Graham v. Cawthorn

• Decision Date: 18 April 2013
• Docket Number: No. 12–959.,12–959.
• Citation: 2013 Ark. 160,427 S.W.3d 34
• Court: Arkansas Supreme Court
• Parties: Elmer GRAHAM, Individually and in his Official Capacity, Appellant v. Iris CAWTHORN, Appellee.

2013 Ark. 160

427 S.W.3d 34

Elmer GRAHAM, Individually and in his Official Capacity, Appellant

v.Iris CAWTHORN, Appellee.

No. 12–959.

Supreme Court of Arkansas.

April 18, 2013.

Michael Mosley, North Little Rock, for appellant.

Luther Oneal Sutter, Little Rock, for appellee.

JIM HANNAH, Chief Justice.

This is an interlocutory appeal of an order of the Prairie County Circuit Court denying appellant Elmer Graham's motion for judgment on the pleadings on immunity grounds. In addition, the appeal raises issues concerning collateral estoppel and the preclusive effect of a federal-court judgment on a state-court action.¹ Because we conclude that Graham is entitled to qualified immunity on one claim and that collateral estoppel bars the remaining claims, we reverse and remand.

Graham was an officer with the Des Arc Police Department when he arrested appellee Iris Cawthorn in November 2007 for disorderly conduct and refusal to submit to arrest. Cawthorn was convicted of both offenses in district court and appealed to the circuit court, which overturned the disorderly-conduct conviction. Cawthorn brought suit against Graham in his individual and official capacities in the United States District Court for the Eastern District of Arkansas under 42 U.S.C. § 1983, the Arkansas Constitution, and the Arkansas Civil Rights Act. See Roe v. Graham, No. 2:09–cv–98 (DPM), 2010 WL 4916328 (E.D.Ark. Nov. 23, 2010). She alleged that Graham arrested her without probable cause and used excessive force. Id. She also alleged that Graham arrested her because she exercised her rights to free speech and her right to petition the government for redress and remonstration of grievances. Id. Further, Cawthorn alleged that the constitutional violations were caused by a failure to train, a failure to supervise, and a policy of using excessive force, implemented and ratified by the policy makers of Des Arc. Id.

After a trial on the merits, the federal district court entered the following findings of fact and conclusions of law:

Findings of Fact

1. Elmer Graham was an officer with the Des Arc, Arkansas, Police Department when he arrested Iris Cawthorn in November 2007. He has been a certified law-enforcement officer since 1995 and has had continuing law-enforcement training since he completed the basic-training course. Officer Graham has been trained in the proper use of force and when to use it.

2. Officer Graham lawfully arrested Cawthorn's son, Robert “Sonny” Cawthorn, one day in November 2007. Officer Graham then drove Robert to the Prairie County Sheriff's Office for processing.

3. Cawthorn knew her son was going to be arrested based on a phone call he had made to her shortly before his arrest. Cawthorn was not surprised that her son had been arrested because she knew about an outstanding warrant against him. She arrived at the Sheriff's Office a short time after her son and Officer Graham got there. She went to the station to check on her son, who sometimes has trouble breathing and requires an inhaler.

4. Officer Graham had yet to transfer Robert from his car and into the jail when Cawthorn approached them. They all met in the parking lot, which was open to the public. The testimony conflicted on what exactly Cawthorn said to Officer Graham and how she said it. But the Court need not resolve this conflict.

5. What is clear is that Officer Graham told Cawthorn that he could not help her and that she should see a local District Judge about the arrest warrant. He also told her to leave so that he could process her son into the jail. Cawthorn complied.

6. While driving away, Cawthorn saw an ambulance heading to the Sheriff's Office. She became concerned that the emergency personnel had been called to treat her son's breathing problems. She turned the car around and drove back to the Sheriff's Office.

7. The parties agreed at trial that Cawthorn's claims turn on her second trip to the Sheriff's Office. The Court agrees, and therefore concentrates on that event.

8. Cawthorn went inside the Sheriff's Office and asked to speak with Officer Graham again. She began asking loudly about her son and complaining about his arrest. Cawthorn was causing a disturbance, so some personnel asked Officer Graham to go up front and talk to her. At this point, Officer Graham was in the back of the jail working on the paperwork to complete Robert's arrest. Having to deal with the disturbance interfered with Officer Graham's duty to process Robert's arrest.

9. The front door of the Prairie County Sheriffs office opens into a small, hall-like lobby, approximately eight feet wide and ten feet long. The lobby contains a few chairs. There is a counter beneath a plexiglass window in a wall that separates the lobby from the dispatch area. Visitors can talk with the office staff through the window. The dispatch area includes the dispatcher's work station and desks for officers. A door provides access from the lobby to the dispatch area. The lobby is a public space routinely used by citizens.

10. The particulars of Cawthorn's demeanor and behavior in the lobby were much disputed. But the Court credits Officer Graham's testimony that Cawthorn was disrupting the staff's ability to work in the dispatch area. The dispatcher, a hesitant witness, wobbled on this issue depending on who was doing the questioning; so the Court gives little weight to her testimony. Deputy Bradley Taylor was working in that area when Cawthorn was in the lobby. He heard the disturbance but not exactly what was said. The Court also credits Deputy Taylor's testimony that Cawthorn's behavior impaired the dispatcher's ability to handle calls effectively and eventually interrupted Deputy Taylor's own work.

11. Officer Graham testified that Cawthorn was getting angry and becoming more belligerent while talking with him about her son. Officer Graham also said that he did not think he could de-escalate the situation, so he told her to leave. He said that by this time Cawthorn was right below raging and would not leave after she was told twice to do so.

12. No other member of the public besides Cawthorn was in the lobby during the disturbance. She never acted violently, damaged any property, threatened anyone, approached anyone aggressively, or cursed any person. Officer Graham nonetheless warned Cawthorn that if she did not leave and end the disturbance she was causing then she would be arrested. Cawthorn refused to comply with the warning, so Officer Graham told her that she was under arrest.

13. Officer Graham placed his hands on Cawthorn's hand to make the arrest. According to her testimony, which was corroborated by Officer Graham, Cawthorn twisted out of his hands. Officer Graham then put one arm around her shoulder, with one hand on the nape of her neck, and embraced her against the counter with his body. He told her again that she was under arrest.

14. Officer Graham also told Cawthorn that if she did not submit to arrest, then he would pepper spray her. Cawthorn submitted. Officer Graham testified that he took Cawthorn's size, age, and physical condition into account when deciding how much force to use when he arrested her. The Court credits his testimony. Though he threatened its use, Officer Graham never pepper sprayed Cawthorn; nor was she handcuffed during or after the arrest.

15. After Cawthorn was arrested by Officer Graham, Deputy Taylor helped calm her down and escorted her to a holding area where her son was being held. Cawthorn was detained a short period of time and then released. DeputyTaylor described Cawthorn as harassing Officer Graham in a report Taylor wrote after the arrest.

16. Cawthorn never complained of any injury to Deputy Taylor, Officer Graham, or any other person at the Sheriff's Office. She did not tell Officer Graham that he was hurting her during the arrest. She did not cry out in pain or ask Officer Graham to stop hurting her.

17. Cawthorn was not immediately treated by any health-care provider for any injuries—physical or psychological—that were allegedly caused by Officer Graham. About eight months after the arrest, Cawthorn had an MRI done on her neck and back. She agreed that she had problems with these areas before the arrest, though she said the arrest made those problems worse. Cawthorn agreed that she lost no income due to the arrest; but she was embarrassed by it, and she reduced her visits to town afterward. She also testified that the arrest made her long-standing depression worse and that she cried for weeks afterward.

18. Cawthorn was charged with disorderly conduct and refusing to submit to arrest, and then convicted of both in a state District Court. She appealed her convictions to a state Circuit Court, which upheld the refusal-to-submit conviction and overturned the disorderly conduct conviction.

19. Sometime after her arrest, Cawthorn complained about her arrest to the City of Des Arc Police Department. Cawthorn also tried to file criminal battery charges against Officer Graham. No prosecutor pursued these charges.

20. Des Arc Chief of Police Darrell Turner testified that he turned the investigation about the arrest over to the Prairie County Sheriff's Office. Sheriff Gary Burnett investigated Cawthorn's complaint.

21. When Cawthorn was arrested, Des Arc had in place no policies or customs requiring or permitting officers to use more force than necessary to make an arrest. The documentary evidence supports this fact.

22. No reviewing official or entity found that Officer Graham violated Des Arc's written policy on the use of force. Officer Graham was never disciplined by any supervising authority for how he treated Cawthorn.

23. Based on the proof, the Court is not persuaded that the City was deliberately indifferent to Cawthorn's complaint of excessive force. The Mayor received Cawthorn's complaint and Chief Turner referred it to the Prairie County Sheriff's Office for investigation by a third party. That no disciplinary action was...