Thornton v. City of Rapid City

• Citation: 692 N.W.2d 525,2005 SD 15
• Decision Date: 26 January 2005
• Docket Number: No. 23167.,23167.
• Court: Supreme Court of South Dakota
• Parties: Carol THORNTON, as Guardian Ad Litem for her son, Rinard Yellow Boy, Jr., Plaintiff and Appellee, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, as Employer and Entity; the Rapid City Police Department, Defendants, and Officer Tony Harrison, jointly and severally and individually, Defendant and Appellant.

692 N.W.2d 525

2005 SD 15

Carol THORNTON, as Guardian Ad Litem for her son, Rinard Yellow Boy, Jr., Plaintiff and Appellee, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, as Employer and Entity; the Rapid City Police Department, Defendants, and Officer Tony Harrison, jointly and severally and individually, Defendant and Appellant.

No. 23167.

Supreme Court of South Dakota.

Argued on November 16, 2004.

Decided January 26, 2005.

Robin L. Zephier of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Timothy J. Becker of Banks, Johnson, Colbath, Sumner & Kappelman, Rapid City, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] This is an intermediate appeal from a denial of Summary Judgment concerning claims against a Rapid City police officer for assault and battery and violation of civil rights. We affirm.

PROCEDURAL BACKGROUND

[¶ 2.] Carol Thornton, as Guardian Ad Litem for her son, Rinard Yellow Boy, Jr., filed a lawsuit against the City of Rapid City, the Rapid City Police Department, and Officer Tony Harrison for negligence, assault and battery, negligent training, negligent supervision, negligent hiring, and violation of his civil rights under 42 U.S.C. § 1983. The claims against the City of Rapid City and the Rapid City Police Department were dismissed on summary judgment. The only claims remaining are against Officer Harrison for assault and battery and civil rights violations. The officer appeals the denial of summary judgment on these claims.

[¶ 3.] Officer Harrison asserts that the trial court erred by not dismissing both claims. Concerning the state law assault and battery claim, the officer maintains that his physical contact with Yellow Boy was privileged. Concerning the claim for civil rights violations, the officer asserts that he is protected by qualified immunity. The trial court rejected Harrison's arguments and ruled there were genuine issues of material fact to be decided by the trier of fact and denied summary judgment.

STANDARD OF REVIEW

[¶ 4.] Our standard of review on summary judgment is well-settled:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party, and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Citibank (S.D.), N.A. v. Hauff, 2003 SD 99, ¶ 10, 668 N.W.2d 528, 532 (citations omitted). Whether the facts viewed most favorably to the nonmoving party entitle the moving party to judgment on the merits as a matter of law is a question of law. We review questions of law de novo. State v. Jensen, 2003 SD 55, ¶ 8, 662 N.W.2d 643, 646 (citations omitted).

ISSUES

1. Whether the trial court erred when it failed to rule that Officer Harrison is entitled to a common law privilege, codified at SDCL § 22-18-2, protecting him from Yellow Boy's claims for assault and battery.

2. Whether the trial court erred when it failed to rule that Officer Harrison is entitled to qualified immunity protecting him from Yellow Boy's claim for civil rights violations.

DECISION

[¶ 5.] This appeal was properly taken from the denial of summary judgment.¹ Again we note that we must view the evidence in the light most favorable to Yellow Boy. Citibank (S.D.), N.A., 2003 SD 99, ¶ 10, 668 N.W.2d at 532. In order for Officer Harrison to prevail on summary judgment we must find that, even accepting Yellow Boy's version of the facts, Officer Harrison's actions were privileged and entitled him to qualified immunity as a matter of law.

Privileged conduct

[¶ 6.] We begin with the issue of whether the officer's conduct is privileged, thereby protecting him against the state law assault and battery claim. A police officer's common law privilege to use force is codified as follows:

To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when necessarily committed by a public officer in the performance of any legal duty or by any other person assisting him or acting by his direction.

SDCL 22-18-2. "Under [this] South Dakota statutory authority, the force used by a police officer is unlawful when it becomes greater than necessary to carry out his duties." Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 23, 580 N.W.2d 606, 612. Thus, the question on summary judgment is whether, accepting Yellow Boy's version of the facts, Officer Harrison used force greater than necessary to carry out his duties. If it was greater than necessary, it was appropriate for the trial court to deny summary judgment on the state law assault and battery claim.

[¶ 7.] The facts in the light most favorable to Yellow Boy indicate that Officer Harrison was dispatched to the location of a reported non-felony disturbance, possibly involving a fight and destruction of property. When he arrived there were a number of people running up an alley and one person was shouting "there they go." Officer Harrison ran up the alley in pursuit of these individuals. Eventually, Officer Harrison caught sight of a male, the Plaintiff, walking down the sidewalk in the same direction as the running individuals.

[¶ 8.] According to Yellow Boy, he was calmly walking down the sidewalk to get a soda from a nearby Mini Mart when several individuals ran by and around him. Approximately ten seconds later, Yellow Boy was violently tackled from behind by the officer. Yellow Boy's wrist was broken in the encounter. Officer Harrison admittedly did not ask Yellow Boy to stop or otherwise warn him that he was approaching. Instead, the officer ran towards Yellow Boy over a distance of many feet and, according to Yellow Boy, knocked him to the ground from behind and collapsed on top of him with his full weight. The officer then placed Yellow Boy in handcuffs despite pleas that his wrist was injured. Only after Yellow Boy was placed in handcuffs, did the officer investigate who he was and what he was doing. The police learned that Yellow Boy was not involved in the reported criminal activities and was merely a fifteen year old boy innocently walking to the store. The officer removed the handcuffs and took him home.

[¶ 9.] We recognize the importance of the privilege granted to officers in the performance of their duties. However, where the nonmoving party in a summary judgment motion presents facts from which a trier of fact could find excessive conduct on the part of the officer, summary judgment would be error. Here, the factual scenario taken in the light most favorable to Yellow Boy raises an issue of material fact as to whether the force used was greater than necessary. Thus, it was not error for the trial court to deny summary judgment on the assault and battery claim.

Violation of Civil Rights and Qualified Immunity

[¶ 10.] We next turn to the issue of whether qualified immunity shields the officer from Yellow Boy's claim that the officer violated his civil rights. "Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known." Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir.2004) (quoting Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996)). The parties agree that the constitutional claim in this case is for a violation of the Fourth Amendment based on the excessive use of force. This Court previously applied a three part test when evaluating an excessive use of force claim in conjunction with a qualified immunity defense. Swedlund v. Foster, 2003 SD 8, ¶ 19, 657 N.W.2d 39, 48. This test required us to determine (1) if the complaint alleged a violation of the plaintiff's constitutional rights, (2) if the constitutional rights were clearly established and (3) if a reasonable officer would understand that what he/she was doing violated the plaintiff's constitutional rights. Id. Since our decision in Swedlund, the federal courts have clarified their qualified immunity analysis and now present it as a two part inquiry. See Brosseau v. Haugen, ___ U.S. ___, 125 S.Ct. 596, 598-99, 160 L.Ed.2d 583 (2004)

; Littrell, 388 F.3d at 582. While this analysis is essentially the same as that in Swedlund, for the sake of uniformity and clarity we apply the analysis in its more recent two part form, which controls.

[¶ 11.] First the claim itself is to be analyzed, and then the qualified immunity defense. See Parks v. Pomeroy, 387 F.3d 949, 956-57 (8th Cir.2004)

; Kuha v. City of Minnetonka, 365 F.3d 590, 601-02 (8th Cir.2003). A court must ask the following questions: (1) "`Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?' "Brosseau, ___ U.S. ___, 125 S.Ct. at 598,

160 L.Ed.2d 583 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272, 281 (2001)); and (2) "if so, the next, sequential step is to resolve the qualified-immunity claim by asking whether the right was clearly established." Bunting v. Mellen, ___ U.S. ___, 124 S.Ct. 1750, 1753, 158 L.Ed.2d 636, 639 (2004) (Justice Scalia, dissenting) (quotations and citations omitted). The two step analysis is the result of the separate nature of the excessive use of force claim and the qualified immunity defense. See Hays v. Ellis, 331 F.Supp.2d 1303, 1306 (D.Colo.2004) ("Qualified immunity is an affirmative defense to a section 1983 action") (citation omitted).

Violation of a Constitutional Right

[¶ 12.] When considering the first question of whether the force used by the officer was excessive "the test is whether the amount of force used was...