Michael v. Trevena

• Decision Date: 07 August 2018
• Docket Number: No. 17-1946,17-1946
• Citation: 899 F.3d 528
• Parties: Landon L. MICHAEL, Plaintiff-Appellant v. Joshua TREVENA; Ryan Chaffee, in their individual capacities as officers of the Watford City Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

899 F.3d 528

Landon L. MICHAEL, Plaintiff-Appellant
v.
Joshua TREVENA; Ryan Chaffee, in their individual capacities as officers of the Watford City Police Department, Defendants-Appellees.

No. 17-1946

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2018
Filed: August 7, 2018
Rehearing and Rehearing En Banc Denied September 12, 2018^*

Andrew Marshall Irlbeck, Eric L. Newmark, Jeffrey S. Storms, Newmark Law Office, Minneapolis, MN, for Plaintiff-Appellant.

Scott K. Porsborg, Smith & Porsborg, Brian D. Schmidt, Smith & Bakke, Bismarck, ND, for Defendants-Appellees.

Before GRUENDER, BEAM, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Landon Michael filed suit against Watford City, North Dakota, police officers Joshua Trevena and Ryan Chaffee, alleging unlawful arrest and excessive force after the officers were called to help resolve a family dispute. The district court granted the officers summary judgment based on qualified immunity. Michael appeals.

I.

Michael was in possession of a set of keys to a truck his mother had rented. He refused to return them without speaking to his mother, but she refused to talk with him. The police were called. Officer Trevena arrived first, and officer Chaffee soon afterward. Both officers wore microphones that recorded much of what happened next. Both officers also drove police vehicles equipped with dashboard cameras. Trevena’s vehicle was positioned such that the camera was facing away from the front yard where Michael was sitting. Chaffee’s vehicle was positioned with its dash cam pointing at the yard, but its view was almost completely obscured by a large tree.

Michael was sitting in a chair on the lawn of his cousin’s home, and his mother and sister (who was in the driver’s seat) were sitting in a vehicle parked nearby. Michael went to speak to his mother but, as he approached, Michael’s sister started

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the vehicle and began to drive away. Michael returned to the lawn chair, out of view of either officer’s dash cam. He claimed that his sister had run over his foot on purpose. As recorded by the officers’ microphones, the exchange went as follows:

TREVENA: You intentionally put your foot under the vehicle.

MICHAEL: No, I ... I did not intentionally do that.

TREVENA: Yeah, ya did.

MICHAEL: I did not in ... you know I didn’t; you are accusing me of nothin’ just to provoke me and I did not do no such thing.

TREVENA: Yeah, ya did.

MICHAEL: I did no such thing. She just ran over my foot.

TREVENA: You were standing that far away....

MICHAEL: She just ran over my foot, sir. She ran over my foot. You can be a witness against me in court.

TREVENA: Okay, she ran over your foot?

MICHAEL: You can be a witness against me in court.

TREVENA: Okay, did she intentionally run over your foot?

MICHAEL: Yes.

TREVENA: I am going to arrest you for providing a false statement to a peace officer right now.

Both officers then moved in to arrest Michael.

Trevena ordered Michael to stand up, but he remained seated. The officers say Michael tensed up his body and gripped the chair, which Michael denies. Michael says Trevena grabbed his right arm and throat, which Trevena denies. Everyone agrees that Chaffee took out his police baton and placed it between Michael’s left arm and chest. Chaffee then used the baton as a lever to get Michael out of the lawn chair, and broke Michael’s arm. Michael was transported to the hospital. Trevena and Chaffee filed charges against Michael for making a false report, citing the exchange reproduced above. The North Dakota authorities declined to prosecute.

Michael filed this 42 U.S.C. § 1983 case against Trevena and Chaffee for excessive force and unlawful arrest.¹ The district court granted both officers summary judgment on the basis of qualified immunity, and Michael appeals.

II.

We review grants of summary judgment de novo. Gilmore v. City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016).

"[O]fficers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ " District of Columbia v. Wesby, ––– U.S. ––––, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). In this case, neither party disputes the clearly-established prong of the qualified immunity analysis.

899 F.3d 532

Thus, the only question for us to resolve is whether, viewing the record in the light most favorable to Michael, Trevena and Chaffee violated Michael’s constitutional rights.

The Supreme Court has explained:

The first step in assessing the constitutionality of [the officers’] actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and [Michael’s] version of events (unsurprisingly) differs substantially from [the officers’] version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion. In qualified immunity cases, this usually means adopting ... the plaintiff’s version of the facts.

Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (cleaned up). But that does not mean we are bound to credit the plaintiff’s version of events, come what may. Id. at 379–80, 127 S.Ct. 1769. "At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts." Id. at 380, 127 S.Ct. 1769. Therefore, "[w]hen 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 version of the facts for purposes of ruling on a motion for summary judgment." Id.

Applying those rules here, we conclude that neither party’s version of events is "blatantly contradicted by the record" because the dash cam video of the incident reveals very little. Owing to the tree and the way the dash cam frames the front yard, the following events are missing from the video: (1) Michael’s sister running over his foot (intentionally or otherwise); (2) Michael sitting in the lawn chair once he returns to the front lawn; (3) the officers approaching Michael; (4) Michael’s posture and physical reaction to the officers; (5) the officers’ actions to remove Michael from the lawn chair; and (6) the breaking of Michael’s arm. Although the officers’ audio recordings make it fairly clear who said what during the events, the recordings are insufficient to conclusively resolve whether Trevena and Chaffee violated Michael’s constitutional rights. The officers’ argument that the dash cam footage is dispositive of the case is wholly unsupported by the record. Accordingly, we conclude that this is one of those "usual" qualified immunity cases in which viewing the facts in the light most favorable to the nonmovant "means adopting ... the plaintiff’s version of the facts." Id. at 378, 127 S.Ct. 1769.

We turn now to Michael’s two claims. On the excessive force claim, "[t]he test is whether the amount of force used was objectively reasonable under the particular circumstances." Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) ). Objective reasonableness is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The assessment "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. Applying these factors, we have previously "denied police

899 F.3d 533

qualified immunity in an excessive-force case where ... (1) the arrestee’s ‘alleged misconduct was neither violent nor serious,’ (2) ‘there was little evidence to indicate that the arrestee posed a physical threat to anyone,’ and (3) ‘there was a factual dispute as to whether the arrestee was "actively" resisting arrest.’ " Atkinson v. City of Mountain View, 709 F.3d 1201, 1213 (8th Cir. 2013) (cleaned up) (quoting Gainor v. Rogers, 973 F.2d 1379, 1388 (8th Cir. 1992) ). We have also held "that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public." Brown, 574 F.3d at 499.

Accepting Michael’s version of events...