Becker v. Bateman

• Decision Date: 27 February 2013
• Docket Number: No. 11–4054.,11–4054.
• Citation: 709 F.3d 1019
• Parties: Mary K. BECKER, individually, and as the guardian of David H. Becker, Plaintiff–Appellant, v. Jason BATEMAN, in an individual capacity; Edward L. Rhoades, in an official capacity; Heber City Corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

709 F.3d 1019

Mary K. BECKER, individually, and as the guardian of David H. Becker, Plaintiff–Appellant,

v.Jason BATEMAN, in an individual capacity; Edward L. Rhoades, in an official capacity; Heber City Corporation, Defendants–Appellees.

No. 11–4054.

United States Court of Appeals,Tenth Circuit.

Feb. 27, 2013.

Jordan P. Kendell (Jeffrey D. Eisenberg with him on the briefs), Eisenberg & Gilchrist, Salt Lake City, UT, for Appellants.

Peter Stirba (J. Michael Hansen with him on the brief), Stirba & Associates, Salt Lake City, UT, for Appellees.

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Plaintiff–Appellant David Becker was pulled over by Defendant–Appellee Officer Jason Bateman in a parking lot in Heber City, Utah. A confrontation ensued which ended in Becker being thrown to the ground and suffering a severe traumatic brain injury. Becker brought suit against Officer Bateman, the Heber City Chief of Police in his official capacity, and Heber City under 42 U.S.C. § 1983, alleging Officer Bateman used excessive force in violation of the Fourth Amendment. The Complaint also asserted a claim for loss of consortium. The district court granted the defendants' motion for summary judgment, concluding Officer Bateman did not violate Becker's constitutional rights. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms in part and reverses in part the judgment of the district court.

II. Background

On the afternoon of May 14, 2005, Officer Bateman pulled Becker over in the parking lot of Day's Market in Heber City, Utah, for a cracked windshield. Officer Bateman suspected Becker had been drinking and asked Becker how much he had to drink that day. Becker initially denied that he had been drinking, and subsequently refused to answer when the question was repeated to him over the course of the stop. Officer Bateman asked Becker to exit the vehicle. Outside the vehicle, Officer Bateman attempted to perform various field sobriety tests, including the Horizontal Gaze Nystagmus test and a walking test. Becker repeatedly asked why he had been stopped, to which Officer Bateman repeatedly replied that the stop was due to a cracked windshield. Becker was ordered to stand near the rear of his vehicle, where Officer Bateman attempted to place him under arrest. Apparently believing Becker to be resisting this attempt, Officer Bateman threw him to the ground. As a result, Becker suffered a severe traumatic brain injury. Most of the stop was recorded by a video camera affixed to Officer Bateman's dashboard.

Becker brought suit under 42 U.S.C. § 1983, alleging Officer Bateman used excessive force in violation of the Fourth Amendment. Count 1 of the complaint asserted Officer Bateman was individually liable for the use of excessive force. Count 2 alleged the City ¹ was liable for adopting policies and practices which resulted in Officer Bateman's use of excessive force. Count 3 asserted a claim for loss of consortium on behalf of Becker's wife. The district court granted summary judgment in favor of all defendants, concluding Becker failed to establish the violation of a constitutional right.

III. DiscussionA. Standard of Review

This court reviews a grant of summary judgment on qualified immunity grounds de novo, applying the same standard as the district court. J.W. ex rel. A.W. v. Utah, 647 F.3d 1006, 1009 (10th Cir.2011). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). “An issue of fact is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” Id. Put differently, “[t]he question ... is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007) (quotation omitted). “On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation omitted).

This court reviews summary judgments based on qualified immunity differently than other summary judgments. “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). The court maintains discretion to determine “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). While Officer Bateman is entitled to assert the qualified immunity defense, the City is not. Starkey ex rel. A.B. v. Boulder Cnty. Social Servs., 569 F.3d 1244, 1263 n. 4 (10th Cir.2009) (“Qualified immunity ... is available only in suits against officials sued in their personal capacities, not in suits against governmental entities or officials sued in their official capacities.”).

B. Officer Bateman

In reviewing the grant of summary judgment to Officer Bateman, we decline to consider whether the district court erred in concluding no constitutional violation occurred and instead opt to address whether the rights at issue were clearly established at the time of the alleged violation. Pearson, 555 U.S. at 236, 129 S.Ct. 808;see also Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1327 (10th Cir.2008) (“This court ... may affirm for any reason supported by the record, but not relied on by the district court.”). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir.2012) (quotation omitted). Because, however,

the existence of excessive force is a fact-specific inquiry, ... there will almost never be a previously published opinion involving exactly the same circumstances. Thus, we have adopted a sliding scale: The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.

Id. (quotations omitted). Thus, to overcome Officer Bateman's defense of qualified immunity, Becker must demonstrate it was clearly established as of May 14, 2005, that Officer Bateman's use of force was excessive. Becker has not carried this burden.

In Novitsky v. City of Aurora, 491 F.3d 1244, 1255–56 (10th Cir.2007), this court considered whether an officer's application of a “twist lock” maneuver to a potentially intoxicated individual found in the backseat of a vehicle constituted a violation of clearly established law. The court concluded a reasonable jury could have concluded the officer's use of the twist lock was unreasonable under the Fourth Amendment. Id. at 1255. The court nonetheless concluded the officer was entitled to qualified immunity, however, because “the risks presented by potentially intoxicated individuals are inherently fact-dependent and the extent to which an officer may use force in such situations has not been definitively answered by this circuit.” Id. at 1257. The court reached this conclusion notwithstanding authority in other circuits discussing at greater length “the extent to which law enforcement officers may use forceful techniques to protect themselves from the risks presented by potentially intoxicated individuals.” Id. at 1256–57.Novitsky thus indicates there was no clearly established law as of 2007 regarding the appropriate level of force which may be used to arrest a potentially intoxicated person during a stop. Accordingly, because the conduct in Becker's complaint took place in 2005, Becker cannot carry his burden under the second prong of the qualified immunity analysis.

Becker's attempts to either distinguish Novitsky or demonstrate the law was otherwise clearly established are unpersuasive. First, Becker argues the result in Novitsky can be explained not by a genuine lack of clearly established law in 2007 but by the plaintiff's failure to adequately direct the court's attention to applicable authority. Novitsky did note the plaintiff's arguments were “poorly framed and hard to follow.” Id. at 1252. The court's conclusion that this circuit had not definitively determined the extent to which an officer may use force in a confrontation with a potentially intoxicated person, however, was not framed as a response to the plaintiff's poor briefing. Id. at 1257. Rather, it was framed as a legal conclusion which is binding precedent in this court. See id.;Rezaq v. Nalley, 677 F.3d 1001, 1012 n. 5 (10th Cir.2012) (“[W]e are bound by prior panel decisions absent superseding en banc review or Supreme Court decisions.”).

Becker next cites to Corder v. Denver, No. 98–1453, 2000 WL 1234846 (10th Cir. Aug. 31, 2000) (unpublished). In Corder,the court affirmed the denial of a summary judgment motion based on qualified immunity on an excessive force claim involving an intoxicated plaintiff. Id. at *4....