Perea v. Baca

• Decision Date: 04 April 2016
• Docket Number: No. 14–2214.,14–2214.
• Parties: Merlinda PEREA; Francine Puentes, as co-personal representatives of the estate of Jerry Perea, and on behalf of the minor, B.P., Plaintiffs–Appellees, v. APD Officer David BACA; APD Officer Andrew Jaramillo, Defendants–Appellants, and City of Albuquerque; Albuquerque City Police, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

817 F.3d 1198

Merlinda PEREA; Francine Puentes, as co-personal representatives of the estate of Jerry Perea, and on behalf of the minor, B.P., Plaintiffs–Appellees,

v. APD Officer David BACA; APD Officer Andrew Jaramillo, Defendants–Appellants,andCity of Albuquerque; Albuquerque City Police, Defendants.

No. 14–2214.

United States Court of Appeals, Tenth Circuit.

April 4, 2016.

Stephanie M. Griffin, Deputy City Attorney, City of Albuquerque Legal Department, Albuquerque, NM, for Defendants–Appellants.

Santiago E. Juarez, Albuquerque, NM (Cheryl K. McLean, Albuquerque, NM, with him on the briefs), for Plaintiffs–Appellees.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

LUCERO, Circuit Judge.

Jerry Perea died in 2011 after an incident involving Officers David Baca and Andrew Jaramillo. The district court denied Baca and Jaramillo qualified immunity against a Fourth Amendment excessive force claim, and they appealed. We hold that the officers' repeated tasering of Perea after he was subdued constituted excessive force, and that it was clearly established at the time of the taserings that such conduct was unconstitutional. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

On interlocutory appeal from the denial of qualified immunity, "we take, as given, the facts that the district court assumed when it denied summary judgment." Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir.2012) (quotation omitted). Thus, we "rely on the district court's description of the facts, taken in the light most favorable to Plaintiff, and do not reevaluate the district court's conclusion that the ... record is sufficient to prove these facts." Al–Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir.2014). The facts as stated by the district court are as follows.

On March 21, 2011, Merlinda Perea called 911 and told the operator that her son, Perea,¹ was on "very bad drugs" and that she was afraid of what he might do. Around the same time, a neighbor also called 911, reporting that Perea was pacing in his yard, clutching a Bible, and asking forgiveness of a higher power. Baca and Jaramillo were sent to perform a welfare check. The officers were informed that they were responding to a verbal fight and that no weapons were involved. They were also informed that Perea suffered from mental illness and may have been on drugs.

Upon arrival at the home, the officers were told that Perea recently left on his bicycle, that he was "acting up," and that Merlinda Perea was afraid for Perea's welfare. In separate patrol cars, Baca and Jaramillo began to search for Perea in case he was a danger to himself. The officers located Perea pedaling his bicycle. Perea saw the patrol car and began to pedal faster, at which point Jaramillo turned on his emergency lights. According to Baca, Perea did not stop, and instead pedaled through a stop sign without slowing down.

The officers used their patrol cars to force Perea to pedal into a parking lot. Jaramillo left his vehicle to pursue Perea on foot. After a brief chase, Jaramillo pushed Perea off his bicycle. The officers did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop. After pushing Perea off his bicycle, Jaramillo reached for Perea's hands in an attempt to detain him. Perea struggled and thrashed while holding a crucifix.² After Perea began to struggle, Baca told Jaramillo to use his taser against Perea.

Jaramillo complied and first shot Perea in the chest with his taser on "probe" mode. Probe mode is used to subdue an intended target through electric shocks designed to cause immobility. When the initial shot proved ineffective, Jaramillo put the taser in "stun" or "contact" mode, which is used to gain the target's compliance through the administration of pain. Jaramillo tasered Perea nine additional times, for a total of ten taserings in less than two minutes. At some point before the taserings stopped, Baca and Jaramillo were able to get Perea on the ground on his stomach, with both officers on top of him, effectively subduing him. After the taserings had concluded, Baca called an ambulance and a field supervisor to the scene as required by the Albuquerque Police Department taser policy.

While waiting for the ambulance, the officers noticed that Perea had stopped breathing and was turning gray. The officers successfully performed CPR, and Perea began to breathe normally. However, when Perea heard the sirens from the approaching ambulance, he began to struggle and started to scream and ask God for forgiveness. Upon arrival, the paramedics attempted to treat and calm Perea, but he stopped breathing again and his pulse stopped. Perea was transported to the hospital and pronounced dead a short time later.

Appellees, representing Perea's estate, filed suit against Baca, Jaramillo, the Albuquerque Police Department, and the City of Albuquerque. As relevant to this appeal, Appellees alleged excessive force against the officers for pushing Perea off his bicycle and for tasering him ten times. Baca and Jaramillo moved for summary judgment based on qualified immunity. The district court granted qualified immunity as to the bicycle-related claim, but denied it as to use of the taser. Baca and Jaramillo timely appealed the denial of qualified immunity.

II

We have jurisdiction over an appeal from the denial of qualified immunity only "[t]o the extent [the] appeal turns on an abstract issue of law," Roosevelt–Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir.2013). We review those issues de novo. Morris, 672 F.3d at 1189. As noted supra, we "rely on the district court's description of the facts, taken in the light most favorable to Plaintiff, and do not reevaluate the district court's conclusion that the ... record is sufficient to prove these facts." Al–Turki, 762 F.3d at 1191.

Appellants' assertion of qualified immunity creates a presumption that they are immune from suit. See Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.2007) (en banc). To overcome this presumption, Appellees must show that (1) the officers' alleged conduct violated a constitutional right, and (2) it was clearly established at the time of the violation, such that "every reasonable official would have understood," that such conduct constituted a violation of that right. Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015).

We first determine whether the officers' repeated tasering of Perea after he had been subdued constitutes a violation of the Fourth Amendment right to be free of excessive force. Holding that it does, we then consider whether it was clearly established, at the time of the violation, that such conduct was unconstitutional. Because it is clear from this circuit's precedent that using disproportionate force, in this case a taser, against a subdued misdemeanant is a violation of the Fourth Amendment, we affirm the denial of qualified immunity.

A

We evaluate excessive force claims under an objective reasonableness standard, which we judge from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To determine if an officer's actions were objectively reasonable, we carefully consider the totality of the circumstances, "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. An "[a]ssessment of the degree of force actually used is critical to the question of whether the force was excessive." Grauerholz v. Adcock, 51 Fed.Appx. 298, 300 (10th Cir.2002) (unpublished) (citing Tennessee v. Garner, 471 U.S. 1, 8–9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ).

The first factor we consider, the severity of Perea's crime, weighs heavily against the use of anything more than minimal force. That the officers were performing a welfare check, and that they were not looking for him because they suspected he had committed a crime prior to finding him, weighs heavily against the use of significant force. Cf. Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th Cir.2009)(noting that detainee's commission of a petty misdemeanor weighed in favor of using minimal, if any, force). Nevertheless, the officers saw Perea violate Albuquerque traffic ordinances by pedaling through a stop sign, which they argue justified using force to effect Perea's arrest. See Atwater v. City of Lago Vista, 532 U.S. 318, 322, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (officers may arrest suspect for misdemeanor traffic violation); Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir.2001) ( "[O]fficers may use some degree of physical coercion ... to effect" an arrest.). Although the officers are correct that an officer can effect an arrest for even a minor infraction, Perea's minor offense—at most—supported the use of minimal force. See Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.2008) (because detainee had committed only a petty misdemeanor, "the amount of force used should have been reduced accordingly"). Instead, the officers used a taser against Perea ten times in two minutes. Repeated use of the taser exceeded the minimal force that would be proportional to Perea's crime. Thus, the first Graham factor weighs in Perea's favor.

The second factor, whether Perea posed an immediate threat to the safety of the officers or others, similarly weighs against the officers. The officers do not argue that Perea was a danger to anyone other than himself before they attempted to effect an arrest. After that point, any threat posed stemmed from Perea resisting arrest after the officers pushed him from his bicycle without warning or explanation. His physical reaction to an unexplained arrest is properly considered under the third Graham factor. Because the officers do not argue that Perea posed a threat before they initiated the arrest, the second G...