945 F.2d 1155 (10th Cir. 1991), 90-2024, Austin v. Hamilton

Docket Nº:90-2024.
Citation:945 F.2d 1155
Party Name:Connie Jo AUSTIN; Steven D. Snyder, Plaintiffs-Appellees, v. Joe HAMILTON, Defendant-Appellant, and Edward Martinez; Richard Maya; Charles Brown; Individually and as Officials of the U.S. Customs Services and U.S. INS; United States of America, Defendants.
Case Date:September 24, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1155

945 F.2d 1155 (10th Cir. 1991)

Connie Jo AUSTIN; Steven D. Snyder, Plaintiffs-Appellees,


Joe HAMILTON, Defendant-Appellant,


Edward Martinez; Richard Maya; Charles Brown;

Individually and as Officials of the U.S. Customs

Services and U.S. INS; United States of

America, Defendants.

No. 90-2024.

United States Court of Appeals, Tenth Circuit

September 24, 1991

Page 1156

Marshall I. Yaker and E.H. Williams, El Paso, Tex., for defendant-appellant.

Page 1157

Michael W. Lilley of Lilley & Macias, P.A., Las Cruces, N.M., for plaintiffs-appellees.

Before McKAY, SEYMOUR and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Joe Hamilton appeals 1 from an order of the United States District Court for the District of New Mexico denying a motion for summary judgment filed by Hamilton and three other federal officers on qualified immunity grounds. We have interlocutory appellate jurisdiction under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), even though the district court based its denial of the motion on a finding that disputed material facts exist in the case. See DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988). For the reasons set out below, we affirm.



At least two discrete claims are asserted pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Hamilton and his individual codefendants: (1) use of excessive force during plaintiffs' arrest and subsequent detention; and (2) detainment of plaintiffs following warrantless arrest for an unreasonably extended duration without a probable cause determination by a judicial officer, along with concomitant refusal of plaintiffs' requests for communication with counsel. In connection with defendants' motion for summary judgment, the parties submitted affidavits recounting their respective recollections of the events surrounding defendants' seizure, search, and detainment of plaintiffs at a port of entry into the United States from Mexico. Plaintiffs' affidavits reflect a twelve-hour episode of unnecessary physical violence and inhumane treatment, ending in their release without charge by defendants. According to plaintiffs, after a small amount of marijuana was found in their vehicle, they were taken to the port of entry office and secured in handcuffs despite their cooperation with defendants' inquiries and requests. Thereafter, plaintiffs were both repeatedly assaulted without provocation. On at least three occasions, one or the other was struck and knocked to the floor unconscious. They were refused use of the rest room and required to remain all night in the clothes they subsequently soiled. Handcuffs were tightened past the point of feeling. Simple requests for water were gratuitously denied. At no time were plaintiffs formally placed under arrest, allowed to contact counsel, or even told why they were being held.

Defendants' account, on the other hand, reflects reasonable official efforts to handle two unruly and abusive detainees. For example, on several occasions early in their detention, plaintiffs allegedly acted violently toward defendants and were appropriately restrained by increasingly restrictive measures. Toilet facilities were offered but declined. Plaintiffs were placed under arrest and eventually interviewed by internal affairs officers, who had been notified of the assaults on defendants. Some four hours after the arrival of the internal affairs officers, plaintiffs were released. Although no federal charges were ever brought against plaintiffs on the basis of any of these events, they were cited by a state trooper for possession of marijuana.

The district court rejected defendants' pretrial assertion of qualified immunity as to all of plaintiffs' allegations with the following statement:

"In their affidavits plaintiffs claim that defendants assaulted them without cause and otherwise subjected them to cruel and inhuman treatment during over twelve hours of detention. The defendants by their affidavits deny any such

Page 1158

conduct. The dispute in facts between the plaintiffs' version of their treatment during the detention and the defendants' version precludes summary judgment.

"A defense of qualified immunity will not lie at this point in light of the type of conduct with which plaintiffs charge defendants."

District Court Order filed December 8, 1989, at 1. Our review of the court's determination is de novo. Snell v. Tunnell, 920 F.2d 673, 675 (10th Cir.1990).



The district court's treatment of the qualified immunity issue in connection with plaintiffs' excessive force claim was entirely proper. It is only by ignoring the particularized allegations of deplorable violence and humiliation advanced by plaintiffs that defendants are able to argue for qualified immunity. Considering the parties' hotly disputed sworn accounts in the light most favorable to plaintiffs, see Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987), we hold that under either a fourth amendment or substantive due process standard, see part B infra, "a reasonable officer could [not] have believed the manner of plaintiff[s'] arrest and detention in this case to be constitutionally permissible, in light of clearly established law and the information defendants possessed at the time." Martin v. Board of County Comm'rs, 909 F.2d 402, 405 (10th Cir.1990) (citing Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987)); see also id. at 407 n. 5. The district court therefore did not err in denying summary judgment on qualified immunity grounds. See Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir.1989); see also Snell, 920 F.2d at 701-02 (qualified immunity may be inappropriate due to factual conflict sufficiently material to require resolution of constitutional claims at trial).

While this conclusion is not problematic, there is an analytical snarl regarding the operative constitutional standards that must be untangled before the case is put before the jury for resolution. 2 As a general matter, claims based on the use of excessive force during arrest are now governed by the objective reasonableness standard of the fourth amendment. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). Here, however, we must determine (1) what constitutional standard governs post-arrest excessive force; and (2) what constitutional standard governs qualified immunity under the circumstances of this case. We will address each of these questions in turn.

  1. Constitutional Standard for Post-Arrest Excessive Force

    We must first place the objectionable events in this case somewhere along the custodial continuum running through initial arrest or seizure, post-arrest but pre-charge or pre-hearing custody, pretrial detention, and post-conviction incarceration; and then determine what constitutional protection controls at which particular juncture. See generally id. at 393-94, 109 S.Ct. at 1870-71 (all excessive force claims are not governed by single generic standard; analysis therefore begins with identification of specific constitutional right infringed by alleged application of force);

    Page 1159

    Titran v. Ackman, 893 F.2d 145, 147 (7th Cir.1990) (recognizing different points along custodial continuum to which variable constitutional standards attach). Unless we simply assume the rather odd position that plaintiffs' initial arrest actually took some twelve hours to accomplish, as for example might be the case in an extended chase of the sort encountered in cinema, the constitutional proscription on excessive force operative at the second custodial stage must be identified and applied to at least some of defendants' conduct.

    The Supreme Court has "not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins," Graham, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10, and the lower courts have not reached a consensus. Although the Graham opinion avoided a direct pronouncement on this particular issue, the Court's recognition of the broad applicability of fourth amendment standards to excessive force claims in the arrest context has played a role in the development of a standard applicable to post-arrest police conduct. Prior to Graham, the circuits expressed sharply divergent views, some squarely rejecting the applicability of fourth amendment principles once the initial seizure of a suspect is completed. Compare Wilkins v. May, 872 F.2d 190, 192-95 (7th Cir.1989) (fourth amendment protection ceases and substantive due process begins upon completion of initial seizure), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990), and Justice v. Dennis, 834 F.2d 380, 382-83 and n. 4 (4th Cir.1987) (en banc) (substantive due process standards equally applicable to excessive force claims brought in post-arrest custody, pretrial detention, and post-conviction incarceration contexts), vacated, 490 U.S. 1087, 109 S.Ct. 2461, 104 L.Ed.2d 982 (1989), with Robins v. Harum, 773 F.2d 1004, 1009-10 (9th Cir.1985) (fourth amendment protection persists post-arrest "throughout the time the arrestee is in the custody of the arresting officers," by virtue of legal fiction of "continuing seizure") and McDowell v. Rogers, 863 F.2d 1302, 1303-04, 1306 (6th Cir.1988) (citing Robins and applying fourth amendment standard to claim arising out of officer's use of nightstick on suspect already under warrantless arrest, subdued, and handcuffed).

    Subsequent to its decision in Graham, the Court vacated and remanded Justice for reconsideration in light of Graham 's fourth amendment analysis. In Justice, the Fourth...

To continue reading