Austin v. Redford Twp. Police Dep't

• Decision Date: 08 August 2012
• Docket Number: No. 11–2319.,11–2319.
• Parties: Charles Fitzgerald AUSTIN, Plaintiff–Appellee, v. REDFORD TOWNSHIP POLICE DEPARTMENT, Defendant, Kevin Riley, Timothy L. Paull, and John M. Morgan, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

690 F.3d 490

Charles Fitzgerald AUSTIN, Plaintiff–Appellee,

v. REDFORD TOWNSHIP POLICE DEPARTMENT, Defendant,Kevin Riley, Timothy L. Paull, and John M. Morgan, Defendants–Appellants.

No. 11–2319.

United States Court of Appeals, Sixth Circuit.

Aug. 8, 2012.

ON BRIEF:Joseph Nimako, Cummings, McClorey, Davis & Acho, P.C., Livonia, Michigan, for Appellants. Michelle T. Thomas, Bodman PLC, Detroit, Michigan, for Appellee.

Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.^*

OPINION

JANE B. STRANCH, Circuit Judge.

Charles Austin brought suit under 42 U.S.C. § 1983 against Redford Township Police Department and Officers Kevin Riley, Timothy L. Paull, and John M. Morgan, alleging Defendants used excessive force in effectuating his arrest and engaged in ethnic intimidation in violation of Michigan law. The district court granted Riley summary judgment on qualified immunity grounds with respect to his initial deployment of a Taser, but denied summary judgment on qualified immunity grounds with respect to Riley's subsequent use of the Taser, Paull's use of the police dog, and Morgan's use of the Taser. For the reasons below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

In support of their Motion for Summary Judgment, Defendants have submitted videotapes ¹ taken from the in-car cameras in the patrol cars of the three individual Defendants. Although we must view the facts as assumed by the district court, to the extent this version of events is “blatantly contradicted” by videotape evidence, we must “view[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380–82, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); see also Coble v. City of White House, Tenn., 634 F.3d 865, 868–69 (6th Cir.2011) (extending the reasoning in Scott to videotape or audiotape evidence). Under this standard, the record before the district court establishes the following:

On August 5, 2005, at approximately 9:20 p.m., Redford Township Police Department Officer Kevin Riley attempted to pull over Charles Austin, an African–American male, for speeding through a construction zone. Austin fled and Riley initiated a pursuit. During the course of the chase, Austin traveled at a high rate of speed weaving through traffic, including through residential areas and construction zones, ran stop signs and red lights, and at one point traveled the wrong way on Telegraph Road. After coming to a dead end, Austin put his car in reverse and it struck Riley's vehicle. Austin then pulled into a driveway and stopped. Riley stopped directly behind Austin and several other officers arrived shortly thereafter, including Officers Paull and Morgan.

After Austin came to a stop, he threw his holstered handgun—for which he had a license—out of his car window and then exited the car. The Riley video shows the sequence of events that followed. Riley approached with his Taser drawn and pointing at Austin, and Paull, a K–9 Officer, approached with his police dog. The video shows that Austin took one small step toward Riley as he exited his vehicle, stopped, and began to raise both hands with his palms open. ² Riley and Austin exchanged a few words, which Austin testified included instructions by Riley for Austin to stay back and return to his vehicle. As Paull's police dog, which was not leashed, approached Austin, Austin began to step backward and lower his hands. At this point, Riley fired his Taser, striking Austin in the chest. Austin fell back into his car, at which time Paull is seen pointing at Austin, instructing his dog to attack Austin. Paull removed the dog and pulled Austin out from the vehicle and onto the ground. A third officer approached and the officers worked together to restrain Austin on the ground, handcuff him, and secure the scene.

These facts are clear from the videotape; however, the parties dispute some events not depicted in the video and the inferences to be drawn from the video. Austin asserts that he complied with Riley's verbal commands and did not take any aggressive action; that some officers at the scene referred to letting the police dog get some “nigger blood”; that the police dog was deployed on him three times, including once while he was already on the ground, at which point he was bitten in the neck; and that Riley deployed the Taser on him a third time while he was pinned on the ground by another officer. Defendants, on the other hand, contend that Austin did not comply with Riley's commands to remain still and raised his hands in an aggressive manner; that the police dog was deployed only once, grabbing Austin's forearm, and was immediately called back; and that the Taser was deployed only twice by Riley, the second time when Austin attempted to get up from the ground.

In the audio recording from the Morgan video, Austin is heard complaining that his handcuffs are too tight while he is on the ground and that he is unable to breathe. One officer responded to Austin that he can breathe just fine because he is able to talk. On the Paull video, an officer is heard informing dispatch that Austin “is now secured, now secured,” although two minutes later officers are heard saying “quit resisting.” Austin asserts officers told him to quit resisting at a time when he was sitting handcuffed on the ground struggling to breathe as a result of the lingering effects of the Taser.

Austin is then escorted to Morgan's car in order to be transported to jail. On the way to Morgan's car, Austin can be heard complaining that his handcuffs are too tight and that he is having trouble breathing. An officer checked Austin's handcuffs and stated that he could fit one finger between Austin's wrists and the handcuffs. Austin sat on the rear seat of Morgan's car, but he refused to put his legs in the car as Morgan commanded him to do. Morgan warned Austin that he would shock him with the Taser if Austin did not put his legs into the car, and Morgan held up the Taser for Austin to see and sparked it. Austin complained that he is unable to breathe and asked that Morgan put the car window down. On the Morgan video tape, approximately thirty seconds after Morgan's initial command, Morgan can be heard administering a “drive stun” of the Taser to Austin's sternum. Morgan then administered a second drive stun, at which point Austin complied and placed his legs into the vehicle. Austin was transported to Redford Police Department, where he was charged with fleeing and eluding a police officer, operating a vehicle while intoxicated, and carrying a concealed weapon. Austin eventually pled no contest to the fleeing and eluding and driving while intoxicated charges, and was sentenced to six months' imprisonment.

B. Procedural History

On July 29, 2008, Austin brought a § 1983 action alleging Defendants used excessive force in effectuating his arrest and a state law claim of ethnic intimidation pursuant to Mich. Comp. Laws § 750.147b. On November 29, 2010, Defendants moved for summary judgment arguing, among other things, that the individual Defendants are entitled to qualified immunity on Austin's excessive force claim. On July 18, 2011, the magistrate judge filed a report recommending that Defendants' motion for summary judgment be granted in part and denied in part. On Austin's excessive force claim, the magistrate judge recommended that Riley be granted summary judgment on qualified immunity grounds with respect to his initial deployment of the Taser. However, the magistrate judge recommended that the individual Defendants be denied summary judgment on qualified immunity grounds with respect to Riley's subsequent use of the Taser, Paull's use of the police dog, and Morgan's use of the Taser because a genuine dispute existed regarding whether Austin was subdued once on the ground, a situation governed by clearly established law.

On September 30, 2011, the district court entered an order adopting the magistrate judge's Report and Recommendation granting in part and denying in part Defendants' motion for summary judgment. Defendants Riley, Paull, and Morgan appeal the district court's denial of their motion for summary judgment only with respect to Austin's excessive force claim on qualified immunity grounds.³

II. DISCUSSION

A. Jurisdiction

Under 28 U.S.C. § 1291, we have jurisdiction to hear an appeal only from a “final decision” of the district court. A district court's denial of qualified immunity is an appealable final decision pursuant to 28 U.S.C. § 1291, but only “to the extent that it turns on an issue of law.” Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir.2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). A defendant raising a qualified immunity defense “may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998) (“A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.”). However, “ regardless of the district court's reasons for denying qualified immunity, we may exercise jurisdiction over the [defendants'] appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685, 689–90 (6th Cir.1999) (en banc) (citation omitted).

In exceptional circumstances, an appellate court may overrule a district court's determination that a factual dispute exists where evidence in the record establishes that the determination is “blatantly and demonstrably false.” Bishop v. Hackel, 636 F.3d 757, 769 (6th Cir.2011) (quoting Blaylock v. City of Philadelphia, 504 F.3d 405, 414 ...