Mick v. Brewer

• Decision Date: 20 February 1996
• Docket Number: 94-3410,Nos. 94-3409,s. 94-3409
• Citation: 76 F.3d 1127
• Parties: Marilyn MICK; Crissy Cochran; Lauren Ashley Mick, By and Through her father and next friend Ken Mick, and Ken Mick, Plaintiffs-Appellees, v. Major Kim T. BREWER, Roland Neil Meyers, Defendants-Appellants, and City of Wichita, Scott Redpath, Special Agent, Defendants. Marilyn MICK; Crissy Cochran; Lauren Ashley Mick, By and Through her father and next friend Ken Mick, and Ken Mick, Plaintiffs-Appellants, v. Major Kim T. BREWER, City of Wichita, Roland Neil Meyers, Defendants, and Scott Redpath, Special Agent, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1127

76 F.3d 1127

Marilyn MICK; Crissy Cochran; Lauren Ashley Mick, By and Through her father and next friend Ken Mick, and Ken Mick, Plaintiffs-Appellees, v. Major Kim T. BREWER, Roland Neil Meyers, Defendants-Appellants, and City of Wichita, Scott Redpath, Special Agent, Defendants.

Marilyn MICK; Crissy Cochran; Lauren Ashley Mick, By and Through her father and next friend Ken Mick, and Ken Mick, Plaintiffs-Appellants, v. Major Kim T. BREWER, City of Wichita, Roland Neil Meyers, Defendants, and Scott Redpath, Special Agent, Defendant-Appellee.

Nos. 94-3409, 94-3410.

United States Court of Appeals Tenth Circuit.

Feb. 20, 1996.

Mark G. Ayesh of Ayesh Law Offices, Wichita, Kansas, for Plaintiffs-Appellees in No. 94-3409, and Plaintiffs-Appellants in No. 94-3410.

Blaise Plummer, Assistant City Attorney, Office of the City Attorney of the City of Wichita, Wichita, Kansas, for Defendants-Appellants in No. 94-3409.

David Lind, Assistant United States Attorney, (Randall K. Rathbun, United States Attorney, and Connie R. DeArmond, Assistant United States Attorney, on the brief), Wichita, Kansas, for Defendant-Appellee in No. 94-3410.

Before BALDOCK, BRISCOE and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Marilyn Mick filed this action in the district court against Defendants Major Kim T. Brewer and Captain Roland Neil Meyers under 42 U.S.C. § 1983, and against Defendant Special Agent Scott Redpath 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). Plaintiff alleged that Defendant Brewer, a law enforcement officer with the City of Wichita, Kansas, severely and unnecessarily beat Plaintiff during Russian President Boris Yeltsin's visit to Wichita on June 18, 1992. Plaintiff also alleged that Defendant Meyers, a Wichita law enforcement officer, and Defendant Redpath, a Special Agent with the United States Secret Service, failed to intervene to prevent Defendant Brewer from using excessive force against Plaintiff. The district court denied Defendants Brewer and Meyers' motion for summary judgment based on qualified immunity on the grounds that disputed issues of material fact precluded summary judgment. The district court determined, however, that Defendant Redpath was entitled to qualified immunity because he could not see the interaction between Plaintiff and Defendant Brewer giving rise to Plaintiff's failure to intervene claim.

In No. 94-3409, Defendants Brewer and Meyers appeal the district court's order denying them qualified immunity. We affirm in part and dismiss in part for lack of appellate jurisdiction pursuant to Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In No. 94-3410, Plaintiff appeals the district court's ruling granting Defendant Redpath qualified immunity on her failure to intervene claim. Because Plaintiff presented evidence to rebut Defendant Redpath's assertion that he could not see the interaction between Plaintiff and Defendant Brewer, we conclude the district court resolved a disputed issue of material fact to award Defendant Redpath qualified immunity at the summary judgment stage and reverse.

I.

The facts underlying this controversy occurred on June 18, 1992, during Russian President Boris Yeltsin's visit to Wichita, Kansas. Prior to the date in question, the Secret Service organized security briefings with local law enforcement agencies in Wichita, Kansas to request assistance in providing security during President Yeltsin's visit. ¹ The Secret Service coordinated a security plan which included the Sedgwick County Sheriff's Department, the City of Wichita Police Department, the Kansas Highway Patrol, the military, and the Wichita State University Police.

On June 18, 1992 Defendants Brewer and Meyers were assigned to drive route security for President Yeltsin's motorcade in a marked City of Wichita patrol car with Defendant Special Agent Redpath. Defendants' common objective was to provide route security in advance of President Yeltsin's motorcade.

A.

Plaintiff Mick's version of the events is as follows. On the morning of June 18, 1992, Plaintiff, age forty-six, and her daughter Crissy Cochran, age twenty-three, were performing yard work in their bathing suits at Plaintiff's Wichita home. At about 1:00 p.m., Plaintiff and Crissy decided to take Plaintiff's two and one-half year old daughter Lauren Ashley to Derby, Kansas to visit Plaintiff's sister. Plaintiff and Crissy put on long T-shirts as "cover-ups" and left in Plaintiff's Mercedes Benz for Derby.

Plaintiff reached the intersection of Pawnee and Greenwich Road a short distance from Plaintiff's house. Two police women at the intersection told Plaintiff that she could not drive on Greenwich Road and instructed her to park her vehicle in an abandoned service station lot on the southeast corner of Greenwich Road and Pawnee until President Yeltsin's motorcade passed. Plaintiff followed the instruction, and parked in the service station lot with the vehicle facing west. Because the day was warm, Plaintiff left the windows up, engine running, air conditioner on, and radio playing while they waited for the intersection to open.

Approximately thirty minutes later, one of the police women approached Plaintiff's vehicle from the intersection. From eighty to ninety feet away, the police woman appeared to say something to Plaintiff, but Plaintiff could not hear over the idling diesel Mercedes engine. The police woman turned around and walked back to the intersection.

According to Plaintiff, a few minutes later, a police car pulled up and screeched to a halt in front of Plaintiff's parked Mercedes. Before the vehicle completely stopped, Defendant Brewer left the patrol car and charged toward the Mercedes. Defendant Brewer opened the driver side door, grabbed Plaintiff--a ninety-five pound woman--by the arm and neck, and yanked her out of the vehicle. Defendant Brewer threw Plaintiff with such force that she hit her head on the ground next to the car. Defendant Brewer put his foot on her back and then sat down in her car and attempted to put the Mercedes in reverse, but instead shifted into drive and the car lurched forward. Crissy, who was still in the vehicle, grabbed the lever and shifted to park. As Defendant Brewer tried to move the vehicle he yelled, "Shut up. What the fuck is wrong with you? The President of Russia is coming." Jt.App. at 22.

According to Plaintiff, Defendant Brewer exited the car and dragged Plaintiff across the ground by her arm to the rear of the vehicle. Defendant Brewer then stomped on Plaintiff's back, placed his foot on her back, drove his knee into her lower back, and handcuffed her left wrist. By gripping the loose handcuff, Defendant Brewer pulled Plaintiff up by the left arm and spun her around until she was airborne. When Plaintiff landed at the end of the spin, Defendant Brewer grabbed Plaintiff's head and smashed her face into the trunk of the car, yelling, "What's wrong with you, you fucking woman?"

While Defendant Brewer was dragging Plaintiff across the ground, Crissy got out of the car holding Lauren. Crissy screamed, "You're hurting my mother." Lauren cried and screamed as well. Crissy pleaded with Defendant Brewer to stop, and attempted to cushion her mother's face from the pavement and gravel while Defendant Brewer dragged Plaintiff to the back of the car. Defendant Brewer caused Crissy to fall over backwards and loose her hold on Lauren. At this time, Defendant Meyers stepped out of the patrol car and yelled, "That's enough. Stop. Let's go." Defendant Brewer told Defendant Meyers to leave in the patrol car because he was not finished.

After Defendants Meyers and Redpath left in the patrol car, Defendant Brewer removed the handcuffs. Defendant Brewer asked Plaintiff if she was hurt; Plaintiff replied she was not. Defendant Brewer released Plaintiff. Plaintiff was not charged with any crime.

Plaintiff's husband later took her to a hospital emergency room. Although Plaintiff was not permanently injured, she suffered a sprained back, swollen and bruised wrists, multiple contusions, and internal bleeding of her kidneys. Additionally, Plaintiff alleged that she suffered severe pain and suffering and post-traumatic stress disorder.

Plaintiff's version of the events is corroborated by her daughter Crissy, and two independent witnesses, Darrin Thorburn and Richard Evans, who attempted to intervene to prevent Defendant Brewer from harming Plaintiff. Richard Evans, a postman who delivered mail in the area, had brought his camera in hopes of getting pictures of President Yeltsin. Evans photographed the incident between Defendant Brewer and Plaintiff because he was "totally shocked and in a state of disbelief." Jt.App. at 41. Thorburn and Evans attempted to intervene in the incident. According to Evans, when he and Thorburn walked toward Plaintiff and Defendant Brewer, a second policeman got out of the patrol car and pointed at them and said that if they took one more step, "our butts would go to jail too." Id. In an affidavit, Evans stated "[o]ur attempts to intervene were prompted by the observation that the occupants of the police cruiser that brought Major Brewer to the scene were observing the brutality and doing nothing. There were two occupants in the vehicle, one was in uniform and one was not. Both observed the dragging, beating, and kicking of Ms. Mick but did not intervene and stop it." Jt.App. at 577.

B.

Defendant Brewer's version of the interaction is completely different than that attested to by Plaintiff, Crissy Cochran, Darrin Thorburn, and Richard Evans. According to Defendant Brewer, Plaintiff displayed a belligerent attitude toward the police woman who directed her to park her Mercedes in the parking lot of the abandoned service station. Instead of parking in the lot as directed, Plaintiff parked in the driveway with the engine running and with the...