Spann v. Rainey

• Decision Date: 25 March 1993
• Docket Number: 92-7290,Nos. 91-7225,s. 91-7225
• Citation: 987 F.2d 1110
• Parties: Aaron SPANN, Plaintiff-Appellant, v. Police Officer A.G. RAINEY, et al., Defendants-Appellees. Aaron SPANN, Plaintiff-Appellee, v. A.G. RAINEY, Police Officer, et al., Defendants, A.G. Rainey, Police Officer, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1110

987 F.2d 1110

Aaron SPANN, Plaintiff-Appellant, v. Police Officer A.G. RAINEY, et al., Defendants-Appellees.

Aaron SPANN, Plaintiff-Appellee, v. A.G. RAINEY, Police Officer, et al., Defendants, A.G. Rainey, Police Officer, Defendant-Appellant.

Nos. 91-7225, 92-7290.

United States Court of Appeals, Fifth Circuit.

March 25, 1993.

Jack H. Tobias, Metairie, LA, for Aaron Spann.

Craig E. Brasfield, Deputy City Atty., Leyser Q. Morris, Jackson, MS, for A.G. Rainey.

Appeals from the United States District Court for the Southern District of Mississippi.

Before DUHE and BARKSDALE, Circuit Judges, and TRIMBLE, ¹ District Judge.

BARKSDALE, Circuit Judge:

Primarily at issue is an interlocutory appeal from the denial of qualified immunity, the appeal being from a ruling on a summary judgment motion filed after a new trial was granted; one issue being whether the appeal can even be taken. These consolidated appeals concern Aaron Spann's excessive force and other claims against the City of Jackson, Mississippi, its police department, and three police officers. We DISMISS Spann's appeal, No. 91-7225, and cross-appeal in No. 92-7290, because there was no timely notice of appeal from a final judgment. Because he is appealing from an order denying qualified immunity, we have jurisdiction in Officer A.G. Rainey's interlocutory appeal, No. 92-7290, but AFFIRM the denial of summary judgment.

I.

For several years prior to November 1987, Dr. Campbell had treated Spann for a diabetic condition. On November 19, after having missed a scheduled appointment that October, he arrived at Dr. Campbell's office. ² Dr. Campbell testified that she encountered Spann in the office, that he was angry, that she asked him to wait in the reception area, and that she then told the receptionist to call the police. A "disturbance call" was placed to the police; and when Officers Kendrick and Rainey arrived, they were directed to Spann, whom they approached and asked for identification. When he did not respond, Rainey grabbed Spann's arm; and Spann lunged forward, grabbing Officer Kendrick in the neck/collarbone area. A "split second" later, Rainey hit Spann over the head with his flashlight, knocking him down. When Spann attempted to get up, Rainey knocked him down again with his flashlight. A third officer, Williams, arrived as Rainey and Kendrick were attempting to handcuff Spann. Williams testified that Spann was then bleeding from his head. Spann testified that he was kicked, stomped, beaten, handcuffed, and dragged down stairs before he was placed in a police car and taken to the hospital.

Medical examination revealed that Spann had been suffering from hypoglycemia (low blood sugar) at the time he was first approached by Rainey and Kendrick. It is apparently uncontested that Spann was in a "diabetic coma" at that time, and that this explains his erratic behavior. ³ The only charge filed against him was resisting arrest.

Spann filed a civil rights suit, 42 U.S.C. § 1983, against the City of Jackson, the police department, and the three officers. In their answers to the complaint, the officers, inter alia, asserted qualified immunity; but, before trial in 1991, they never moved for dismissal on that basis.

In early October 1991 (1991 trial), at the close of Spann's case in chief, the court dismissed all claims against the City and the department. And, at the close of all the evidence, it directed a verdict for Rainey on the wrongful arrest claim. An excessive force claim and two pendent state law claims (assault and battery) went to the jury. (The first state claim was that Spann was hit in the head with a flashlight; the second, that he was kicked and beaten once handcuffed.) On October 3, the jury found against Spann on all claims.

Upon the jury being excused, Spann moved orally for judgment notwithstanding the verdict or, in the alternative, a new trial. By an immediate bench ruling, the motion was denied as to defendants Kendrick and Williams, but granted in part as to Rainey. As to him, the motion was denied on the second state claim; but, for the excessive force and first state (flashlight) claims, the court found the verdict "against the overwhelming weight of the evidence". A new trial was granted on those claims, rather than a JNOV, "for the simple fact that ... [t]he jury did not reach the issue of damages" and "the Court would be substituting its evaluation of damages for that of a jury".

The final judgment and the order granting a new trial, based on the bench ruling, were entered on October 7. Spann moved for reconsideration of his new trial motion as to the City and Police Department. That motion was denied on October 11. On October 16, he moved for reconsideration of his new trial motion on all issues as to the individual defendants. And, on October 21, Rainey moved for reconsideration of the order granting a new trial. On November 6, even though the court had not ruled on Spann's October 16 motion, Spann filed a notice of appeal. Two days later, on November 8, the district court denied Spann's October 16 motion. Spann did not file a new notice of appeal. And, on December 5, Rainey's October 21 motion was denied.

In February 1992, Rainey moved for dismissal or summary judgment on the basis of qualified immunity. That April, the court denied the motion without an opinion, stating in the order only that the motion was "not well taken". ⁴ Rainey appealed, and Spann filed a cross-appeal ("out of an abundance of caution"), but only as to the fall of 1991 post-trial orders.

II.

As Spann conceded in his affirmative brief and at oral argument, we lack jurisdiction over his appeal and cross-appeal. They are dismissed. ⁵ As hereinafter discussed, although we have jurisdiction over Rainey's appeal, we hold, based on our required de novo review of the summary judgment ruling, that the motion was properly denied.

A.

Rainey invokes our jurisdiction under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), because his appeal is from an order denying qualified immunity. Spann counters that the interests fostering such an appeal are not applicable, in part because of Rainey's failure to assert the qualified immunity defense by motion before the 1991 trial. ⁶ To the contrary and for the following reasons, we find that those interests are still served at this late date, and that we, therefore, have jurisdiction.

Qualified immunity protects against being subjected to litigation and against liability. "[Q]ualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct". Id. at 527, 105 S.Ct. at 2816. To the extent that the defense is concerned with "the general costs of subjecting officials to the risks of trial--distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service", Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982), those interests are partially lost at this stage in the game. Indeed, it is well established (and makes perfect sense) that the interests at the heart of qualified immunity are best served when, unlike here, the defense is asserted at the earliest possible stage, Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987). Attention to those interests is the very purpose for allowing interlocutory appeals from the denial of qualified immunity.

Those interests are still served, however, even if in a more limited fashion, by assertion of the defense at some later stage. It is true that Rainey was pulled away from his official duties for the 1991 trial. And, it may even be true that having been subjected to that trial will inhibit his future exercise of judgment or deter others from public service. But, as noted, it is also true that qualified immunity is both an immunity from suit and a defense to liability. We have previously held that a public official does not waive this defense when he fails to take an interlocutory appeal and, instead, subjects himself to the burdens of discovery and trial. See Matherne v. Wilson, 851 F.2d 752 (5th Cir.1988). Likewise, we do not consider the defense--or the concomitant right to an interlocutory appeal from its denial--waived by Rainey's failure to seek dismissal based on it prior to the 1991 trial. His interests in the avoidance of a second trial and, ultimately, in avoiding liability, would still be served by a successful assertion of the defense at this stage.

B.

As a police officer, Rainey is immune from both suit and liability unless it is shown that, at the time of the incident, he violated a clearly established constitutional right. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992). The Supreme Court recently "clarif[ied] the analytical structure under which a claim of qualified immunity should be addressed", Siegert v. Gilley, --- U.S. ----, ----, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). We must first determine whether the plaintiff has "allege[d] the violation of a clearly established constitutional right." Id. If he has, we then decide whether the defendant's conduct was objectively reasonable, Salas, 980 F.2d at 305-06, because "[e]ven if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable".

For this second step, the "reasonableness ... is assessed in light of the legal rules clearly established at the time" of the incident in issue. Id. at 310. The contours, or standard, for a constitutional right may expand after the time of the alleged violation, and be the benchmark for proof at trial of that right and its claimed violation; but, as stated, the benchmark for objective reasonableness is that which existed at the time of the alleged violation--we look to clearly established law at that time. E.g., id. at 310; Mouille v. City of Live Oak, Tex., ...