Getz v. Swoap

• Decision Date: 16 August 2016
• Docket Number: No. 15-3514,15-3514
• Citation: 833 F.3d 646
• Parties: Beverly J. Getz, Executrix for the Estate of Robert T. Getz, Plaintiff–Appellant, v. J. Swoap, Wood County Sheriff's Office, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

833 F.3d 646

Beverly J. Getz, Executrix for the Estate of Robert T. Getz, Plaintiff–Appellant,

v.J. Swoap, Wood County Sheriff's Office, Defendant–Appellee.

No. 15-3514

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 16, 2016

ON BRIEF: Thomas A. Sobecki, Toledo, Ohio, for Appellant. Linda F. Holmes, Arlen B. de la Serna, Wood County Prosecutor's Office, Bowling Green, Ohio, for Appellee.

Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.^*

OPINION

CLELAND

, District Judge.

This Fourth Amendment excessive force claim, through 42 U.S.C. § 1983

, arises from the familiar setting of an interaction between an officer and an angry, uncooperative citizen. The facts illustrate yet again why it is a bad idea to question and argue, and to physically resist an investigating officer's reasonable commands and directions.

Plaintiff–Appellant is the Estate of Robert Getz, substituted for original Plaintiff Robert Getz following his death (which was not related to these facts). Plaintiff appeals the district court's grant of summary judgment in favor of Defendant–Appellee Deputy Jody Swoap. We agree with the district court that Deputy Swoap is entitled to qualified immunity under the circumstances, and AFFIRM the judgment of the district court.

I. BACKGROUND

A. Undisputed Facts

About 7:20 p.m. on November 27, 2011, Deputy Jody Swoap was sitting in his police cruiser on Carter Road outside of Bowling Green, Ohio. While observing traffic, he saw an oncoming 2004 Chevrolet Cobalt pass him with only one operational headlight. Robert Getz was driving. Swoap turned and followed, intending to pull the car over and issue a warning about the defective headlight. As Getz turned south on Sugar Ridge Road, Swoap switched on his overhead lights, but Getz did not immediately pull over. Swoap followed until Getz turned into a residential driveway. Unbeknownst to Swoap, it was Getz's home.

Swoap also turned into the driveway and radioed the dispatcher his location. The radio log establishes that Swoap's transmission occurred at 7:22 p.m.

Getz did not stop in the driveway but instead passed the house, continuing down the driveway until he reached a barn. Getz circled around in front of the barn and drove the car back in Swoap's direction, stopping only once he was, according to Swoap, “bumper to bumper to me close enough to where I could not read his license plate.” Swoap radioed in a description of the car and directed his spotlight at the car and driver, recognizing the driver as an older male. At his deposition, Swoap described Getz at this point as appearing “agitated ... [h]is mouth and his forehead just looked like he was not happy.”

As Swoap was radioing the car's description to dispatch, Getz's car lunged forward a short distance, started to back up, and then angled as though to drive around Swoap's cruiser. To prevent Getz from leaving the driveway, Swoap moved the cruiser and positioned it so that Getz could not drive around him. Getz's car continued to approach the cruiser, which was now blocking the driveway. Swoap exited the cruiser, stood in the driveway, and yelled for Getz to stop. Getz, however, continued to drive slowly toward Swoap as Swoap repeatedly told Getz to stop. Eventually, Swoap drew his sidearm and again directed Getz to stop, shut off the car, and exit the vehicle. This time Getz complied. Once Getz was out of the car and it was obvious he was not armed, Swoap holstered his gun.

Getz was angry. Swoap stated that Getz told him to “get the fuck off his property.” When Swoap told Getz the reason for the traffic stop and asked Getz for his name, Getz yelled, “Do you know who I am? Everybody knows who I am.” Getz continued to yell and argue until Getz said “fuck this” or “screw this, I'm leaving.” Swoap informed Getz several times that he was not free to leave, but Getz got back in his car. At this point Swoap called for backup. Then, with Getz seated in his car gripping the steering wheel, Swoap reached into the car and attempted to remove Getz's left hand from the wheel while ordering him out of the car. Getz resisted, pushing Swoap away with his shoulder and generally pulling away from Swoap.

Swoap finally pulled Getz out of the car, informed him that he was under arrest, and ordered him to put his hands behind his back. Swoap again called for backup, this time telling dispatch to “step it up,” which Swoap says signaled that “there was a serious potential for somebody to get hurt or there's force being used and I needed somebody there quickly.” Getz refused to put his hands behind his back and said he was going inside the house. The radio log establishes that Swoap asked dispatch to “step it up” at 7:23 p.m.

When Getz walked toward the front of the police cruiser in the direction of his house, Swoap informed him that he was not allowed to enter the house and that he needed to place his hands behind his back. Swoap grabbed Getz's upper arm as he told him to place his arms behind his back. When Getz failed to comply Swoap performed a hip-check maneuver to unbalance Getz, gain control of him, and handcuff him. In response, Getz turned around and sprawled chest down over the hood of the cruiser gripping opposite ends of the hood, making application of the handcuffs more difficult. Swoap repeatedly ordered Getz to put his hands behind his back but eventually had to grab Getz's right arm and rotate Getz's body around towards his left arm so that he could place the handcuffs on both wrists. When Swoap finally managed to handcuff Getz, he did not check for tightness or double lock the cuffs.¹ After the cuffs were on, he told Getz to walk to the other side of the cruiser, but Getz continued to resist and again pulled away, saying he was going into the house. Swoap maintained control and walked Getz to the other side of the cruiser, though Getz was still noncompliant and “locked up his legs ... [and] his upper body,” refusing to follow Swoap's directions. At 7:24 p.m., Swoap radioed dispatch and reported he had Getz in custody.

At this point Trisha Getz, Robert Getz's daughter, arrived at the scene, and here, Plaintiff's and Defendant's versions of the facts diverge. The firsthand accounts of the events that followed were provided by Robert's wife and daughter, Trisha and Beverly; Sergeant Timothy Spees, an officer who arrived on the scene; and Deputy Swoap.

B. Trisha's Testimony

Trisha recounts seeing Swoap leaning against Getz and pushing Getz's face against the window of the Chevrolet as she pulled up to the house. When Trisha approached, Swoap told her that Getz was under arrest. Trisha informed Swoap that she was Getz's daughter. Around this time Trisha says, “Dad then got to sit down in his car 'cause he said he needed to sit ... we asked [Swoap] if dad could sit down.” While sitting, Getz told Trisha “these handcuffs are killing me. My hands hurt so bad. Can you just ask him—I have asked him several times to get the handcuffs loosened.” According to Trisha, Getz complained “20 times about his hands” and that she could see his hands bleeding. She retrieved wipes from her car to clean up blood from Getz's wrists and from a cut on his face. Swoap offered to call emergency medical services, but Getz and Trisha declined, saying he only needed his oxygen inside the house to treat a breathing condition.

At some point after Trisha retrieved the wipes from her car, she says that Swoap asked her if she lived at the house. Though she did not live there she told Swoap she did, and Swoap told her to leave, go into the house, or face possible arrest for “invading my crime scene.” Trisha asked Swoap to loosen the handcuffs and then entered the house to inform her mother, Beverly, of what was happening outside. Trisha asked Beverly to go outside and monitor the situation while she called her brother, Getz's son, Tim. Beverley, before that point, had been unaware of the goings-on in the driveway.

Trisha estimates that 20 minutes passed between her arrival at the scene and her call to Tim. Trisha did not return outside until after her father was released from his handcuffs, but she did testify that once her father came into the house, he told her that when Sergeant Spees arrived, he “went over and took his handcuffs off immediately” and told Getz to “go inside, get yourself cleaned up and get some oxygen.”

C. Beverly Getz's Testimony

Mrs. Getz testified at deposition that she walked outside after Trisha spoke to her and that “Deputy [sic] Spees pulled in shortly after that.” Though not part of Mrs. Getz's testimony, both parties agree, based on the police radio log, that Sergeant Spees arrived at 7:29 p.m., approximately four and a half minutes after Getz was arrested. When she and Getz spoke to Spees to ask him to loosen the cuffs, “[Spees] took them right off.” Mrs. Getz could not say how long Spees had been there when the handcuffs came off, though she thought “[h]e had just arrived.”

D. Deputy Swoap's Testimony

Deputy Swoap's version of the story differs. At deposition, he stated that he tried to make Getz sit in the back passenger seat of his cruiser but that Getz refused. Trisha arrived around this time but remained by her car. Less than a minute later, Spees arrived and began communicating with Getz. Spees took over primary communication with Getz because they seemed to have a better rapport, though Swoap approached Getz “numerous” times after Spees' arrival to ask if Getz needed medical attention. Each time, according to Swoap, Getz refused emergency medical services and continued to either ignore Swoap or become “argumentative” again. Swoap testified that it was Spees who got Getz to sit down and that he sat in the back of Swoap's cruiser, not his own car. After putting Getz in the cruiser, Spees returned to ask Swoap if he was aware that Getz was bleeding. Swoap said he was not. Shortly thereafter Swoap says he removed the handcuffs from Getz to allow Getz to use his inhaler. Swoap estimates that...