Dixon v. Richer

• Decision Date: 07 January 1991
• Docket Number: No. 89-1336,89-1336
• Parties: Willie DIXON, Hyon Dixon, Plaintiffs-Appellees, v. Deputy Sheriff Donald RICHER, Deputy Sheriff David Yarbrough, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1456

922 F.2d 1456

Willie DIXON, Hyon Dixon, Plaintiffs-Appellees, v. Deputy Sheriff Donald RICHER, Deputy Sheriff David

Yarbrough, Defendants-Appellants.

No. 89-1336.

United States Court of Appeals, Tenth Circuit.

Jan. 7, 1991.

Rehearing Denied May 10, 1991.

Phillip A. Vaglica, (Ann A. Maenpaa, Asst. County Atty., Office of the County Atty. of El Paso County, Colo., with him on the briefs), Colorado Springs, Colo., for defendants-appellants.

Edward J. LaBarre, (Mark J. Rue, with him on the briefs), Colorado Springs, Colo., for plaintiffs-appellees.

Before ANDERSON, BALDOCK, and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Sheriff's Deputies Donald Richer and David Yarbrough appeal a district court order denying their motion for summary judgment on qualified immunity and collateral estoppel grounds, in a 42 U.S.C. Sec. 1983 action brought against them by Willie and Hyon Dixon. We affirm.

I.

Willie and Hyon Dixon are married. On November 28, 1987, they went to the Oriental King Restaurant and Lounge (the Oriental King) in El Paso County, Colorado, with Hyon's brother, Kwan Choe, and a family friend, Pyonz Ober. While they were there, Choe became angry because Hyon Dixon danced with a man other than her husband. Choe threw a chair into some mirrors, causing damage. After being subdued, Choe left the restaurant with Ober.

The Dixons remained at the Oriental King long enough to discuss the resulting property damage with a security guard and the Oriental King's owner, both of whom the Dixons already knew. The Dixons assured them that Choe would pay for any property damage he had caused. The Dixons then left in their blue van.

The security guard had called the El Paso County's Sheriff's office when the disturbance took place. Shortly after the Dixons left, Sheriff Deputy Doris Flanigan arrived at the scene and questioned the security guard. Flanigan was informed that the "Korean male" (Choe) who had caused the damage had left, and that the people he had been sitting with were driving a blue van and had just left.

Assuming that Choe had left with the Dixons, Flanigan radioed to Deputy Richer, who had just pulled into the Oriental King's parking lot. She said "the blue van," and pointed in the direction the van had gone. Richer proceeded after the blue van in his police cruiser and stopped it a short distance from the Oriental King.

There is considerable dispute over what happened next. For purposes of reviewing the denial of summary judgment, we consider the evidence in the light most favorable to the non-moving party. As a result, the Dixons' account, as presented in affidavits, depositions and prior testimony, follows.

After pulling over, the Dixons both exited the van and began to walk back to Richer's car. Over the P.A. system, Richer told the Dixons to stop where they were. They complied. Richer then got out of his car, drew his handgun, and pointed it at the Dixons. Mr. Dixon informed Richer that he was a Department of Corrections Officer, and Richer lowered and reholstered his weapon. Mr. Dixon went back to the van to obtain his Department of Corrections identification, handed it to Richer, and asked "Now, could you kindly tell me why we are being stopped?" Instead of responding to Mr. Dixon's question, Richer stated "I can care less who you work for. Get up against the van."

Mr. Dixon complied and put his hands up against the van. Richer then informed him to spread out from the van. Mr. Dixon moved his legs backward. At that point, Richer began to frisk him, and, while patting him down, told him to "move them back further." Mr. Dixon scooted his legs back even further. Richer then kicked Mr. Dixon in the instep, causing him intense pain. Dismayed, Mr. Dixon turned toward Richer and asked, "Is that f____ing necessary?" Richer said, "You stay right here," returned to his police car, and radioed for a backup.

Several minutes later, Deputy Yarbrough arrived. The two deputies conversed briefly and then walked over to the Dixons. As they did so, Richer again pulled his gun and told Mr. Dixon to get back up against the van, and Yarbrough had his nightstick out and tapped it menacingly in his hand. Mr. Dixon put his hands up against the van.

The officers began to pat him down again. Without warning, one of them kicked Mr. Dixon again, so forcefully that he started to fall. As Mr. Dixon fell, Richer hit him in the stomach with a metal flashlight. Once on the ground, the deputies got on top of him and began to beat and choke him.

At this point, Hyon Dixon became hysterical and screamed, "Don't hurt my husband. He didn't do anything wrong." She saw Yarbrough use his nightstick to twist her husband's leg. She screamed into Yarbrough's ear, and he pushed her to the ground, stepped on one of her legs, and twisted one arm and hand behind her back and up to her neck. Terrified, Mrs. Dixon resisted Yarbrough's attempts to handcuff her.

At this point, Flanigan arrived on the scene and assisted Yarbrough in handcuffing Mrs. Dixon. Mrs. Dixon screamed at Flanigan that Richer and Yarbrough had treated them like animals and that they had done nothing wrong. Flanigan assured Mrs. Dixon that if she had done nothing wrong, everything would be all right. Mrs Dixon calmed down and allowed herself to be handcuffed. Richer and Yarbrough then handcuffed Willie Dixon as well.

The Dixons were jailed and charged with "Second Degree Assault on a Police Officer," a felony, and various misdemeanors. They were tried by a jury in state court and acquitted of all charges. Subsequent to their acquittal, the Dixons filed this action against Richer and Yarbrough. Their Sec. 1983 claim alleges that the deputies deprived them of various constitutional rights, including due process, equal protection, and the right to be free from unreasonable searches and seizures. The Dixons also asserted pendent state claims of libel, slander, assault, battery, false arrest, false imprisonment and malicious prosecution. At the close of discovery, Richer and Yarbrough moved for summary judgment. The district court dismissed any Sec. 1983 claim grounded on the Eighth Amendment, but otherwise denied the motion for summary judgment.

II.

Richer and Yarbrough assert that summary judgment should have been granted on the basis of collateral estoppel. They base their assertion on the fact that the Colorado court that conducted the Dixons' criminal trial ruled, in a pretrial suppression hearing, that Richer and Yarbrough had reasonable suspicion to stop and probable cause to arrest the Dixons.

"Under proper circumstances, federal courts accord preclusive effect to issues decided by state courts." O'Connor v. City and County of Denver, 894 F.2d 1210, 1225 (10th Cir.1990). In fact, "Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so...." Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (citing to 28 U.S.C. Sec. 1738). This practice "promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system." Id.

Colorado law precludes litigation of an issue if (1) the issue was actually litigated and necessarily adjudicated in a prior proceeding; (2) the party against whom preclusion is sought was a party to or was in privity with a party in the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom preclusion is sought had a full and fair opportunity to litigate the issue in the prior proceeding. People v. Allee, 740 P.2d 1, 5 (Colo.1987).

These requirements have not been met. First, the issues in this case were not decided in the prior proceeding. The first issue supposedly precluded, whether Richer and Yarbrough had reasonable suspicion to stop the Dixons, is not even in dispute. Even if the second issue--whether Richer and Yarbrough had probable cause to arrest the Dixons--were decided in the prior proceeding, it would not preclude litigation of the critical issue whether Richer and Yarbrough used unreasonably excessive force in arresting the Dixons.

Second, the Dixons did not have a full and fair opportunity in the prior proceeding to litigate the issue of probable cause to arrest. They did not have an opportunity to appeal the court's ruling on their motion to suppress. Before a final judgment, such an interlocutory appeal would have been improper, and after the judgment (the Dixons were acquitted), an appeal was rendered moot.

The district court correctly denied the motion for summary judgment on the basis of collateral estoppel.

III.

Richer's and Yarbrough's chief argument on appeal is that the district court should have granted their motion for summary judgment on the basis of qualified immunity. "The doctrine of qualified immunity provides that government officials 'generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Rozek v. Topolnicki, 865 F.2d 1154, 1157 (10th Cir.1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

The framework for analyzing a claim of qualified immunity on summary judgment is as follows. "Once a defendant raises the defense of qualified immunity ... '[t]he plaintiff carries the burden of convincing the court that the law was clearly established.' " Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989) (quoting Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988)). The plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that the law was clearly established when the alleged violation occurred." Id. (quoting Pueblo...