Fisher v. City of Las Cruces

• Decision Date: 19 October 2009
• Docket Number: No. 07-2294.,07-2294.
• Parties: Robert FISHER and Mary Fisher, Plaintiffs-Appellants, v. The CITY OF LAS CRUCES, a municipality organized pursuant to the laws of the State of New Mexico, and its subsidiary, the Las Cruces Police Department; Officer Joann Christine Schnell, a law enforcement officer employed by the Las Cruces Police Department, individually and in her official capacity as a police officer; Officer Roberto Gutierrez, a law enforcement officer employed by the Las Cruces Police Department, individually and in his official capacity as a police officer; Officers John/Jane Doe, 1-5, law enforcement officers employed by the Las Cruces Police Department, individually and in their official capacities as police officers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

584 F.3d 888

Robert FISHER and Mary Fisher, Plaintiffs-Appellants, v. The CITY OF LAS CRUCES, a municipality organized pursuant to the laws of the State of New Mexico, and its subsidiary, the Las Cruces Police Department; Officer Joann Christine Schnell, a law enforcement officer employed by the Las Cruces Police Department, individually and in her official capacity as a police officer; Officer Roberto Gutierrez, a law enforcement officer employed by the Las Cruces Police Department, individually and in his official capacity as a

police officer; Officers John/Jane Doe, 1-5, law enforcement officers employed by the Las Cruces Police Department, individually and in their official capacities as police officers, Defendants-Appellees.

No. 07-2294.

United States Court of Appeals, Tenth Circuit.

October 19, 2009.

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, N.M., for Plaintiffs-Appellants.

Jared Abrams, City of Las Cruces, N.M., for Defendants-Appellees.

Before BRISCOE, TYMKOVICH, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

After Robert Fisher mistakenly shot himself twice, his wife called 911. Two officers responded to the call. Fisher alleges, despite the seriousness of the gunshot wounds to his bicep and stomach, the officers handcuffed him in a painful manner that exacerbated his injuries. Fisher filed suit, claiming the officers violated 42 U.S.C. § 1983 by employing excessive force in violation of his Fourth Amendment rights.

The district court disagreed and granted summary judgment to the officers on qualified immunity grounds. The court concluded that, although the force used by the officers was excessive, the resulting injuries themselves were insufficient as a matter of law under our precedent to permit recovery.

Taking Fisher's allegations as true, we conclude a reasonable jury could find his injuries sufficient to satisfy our minimal threshold injury requirement. Accordingly, we REVERSE.

I. Background

After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard.¹ When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.

Fisher's wife, Mary Fisher, was inside the house and heard Fisher's cries for help. She called 911 to report that her husband had shot himself. In response to the operator's question whether Fisher had threatened her with the gun, she answered "No, not me." Aplt.App. 65. She also told the operator that her husband had said he was "tired of living" and that he "obviously had too much to drink." Id. at. 67. While talking to the operator, Mary Fisher walked outside, apprehended the gun, and placed it in the kitchen.

The 911 operator broadcast a call regarding the incident. Officers Joann Schnell and Roberto Gutierrez, members of the Las Cruces police department, responded. According to the officers, dispatch reported either that an individual had shot himself, or that an individual was suicidal and shots had been fired. When the officers arrived at the Fishers' residence, Mary Fisher was standing outside the front door to greet them. She informed the officers no one else was at the residence aside from herself and her husband, and her husband no longer had the gun. She showed them the gun in the kitchen.

The officers ordered Mary Fisher to stay in the house and walked with their guns drawn into the backyard. They found Fisher kneeling in a crouched position, with his shirt off, and his fresh wounds clearly visible. With Officer Gutierrez's gun trained on Fisher, Officer Schnell frisked him for weapons and found none. In response to the officers' questions, Fisher confirmed that the only other person around was Mary Fisher. Fisher then showed his wounds to the officers.

At that point, Officer Gutierrez returned to the house to retrieve the gun, leaving Officer Schnell alone with Fisher. Officer Schnell sought to provide some medical assistance to Fisher by pressing Fisher's discarded shirt to his stomach and bicep in an effort to staunch the bleeding. Fisher's bicep was, as he later related, "quickly swelling into the size of a grapefruit," and he told Officer Schnell he thought one bullet still might be lodged in his body. Aplt.App. 77.

Returning to the yard with Fisher's gun in his possession, Officer Gutierrez ordered Fisher to lay flat on his wounded stomach and spread his arms over his head. Fisher did not comply, telling the officers that he could not do so because of his injuries. Officer Gutierrez repeated his orders and Fisher again did not comply. Despite Fisher's resistance, Officer Schnell then proceeded to handcuff Fisher behind his back, a process that necessitated, because of the swelling to Fisher's bicep, that she place her knee into Fisher's back in order to leverage his arms behind his body.

Fisher begged not to be handcuffed in this manner. As he later reported: "I protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds.... I begged her not to handcuff me behind my back." Aplt.App. 77. The manner in which he was handcuffed—with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body—caused, in Fisher's words, "excruciating pain. It felt like my bicep was tearing." Id. at 78.

In due course, Fisher brought suit under 42 U.S.C. § 1983, contending that Officers Schnell and Gutierrez used excessive force in violation of his Fourth Amendment rights. The officers moved for summary judgment on the basis of qualified immunity. The district court granted their motion and entered a final judgment against Fisher. In doing so, the district court agreed with Fisher that the force used by the officers was excessive, but held that his claim was precluded as a matter of law because he had not proffered sufficient evidence that he suffered a non-de minimis injury.

II. Discussion

As always, we assess the district court's grant of summary judgment de novo, and view the facts, and all reasonable inferences those facts support, in the light most favorable to the non-movant. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir.2008). But, "[b]ecause of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001).

When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant's motion. The plaintiff must demonstrate that on the facts alleged the defendant violated his or her constitutional or statutory rights. In addition, the plaintiff must show that the right was clearly established at the time of the alleged unlawful activity. Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815-16, 818, 172 L.Ed.2d 565 (2009). "In short, although we will review the evidence in the light most favorable to the nonmoving party, the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity." Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir.2007) (citation omitted).

Beginning in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court required us to consider each of the plaintiff's burdens in a sequential fashion: first to consider whether a right had been violated, and then— and only then—to determine whether the right was clearly established at the time of the alleged violation. Id. at 200, 121 S.Ct. 2151. The Court recently reconsidered this approach and retired the "rigid order of battle." We now use our discretion to decide "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, 129 S.Ct. at 817-18; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.2009). The Court offered many factors for our consideration in deciding when and how to exercise this discretion. But the question whether to proceed directly to the second prong arises, of course, only when qualified immunity is granted. To secure the denial of qualified immunity, a plaintiff still bears the burden of establishing both Saucier prongs. And that is the situation in which we now find ourselves.

We thus proceed to analyze his appeal addressing both prongs.

A. Constitutional Violation

The first question is whether Fisher has demonstrated a reasonable jury could find that the officers violated his Fourth Amendment rights by applying excessive force. As a threshold matter, we agree with the district court that the initial decision to handcuff Fisher was not unreasonable. Rather, the issue here is whether in these circumstances the manner in which the officers handcuffed Fisher, forcibly behind his back while he suffered from gun shot wounds, constituted excessive force. "If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force." Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir.2007).

Our recent cases guide this analysis. In Cortez we explained that in a handcuffing case "to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or...