Davis v. Clifford

• Decision Date: 13 June 2016
• Docket Number: No. 15–1329,15–1329
• Citation: 825 F.3d 1131
• Parties: LaTonya Denise Davis, Plaintiff–Appellant, v. Todd Clifford, Lakewood Police Officer; Todd Fahlsing, Lakewood Police Sergeant; Michele Wagner, Lakewood Police Sergeant; Michelle Current, Lakewood Police Sergeant; City of Lakewood, jointly and severally, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

825 F.3d 1131

LaTonya Denise Davis, Plaintiff–Appellant

v.Todd Clifford, Lakewood Police Officer; Todd Fahlsing, Lakewood Police Sergeant; Michele Wagner, Lakewood Police Sergeant; Michelle Current, Lakewood Police Sergeant; City of Lakewood, jointly and severally, Defendants–Appellees.

No. 15–1329

United States Court of Appeals, Tenth Circuit.

Filed June 13, 2016

Submitted on the briefs:^*

LaTonya Denise Davis, pro se.

Thomas J. Lyons and Matthew J. Hegarty, Hall & Evans, L.L.C., Denver, Colorado; for City of Lakewood; Michele Wagner; Todd Clifford; Todd Fahlsing, Defendants–Appellees.

Jonathan M. Abramson, Kissinger & Fellman, P.C., Denver, Colorado, for Michelle Current, Defendant–Appellee.

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.

LUCERO, Circuit Judge.

LaTonya Davis, proceeding pro se, brought this action against four Lakewood Police Department officers and the City of Lakewood (the “City”). She alleges that the officers used excessive force in arresting her for a misdemeanor offense. Upon stopping Davis' car, which had a license plate with a handicapped symbol, for driving with a suspended license, Officer Todd Clifford called for additional assistance; several police cars arrived and officers began pounding Davis' car with their batons, demanding she exit the vehicle. Fearing for her safety, Davis asked the officers for assurances that they would not hurt her, and they responded by smashing her car window, pulling her through the broken window by her hair and arms, and throwing her on the glass-littered pavement. Davis also claims the City is culpable in failing to properly train and supervise the officers. She appeals the district court's grant of summary judgment, which held the officers were entitled to qualified immunity and the City was not liable.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings. Specifically, we reverse the district court's grant of qualified immunity to two of the officers, Clifford and Sergeant Todd Fahlsing. If proven, their alleged use of force against a misdemeanant who did not pose an immediate threat to herself or others would be excessive under clearly established law. We affirm as to all other defendants because Davis has waived any challenge with respect to those defendants.

I

On review of summary judgment, we recite the facts in the light most favorable to Davis, the non-moving party. See Howard v. Waide , 534 F.3d 1227, 1235 (10th Cir. 2008). Many of the material facts recited here are disputed.

Davis' claims arise from a traffic stop that occurred around 11:30 pm on February 25, 2012, in Lakewood, Colorado. Clifford processed Davis' license plate, which had a handicapped symbol, through a law-enforcement database and discovered an active warrant for her arrest for driving with a suspended license caused by failure to provide proof of insurance. As he activated his emergency lights, Clifford called for back-up assistance, and three other officers responded that they were en route. Davis pulled into a parking lot and turned off her car, and the other officers soon arrived, blocking Davis' vehicle from all directions.

After being surrounded by police cars, Davis heard batons banging on her car and, fearing for her safety, she locked the doors and rolled up her window. Clifford and Fahlsing approached the driver's side door, and Clifford told Davis to step out of the car. Through a gap in the window, Davis asked why she had been pulled over and offered to show her license, insurance, and registration. Clifford responded, “you know why,” and commanded her to “step the fuck out of the car.” After the officers told Davis that she was under arrest and again directed her to exit the vehicle, Davis responded that she would get out of the car if the officers promised not to hurt her.

When Davis did not immediately exit her vehicle, Fahlsing shattered the driver's side window with his baton. Instead of reaching in to open the door, Clifford and Fahlsing grabbed Davis by her hair and arms, pulled her through the shattered window, pinned her face-down on the broken glass outside the car, and handcuffed her. Placed into a patrol car, Davis suffered an anxiety attack—paramedics were called and she was transported to a hospital for treatment. She was then transferred to jail.

Davis filed suit alleging that the officers used excessive force in arresting her and that the City failed to properly train and supervise the officers. The defendants filed a motion for summary judgment, asserting they were entitled to qualified immunity and there was insufficient evidence to support Davis' claim against the City. A magistrate judge recommended granting the motion in favor of all defendants. The district court adopted the recommendation and entered summary judgment. Davis timely appeals.

II

“We review orders granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.” Howard , 534 F.3d at 1235. Summary judgment is appropriate “if 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).¹

“Title 42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law.” Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (quotation omitted). “We treat excessive force claims as seizures subject to the reasonableness requirement of the Fourth Amendment. Accordingly, to establish a constitutional violation, the plaintiff must demonstrate the force used was objectively unreasonable.” Havens v. Johnson , 783 F.3d 776, 781 (10th Cir. 2015) (quotation omitted).

In response to Davis' claims of excessive force, the officers moved for summary judgment, asserting they were entitled to qualified immunity. Qualified immunity “shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker , 745 F.3d at 411 (quotation omitted). Qualified immunity having been claimed, “the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Id. (quotation omitted).

A

We consider whether, viewed in light most favorable to plaintiff Davis, defendants Clifford and Fahlsing's conduct violated her constitutional rights. “The ultimate question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them.” Casey v. City of Fed. Heights , 509 F.3d 1278, 1281 (10th Cir. 2007) (quotation omitted). This determination “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

The severity of Davis' crime weighs against the use of anything more than minimal force because the charge underlying her arrest—driving with a suspended license for failing to provide proof of automobile insurance—is a misdemeanor. See Colo. Rev. Stat. § 42–7–422. Although “an officer can effect an arrest for even a minor infraction, [a] minor offense—at most—support[s] the use of minimal force.” Perea v. Baca , 817 F.3d 1198, 1203 (10th Cir. 2016) ; accord Morris v. Noe , 672 F.3d 1185, 1195 (10th Cir. 2012) (holding the amount of force should be reduced for a misdemeanor); Fisher v. City of Las Cruces , 584 F.3d 888, 895 (10th Cir. 2009) (stating the commission of a petty misdemeanor weighs in favor of using minimal force). Clifford and Fahlsing are alleged to have shattered Davis' car window and pulled her through the broken window by her arms and hair; this degree of substantial force plainly would exceed the minimal amount proportional to her misdemeanor. The first Graham factor thus weighs heavily against Clifford and Fahlsing.

The second factor, whether Davis posed an immediate threat to the safety of the officers or others, also weighs against Clifford and Fahlsing. There is no evidence that Davis had access to a weapon or that she threatened harm to herself or others. Cf. Zia Trust Co. ex rel. Causey v. Montoya , 597 F.3d 1150, 1155 (10th Cir. 2010) (clearly established law prohibits use of deadly force when the officer “did not have probable cause to believe that [arrestee posed] a serious threat of serious physical harm to himself or others” (quotation omitted)); see also Terebesi v. Torreso , 764 F.3d 217, 239 (2d Cir. 2014) (denying qualified immunity to officers who used stun grenades when there was no suggestion that the arrestee was ready to engage in violence or had immediate access to weapons); Cyrus v. Town of Mukwonago , 624 F.3d 856, 863 (7th Cir. 2010) (holding a jury could conclude that officer's use of force was excessive, in part, because the officer knew the arrestee was unarmed and could not access a weapon); Winterrowd v. Nelson , 480 F.3d 1181, 1185 (9th Cir. 2007) (officer's use of force was not justified when arrestee carried a weapon in his car but was far from his vehicle and unable to access the weapon). To the contrary, Davis alleges she merely sought reassurance that she would not be hurt, and that the officers responded by shattering her vehicle window and pulling her through the broken window by her hair and arms. Because the evidence does not demonstrate that Davis posed a threat to the safety of the officers or others, this factor suggests Clifford and Fahlsing's use of force was excessive.

The third factor, whether Davis actively resisted or attempted to evade arrest, weighs slightly...