Hocker v. Pikeville City Police Dep't

• Decision Date: 03 February 2014
• Docket Number: No. 13–5341.,13–5341.
• Citation: 738 F.3d 150
• Parties: Charles Russell HOCKER, Plaintiff–Appellant, v. PIKEVILLE CITY POLICE DEPARTMENT; Addison Baisden and Chadwick Branham, in their individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

738 F.3d 150

Charles Russell HOCKER, Plaintiff–Appellant,

v.PIKEVILLE CITY POLICE DEPARTMENT; Addison Baisden and Chadwick Branham, in their individual and official capacities, Defendants–Appellees.

No. 13–5341.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 10, 2013.

Decided and Filed: Dec. 17, 2013.

Rehearing and Rehearing En Banc Denied Feb. 3, 2014.

ARGUED:Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell H. Davis, Jr., Baird and Baird, Pikeville, Kentucky, for Appellees. ON BRIEF:Katherine L. MacPherson, Grand Rapids, Michigan, for Appellant. Russell H. Davis, Jr., Baird and Baird, Pikeville, Kentucky, for Appellees.

Before: BOGGS and SUTTON, Circuit Judges; CLELAND, District Judge ^*.

OPINION

SUTTON, Circuit Judge.

A heavily intoxicated, possibly suicidal Charles Hocker led two Pikeville police cruisers on a nighttime, lights-off, high-speed chase for seven miles before pulling onto a darkened gravel road. A lot happened in the next few seconds. Officers Addison Baisden and Chadwick Branham exited their cruisers with guns drawn and ordered Hocker to show his hands and turn off his car. Maybe Hocker heard the commands; maybe he didn't. But no matter what Hocker heard, what he did next is beyond dispute: He put his vehicle in reverse—accelerating quickly enough to spin his tires—and rammed one of the two cruisers, moving it thirty feet. Baisden and Branham opened fire on Hocker's vehicle. Once the shooting ended, they forcibly removed a severely wounded Hocker from his car. After pleading guilty to two counts of wanton endangerment in the first degree, one count of fleeing or evading police in the first degree, and one count of driving under the influence, Hocker sued the officers under 42 U.S.C. § 1983, claiming excessive force. The district court granted qualified immunity to the officers and rejected the claims against the other defendants in the case: the City of Pikeville and its police department. We affirm.

I.

After getting off work on August 13, 2010, Hocker drank a six-pack of Budweiser “Tall Boy” beers, and at approximately 10:30 pm he drove to the home of his on-again, off-again girlfriend Jessica Batten. A protective order, however, directed Hocker not to go to Batten's house. Batten called 911, reporting that Hocker was “highly intoxicated” and “suicidal” and that he had just left her home in a red Honda.

Officers Baisden and Branham saw a red Honda Prelude with its headlights off speed past their two police cruisers. Hocker admits that the lights of his Prelude were off, that he was traveling between 70 and 80 miles per hour, and that he passed at least one civilian vehicle on the winding, narrow Hurricane Road. The officers gave chase. Hocker denies seeing or hearing the officers—neither the headlights nor the red-and-blue flashing lights nor the sirens of the two police cars directly behind him—during the seven-mile pursuit. After driving this way for six minutes or so, Hocker admits that he pulled off the main road into a gravel driveway and stopped.

Hocker's version of the next 25 seconds goes like this. He thought he was alone on the gravel road, and he claims to have grabbed a CD from his backseat, put it in, and turned the volume up before attempting to back out of the driveway. The engine on his Prelude allegedly has a throttle defect that causes it to accelerate to 4,000 RPMs on its own, so the car shot backwards when he put it in reverse, possibly spinning gravel and most definitely running into Baisden's cruiser. Hocker thought he had hit a telephone pole, not a police cruiser, and the last thing he remembers is hearing shots (and possibly feeling one round hit his left side) before blacking out.

Officers Baisden and Branham add a few undisputed facts and another perspectiveon these 25 seconds. After the three vehicles stopped on the gravel road, Baisden and Branham turned off their sirens and exited their cruisers. Baisden “post[ed] up” next to his cruiser, positioning himself between the cruiser's body and his open driver's side door, and he ordered Hocker to show his hands and step out of his vehicle. R. 33 at 8. Branham's cruiser was parked somewhere to Baisden's right, but Branham moved on foot to his left to join Baisden. The collision between the Prelude and Baisden's cruiser caused Baisden's open door to swing closed, temporarily trapping his arm. Baisden was forced to backpedal as Hocker's Prelude pushed the cruiser some thirty feet toward a ditch. Seeing that Baisden was trapped and backpedaling—and backpedaling himself to avoid “the vehicle coming back on [him]”—Branham decided he “had to do something.” R. 36 at 10–11. He moved further to his left to avoid Baisden's vehicle, and, once he had an angle on Hocker's car, Branham opened fire. Baisden soon freed himself from the door and fired shots at the Prelude as well. Where exactly Baisden and Branham stood when they fired their weapons is not clear, but based on the location of the spent shell casings recovered at the scene, it seems that the officers fired from positions to the left of Baisden's cruiser and Hocker's Prelude.

In all, the officers fired twenty shots at Hocker's vehicle, hitting Hocker nine times. Hocker blacked out shortly after the shooting started and vaguely remembers “somebody grabbing [him].” R. 35 at 34. When the shooting stopped, the officers opened Hocker's door and ordered him out of the vehicle. When Hocker did not comply, the officers reached into the vehicle and pulled him out, Branham grabbing Hocker's left arm, and Baisden grabbing Hocker's right, “which was still grasping the steering wheel.” R. 33 at 40. After the officers removed Hocker from the car, they handcuffed him and waited for additional police officers and medical personnel to arrive. Hocker was stabilized at a Pikeville medical center and transported to a West Virginia hospital for additional treatment, where he woke up with “bruises all over [his] neck.” R. 35 at 35.

A Pike County grand jury indicted Hocker for two counts of attempted murder, one count of fleeing or evading police in the first degree, one count of operating a motor vehicle while intoxicated, and one count of being a persistent felony offender in the first degree. Before trial, Hocker pleaded guilty to two counts of wanton endangerment in the first degree, one count of fleeing or evading police in the first degree, and one count of driving under the influence. The court sentenced Hocker to ten years in prison.

In August 2011, Hocker filed a lawsuit against Baisden, Branham, the City of Pikeville and its police department under § 1983, alleging violations of the Fourth (and Fourteenth) Amendment as well as several state laws. The district court granted summary judgment for the defendants on all the federal claims and dismissed the state-law claims without prejudice.

II.

The facts of this chase, seizure and use of force provide a partial explanation for the district court's decision to reject Hocker's excessive-force claims against the officers under the Fourth Amendment. The legal test for piercing the qualified immunity of officers protecting the public safety provides a complete one. Unless the officers' conduct violated Hocker's constitutional rights, and unless Supreme Court or Sixth Circuit case law clearly established those constitutional rights at the time of the incident, the court must grant immunityto the officers. Hocker fails the first prong because he cannot show a constitutional violation.

No doubt the use of deadly force by police officers is a serious matter and ought to be avoided—but not at all costs and not in all situations. The question is why and to what end the police deployed the force. Two cases capture the point, one finding a Fourth Amendment violation, one not. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), considered whether an officer could prevent an unarmed felon's escape by shooting him. In holding that he could not, the Court applied the Fourth Amendment reasonableness test to find that deadly “force may not be used unless it is necessary to prevent the escape [of an apparently unarmed suspected felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Id. at 3, 105 S.Ct. 1694.Scott v. Harris, 550 U.S. 372, 383–86, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), followed this path. It applied the same Fourth Amendment reasonableness standard to grant relief to a police officer who had ended a high-speed chase by running the suspect's vehicle off the road.

Gauged by this reasonableness standard, the officers did not use excessive force. Heavily intoxicated and possibly suicidal, Hocker led Baisden and Branham on a highspeed (70 to 80 miles per hour), nighttime chase (without his headlights on) down a winding back road, imperiling the safety of anyone driving in Hocker's vicinity. Hocker's guilty plea confirms as much. He pleaded guilty to two counts of wanton endangerment in the first degree, meaning that he “engage[d] in conduct which creates a substantial danger of death or serious physical injury to another person.” Ky.Rev.Stat. § 508.060(1). What happened next—after Hocker mercifully stopped—confirmed the reasonableness of the officers' use of their weapons. Hocker rammed Baisden's cruiser while Baisden was standing behind the cruiser's open door, pushing the car thirty feet. The collision temporarily trapped Baisden's arm between the door and the body of the cruiser. Branham was forced to backpedal to avoid Baisden's sliding cruiser, at one point using his left arm to keep the cruiser away from him. Only after these direct risks to their own safety did both officers fire at Hocker's vehicle. The officers' responses to the escalating risks created by Hocker's actions are precisely the kinds of “split-second judgments—in circumstances that are tense, uncertain,...