Novitsky v. City of Aurora

• Decision Date: 05 July 2007
• Docket Number: No. 05-1169.,05-1169.
• Citation: 491 F.3d 1244
• Parties: Sergey G. NOVITSKY, Plaintiff-Appellant, v. CITY OF AURORA, Michael Wortham, and Paul Marshall, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.3d 1244

Sergey G. NOVITSKY, Plaintiff-Appellant, v. CITY OF AURORA, Michael Wortham, and Paul Marshall, Defendants-Appellees.

No. 05-1169.

United States Court of Appeals, Tenth Circuit.

July 5, 2007.

Brice A. Tondre, Denver, CO, for Plaintiff-Appellant.

Michael T. Lowe (with Marc F. Colin on the briefs), Bruno Bruno & Colin, Denver, Colorado, and Peter R. Morales, Aurora City Attorney's Office, Aurora, CO, for the Defendants-Appellees.

Before TACHA, Chief Circuit Judge, McKAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

This 42 U.S.C. § 1983 action arises out of an encounter between Sergey Novitsky and City of Aurora, Colorado police officers Michael Wortham and Paul Marshall. While responding to a "man down" call, the officers discovered Mr. Novitsky lying in the fetal position in the backseat of a parked vehicle. When Mr. Novitsky was exiting the vehicle, Officer Wortham grasped his hand in an arrest control technique known as a "twist lock," and, almost immediately, observed a handgun in Mr. Novitsky's front right pants pocket. After confiscating the handgun and issuing a municipal summons, the officers released Mr. Novitsky. In a subsequent report detailing their encounter, Officer Wortham stated that he applied the twist lock to Mr. Novitsky after seeing the handgun.

Mr. Novitsky was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and bound over for trial. He filed a motion to suppress the handgun. Relying on the hearsay testimony of a Bureau of Alcohol and Firearms agent (who testified, based in part on Officer Wortham's report, that Officer Wortham applied the twist lock after seeing the handgun), the district court denied Mr. Novitsky's motion. However, after Officer Wortham testified at trial that he applied the twist lock before he observed the handgun, the district court declared a mistrial and held a second motion to suppress hearing. After the hearing, the district court suppressed the handgun. We affirmed the district court's ruling, see United States v. Novitsky, 58 Fed.Appx. 432 (10th Cir.2003), and the government dismissed the indictment.

Mr. Novitsky then filed this § 1983 action against both officers and the City of Aurora (the "City"). He asserted (1) the officers unreasonably seized him in violation of the Fourth Amendment by using the twist lock to remove him from the vehicle; (2) the officers caused the federal criminal prosecution and his resulting incarceration in violation of the Fourth and Fourteenth Amendments; and (3) the City maintained an unconstitutional policy under which its officers applied the twist lock and conducted pat-down searches without any evidence of a crime or threat to officer safety.

The district court entered summary judgment in favor of the officers and the City. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons that follow, affirm.

I. BACKGROUND

A. MR. NOVITSKY'S ENCOUNTER WITH THE OFFICERS

Shortly before 2:00 p.m. on June 9, 2001, Officers Wortham and Marshall received a "man down" call regarding an unconscious man in the front seat of a vehicle located in a YMCA parking lot. The officers arrived at the scene and observed a man's legs hanging out of the open front passenger door of a parked vehicle. As they approached, the officers noticed another man, later identified as Mr. Novitsky, who "appeared to be sleeping or passed out" in the vehicle's back seat. Aplt's App. at 131.

While Officer Marshall remained near the vehicle's rear passenger door, Officer Wortham roused the man in the front seat, who smelled of alcohol. When Officer Wortham asked him to exit the vehicle, the man slurred his speech and had difficulty standing. Officer Wortham assisted him out of the vehicle, frisked him, and sat him down on the pavement in front of the vehicle.

Officer Wortham then awoke Mr. Novitsky by knocking on the window and directed him to get out of the vehicle. Although Mr. Novitsky appeared "a little dazed" and the car smelled of alcohol, id., Officer Wortham did not know whether Mr. Novitsky was in fact intoxicated.

When he reached up with his right hand as though to grab onto the door and help himself out, Officer Wortham grasped Mr. Novitsky's hand in a "twist lock." As described by Officer Wortham, this technique involves an officer grabbing an individual by the hand and twisting to tighten up the arm. If an individual begins to fight or resist, the officer twists the arm further. "[T]he twist [lock] divides the individual's attention: the mind starts thinking about the pain in the arm instead of what they are going for or what they are doing . . . that way you can basically distract them and get them out of the vehicle without having further problems. Once the twist [lock] is applied, a person would not be able to walk away." Novitsky, 58 Fed. Appx. at 434 (alterations and internal quotation marks omitted). Because Mr. Novitsky did not resist, Officer Wortham did not apply pressure beyond the basic twist-lock position.

As Officer Wortham began to turn Mr. Novitsky around to perform a pat-down search, he immediately observed a handgun in Mr. Novitsky's front right pants pocket. Officer Wortham yelled "gun," and Mr. Novitsky exclaimed, "It's a toy, it's a toy." Id. at 434. Officer Wortham removed a loaded Smith & Wesson .44 caliber pistol from Mr. Novitsky's pocket.

After placing Mr. Novitsky in handcuffs, the officers transported him to a detox center. Because Mr. Novitsky was not intoxicated, Officer Wortham issued a municipal summons and released him. Afterward, Officer Wortham filed a Serialized Property Report and placed the confiscated firearm into evidence at the Aurora Police Department. In the report, Officer Wortham described the sequence of events leading to his discovery of the firearm as follows:

As [Mr. Novitsky] was getting out I could see a handgun in his right front pants pocket. I quickly grabbed his right hand into a twist lock .. .

Aplt's App. at 146.

B. FEDERAL INVESTIGATION

The Bureau of Alcohol, Tobacco and Firearms ("BATF") traces all firearms entered into evidence at the Aurora Police Department. Consequently, a BATF agent traced the firearm to Mr. Novitsky and began an investigation to determine if Mr. Novitsky's possession of it involved a federal crime. Upon learning that Mr. Novitsky had "four possible felony cases that had been previously filed against him," the agent referred the case to another BATF agent, Manuel Porter, for further investigation. Id. at 187.

Agent Porter interviewed Mr. Novitsky at the Douglas County Jail while Mr. Novitsky was being held there on unrelated charges. During the interview, Mr. Novitsky signed an affidavit in which he admitted to possessing the firearm and having a prior felony fraud conviction. Agent Porter then gathered the information from his investigation, including copies of the municipal summons and the Serialized Property Report, and presented his case file to the U.S. Attorney's Office.

C. CRIMINAL PROSECUTION

On August 7, 2001, Mr. Novitsky was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and bound over for trial. Prior to trial, Mr. Novitsky filed a motion to suppress the handgun.

1. The First Motion to Suppress Hearing

In January 2002, the district court held a hearing on the motion to suppress. Neither Officer Marshall nor Officer Wortham was called to testify. Instead, Agent Porter recounted the officers' encounter with Mr. Novitsky based on "Officer Wortham and Officer Marshall's Reports," id. at 119, and a meeting with both officers, id. at 199. After stating that Officer Wortham told him the reports detailed the encounter "exactly as he remembered it," id., Agent Porter testified that Officer Wortham applied the twist lock after observing the firearm. The district court denied Mr. Novitsky's motion to suppress.

2. The Trial

At trial, Officer Wortham testified for the first time. On direct examination, he stated that he applied the twist lock before he observed the firearm when Mr. Novitsky "stuck his right arm up and tried to grab for the doorway." Id. at 251. He also testified that he primarily applied the twist lock to "eliminate [Mr. Novitsky's] ability of moving or grabbing anything or that type of thing" for officer safety purposes. Id. In explaining his concern for his safety, Officer Wortham added:

I am always concerned for my safety because I don't know what I am dealing with. I don't know if he is intoxicated, if he just did commit a crime and is just laying there, so yes, I am concerned for my safety. And it's just standard procedure the way we contact people.

Aple's Supp.App. at 2. He further provided that applying the twist lock was

[j]ust standard procedure . . . when taking somebody out of a vehicle that's been sleeping or possibly alcohol related just to — just been awakened and just wanted to make sure they didn't make any offensive movements or that type of thing so we would be able to control their movement.

Aplt's App. at 251. After Officer Wortham's testimony, the district court granted a mistrial and called for a reexamination of whether Officer Wortham reasonably applied the twist lock to Mr. Novitsky.

3. The Second Motion to Suppress Hearing

At a second motion to suppress hearing on May 21, 2002, Officer Wortham again testified. During direct examination, he reiterated that he applied the twist lock prior to seeing the firearm for "officer safety" purposes. Id. at 269. On cross-examination, Officer Wortham conceded that Mr. Novitsky neither made furtive movements nor resisted his instruction to exit the vehicle. He also admitted there was no evidence that Mr. Novitsky had committed a crime.

Defense counsel also asked Officer Wortham if the Aurora Police Department instructed its officers to use the twist lock to remove individuals from their...