Porro v. Barnes

• Decision Date: 09 November 2010
• Docket Number: No. 10-6002.,10-6002.
• Citation: 624 F.3d 1322
• Parties: Alfredo Yero PORRO, Plaintiff-Appellant, v. Stanley BARNES; and Michael Bryant, in his official capacity as Sheriff of Jefferson County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

624 F.3d 1322

Alfredo Yero PORRO, Plaintiff-Appellant,

v.Stanley BARNES; and Michael Bryant, in his official capacity as Sheriff of Jefferson County, Defendants-Appellees.

No. 10-6002.

United States Court of Appeals,Tenth Circuit.

Nov. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Submitted on the briefs: ^*

Mark E. Bialick and David B. Donchin, Durbin, Larimore & Bialick, Oklahoma City, OK; and David W. Little, Law Offices of David Little, Oklahoma City, OK, for Plaintiff-Appellant.

Robert S. Lafferrandre and Randall J. Wood, Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, OK; and Chris J. Collins, Timothy M. Melton, and Linda K. Soper, Collins, Zorn & Wagner, P.C., Oklahoma City, OK, for Defendants-Appellees.

Before KELLY and GORSUCH, Circuit Judges, and MELGREN, District Judge. ^**

GORSUCH, Circuit Judge.

This case presents two central questions: What provision of the Constitution should this court use to analyze a federal immigration detainee's claim of excessive force? And does a county's failure to adopt a prophylactic policy with a standard of care higher than what the Constitution requires suffice, by itself, to suggest deliberate indifference to the Constitution's protections against excessive force? On the first question, we hold that the due process guarantee is the proper doctrinal prism through which to analyze the claims of federal immigration detainees who don't challenge the lawfulness of their detention but only the force used during that detention. On the second, we hold that the answer is simply no. To create a triable question of fact on the use of excessive force, a plaintiff must do more than show that the defendant county failed to adopt the most protective possible policy against the application of force. Because our conclusions mirror those reached by the district court on summary judgment, we affirm.

I

This case began when members of a certified emergency response team (“CERT”) at the Jefferson County Jail in Oklahoma responded to a call that Alfredo Yero Porro, a federal immigration detainee, was acting in a disruptive manner in his cell, destroying parts of it. To address the situation, CERT members removed Mr. Porro from his cell, walked him to the jail's booking area, and placed him in a restraint chair. No one challenges the propriety of any of this. But then, after Mr. Porro was restrained, a member of the CERT proceeded to taser Mr. Porro at least three times. And it is this force that eventually gave rise to this lawsuit. Mr. Porro filed his claim under 42 U.S.C. § 1983, against three defendants: Kenny Lovett, the CERT member who tasered him; Stanley Barnes, the sheriff of Jefferson County at the time of the incident; and Michael Bryant, Mr. Barnes's successor. Against all three, Mr. Porro alleged that they violated the Constitution's prohibitions against the use of excessive force. Mr. Porro appeared to sue Messrs. Lovett and Barnes in their individual capacities, and Messrs. Barnes and Bryant in their official capacities.

At summary judgment, the district court entered a pair of rulings. First, it entered judgment for Mr. Porro against Mr. Lovett and awarded damages of $100,000. The court found, among other things, that Mr. Lovett violated county rules prohibiting the use of a taser against a restrained detainee who presented no threat of harm, and that the force Mr. Lovett applied was constitutionally excessive. Second, the district court granted summary judgment to Messrs. Barnes and Bryant. The court held that Mr. Porro had come forward with no more than “supposition, conjecture and innuendo” to suggest Mr. Barnes's personal involvement or the county's culpability. Aplt.App. at 467. The court added that all the evidence adduced before it suggested that Mr. Lovett's tasering was no “more than a random act or isolated event which occurred outside of the policies and procedures implemented by Defendant Barnes.” Aplt.App. at 471.

Only the district court's latter judgment-in favor of Messrs. Barnes and Bryant-is contested on appeal. While not entirely clear from the briefing before us, Mr. Porro appears to suggest that the court erred in two distinct ways. First, he seems to say, a triable question of fact exists on whether Mr. Barnes should be held liable in his individual capacity for his alleged personal role in the tasering incident. Second, Mr. Porro appears to suggest, a triable question exists on whether both Messrs. Barnes and Bryant should be held liable in their official capacities because the policy of the County's Sheriff's Office was the moving force behind his injury.

We address these two arguments in turn. Because this case comes to us on summary judgment, we of course review it de novo and may affirm only if the facts, viewed in the light most favorable to Mr. Porro, warrant that result as a matter of law.

II

To assess Mr. Porro's first argument-that Mr. Barnes is liable in his individual capacity for unconstitutional use of excessive force-we must begin by asking which constitutional standard controls before asking whether the evidence presented creates a triable question of fact under that standard.

A

Our first task in any § 1983 suit alleging a constitutional violation is “to isolate the precise constitutional violation with which [the defendant] is charged.” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). On this score, Mr. Porro doesn't offer much help: he alleges simply a violation of the “Fourth, Eighth, and Fourteenth” Amendments, without suggesting which one he thinks best applies to his case or offering any further explanation. See Amd. Compl. ¶ 3.

The choice of amendment matters. Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment-all depending on where the defendant finds himself in the criminal justice system-and each carries with it a very different legal test. So, because the Fourth Amendment protects against “ unreasonable searches and seizures” and pertains to the events leading up to and including an arrest of a citizen previously at liberty, excessive force claims arising during this period are generally reviewed under a relatively exacting “objective reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.1991) (holding that the Fourth Amendment applies until formal charges are brought or an arraignment is held because force used is part of the “seizure”), abrogated on other grounds, Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Meanwhile, prisoners already convicted of a crime who claim that their punishments involve excessive force must proceed under the more restrictive terms of the Eighth Amendment's “cruel and unusual punishments” clause. Here, we ask only whether the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” See Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

And when neither the Fourth nor Eighth Amendment applies-when the plaintiff finds himself in the criminal justice system somewhere between the two stools of an initial seizure and post-conviction punishment-we turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities. See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Take the example of an arraigned pretrial detainee who brings an excessive force claim. He doesn't dispute that he's been lawfully seized and committed to pretrial detention, and he isn't complaining about any punishment meted out as part of a post-conviction sentence. Instead, his complaint is about arbitrary governmental action, taken without due process, while he is detained awaiting trial. In these circumstances, our precedent instructs us to focus on three factors: “(1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor.” Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir.2003). We've also said that “[f]orce inspired by malice or by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience may be redressed under the Fourteenth Amendment.” Id. (internal quotation and alterations omitted).

We hold that it is this last, due process, standard that controls excessive force claims brought by federal immigration detainees like Mr. Porro. Why he was being detained at the Jefferson County Jail-whether, for example, he had violated his parole or was awaiting deportation-Mr. Porro does not tell us. But neither does he dispute that he had been lawfully seized and detained. In this way, he is unlike the citizen who complains about the force used to effect his seizure in his initial encounter with the police, which would trigger the Fourth Amendment's protections. Mr. Porro also appears to be unlike the convicted prisoner who may be lawfully subjected to punishment as part of his sentence, but who complains that his punishment involves excessive force and so must resort to the Eighth Amendment. No one alleges that Mr. Porro's detention came after any conviction. In these circumstances-circumstances in which many federal immigration detainees' claims of excessive force must surely arise-Mr. Porro appears to walk in much the same shoes as an arraigned pre-trial detainee. He is therefore protected by the due process clause (in this case, the Fourteenth Amendment's due process clause, given that Mr. Porro's complaint is against state officials). We note that other courts confronting the status of immigration detainees before us have reached this same conclusion, assessing their...