York v. City of Las Cruces

• Decision Date: 22 April 2008
• Docket Number: No. 07-2150.,07-2150.
• Citation: 523 F.3d 1205
• Parties: James YORK; Jodie York, Plaintiffs-Appellees, v. The CITY OF LAS CRUCES, Defendant, and Chris Gallegos; Frank Lucero; Greg Martinez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

523 F.3d 1205

James YORK; Jodie York, Plaintiffs-Appellees, v. The CITY OF LAS CRUCES, Defendant, and Chris Gallegos; Frank Lucero; Greg Martinez, Defendants-Appellants.

No. 07-2150.

United States Court of Appeals, Tenth Circuit.

April 22, 2008.

Submitted on the briefs:^*

Jared Abrams, Senior Assistant City Attorney, Las Cruces, NM, for Defendants-Appellants.

William A. Walker, Jr., P.C., Las Cruces, NM, for Plaintiffs-Appellees.

Before KELLY, McKAY, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff James York has sued the defendant police officers, Chris Gallegos, Frank Lucero, and Greg Martinez, under 42 U.S.C. § 1983, for violating his First and Fourth Amendment rights when they arrested him for saying "bitch" in a public place and used excessive force during the arrest. The police officers moved for summary judgment on the grounds of qualified immunity, arguing that their actions did not violate any of Mr. York's clearly established constitutional rights.¹ The district court denied qualified immunity with respect to Mr. York's § 1983 claims. It held that his constitutional rights to be free from the use of excessive force in effecting a warrantless arrest without probable cause were clearly established at the time of the incident and that disputed issues of material facts precluded summary judgment.² The officers appeal from the denial of qualified immunity. For the reasons stated below, we affirm the district court.

I

On the afternoon of August 14, 2004, the Yorks were driving through the parking lot of a Target store in Las Cruces, New Mexico. Mr. York, the driver, saw a vehicle leaving its space and he stopped to let the driver back out so he could take the spot. However, before he could pull in, another vehicle pulled into the space. After he had driven past the space, he said either "bitch" or "what a bitch," in apparent reference to the female driver who had taken the space. At the time he said "bitch," Mr. York was driving past Officer Gallegos, who was verifying handicap placards on vehicles.

According to Officer Gallegos, not only did he overhear Mr. York say "bitch," but so did a man and his five-year-old child: "[They both] made eye contact with me immediately after [Mr. York] shouted `bitch....' My impression was that they were making eye contact due to the shouting." Stip.App. at 55. He read their eyes as urging him to take action. To that end, Officer Gallegos pulled up behind the Yorks' vehicle, got off his motorcycle, and confronted Mr. York as he got out of his car and started walking towards the store. Mr. York claims that Officer Gallegos asked in an angry, loud voice, "`who were you calling a bitch back there?'" Id. at 138. Mr. York told Officer Gallegos "that it wasn't him," id., and "it was none of his business[.]" Id. When Officer Gallegos suggested that he could arrest him for causing a disturbance, they began to debate the legality of Mr. York's conduct. At some point, Officer Gallegos turned on his belt tape, which recorded some, but not all, of what was said. Mr. York claims that Officer Gallegos became increasingly agitated when he refused to agree with his interpretation of the law, "yelling and butting me with his chest[.]" Id. For his part, Officer Gallegos contends that Mr. York had become "sufficiently belligerent that [he] decided that it would be advisable to call for backup." Id. at 55. Officers Lucero and Martinez arrived on the scene shortly thereafter in response to the call for assistance.

Officers Gallegos and Lucero stepped aside for a conversation outside of the Yorks' hearing in which they discussed arresting Mr. York. According to Officer Gallegos, Officer Lucero agreed that there was probable cause to arrest Mr. York for disorderly conduct because he "shouted a profanity in a crowded public area, causing at least three people to react." Id. at 56. But instead of using the arrest technique he learned in police training, i.e., "Sir, I need you to turn around. Place your hands behind your back. You're being placed under arrest for such and such[,]" id. at 122, Officer Gallegos decided to use his own arrest technique in which he grabs and handcuffs the suspect before explaining that he is under arrest.

This unconventional arrest technique backfired, however, because Mr. York reflexively drew back his arm back when Officer Gallegos grabbed him without warning. Officer Gallegos interpreted the movement as an attempt to evade arrest and executed an arm-bar takedown, in which Mr. York struck his head and shoulder on the pavement. Mr. York claims that an unidentified officer put a knee in the middle of his back while he was lying on the ground. Officer Martinez then placed a Taser on the back of Mr. York's neck and threatened to shock him if he did not untuck his arms from underneath his body. Dazed and confused from the blow to his head, he told the officers: "I can't. I think you broke my arm." Id. at 135. Eventually, Mr. York was handcuffed and taken to jail where he was charged with disorderly conduct and evading a police officer.³ He allegedly incurred at least $80,000 in medical bills as a result of his injuries.

II

Once a defendant invokes the defense of qualified immunity, the plaintiff must meet a two-part burden to avoid summary judgment: "(1) that the defendant's actions violated a constitutional or statutory right and (2) that the right was clearly established at the time of the defendant's unlawful conduct." Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1150 (10th Cir.2006) (quotation marks omitted). "In resolving questions of qualified immunity, courts are required to resolve a `threshold question: 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? This must be the initial inquiry.'" Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007) quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no violation of a constitutional right is established, "there is no necessity for further inquiries.... On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S.Ct. 2151.

Generally, we lack jurisdiction to review the denial of summary judgment motions. However, because qualified immunity entitles the defendant to avoid litigation, "we have jurisdiction [on appeal] to review purely legal questions that arise from the denial of qualified immunity." Perez v. Ellington, 421 F.3d 1128, 1131 (10th Cir.2005). Our jurisdiction also extends to situations where a defendant claims on appeal that accepting the plaintiff's version of the facts as true, he is still entitled to qualified immunity. See e.g., Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir.1999) ("[I]f a defendant's appeal of the denial of a motion for summary judgment is based on the argument that, even under the plaintiff's version of the facts, the defendant did not violate clearly established law, then the district court's summary judgment ruling is immediately appealable.").

"We review the denial of a summary judgment motion raising qualified immunity questions de novo[,]" Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001), and "construe the record in the light most favorable to the nonmoving party." Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir.2008). As with any motion for summary judgment, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]" Scott, 127 S.Ct. at 1776, Estate of Larsen, 511 F.3d at 1259 (same).

III

"When a warrantless arrest is the subject of a § 1983 action, the officer is entitled to qualified immunity if a reasonable officer could have believed that probable cause existed to make the arrest." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1191 (10th Cir.2007). "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995) (quotation marks omitted). Qualified immunity also insulates the defendant who reasonably, albeit mistakenly, concludes that there is probable cause. Id.

As to claims of excessive force, "[w]e analyze whether the force used to effectuate an arrest violates an individual's Fourth Amendment rights under the `objective reasonableness' standard of the Fourth Amendment." Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir.2005), quoting Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "A court assesses the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances." Id. (quotation marks omitted). In assessing the reasonableness of the force used, a court should consider, among other things: "the alleged crime's severity, the degree of potential threat that the suspect poses to an officer's safety and to other's safety, and the suspect's efforts to resist or evade arrest." Id.

Viewing the evidence in the light most favorable to Mr. York, the district court found that the facts, if proven at trial, could constitute violations of his First and Fourth Amendment rights. The police officers argue that the court applied the wrong standard in its review of the alleged constitutional violations. More specifically, they claim that Mr. York's story was blatantly contradicted by the audio recording of the event that proved...