Lindsey v. Hyler, 17-7074

• Decision Date: 19 March 2019
• Docket Number: No. 17-7074,17-7074
• Citation: 918 F.3d 1109
• Parties: Kyle LINDSEY and Zayne Mann, Plaintiffs - Appellants, v. Brandon HYLER, individually and in his official capacity as a Webbers Falls Police Officer; The City of Webbers Falls, Oklahoma; Larry Ruiz, in his capacity as Chief of Police for the City of Webbers Falls; and Bob Ross, in his capacity as Mayor of the City of Webbers Falls, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

918 F.3d 1109

Kyle LINDSEY and Zayne Mann, Plaintiffs - Appellants,

v.Brandon HYLER, individually and in his official capacity as a Webbers Falls Police Officer; The City of Webbers Falls, Oklahoma; Larry Ruiz, in his capacity as Chief of Police for the City of Webbers Falls; and Bob Ross, in his capacity as Mayor of the City of Webbers Falls, Defendants - Appellees.

No. 17-7074

United States Court of Appeals, Tenth Circuit.

FILED March 19, 2019

Rusty Smith, Rusty Smith Law Group (Erin M. Moore, Erin M. Moore P.C., with him on the opening brief, and Ben Baker, Purcell, Oklahoma, with him on the briefs), Muskogee, Oklahoma, for Appellants.

Thomas A. Le Blanc (Matthew B. Free, with him on the brief), Best & Sharp, Tulsa, Oklahoma, for Appellees.

Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.

TYMKOVICH, Chief Judge.

Kyle Lindsey and Zayne Mann were seriously injured when Lindsey lost control of his utility vehicle on a gravel road after a brief police pursuit. They claim the accident was caused by an overzealous officer who should not have initiated a chase over a minor traffic infraction.

Lindsey and Mann sought damages under 42 U.S.C. § 1983, alleging violations of both their Fourth and Fourteenth Amendment rights by Officer Brandon Hyler, the City of Webbers Falls, and several other municipal officials, based on Officer Hyler’s conduct during the pursuit as well as his previous training. Lindsey and Mann also sought relief under Oklahoma law.

The district court granted the defendants’ motion for summary judgment on all federal claims and concluded that Officer Hyler was entitled to qualified immunity. We affirm. Because the record cannot credibly sustain plaintiffs’ allegations, we conclude the district court appropriately dismissed their claims.

I. Background

At the time of the incident, Kyle Lindsey was a 21-year-old operator of a small utility task vehicle (UTV), a four-wheeled vehicle used for light construction and recreation. It had a steering wheel, seating for two people, and a cargo area immediately behind both seats. Although the UTV was equipped with seatbelts, it does not appear they were used. The manufacturer described the UTV as "an off-road vehicle not intended for use on public roads." R. 386–88. It warned purchasers that the UTV "is not designed for on-road safety." Id . The manufacturer also warned that "[a]brupt maneuvers or aggressive driving can cause rollovers or loss of control—even on flat ground—resulting in crushing or other injuries."Id .

One night in November 2015, Lindsey and his friend, Zayne Mann, were riding the UTV after spending the afternoon drinking beer on the outskirts of Webbers Falls, Oklahoma. Around 9:15 P.M., Lindsey exited the parking lot of a convenience store and turned onto a public access road. After witnessing the UTV roll through a stop sign, Officer Hyler initiated a traffic stop by turning on his emergency lights. Disregarding this cue, Lindsey proceeded onto a state highway. Officer Hyler then activated his siren.

Lindsey did not stop, but instead accelerated toward an overpass beyond which the highway transitioned from pavement to gravel. Traveling on the gravel section of the road, the UTV began to kick up a cloud of dust. Having momentarily lost sight of the UTV, Officer Hyler slowed his vehicle before continuing pursuit.

After driving along the gravel road for less than a mile, Officer Hyler came upon the UTV, which was rolled on its side near a bend in the road. Lindsey and Mann were seriously injured, and later testified they did not recall the details of the accident. Both were cited for a variety of traffic and criminal violations, although these charges were later dismissed. They subsequently filed these constitutional claims against Officer Hyler.

II. Analysis

Lindsey and Mann argue the district court erred in granting summary judgment. They contend questions of fact remain regarding their claims of excessive force and outrageous police conduct. We review de novo a district court’s decision to grant a motion for summary judgment. Schutz v. Thorne , 415 F.3d 1128, 1132 (10th Cir. 2005) ; see also Trask v. Franco , 446 F.3d 1036, 1043 (10th Cir. 2006) ("On appeal, we review the award of summary judgment based on qualified immunity de novo ."). Summary judgment becomes appropriate when there exists no genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

In applying the summary-judgment standard, we view the evidence and draw inferences in the manner most favorable to the non-moving party. Schutz , 415 F.3d at 1132. But the non-moving party must nonetheless establish facts such that a reasonable jury could find in his favor. Id . Unsubstantiated allegations will not suffice. Burke v. Utah Transit Auth. & Local 382 , 462 F.3d 1253, 1258 (10th Cir. 2006).

In cases where, as here, defendants have asserted the affirmative defense of qualified immunity, plaintiffs must also satisfy a familiar two-part burden. E.g., Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). The plaintiff must not only demonstrate that the defendant violated a constitutional right, but also that the right was clearly established at the time of the violation.

A. Constitutional Claims against Officer Hyler

Lindsey and Mann advance both a Fourth Amendment claim for excessive force and a Fourteenth Amendment claim for substantive due process against Officer Hyler. We find neither persuasive.

1. Excessive Force

Lindsey and Mann first contend Officer Hyler violated their Fourth Amendment right to be free from excessive force by intentionally contacting the UTV with his police vehicle, which in turn caused the UTV to crash.

We treat claims of excessive force as "seizures" subject to the Fourth Amendment’s objective requirement for "reasonableness." Estate of Larsen ex rel Sturdivan v. Murr , 511 F.3d 1255, 1259 (10th Cir. 2008) (citing Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). A plaintiff must therefore begin by demonstrating he was "seized" by a government actor. E.g., Holland ex rel Overdorff v. Harrington , 268 F.3d 1179, 1187–88 (10th Cir. 2001). A "seizure" in this context is defined as "a governmental termination of freedom of movement through means intentionally applied ." Estate of Larsen , 511 F.3d at 1259 (citing Cty. of Sacramento v. Lewis , 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (emphasis in original)).

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer at the scene, and not with perfect hindsight. Graham , 490 U.S. at 396, 109 S.Ct. 1865. The Fourth Amendment "does not require police to use the least intrusive means in the course of a detention, only reasonable ones." Fisher v. City of Las Cruces , 584 F.3d 888, 894 (10th Cir. 2009) (quoting Marquez v. City of Albuquerque , 399 F.3d 1216, 1222 (10th Cir. 2005) ). In Graham , the Supreme Court identified three considerations for evaluating whether an application of force was reasonable: (1) the crime’s severity; (2) the degree of potential threat posed by the suspect to both the officer and the general public; and (3) the suspect’s efforts to resist or evade arrest. See id . at 894–96.

But the Supreme Court also instructs us that only an intentional effort to stop a fleeing suspect through physical contact with a police vehicle will be considered a seizure, subject to the Fourth Amendment’s requirement for "reasonableness." See, e.g., Scott v. Harris , 550 U.S. 372, 374, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind.").

By contrast, "no Fourth Amendment seizure would take place where a pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit, but accidentally stopped the suspect by crashing into him." Lewis , 523 U.S. at 844, 118 S.Ct. 1708 (internal quotation marks omitted) (citing Brower v. Cty. of Inyo , 489 U.S. 593, 596–97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) ).

Lindsey and Mann allege that a seizure transpired as Officer Hyler "forced Lindsey off the road" and "his police cruiser contacted" the UTV. R. 49, ¶ 23. But the district court correctly concluded that Lindsey and Mann had not developed their allegation of contact between the police vehicle and the UTV with sufficient evidence to create a genuine issue of material fact as to contact.

To begin, neither Lindsey nor Mann claims to possess any recollection of the details of the accident. Officer Hyler, by contrast, testified that he came upon the scene of the accident only after the UTV had crashed. Moreover, Lindsey and Mann have presented no evidence of actual physical contact between the patrol vehicle and the UTV, let alone any intentional contact.

Lindsey and Mann suggest their expert’s report says otherwise. But the expert opined only that the UTV suffered damage "consistent with" an impact from another vehicle, and he could not match this "damage" with corresponding damage to Officer Hyler’s patrol vehicle. Id . at 480. Nor would he testify that Officer Hyler’s patrol vehicle had, in fact, struck the UTV at all . In fact, he conceded expressly his inability to say that any contact transpired at all , "[a]s of today, based on everything that I’ve seen."Id . at 479–80.¹

By contrast, the expert retained by Officer Hyler stated flatly "there is no physical evidence of contact between Officer Hyler’s Dodge Charger and Lindsey’s UTV." Id . at 403. This expert further opined that the "UTV lost control and exited the roadway. This loss of control is attributed to excess speed while entering the curve of the road. Collision reports address pre-impact skid marks approaching the dirt embankment."...