Henry v. Storey

• Decision Date: 03 October 2011
• Docket Number: No. 10–2211.,10–2211.
• Parties: Edward HENRY, Plaintiff–Appellant,v.Officer Jacob STOREY; Officer Amy Fangio, individually and in their official capacities as Officers of the Albuquerque Police Department, Defendants–Appellees,City of Albuquerque, Albuquerque Police Department, a municipal entity organized under the laws of the State of New Mexico and its law enforcement agency; Martin J. Chavez, individually and in his official capacity as Mayor of the City of Albuquerque; Ray Schultz, individually and in his official capacity as Chief of Police of the City of Albuquerque, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

658 F.3d 1235

Edward HENRY, Plaintiff–Appellant,

v.Officer Jacob STOREY; Officer Amy Fangio, individually and in their official capacities as Officers of the Albuquerque Police Department, Defendants–Appellees,City of Albuquerque, Albuquerque Police Department, a municipal entity organized under the laws of the State of New Mexico and its law enforcement agency; Martin J. Chavez, individually and in his official capacity as Mayor of the City of Albuquerque; Ray Schultz, individually and in his official capacity as Chief of Police of the City of Albuquerque, Defendants.

No. 10–2211.

United States Court of Appeals, Tenth Circuit.

Oct. 3, 2011.

Submitted on the briefs: ^*

Dennis W. Montoya of Montoya Law, Inc., Rio Rancho, New Mexico, for Plaintiff–Appellant.Kathryn Levy, Deputy City Attorney for the City of Albuquerque, Albuquerque, New Mexico, for Defendants–Appellees.Before KELLY, SILER ^**, and MATHESON, Circuit Judges.PAUL KELLY, JR., Circuit Judge.

Plaintiff–Appellant Ed Henry appeals from the district court's final judgment in favor of Defendants–Appellees Jacob Storey and Amy Fangio after a jury trial. He contends that the district court erred in (1) granting judgment as a matter of law (JMOL) to these Defendants on two of his claims and (2) rejecting a proposed jury instruction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background

In 2008, Mr. Henry filed a civil-rights complaint against several Defendants pursuant to 42 U.S.C. § 1983.¹ The complaint arose from a night-time police stop. Aplt.App. 6–7, 216. Mr. Henry, who is African–American, was pulled over in a rental vehicle. Id. at 2, 5–7. He was ordered out, handcuffed, and placed in the back of a marked police vehicle. See id. at 175–84, 191–92. After an investigation, officers realized that the rental vehicle driven by Mr. Henry had been erroneously reported as stolen. Id. at 204–05. Mr. Henry was then released. Id.

In his complaint, Mr. Henry alleged that he was singled out because of his race, in violation of the Fourteenth Amendment. Id. at 19. He also alleged that the officers used excessive force in violation of the Fourth Amendment, including handcuffs that were too tight, rude language, and weapons aimed at him. Id. at 20–22.

The case proceeded to trial. At the close of Mr. Henry's case in chief, Officers Storey and Fangio moved for JMOL, Fed.R.Civ.P. 50(a)(1). Id. at 322. The district court granted the motion in part, stating that Mr. Henry presented no evidence that (1) Officer Storey used excessive force or (2) Officer Fangio engaged in racial profiling. Id. at 339–40. The case went to the jury on the racial profiling claim against Officer Storey and the excessive force claim against Officer Fangio.

Defendants put on no evidence. Id. at 345. Mr. Henry proposed a jury instruction to the effect that the officers' compliance with standard operating procedures could not be considered in determining whether they used excessive force. Id. at 342–43; see id. at 29. The court did not so instruct the jury.

The jury returned a verdict in favor of Officers Storey and Fangio on the remaining claims. Id. at 404–05. Specifically, the jury found that Officer Storey had not engaged in racial profiling and that Officer Fangio had not used excessive force. Id. at 405. On appeal, Mr. Henry challenges the district court's grant of JMOL and refusal to submit his proposed instruction to the jury.

Discussion

A. Judgment as a Matter of Law.

We review de novo the district court's disposition of a motion for JMOL. Manzanares v. Higdon, 575 F.3d 1135, 1142 (10th Cir.2009). JMOL is appropriate if, after a party has presented its evidence, the court “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). We draw all inferences from the evidence in favor of the non-moving party, and do not weigh the evidence or judge witness credibility. Higdon, 575 F.3d at 1142.

As noted, the district court granted JMOL to Officer Storey on Mr. Henry's excessive-force claim and to Officer Fangio on Mr. Henry's racial-profiling claim. Aplt.App. 339–40. The court found evidence lacking to show (1) that Officer Storey used any force against Mr. Henry and (2) that Officer Fangio engaged in racial profiling. Id. After reviewing the record, we agree.

1. Officer Storey.

Testimony at trial established the following. While on patrol in central Albuquerque around midnight, Officer Storey entered the license plate of Mr. Henry's vehicle into his dashboard computer. Id. at 169, 198. The computer, which was connected to the National Crime Information Center (“NCIC”), returned a “hit,” meaning that the license plate number had been reported as stolen. Id. at 169, 199. Upon returning a hit, other officers were automatically dispatched to the scene. Id. at 171. When a second patrol car arrived, Officer Storey turned on his emergency lights, and Mr. Henry pulled to the side of the road. Id. at 173.

Officer Storey remained in his vehicle and, using the PA system, ordered Mr. Henry to show his hands, turn the vehicle off, get out of the vehicle, and stand with his back to the officers. Id. at 175–78. At this point, six officers were at the scene. Id. at 178. Mr. Henry testified that he saw six guns aimed at him, although he did not know whether Officer Storey had his weapon drawn. Id. at 272. Officer Storey testified that his weapon was holstered because he was using the PA. Id. at 178.

Over the PA, Officer Storey ordered Mr. Henry to pull up his shirt to reveal the waistband of his pants and turn in a circle. Id. at 179–80. Satisfied that Mr. Henry did not have a weapon tucked into his pants, Officer Storey ordered him to walk slowly backwards towards the officers' vehicles. Id. at 180. When Mr. Henry was close to the vehicles, Officer Storey ordered him to kneel or lie down. See id.; id. at 279. Officer Fangio handcuffed Mr. Henry, performed a pat-down, and placed him in the back seat of Officer Storey's police vehicle. Id. at 181, 224–25, 280–81. After Mr. Henry was placed in the police vehicle, officers approached the rental vehicle he was driving to make sure no one else was inside. Id. at 192.

Mr. Henry promptly complied with all orders. Id. at 177–78, 202. He did not violate any traffic laws. Id. at 173. Mr. Henry testified that he was told to “shut up” over the PA system, presumably by Officer Storey. Id. at 275. He also testified that Officer Fangio knelt on his back and that the handcuffs were too tight, causing bruising and discomfort. See id. at 280, 284, 296.

Mr. Henry argues that Officer Storey used excessive force against him by “aiming a deadly weapon at [Mr. Henry's] head from mere feet away.” Aplt. Br. at 10. According to Mr. Henry, Officer Storey had no reason to believe that he stole the vehicle by violence. Moreover, he argues, he did not in fact pose a threat to officers and did not attempt to flee; thus, Officer Storey was not justified in aiming his weapon. Id. at 10–12. We are not persuaded. First, we doubt whether the record contains sufficient evidence for a reasonable jury to conclude that Officer Storey aimed a weapon at Mr. Henry. Second, even if it does, Officer Storey's use of force was not excessive under the facts known to him at the time.

Mr. Henry's argument that Officer Storey used excessive force relies on a single factual premise: that Officer Storey aimed a firearm at him. See Aplt. Br. 10, 13–14. Officer Storey specifically testified that he “had [his] gun holstered at the time while [he] was on [the] PA,” although “[t]he other officers had their firearms drawn, and they were pointed down towards Mr. Henry in the vehicle.” Id. at 178. Mr. Henry testified that when he initially exited the vehicle, he saw six guns pointed at him. Id. at 272. However, he later specifically testified that he “[didn't] know exactly who was pointing guns,” and that he did not know whether Officer Storey was pointing a gun at him. Id. at 304–05. Even if the jury disregarded Officer Storey's testimony as not credible, Mr. Henry's testimony itself established only that he saw six guns aimed at him; it did not establish that Officer Storey was wielding one of them. Thus, we doubt whether Mr. Henry's testimony provided a reasonable jury with “legally sufficient basis” to find, by a preponderance of the evidence, that Officer Storey pointed a weapon at him. Fed.R.Civ.P. 50(a)(1).

In any event, even if Mr. Henry produced sufficient evidence to establish that Officer Storey pointed a weapon at him, Officer Storey's actions did not constitute excessive force. “In determining whether a use of force is reasonable under the Fourth Amendment, we balance the nature and quality of the encroachment on the individual's Fourth Amendment interests against the government's countervailing interests.” Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir.2010) (citation omitted). When conducting this inquiry, “the ‘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.’ ” Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir.2008) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). We consult three non-exclusive factors to determine whether an officer's use of force is reasonable: (1) the severity of the crime, (2) whether the suspect poses an immediate threat to the safety of officers or others, and (3) whether the suspect is actively resisting arrest or evading arrest by flight. See Lundstrom, 616 F.3d at 1126.

Viewing the facts from a reasonable officer's point of view, Officer Storey did not use excessive force by pointing his weapon at Mr. Henry. Officer Storey had probable cause to believe Mr. Henry had stolen a vehicle, a felony. Officer Storey could reasonably conclude that the driver posed an immediate threat to the safety of the...