely on their version of events. For instance, all the officers claim their actions were justified because the Mascorros refused to hand over their son to the police and Christina assaulted Billings. The Mascorros' version of events is different. Watkins and Simpson allege they arrived too late to be held responsible for Billings' use of force and the timing of their arrival made reliance on Billings' assertions at the scene reasonable.5 Again, the Mascorros saw it differently. The district court properly determined genuine issues of material fact were present with respect to these claims. We lack jurisdiction as to them.6

B. The Issue We Can Address

As to the Mascorros' unlawful entry claim, however, the officers argue their entry into the home was justified by probable cause to arrest Joshua for a traffic offense coupled with the exigent circumstances necessarily attending the pursuit of a fleeing suspect.7 The facts relating to this narrow aspect of the unlawful entry claim are not disputed and therefore we may address the purely legal issue of whether the officers are entitled to qualified immunity with respect to that claim.

To defeat the officers' claim of qualified immunity, the Mascorros must show (1) the officers violated their constitutional or statutory rights, and (2) the violated rights were clearly established at the time of the events in question. Shroff v. Spellman, 604 F.3d 1179, 1188 (10th Cir.2010). We have discretion to determine which prong of the immunity defense to address first, in light of the circumstances of the case at hand, and may resolve the question by finding either requirement is not met. Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223...

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