Butler v. City of Norman, 92-6264

• Decision Date: 28 April 1993
• Docket Number: No. 92-6264,92-6264
• Citation: 992 F.2d 1053
• Parties: James K. BUTLER, Plaintiff-Appellee, v. The CITY OF NORMAN, a municipal corporation; The Cleveland County Board of County Commissioners; John Walsh, Cleveland County Sheriff, in his official capacity, Defendants, and David T. Boyett, Chief of Police for the City of Norman, in his official capacity and individually; Michael D. Freeman, in his official capacity and individually; Steve Flint, in his official capacity and individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1053

992 F.2d 1053

James K. BUTLER, Plaintiff-Appellee, v. The CITY OF NORMAN, a municipal corporation; The Cleveland County Board of County Commissioners; John Walsh Cleveland County Sheriff, in his official capacity, Defendants and David T. Boyett, Chief of Police for the City of Norman, in his official capacity and individually; Michael D. Freeman in his official capacity and individually; Steve Flint, in his official capacity and individually, Defendants-Appellants.

No. 92-6264.

United States Court of Appeals Tenth Circuit.

April 28, 1993.

Jim T. Priest of McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for defendants-appellants.

Marilyn D. Barringer, Oklahoma City, OK, for plaintiff-appellee.

Before McKAY, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff James K. Butler initiated this action under 42 U.S.C. § 1983, seeking recovery for alleged violations occurring in connection with his arrest on February 25, 1990, in Norman, Oklahoma. Plaintiff alleges that excessive force was used, that he was denied needed medical care, and that he was forced to undergo an illegal strip search. The facts as alleged by the parties are adequately set forth in the district court's Order on Defendants' Motions for Summary Judgment entered on July 16, 1992. Three defendants who were sued in their individual capacities appeal from the district court's denial of their motion for summary judgment asserted on the basis of qualified immunity. ¹ App. at 000938. We exercise jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530, 105 S.Ct. 2806, 2815-16, 2817, 86 L.Ed.2d 411 (1985); ² Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988).

Our review of the district court's order covers one basic issue. These defendants raise only the question whether Chief David Boyett and Officers Michael Freeman and Steve Flint enjoy qualified immunity from Butler's claim that the arresting officers used excessive force. (Appellants' Br. at 1-2.) On appeal these defendants also argue that they have qualified immunity from the claim arising from the strip search. However, the latter argument was not made below, (Doc. 27, Br. in Opp. to Mot. for Summ. J. at 18), and will not be considered here. Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991).

Our review of the denial of qualified immunity is de novo. Considine v. Board of County Comm'rs, 910 F.2d 695, 702 (10th Cir.1990). We have previously set out the procedure for analyzing a defense of qualified immunity:

First, the defendant must raise the defense of qualified immunity. Once the defendant has adequately raised the defense, the plaintiff must show that the law was clearly established when the alleged violation occurred and come forward with facts or allegations sufficient to show that the official violated the clearly established law. Then the defendant assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute. Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir.1991); Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989).

Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992).

It was clearly established by the time of Butler's arrest in February 1990 that a claim of excessive force by officers in the course of an investigatory stop, arrest, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its standard of objective reasonableness under the circumstances. Graham v. Connor, 490 U.S. 386, 395, 399, 109 S.Ct. 1865, 1871, 1873, 104 L.Ed.2d 443 (1989). At the time of Butler's arrest, we generally examined claims of post-arrest, pretrial violence and abuse under the more onerous substantive due process standard requiring, in addition to undue force, personal malice amounting to an abuse of official power sufficient to shock the conscience. Frohmader v. Wayne, 958 F.2d 1024, 1027 (10th Cir.1992). It has been held that the presence of an arrestee in jail and the completion of the booking process marks the line between "arrest" and "detention." Titran v. Ackman, 893 F.2d 145, 147 (7th Cir.1990). On the other hand, the Supreme Court of Idaho has held that arraignment is the break between arrest and detention for determining whether the Fourth Amendment protection or due process applies. Grant v. City of Twin Falls, 120 Idaho 69, 813 P.2d 880, 886 (1991). Here we need not decide the precise point at which pretrial detention commenced as to Butler because all of the challenged conduct occurred during the course of the investigatory stop and arrest of Butler who was not charged or arraigned until later.

Here defendants' motion for summary judgment involves whether they can demonstrate that there is no material factual dispute that the force applied in their contact with plaintiff was objectively reasonable, applying Fourth Amendment protection in accord with Graham. Upon our independent review of the record on appeal, we agree with the district court's conclusion that genuine issues of material fact exist concerning the plaintiff's excessive force claim, as explained below. "Courts may not resolve disputed questions of material fact in order to grant summary judgment." Frohmader v. Wayne, 958 F.2d at 1028 (reversing summary judgment dismissing excessive force claim).

We turn to the factual assertions in Butler's deposition, although they are sharply contested. We do so because in considering whether a summary judgment should have been granted, reviewing the ruling de novo we resolve all factual disputes and draw all inferences in favor of the nonmoving party. Murphy v. Klein Tools, Inc., 935 F.2d 1127, 1128 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 407, 116 L.Ed.2d 355 (1991). Thus viewing the record in the light most favorable to Butler, his deposition shows these factual assertions: Butler was driving along Berry Road when he stopped suddenly after hitting a dog. (Doc. 41, Exh. 3 (Deposition of James Butler)). He said that in looking for the dog he walked back to the pickup which had stopped behind him. Id. at 27. According to the deposition, Officer Freeman ordered Butler to step away from the truck, all the while gesturing towards his service revolver. Id. at 30. Butler testified that he asked why and was told he was under arrest for resisting arrest. Id. at 29. Officer Flint was also present at this time.

At that point a backup police car arrived and a third officer got out. Id. at 35. Butler's deposition states that the three officers then rushed him, tackled him, and threw him face first into the bed of the pickup. Id. at 36. According to Butler, the officers then handcuffed his hands behind his back and beat him with flashlights. Id. at 37-38. After a minute of such beating, Butler said he was kneed in the groin and shoved into a patrol car. Id. at 48. He testified that during the beating Freeman taunted him saying, "Let's see how bad you are now big boy." Id. at 38. Butler claims that although he did not fight back, id. at 42, he was left with bruises over his entire body, id. at 41, and the skin was torn off his hands and arms, id. at 42. Butler was ultimately treated for his injuries in the emergency room of the Norman Regional Hospital. Id. at 44. Butler was taken to the Cleveland County jail where he states Officer Freeman shoved him face-first into a wall with his hands still handcuffed behind him. Id. at 97. Butler was charged with a variety of misdemeanors, but was acquitted on all...