Lynch v. Barrett

• Decision Date: 04 January 2013
• Docket Number: No. 12–1222.,12–1222.
• Citation: 703 F.3d 1153
• Parties: Nick LYNCH, Plaintiff–Appellee, v. Adam BARRETT; Sgt. Stephen Kenfield; Michael Morelock; City and County of Denver, Defendants–Appellants, and Abbegayle Dorn, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

703 F.3d 1153

Nick LYNCH, Plaintiff–Appellee,

v.Adam BARRETT; Sgt. Stephen Kenfield; Michael Morelock; City and County of Denver, Defendants–Appellants,andAbbegayle Dorn, Defendant.

No. 12–1222.

United States Court of Appeals,

Tenth Circuit.

Jan. 4, 2013.

Wendy J. Shea, Assistant City Attorney, Office of City Attorney, Litigation Section (Stuart Shapiro, Assistant City Attorney, Douglas Jewell, Bruno, Colin, Jewell & Lowe, P.C., and Reid J. Elkus, Elkus, Sisson & Rosenstein, P.C., with her on the brief), Denver, CO, for Defendants–Appellants.

Robert M. Liechty, Cross Liechty Lance PC, Greenwood Village, CO, for Plaintiff–Appellee.

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Nick Lynch claims Defendants Adam Barrett, Stephen Kenfield, and Michael Morelock, all police officers for Defendant City and County of Denver, violated his constitutional right to court access by refusing to disclose who exercised excessive force against him in the course of an arrest. Plaintiff further claims Defendant City violated his right to court access by adopting a policy and practice that precipitated the “conspiracy of silence” waged against him. As to Plaintiff's first claim, the district court entered an order denying Defendant Officers qualified immunity in the context of their motion for summary judgment. As to Plaintiff's second claim, the district court in the same order denied Defendant City's “standard” motion for summary judgment, i.e., one that simply asserts the lack of any genuine issue of material fact for trial. Defendant Officers appeal. We exercise jurisdiction over their appeal, to the extent permitted by law, under 28 U.S.C. § 1291 pursuant to the collateral order doctrine first announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Our review is de novo. See Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir.2012). Defendant City too appeals, asking us to exercise pendent party jurisdiction over what is, from the City's perspective, an otherwise unappealable order. See Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 41–43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). After sorting through this kettle of fish, we reverse the district court's decision denying Defendant Officers qualified immunity, dismiss Defendant City's appeal for lack of jurisdiction, and remand for further proceedings.

I.

According to the district court, the problem arose in March 2008 after Plaintiff punched another individual outside a nightclub in downtown Denver. Plaintiff fled the scene, jumped over the fence of a gated parking lot, and hid in some bushes. Up to six officers followed him into the lot. With game over, Plaintiff stood up. One or more officers then threw Plaintiff to the ground and struck him several times in the back of his left thigh with a baton or flashlight. Because Plaintiff was face-down on the ground, he could not identify the officer or officers responsible.

In its written order, the district court first reached two legal conclusions as they bore upon Defendant Officers' claim to qualified immunity:

This court is satisfied that intentional concealment of evidence by a police officer that interferes with an individual's ability to obtain redress for police misconduct is unconstitutional. This court is also satisfied that it would be clear to a reasonable police officer that intentional concealment of evidence of another officer's misconduct, the so-called conspiracy of silence, is unlawful. Accordingly, if these officers did intentionally conceal evidence of another officer's [use] of excessive force, they are not entitled to qualified immunity.

Lynch v. Barrett, 2012 WL 1890442, at *3 (D.Colo.2012) (unpublished) (internal citations omitted). The court next recited some of the evidence that supported Plaintiff's version of events and concluded a jury could find Defendant Officers intentionally concealed the identity of the officer or officers who had exercised excessive force against him.

[Officer Barrett] testified [in his deposition] that as he approached the bushes he “saw [Plaintiff] start to stand up, and then the [arresting] officers rushed the bush, and he was taken down.” This testimony raises the factual questions of whether Officer Barrett saw who rushed [Plaintiff], who arrested him, and who either used excessive force or was in a position to know, if anyone, did....

Officer Morelock states in an affidavit that “after I went over the fence, I turned towards the bushes and noticed several other officers already present. Therefore, I ran over to assist them.” Officer Barrett testified ... that Officer Morelock climbed the fence with him.... There is at least some evidence that [Officer Morelock] was in a position to observe the arrest or, at least, who participated in it.

Sgt. Kenfield reports in his affidavit that he did not participate in the arrest or witness it.... However, Sgt. Kenfield also reports that even though it took him four or five minutes to get over the fence, several officers were already present in the fenced-in area. He was by his own admission, in the near vicinity of the arrest when it happened and saw which officers were present.

Id. at *3–*4 (internal record cites and brackets omitted).

Unlike the facts bearing upon Defendant Officers' involvement in Plaintiff's arrest, the facts surrounding Defendant City's alleged establishment of a policy or practice that caused Defendant Officers' “cover-up” are unimportant for present purposes. Suffice to say the district court concluded Plaintiff raised genuine issues of material fact for trial on his municipal liability claim against Defendant City. The court decided a reasonable jury could find Defendant City maintained a policy or practice that caused Defendant Officers' cover-up and Plaintiff's consequent inability to obtain legal redress on his excessive force claim.

II.

As a preliminary matter, we point out that Plaintiff's “backwards looking” denial-of-access claim is ripe for adjudication in the district court. A backwards looking access claim may arise where a plaintiff alleges an underlying claim cannot be tried, or be tried with all the evidence, because official conduct caused the loss or inadequate resolution of that claim. See Jennings v. City of Stillwater, 383 F.3d 1199, 1208–09 (10th Cir.2004) (distinguishing between “forward looking” and “backwards looking” court access claims). In Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), the Supreme Court assumed a backwards looking denial-of-access claim is actionable where based on a lost opportunity to seek legal redress on an underlying claim. Id. at 412 n. 6, 414 n. 9, 122 S.Ct. 2179. To allege a compensable injury, a plaintiff claiming denial of court access under such circumstances,

must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish facts constituting denial of access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of-access element.

Id. at 415, 122 S.Ct. 2179.

Plaintiff has already litigated his underlying claim of excessive force against Defendant Officers unsuccessfully, and so his opportunity to recover on that claim has passed. The district court granted Defendant Officers' Rule 50 motion for judgment as a matter of law at the close of Plaintiff's case because Plaintiff's proof was insufficient to establish the Officers were responsible for the force used against him. Plaintiff did not appeal that ruling. Instead, Plaintiff now seeks, by way of his denial-of-access claim in the district court, relief against Defendant Officers that is unavailable on his underlying claim for excessive force.¹

III.

Both Defendant Officers and Defendant City tell us we can assume “for the purpose of this appeal” that “a cognizable right of access claim may arise from an alleged cover-up by police officers.” Aplts' Op. Br. at 11–12. As a prelude to their principal argument, Defendant Officers “presume ... that certain circumstances may exist under which a plaintiff may establish a cognizable right of access claim based upon a police officer's intentional, bad faith cover-up of excessive force.” Id. at 17. But “even assuming the validity of a backwards looking right of access claim based on a cover-up,” Defendant Officers argue “the facts in this case are insufficient to show that any [of them] personally participated in a cover-up to intentionally hide the identities of the officers who arrested [Plaintiff] for the purpose of denying him access to the courts.” Id. at 36–37. At this point, Defendant City makes its pitch: “Because the record confirms that [Plaintiff] has failed to meet his burden of showing the undisputed facts of this case demonstrate a cognizable right of access claim [against Defendant Officers], his claim against [Defendant City] also fails as a matter of law.” Id. at 36. Finally, Defendant Officers argue in the alternative that because “the Tenth Circuit has never expressly recognized a [constitutional] cause of action based upon an alleged cover-up,” they are entitled to qualified immunity for lack of clearly established law informing them their alleged obstinacy violated Plaintiff's right to court access. Id. at 33.

A.

We begin with Defendant Officers' appeal based on their claim to qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable officer would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In contrast to a standard motion for summary judgment, which places...