Weigel v. Broad

• Decision Date: 21 October 2008
• Docket Number: No. 05-8102.,No. 05-8094.,05-8094.,05-8102.
• Citation: 544 F.3d 1143
• Parties: Glenn WEIGEL and David Weigel, individually and as co-personal representatives of the Estate of Bruce James Weigel, Deceased, Plaintiffs-Appellants/Cross-Appellees, v. John K. BROAD, individually; and Devan Henderson, individually, Defendants-Appellees/Cross-Appellants. The Wyoming Highway Patrol; Colonel John Cox, individually and in his official capacity; and John Does I-X, individually and in their official capacities, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

544 F.3d 1143

Glenn WEIGEL and David Weigel, individually and as co-personal representatives of the Estate of Bruce James Weigel, Deceased, Plaintiffs-Appellants/Cross-Appellees, v. John K. BROAD, individually; and Devan Henderson, individually, Defendants-Appellees/Cross-Appellants.

The Wyoming Highway Patrol; Colonel John Cox, individually and in his official capacity; and John Does I-X, individually and in their official capacities, Defendants.

No. 05-8094.

No. 05-8102.

United States Court of Appeals, Tenth Circuit.

October 21, 2008.

Larissa A. McCalla, The Spence Law Firm, LLC, Jackson, WY (G. Bryan Ulmer III, Lawyers & Advocates for Wyoming, Jackson, WY, with her on the briefs), for Plaintiffs-Appellants/Cross-Appellees.

Christine Cox, Assistant Attorney General (Patrick J. Crank, Wyoming Attorney General, and John W. Renneisen, Deputy Attorney General, with her on the briefs), State of Wyoming, Cheyenne, WY, for Defendants-Appellees/Cross-Appellants.

Before HARTZ, SEYMOUR, and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs Glenn Weigel and David Weigel filed this action against Wyoming Highway Patrol Officers John K. Broad and Devan Henderson, and their supervisor, John Cox, individually. Plaintiffs make claims of failure to train and excessive force under 42 U.S.C. § 1983 and state negligence law. The claims stem from the death of their brother, Bruce Weigel, who died after an altercation with Troopers Broad and Henderson. Defendants moved for summary judgment, asserting qualified immunity. In concluding defendants were immune from suit, the district court held that while plaintiffs could show defendants violated Mr. Weigel's Fourth Amendment right to be free from unreasonable search and seizure, they could not show the troopers' conduct was objectively unreasonable in light of clearly established law. The court therefore granted defendants' motion for summary judgment. Because the standard for qualified immunity under Wyoming law is less stringent, the court denied defendants' motion for summary judgment as to the state law claims. The court certified the § 1983 claims for interlocutory appeal pursuant to Federal Rules of Civil Procedure 54(b), and stayed the matter pending appeal. We construe the court's certification order to only permit an appeal from the summary judgment entered on the § 1983 claims brought against Officers Henderson and Broad and our reference to defendants in this opinion refers only to them. On appeal, plaintiffs argue the district court wrongly decided the second prong of the qualified immunity test. Defendants cross-appeal, contending the court incorrectly decided the first prong of the qualified immunity test.

We take jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district court's grant of summary judgment as to plaintiffs' § 1983 claims because we conclude there are questions of fact as to the applicability of qualified immunity.

I

"In reciting the facts of this case, we view the evidence in the light most favorable to the non-moving party, as is appropriate when reviewing a grant of summary judgment." Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1201 n. 1 (10th Cir.2006) (citing FED.R.CIV.P. 56(c)).

On the morning of December 20, 2002, Wyoming Highway Patrol Troopers Broad and Henderson were both en route to the Wyoming port-of-entry on Interstate 25. In order to reach the port, the troopers exited I-25 southbound and turned around in the median to enter I-25 northbound. Trooper Broad entered I-25 northbound first, followed by Trooper Henderson. Just after Trooper Henderson entered the highway, Bruce Weigel struck Trooper Broad's car from behind. After the collision, Mr. Weigel's car careened through the median strip and re-entered I-25 south. Mr. Weigel's vehicle came to a rest on the left shoulder of the I-25 southbound lanes. Trooper Broad's vehicle stopped on the left shoulder of I-25 northbound, and Trooper Henderson pulled over to the right shoulder of I-25 northbound.

Trooper Broad radioed to dispatch that there had been an accident. Records indicate that call was made at 7:50 a.m. Trooper Broad approached Mr. Weigel's vehicle on foot to assess Mr. Weigel's injuries, if any. Mr. Weigel denied the need for an ambulance. Because it was department policy to notify a supervisor when an officer was involved in a crash, Trooper Broad radioed for his patrol supervisor. Troopers cannot work a crash in which they are involved, so Trooper Henderson agreed to be responsible for making the accident report.

While the report was being made, both Troopers Broad and Henderson asked Mr. Weigel about the cause of the accident. Mr. Weigel said he believed his vehicle's steering linkage had come loose or broken. Trooper Henderson then asked Mr. Weigel to produce his driver's license, vehicle registration, and insurance, but he was only able to produce his vehicle registration and insurance. While speaking with Mr. Weigel Trooper Henderson smelled alcohol on his breath. Trooper Broad agreed Mr. Weigel's breath smelled of alcohol. Believing Mr. Weigel's possible inebriation may have contributed to the accident, Trooper Henderson asked Mr. Weigel if he would submit to a field sobriety test and he agreed to do so. Mr. Weigel and Trooper Henderson then approached the interstate to return to Trooper Henderson's patrol car. Trooper Henderson "noticed a van coming toward [them]. [He] told the subject to wait before crossing the Interstate or he would get hit. [Mr. Weigel] looked at [him][and] continued to walk across the Interstate. [He] then told [Mr. Weigel] once again to get back where [he] was and stay out of traffic. [Mr. Weigel] took a few steps back toward him, looked at him, [and] then looked at the van [and] ran straight out in front of the van." Aplt.App., vol. II at 333-34. Mr. Weigel was struck in the chest by the sideview mirror of the passing van. Seeing that Mr. Weigel was hit, Trooper Broad radioed for an ambulance. Records indicate this call was made at 7:54 a.m. Mr. Weigel continued his attempt to cross the interstate despite the blow. When Mr. Weigel fled, Trooper Henderson thought "he [was] trying to commit suicide because the van [was] right there and me and him [could] both see it." Id. at 396. Other witnesses generally described Mr. Weigel's behavior as "strange," "bizarre," "odd," id. at 619, "not normal," id. at 652, and "erratic." Id. at 638.

Concerned for the safety of Mr. Weigel and the public, Trooper Henderson followed Mr. Weigel, tackled him, and wrestled him to the ground in a ditch alongside the highway. A further struggle ensued, involving Mr. Weigel, Trooper Henderson, Trooper Broad, and, eventually, bystanders. Accounts of the struggle are conflicting, but it is generally agreed that Mr. Weigel fought vigorously, attempting repeatedly to take the troopers' weapons and evade handcuffing.

In the midst of the melee, Trooper Henderson put Mr. Weigel in a choke hold. Although Trooper Broad then got ahold of one of Mr. Weigel's arms, id. at 336, Mr. Weigel continued to resist and fight. At that point, the troopers solicited assistance from bystanders gathered near Mr. Weigel's vehicle. Responding to the call for help, Dana Stickley grabbed a downed fencepost and headed across the interstate to assist the officers. Because Trooper Broad had secured the second handcuff just as Mr. Stickley arrived, he did not club Mr. Weigel with the fencepost. Id. at 355. Even handcuffed, Mr. Weigel continued to struggle, so Mr. Stickley lay across the back of Mr. Weigel's legs. The troopers maintained Mr. Weigel in a facedown position. Trooper Broad applied pressure to Mr. Weigel's upper body, including his neck and shoulders, by using either one or both knees and his hands. See id. at 379 ("But I do not know if I had—I'm unsure whether or not I had one or two knees on him."). Trooper Henderson straddled Mr. Weigel's upper thighs and buttocks and held Mr. Weigel's arms in place. At some point, another bystander began binding Mr. Weigel's feet with plastic tubing or cord found in his vehicle, while Mr. Stickley remained on Mr. Weigel's legs. With Trooper Broad positioned on Mr. Weigel's upper torso, Mr. Stickley positioned on top of Mr. Weigel's legs, Mr. Weigel's hands cuffed and his feet bound or being bound,¹ Trooper Henderson went to his vehicle to warm his hands. Mr. Stickley stayed on Mr. Weigel's legs until it was determined Mr. Weigel was in cardiac arrest. Aplt. App., vol. III at 645.

In his initial report to a police investigator, Trooper Henderson indicated that Mr. Weigel was subdued before he left him. "Trooper Henderson said the driver was laying on his stomach with his head turned to the side, legs straight out and just quit struggling. . . . Trooper Henderson went to his patrol vehicle to radio for additional assistance and obtain his coat and gloves."² Id., vol. II at 340-41. In his deposition account of the event, Trooper Henderson testified he would not have returned to his vehicle "[i]f Mr. Weigel posed a safety risk to the safety of [him] or the other witnesses standing around or Trooper Broad." Id. at 406. He further stated he "felt confident with the witnesses around [Mr. Weigel] that if the suspect tried to get up that they would keep him down . . ." Id. at 425. When Trooper Broad was asked in his deposition, "[D]id you feel comfortable that you could control [Mr. Weigel] without Mr. Henderson," he replied, "I think I did with the witnesses still holding down his lower body." Id. at 358.

One witness testified that Mr. Weigel ceased to struggle at one or two points throughout the event. See id., vol. III at 618 ("[T]here was one, what I recall sort of a major time when [Mr. Weigel] quit struggling and then the situation seemed to be completely [diffused], . . . and then he started to try to get up and move around again, and that's when the officer said don't struggle, don't get up.") The witness viewed...