Lash v. Lemke

• Decision Date: 15 May 2015
• Docket Number: No. 13–5308.,13–5308.
• Citation: 786 F.3d 1
• Parties: Ryan Barton LASH, Appellant v. Jennifer LEMKE, Officer, in her individual capacity and Todd Reid, Sergeant, in his individual capacity, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

786 F.3d 1

Ryan Barton LASH, Appellant

v.Jennifer LEMKE, Officer, in her individual capacity and Todd Reid, Sergeant, in his individual capacity, Appellees.

No. 13–5308.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 10, 2014.

Decided May 15, 2015.

Jeffrey L. Light argued the cause and filed the briefs for appellant. Edward J. Elder entered an appearance.

Marina U. Braswell, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GARLAND, Chief Judge, and GRIFFITH and KAVANAUGH, Circuit Judges.

Opinion

Opinion for the court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Police officers tried to arrest Ryan Lash after he confronted them within the Occupy D.C. encampment at McPherson Square in downtown Washington, D.C. Lash actively resisted arrest, and one officer used a Taser to subdue him. Lash sued the officers alleging violations of his First and Fourth Amendment rights. The district court granted summary judgment to the officers, concluding they were protected by qualified immunity against Lash's claims because the officer's use of the Taser did not violate the Constitution. We also conclude that qualified immunity shields the officers from Lash's Fourth Amendment claim, but on a different basis that does not require us to take up the constitutional issue the district court reached: A person actively resisting arrest does not have a clearly established right against a single use of a Taser to subdue him. We also grant summary judgment to the officers on Lash's First Amendment claim because he failed to meaningfully advance the argument on appeal.

I

During the winter of 2011 to 2012, participants in the Occupy D.C. movement took up residence in McPherson Square, living in tents and other shelters. On January 29, 2012, United States Park Police (USPP) officers entered the square to post notices advising the protestors that USPP would begin enforcing anti-camping regulations the following day. The USPP officers were under the supervision of Sergeant Todd Reid, a defendant here. As the officers distributed notices through the park, they were followed by a crowd of protestors shouting objections and profanities. Several members of the crowd videorecorded this confrontation. Those recordings are part of the record on appeal, and we rely on them as we describe what followed.

Lash, the plaintiff here, emerged from his tent in the encampment into this tense situation. He confronted the police officers, challenged their presence and purpose in the park, shouted profanities, and tore down some of the notices they had posted. The officers ordered Lash to stop removing the notices, and he complied. But as he walked away, Lash again shouted profanities at the police.

A number of USPP officers followed him. Among their number were Officer Jennifer Lemke, also a defendant here, and Officers Frank Hilsher and Tiffany Reed. Lash, observing the officers walking after him, began to retreat through a group of tents, insisting with increasing agitation that he had “done nothing wrong” and demanding to know why they were “coming at” him. Some officers followed Lash's route among the tents. Other officers surrounded the area of the park through which Lash was walking. Lash continued to retreat across the encampment and to protest his innocence.

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash's left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash's arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash's lower back. He fell to the ground, and the officers handcuffed him.

The officers carried Lash, now handcuffed, to a nearby police car. Lash refused to enter the police car, so the officers called for a police van. When the van arrived, the officers left the scene with Lash, who was charged with disorderly conduct. Lash contends that he has suffered a variety of painful and debilitating effects from being tased.

Lash filed the complaint in this action against Officer Lemke and Sergeant Reid in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint alleged that Lemke's use of the Taser constituted excessive force in violation of Lash's Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights as well. Reid, he alleged, was liable for failing either to supervise the situation adequately or to intervene to prevent Lemke's use of excessive force.¹

The officers moved to dismiss or, in the alternative, for summary judgment, arguing that qualified immunity should shield them from liability. The district court agreed and granted summary judgment, concluding that neither of Lash's claims could survive because, under the circumstances, the use of the Taser was not excessive force. Lash v. Lemke, 971 F.Supp.2d 85, 93–98 (D.D.C.2013). Lash appealed. We have jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524–30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

II

We review the grant of summary judgment on the basis of qualified immunity de novo. Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C.Cir.2008).

A

Because the officers' conduct here did not violate any clearly established law, they have qualified immunity against Lash's Fourth Amendment claim.² Qualified immunity exists to protect officers “from undue interference with their duties and from potentially disabling threats of liability,” Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and applies in Bivens actions as it does elsewhere, Atherton v. District of Columbia, 567 F.3d 672, 689 (D.C.Cir.2009). An official who asserts a qualified immunity defense can only be held liable if the plaintiff suing him establishes that the official “violated a constitutional right” that “was clearly established” at the time. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

We have “discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Ashcroft v. al-Kidd, –––U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Determining that a constitutional right exists and has been abridged by official conduct is not only difficult at times, but asks much of a court that should resolve matters on constitutional grounds only when there is no other way to do so. See Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In some cases, it is easier for a court to see that the claimed right, whether it exists or not, is by no means “clearly established.” Id. at 237, 129 S.Ct. 808. This is such a case and we will accept the invitation of the Court in Pearson to dispose of this suit by holding that the conduct of the officers in arresting Lash did not violate any clearly established law. Thus we need not consider whether the district court was right to conclude that the use of a Taser against Lash in these circumstances was constitutionally permissible.

Qualified immunity applies because the defendants' conduct did not violate clearly established law.

For a right to be clearly established, its “contours [must be] sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.” Plumhoff v. Rickard, –––U.S. ––––, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal citation omitted). In addition, the Court “ ‘ha[s] repeatedly told courts ... not to define clearly established law at a high level of generality,’ ... since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, 134 S.Ct. at 2023 (quoting

al- Kidd,

131 S.Ct. at 2084 ). Thus the “clearly established” prong of qualified immunity analysis requires us to determine the right at issue “in light of the specific context of the case,” not simply as a statement of general legal principles. Saucier, 533 U.S. at 201, 121 S.Ct. 2151.

Because this case was decided at summary judgment, we must draw reasonable factual inferences in the light most favorable to Lash, the nonmovant. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The Court has cautioned us that we “must take care not to define a case's context in a manner that imports genuinely disputed factual propositions.”Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (internal quotation marks omitted). Nonetheless, our obligation to view the facts “in the light most favorable to the nonmoving party” only attaches “if there is a ‘genuine’ dispute as to those facts.” Scott, 550 U.S. at 380, 127 S.Ct. 1769 (quoting Fed.R.Civ.P. 56(c) ). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that...