Wilson v. City of Lafayette

Decision Date13 February 2013
Docket NumberNo. 11-1403,11-1403
PartiesWENDY WILSON; JACK WILSON; individually and as next of kin and personal representatives of Ryan Wilson, deceased, Plaintiffs-Appellants, v. CITY OF LAFAYETTE; LAFAYETTE POLICE DEPARTMENT; LAFAYETTE POLICE OFFICER JOHN HARRIS; LAFAYETTE POLICE CHIEF PAUL SCHULTZ, Defendants-Appellees, and TASER INTERNATIONAL, INC., Defendant.
CourtU.S. Court of Appeals — Tenth Circuit

(D.C. Nos. 1:07-cv-01844-PAB-

(D. Colo.)


Before BRISCOE, Chief Judge, GORSUCH, and MATHESON, Circuit Judges.

One evening in August 2006, Boulder County detectives spotted Ryan Wilson near an area known to be used for the illegal cultivation of marijuana. As they approached, Mr. Wilson admitted the plants were his. But then he took off running, leading officers on a foot chase through three-quarters of a mile of rough terrain, including over a barbed-wire fence.

The detectives called for help. Among those who responded was Officer John Harris. After hearing about the progress of the foot pursuit over his radio, Officer Harris saw Mr. Wilson running across an open field. The officer drove into the field — siren and lights blaring — trying to cut off Mr. Wilson. But Mr. Wilson didn't stop. So Officer Harris jumped out and joined the chase. In doing so, Officer Harris identified himself as a police officer and commanded Mr. Wilson to halt. Seeing Mr. Wilson reach for his right pocket and fearing a weapon might be hidden there, Officer Harris repeatedly told Mr. Wilson to get his hand away from his pocket. None of this persuaded Mr. Wilson. He ran on until he approached another fence. Only at that point did he slow down, briefly turn toward Officer Harris, and again reach for his right pocket. Mr. Wilson then may have quickly turned away, as if to run once more.

At about that moment Officer Harris fired his taser. A taser works by sending an electric current between the two probes to cause a loss of muscle control. One of the taser's two probes hit Mr. Wilson's left side; while there is some dispute where the second probe hit, some evidence suggests it may havestruck Mr. Wilson either in the neck or head. Construing the evidence most favorably to the Wilsons, we assume the second probe struck Mr. Wilson's head. Once hit by the taser, Mr. Wilson fell to the ground, immobilized. When the officers approached, they found a box cutter in the right pocket where he had been reaching, but they also quickly noticed Mr. Wilson was unresponsive. Many attempts were made to revive him but without success. It seems Mr. Wilson died of cardiac arrythmia, with the respective roles played by possible contributing causes (the taser, a pre-existing heart condition, and extreme exertion) much in dispute.

After Mr. Wilson's tragic death, his parents brought suit. Initially, they pursued various theories against various defendants. Now on appeal, however, they limit their effort to one claim against one defendant, arguing Officer Harris violated 42 U.S.C. § 1983 by using excessive force against their son in defiance of the Fourth Amendment. For its part, the district court granted summary judgment to Officer Harris, holding him entitled to qualified immunity. The Wilsons disagree with that judgment and ask us to reverse.

This court assesses the question of qualified immunity de novo. Martinez v. Carr, 479 F.3d 1292, 1294 (10th Cir. 2007). Once qualified immunity is asserted by a defendant law enforcement officer, however, the plaintiff bears the "heavy two-part burden" of showing both that (1) the defendant violated a constitutional right, and (2) the "infringed right at issue was clearly established atthe time of the allegedly unlawful activity such that a reasonable law enforcement officer would have known that his or her challenged conduct was illegal." Id. at 1294-95. In this case, we cannot help but agree with the district court that the Wilsons falter on at least their second burden — they have not shown a reasonable officer in Officer Harris's shoes would have realized his actions amounted to excessive force in violation of the Fourth Amendment.

To demonstrate the infringement of a clearly established right, a plaintiff must direct this court "to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits." Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008). This isn't to say a plaintiff must always identify a case on point. Sometimes even a "general constitutional rule that has already been established can apply with obvious clarity to the specific conduct in question." Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006). As the district court rightly recognized, our qualified immunity analysis involves something of a "sliding scale": "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). In all events, however, it remains necessary for the plaintiff to demonstrate that "every reasonable official would have understood that what he" did violated the law. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S. Ct. 2074, 2080 (2011).

Turning first to the published cases from this and other circuits and the Supreme Court, none would have clearly alerted a reasonable officer in August 2006 that the conduct at issue in this case amounted to constitutionally excessive force. To the contrary, as the Sixth Circuit held after conducting an exhaustive survey of relevant cases from across the country, "prior to May 2007 (and for several years after), no case in any circuit held that officers used excessive force by tasing suspects who were actively resisting arrest, even though many of them . . . were suspected of innocuous crimes, posed little risk of escape and had not yet physically harmed anybody." Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 511 (6th Cir. 2012). This class of cases undoubtedly embraces ours: Mr. Wilson was resisting arrest by fleeing from officers after they identified themselves — even if the crime of which he was suspected was not itself a violent one, he was likely to be apprehended eventually, and he hadn't harmed anyone yet.

The Wilsons and the dissent apparently disagree with the Sixth Circuit's careful and extensive analysis of existing law, but they fail to directly confront that analysis or the legion cases the court discussed in the course of arriving at its conclusion. Instead, they point to just a few favored cases that, they say, suggest the excessiveness of the force Officer Harris employed. The difficulty is that, even among these selectively picked cases, virtually all were decided after 2006 and so by definition cannot prove the force employed was clearly unlawful as of2006. See, e.g., Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010); Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007). But see Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir. 1988).

Even if we were able to overlook that dispositive problem another would quickly emerge: even on their own terms none of the principal cases on which the Wilsons and the dissent rely actually helps their cause. Instead, the cases tend to lack at least one of two salient features present in this one: fleeing or an investigating officer's reasonable concern that the suspect possessed something that could and might well be used as a weapon against him. In Cavanaugh, for example, the court allowed a claim for excessive force but the plaintiff there hadn't attempted to evade law enforcement and quite clearly didn't possess any weapon. 625 F.3d at 665-66. In Casey, we found excessive force only after the police tackled, tasered, and knocked to the ground a man peacefully attempting to return a file he had unlawfully taken from a courthouse. There was no felony (only a misdemeanor), no fleeing, no weapon, no refusal to obey police commands. 509 F.3d at 1279-80, 1284-85. There was no risk of flight or a potential weapon in Orem either. 523 F.3d at 444-45 (4th Cir. 2008). And in Samples, it was disputed whether the plaintiff was fleeing and the force employed (six revolver shots) was undoubtedly deadly. 846 F.3d at 1331-33. In our case by contrast, there is no dispute Mr. Wilson was fleeing or that his actions inreaching for his pocket, especially after being warned not to do so, could lead a reasonable officer to worry he might have a lethal weapon and was prepared to use it. Whether the tasing in our case amounted to the use of "deadly force" subject to heightened scrutiny, moreover, the law did not say in 2006, nor do the Wilsons suggest otherwise. Given all this, we cannot say the case law the Wilsons cite, even if it predated the incident at issue, would go so far as to clearly establish a Fourth Amendment violation in this case.

Were we to slide down the scale further still, away from cases altogether and toward more general constitutional principles, we would still be unable to say Officer Harris should have known his conduct was constitutionally excessive. In assessing Fourth Amendment excessive force claims we look to the totality of the circumstances and, in doing so, three considerations are often in play: "[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989). In this case, the application of these so-called Graham factors and looking to the totality of the circumstances provides no more clarity to the situation.

Looking to Graham's first consideration, the illegal processing and manufacturing of marijuana may not be inherently violent crimes but, outside the medical marijuana context, ...

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