Jones v. City of Cincinnati

• Decision Date: 29 November 2012
• Docket Number: No. 11–4174.,11–4174.
• Citation: 736 F.3d 688
• Parties: Bessie JONES, Administratrix of the Estate of Nathaniel Jeffrey Jones, et al., Plaintiffs–Appellees, v. CITY OF CINCINNATI, et al., Defendants, Guy Abrams; James Pike; Joehonny Reese; Jay Jonstone; Baron Osterman; Thomas Slade, Police Officers, Cincinnati Police Division, individually and in their official capacities, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

736 F.3d 688

Bessie JONES, Administratrix of the Estate of Nathaniel Jeffrey Jones, et al., Plaintiffs–Appellees,

v.CITY OF CINCINNATI, et al., Defendants, Guy Abrams; James Pike; Joehonny Reese; Jay Jonstone; Baron Osterman; Thomas Slade, Police Officers, Cincinnati Police Division, individually and in their official capacities, Defendants–Appellants.

No. 11–4174.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 12, 2012.

Decided and Filed: Nov. 29, 2012.^*

ARGUED:Peter J. Stackpole, City of Cincinnati, Cincinnati, Ohio, for Appellants. Randolph H. Freking, Freking & Betz, LLC, Cincinnati, Ohio, for Appellees. ON BRIEF:Peter J. Stackpole, City of Cincinnati, Cincinnati, Ohio, for Appellants. Randolph H. Freking, Tod J. Thompson, Freking & Betz, LLC, Cincinnati, Ohio, for Appellees.

Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.^**

OPINION

COOK, Circuit Judge.

The survivors and estate of Nathaniel Jones, who died after struggling with six Cincinnati police officers, brought a § 1983 action against those officers, alleging Fourth and Fourteenth Amendment violations and Ohio tort claims. The district court denied the officers' motion for summary judgment seeking qualified immunity and state statutory immunity, leaving pending four claims: (1) an excessive-force claim against two officers for repeated baton strikes and jabs prior to handcuffing Jones; (2) an excessive-force claim against one officer for refusing to remove Jones's handcuffs despite a firefighter's request; (3) a failure-to-provide-adequate-medical-care claim stemming from all six officers' delay in rolling Jones over; and (4) an Ohio wrongful death claim based on the foregoing conduct. The officers challenge by interlocutory appeal the district court's denial. Because the record demonstrates that the officers did not act objectively unreasonably, we REVERSE.

I.

A party may appeal a district court's denial of qualified immunity to the extent that the denial turns on legal issues. Johnson v. Jones, 515 U.S. 304, 310–12, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). On interlocutory appeal, we thus “take, as given, the facts that the district court assumed when it denied summary judgment.” Id. at 319, 115 S.Ct. 2151. Where video evidence “blatantly contradict[s]” this version of events, however, we “view[ ] the facts in the light depicted by the videotape.” Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 493 (6th Cir.2012) (internal quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 380–82, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). In support of their motion for summary judgment, the officers submitted a video recording from one officer's in-car camera. Because this video does not blatantly contradict the facts assumed by the district court, we adopt those facts and draw all inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 381, 127 S.Ct. 1769;Johnson, 515 U.S. at 319, 115 S.Ct. 2151. Under this standard, the record establishes the following.

Shortly before 6:00 a.m. on November 30, 2003, Cincinnati firefighters sought police assistance for a disorderly person at a restaurant parking lot. Officers James Pike and Baron Osterman arrived and spotted Jones marching, squatting, and shouting profanities outside. Both officers approached and spoke to Jones, who weighed 348 pounds and was 5 feet 11 inches tall. Pike radioed the dispatcher, reporting that Jones may be violent and require a mental health response team. Pike also requested a supervisor and turned on the video recording system (“MVR”) in his patrol car. The MVR recorded the subsequent encounter, but Pike's car hood partially obstructed the view of Jones's and the officers' actions on the ground:

6:00:07–6:00:12 a.m.: Upon arrival, Pike tells Jones, “You gotta tell me what's going on.” Jones responds, “Get this little nappy haired white boy redneck!”

6:00:13–6:00:17: Pike warns Jones three times to back up. Jones lunges at Pike and throws a punch at his head. Osterman arrives with his PR–24 baton (“baton”) in hand.

6:00:28–6:00:35: Osterman tackles Jones. Jones, Pike, and Osterman fall to the ground in front of Pike's car. Pike stands up and draws his baton. The officers shout several times, “Put your hands behind your back!” Jones does not comply and struggles aggresively.

6:00:36–6:00:55: Pike starts jabbing and striking Jones with his baton. Pike and Osterman continue to jab and strike Jones with their batons while shouting, “Put your hands behind your back!”

6:00:40–6:00:59: Jones continues struggling. While getting to his knees, Jones grabs Osterman's neck [6:00:41] and reaches toward Osterman's waist area [6:00:46]. He also grabs Pike's baton for approximately six seconds [6:00:53–6:00:59].

6:01:00–6:01:11: Pike and Osterman continue to shout, “Put your hands behind your back!” Jones says, “No way, no way,” and “I'll take all that. Give it to me.” Officer Abrams arrives.

6:01:16–6:01:25: Jones cries “Mama!” several times. Officer Thomas Slade arrives and pepper-sprays Jones.

6:01:38: The jabs and strikes end. Pike, Osterman, Abrams, and Slade then try to handcuff Jones.

6:01:50–6:02:22: Officers Jay Johnstone and Joehonny Reese arrive. All six officers try to handcuff Jones. The audio captures Jones moaning.

6:02:23: Jones moans loudly and then falls silent.

6:02:32: Officer Slade asks, “How ‘bout we roll him?”

6:02:22–6:02:54: Officers continue to handcuff Jones. Both arms are cuffed at 6:02:54 when an officer says, “There we go.”

6:03:24–6:03:34: Officer Slade asks, “We have to get him rolled, don't we?” Pike bends down to look at Jones and voices that the firefighters should come over.

6:03:36–6:03:40: Officers start rolling Jones. He is on his back by 6:03:40.

6:03:45–6:04:00: Pike checks Jones's breathing. Another officer shouts “Fire!” to request firefighters. They then realize that the firefighters left the parking lot. Someone calls the dispatcher to request the firefighters' return.

6:04:02–6:04:14: Pike checks on Jones, calling “Sir, sir!” several times, but Jones does not respond. Pike comments, “The guy still has a pulse. But I don't see him breathing.” Someone says, “Turn him on his side.”

6:04:28–6:04:30: Dispatcher confirms officers' request for a rescue unit.

6:04:21–6:04:40: One officer rubs Jones's sternum area. Another officer observes that Jones has a pulse but is not breathing.

6:04:40–6:04:50: Someone orders the officers to turn Jones on his side, and they do so by 6:04:50.

6:05:38–6:05:47: Officers wave and shout at the firefighters to hurry up. One of them stands up, holding a white first-aid box in his hands.

6:05:50: Firefighters come to Jones's side and administer CPR.

6:07:53: The video ends.

Thirty-five minutes later, Jones was pronounced dead. The coroner attributed Jones's death to abnormal cardiac rhythms resulting from a violent struggle and positional asphyxia.

The district court denied qualified and statutory immunity on four claims. It held that the objective reasonableness of Pike's and Osterman's baton blows depends on “whether the jury accepts the view that Jones was resisting arrest or was struggling to get upright to breathe.” [R. 150, Summ. J. Order at 24, ID # 3588.] Because “Pike and Osterman repeatedly hit Jones with barely a pause in between strikes,” a reasonable jury could conclude that “Jones did not have an opportunity to submit to their demands to put his hands behind his back.” [ Id.] The district court also found that a genuine issue of material fact existed regarding whether all six officers acted with deliberate indifference because “at least one officer ... drew the inference from the facts that a risk of substantial harm existed even before Jones was handcuffed, saying ‘How ‘bout we roll him?’ ” [ Id. at 35, ID # 3599.] On review, we assume that (1) Jones started struggling to breathe at some point during the fifty-nine-second period of strikes and jabs, and (2) all six officers inferred that Jones had a serious medical need by 6:02:32 a.m., when Officer Slade first asked, “How ‘bout we roll him?”

II.

A two-step inquiry steers decisions on a defendant's entitlement to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). First, did the officer's conduct violate the plaintiff's constitutional right? Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, was that right clearly established at the time of the incident? Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). A court need not address these steps sequentially. Pearson, 555 U.S. at 236, 129 S.Ct. 808.

A. Excessive Force

We analyze claims of excessive force during arrest under the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This standard encompasses “a built-in measure of deference to the officer's on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.2002) (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865). It “allow[s] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97, 109 S.Ct. 1865.

1. Baton Strikes and Jabs

Officers Pike and Osterman argue that under the rapidly evolving circumstances of that morning, they did not act objectively unreasonably in using their batons to strike and jab Jones. We agree. It was Jones—a very large individual—who initiated the physical struggle by lunging at Pike and swinging at his head, despite repeated warnings from Pike to back away. [MVR at 6:00:13–6:00:17.] Both officers repeatedly ordered Jones to put his hands behind his back, but he refused, responding instead, “No way, no way” ...