Quesinberry v. Rouppasong, 24814.

• Decision Date: 13 July 1998
• Docket Number: No. 24814.,24814.
• Citation: 331 S.C. 589,503 S.E.2d 717
• Parties: Melissa QUESINBERRY, Shannon Foxworth, Teresa Ann Lewis, and Scott Roth, Petitioners, v. Paul ROUPPASONG and M.B. Rosbrugh, individually and in their capacity as police officers; City of Myrtle Beach, a governmental entity within the State of South Carolina; and Myrtle Beach Police Department, an agency of the City of Myrtle Beach, Respondents.
• Court: South Carolina Supreme Court

331 S.C. 589

503 S.E.2d 717

Melissa QUESINBERRY, Shannon Foxworth, Teresa Ann Lewis, and Scott Roth, Petitioners, v. Paul ROUPPASONG and M.B. Rosbrugh, individually and in their capacity as police officers; City of Myrtle Beach, a governmental entity within the State of South Carolina; and Myrtle Beach Police Department, an agency of the City of Myrtle Beach, Respondents.

No. 24814.

Supreme Court of South Carolina.

Heard November 6, 1997.

Decided July 13, 1998.

Rehearing Denied September 3, 1998.

Ronald W. Hazzard, Myrtle Beach, for petitioners.

Michael W. Battle, of Battle & Vaught, P.A., Conway, for respondents.

WALLER, Justice:

Petitioners brought actions against respondents alleging, inter alia, respondents violated their constitutional rights in using excessive force to effect their arrest. Recovery was sought under section 1983, Title 42 of the United States Code.¹ At the close of petitioners' case, the trial judge directed a verdict in favor of respondents.² The Court of Appeals affirmed. Quesinberry v. Rouppasong, Op. No. 96-UP-158 (S.C.Ct.App. filed May 16, 1996). We granted petitioners a writ of certiorari to review the sole issue of whether the trial judge properly directed verdicts for respondents on the excessive force claims.

FACTS³

On the evening of September 15, 1991, the Dutch Deli, a restaurant located on Highway 17 in Myrtle Beach, hosted a party for staff and guests. All petitioners attended the party.

Petitioner Lewis gave the following account of events. She had consumed two mixed drinks and was sitting with others on the porch outside the restaurant when a patrol car stopped a vehicle traveling on Highway 17. A second patrol car arrived. Lewis and her daughter, petitioner Quesinberry, thought it strange two patrol cars had stopped for one vehicle.

Lewis, a thirty-eight year old photographer interested in obtaining a photograph to enter into a contest, walked across Highway 17 with her camera, intending to ask an officer if she could take a picture. One of the officers told her to return to the sidewalk. Lewis complied and was looking at her camera when respondent Rouppasong grabbed her arms. Lewis told him she did not take a picture. Thereafter, both Officer Rouppasong and respondent Rosbrugh pulled Lewis's arms behind her back. Lewis testified the officers handcuffed her in such a way that she could not stand up straight. When she asked if she was under arrest, she received no response.

By this time, Quesinberry had approached the scene. She informed the officers Lewis was her mother and inquired whether Lewis was under arrest. Lewis told Quesinberry to take pictures. After Quesinberry took one picture, Officer Rouppasong told her to stop. Quesinberry circled around the officers and her mother, snapping pictures. Officer Rouppasong placed Lewis in a patrol car. From the car, Lewis witnessed the arrest of her daughter and of petitioners Foxworth and Roth.

Inside the patrol car, as she was being transported to jail, Lewis asked what she was charged with. Officer Rouppasong replied, "you're drunk."⁴ Lewis also complained to Officer Rouppasong about her handcuffs:

... Officer Rouppasong got in, got in the car, and I said, "I think these handcuffs must be too tight. I can't feel my wrists." I said, "I can't feel my hands at all. Could you check them?" and he didn't respond, and I said several more times driving to the jail, "Something's wrong with my hands. I can't, I can't feel my hands,"....

After her release from jail, Lewis went to the hospital emergency room where bandages were applied to her arms. She consulted an orthopedic surgeon a month later who diagnosed her with mild carpal tunnel syndrome in both wrists. She ultimately underwent cortisone injections and orthopedic surgery on her wrists.

Petitioner Quesinberry gave the following account of events. She had finished one alcoholic beverage and was beginning to drink a second when she saw her mother walk across Highway 17 towards Officer Rouppasong, turn around, and walk back. Quesinberry went to the parking lot next to the highway, where she saw the officers release the individual they had stopped, come up behind Lewis, grab her arms, and tug and jerk on her camera and purse straps. Quesinberry asked why they were arresting Lewis but received no response. Quesinberry began taking pictures with her own camera. When Officer Rouppasong told her to stop, she replied, "Stop doing what? Taking pictures? I have a right to take pictures. This is America. I can take pictures if I want to take pictures."

Officer Rosbrugh grabbed her right arm and jerked it around behind her back up into the air. He forced her onto the hood of a patrol car, told her to spread her legs, and then kicked her legs apart, causing bruises and breaking the straps on her sandals. He then handcuffed her. When Quesinberry asked if she were under arrest, Officer Rosbrugh did not reply. At this point she saw five other people in the parking lot and about ten people on the porch of the Dutch Deli. The people were screaming at the officers, "Why are you arresting her? What is going on?" Officer Rosbrugh placed Quesinberry in the patrol car with her mother.⁵

Petitioner Roth gave the following account of events. He had consumed four or five beers and a "shooter or two" when he saw the officers arrest Lewis and Quesinberry. He and his girlfriend, petitioner Foxworth, went out to the parking lot. Quesinberry's boyfriend was there shouting obscenities at the officers. Roth said, "This is bull—." He asked the officers, "Why don't [you] go down to Tenth Avenue and bust some crack cocaine dealers, why don't [you] do something real for once." He estimated four or five people were standing in the parking lot.

Officer Rosbrugh then asked Roth, "Why don't you come over here?" Roth held up his hands and stepped back. Officer Rosbrugh jumped over a small retaining wall and grabbed Roth's right hand. Roth jerked his hand away. Rosbrugh grabbed Roth's arm again and pulled it behind his back. Roth went down on his knees. Roth testified if he stresses his back and shoulder, they will twinge, but "I wouldn't call it a real injury."⁶

Petitioner Foxworth gave the following account of events. She consumed three wine coolers at the party. Foxworth saw Lewis approach the officers, and heard Quesinberry ask what was going on. Between thirty to thirty-five people were on the Dutch Deli's porch watching the incident. She then walked out to the parking lot with Roth where she witnessed the officers arrest Lewis and Quesinberry. Foxworth asked the officers why Lewis and Quesinberry were being arrested. Quesinberry's boyfriend was cursing at the police. Officer Rosbrugh pointed at Roth and asked if he had something to say. Foxworth grabbed Roth's elbow and pulled him back. Officer Rosbrugh then grabbed Roth and pulled him to the ground.

She was watching Roth when someone suddenly grabbed her. She jerked her arm away but was grabbed again and placed in handcuffs by a third officer who had arrived on the scene. She had no idea why she was being arrested.⁷

Finally, petitioners presented the testimony of eyewitness Sandra Hucks. Hucks testified she did not recall either Lewis's or Quesinberry's arrests, but viewed portions of Roth's and Foxworth's arrests from the Dutch Deli's porch (some sixty to eighty feet from the incident). According to Hucks, there were approximately forty people at the party. A group of people were on the porch, and some people were yelling obscenities.

ISSUE

Did the Court of Appeals err in affirming the trial judge's directing a verdict in respondents' favor on petitioners' excessive force claims?

DISCUSSION

On review of a ruling granting a directed verdict, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party against whom the verdict was directed. Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997). If the evidence is susceptible to more than one reasonable inference, the case should be submitted to the jury. Gamble v. Int'l Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996).

Our decision is controlled by the Supreme Court's decision in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Graham held all claims that law enforcement officers used excessive force in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution.⁸

Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application 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 [the suspect] is resisting arrest or attempting to evade arrest by flight.

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact

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