David Patton King v. Indian River County Sheriff's ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 7, 2008
No. 06-15616 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-14182-CV-DLG
DAVID PATTON KING,
Plaintiff-Appellee,
versus
BRUCE REAP,
in his individual and official capacities
as Deputy Sheriff of Indian River County,
ERIN BURKE,
in her individual and official capacities
as Deputy Sheriff of Indian River County,
et al.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 7, 2008)
Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Defendants Bruce Reap, Erin Burke, Robert Foress, William Teague, and
Anthony Cosalo appeal the district court’s denial of their motion for summary
judgment. Appellants, all deputies with the Indian River Sheriff’s Department,
moved for summary judgment based on qualified immunity.
Plaintiff-Appellee David King brought suit under 42 U.S.C. § 1983,
alleging that the Defendants had violated his constitutional rights by using
excessive force against him during his arrest and/or failing to intervene in the use
of excessive force. He also alleged that they showed deliberate indifference to his
serious medical needs at the scene of the arrest.
The district court held that, taking the facts in the light most favorable to
King, the Defendants used excessive force or failed to intervene when excessive
force was being used. Under King’s recitation of the facts, he was assaulted by
Deputy Stoll and another deputy that he could not see; the rest of the named
deputies watched and did nothing. King testified that he was stopped by Stoll for
running a stop sign. Upon stopping his car, King placed a baggie containing crack
cocaine in his mouth. When Stoll attempted to ask King questions, King refused
to talk or identify himself. Stoll instructed King to open his mouth but King
refused, so Stoll handcuffed King behind his back. After being handcuffed, King
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still refused to comply with Stoll’s order so Stoll allegedly grabbed King’s mouth
and slammed him to the ground. King testified that Stoll beat him in the back with
a flashlight while attempting to open his mouth. It was during this time, when
King was on the ground on his back with Stoll on his legs, that an unidentified
deputy arrived on the scene. King testified that the two deputies ground his face
into the ground while trying to pry his mouth open. One of the two pepper-
sprayed him and then forced a metal object into King’s mouth, which sliced the
interior of his mouth and tongue, chipped a tooth, and caused swelling in his lips.
Paramedics arrived to treat King after the cocaine was removed but one of
the Defendants instructed them to leave before any first aid was administered.
King was then taken to the hospital, where he declined treatment, allegedly
because he feared that if he told the hospital staff what happened he would be
treated worse by the Defendants. King alleges that Stoll did not inform the jail or
put in the arrest report that he had taken King to the hospital. He also alleges that
Stoll omitted from the arrest report that the paramedics arrived, that pepper spray
was used, or that a metal tool was used; the report falsely stated that King spat the
cocaine out. Several days later, an examination at the jail revealed that King had
two broken ribs; he asserts he also suffered soft tissue damage, severe bruising of
his cheeks and face, various scratches and bruises, and the effects of the pepper
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spray.
We review de novo a trial court's denial of a motion for summary judgment
on qualified immunity grounds. Bennett v. Hendrix, 423 F.3d 1247, 1249 (11th
Cir. 2005). Summary judgment is appropriate only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact.” Id. (quoting
Fed.R.Civ.P. 56). Taken in the light most favorable to the party asserting injury,
we first ask whether a constitutional violation occurred; we then ask whether the
violation was already clearly established by the law at the time. Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 2151, 2156 (2001). A narrow exception exists to the rule
requiring particularized case law to establish clearly the law in excessive force
cases. When an excessive force plaintiff shows “that the official’s conduct lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of caselaw,” the official is not entitled to the defense of qualified
immunity. Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir.
2000).
A. Excessive Force and the Fourth Amendment
We first examine whether the Appellants’ use of force was excessive and
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violated the Fourth Amendment. The standard for whether the use of force was
excessive under the Fourth Amendment is one of “objective reasonableness.”
Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1867-68, 104 (1989). “The
‘reasonableness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. at 1872.
Because “[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” id. at 1872 (quoting Bell
v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)) (alteration in original), we must
“slosh our way through the factbound morass of ‘reasonableness.’” Scott v. Harris,
__ U.S. __, 127 S.Ct. 1769, 1778 (2007). Therefore, determining whether “the use
of a particular type of force in a particular situation” is “reasonable” in the
constitutional sense requires a court to “balance the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion.” Id. at 1777, 1778.
The Court has also held that lower courts should factor into the calculus of
reasonableness the severity of the crime, whether the suspect posed an immediate
threat to the safety of the officers or others, and whether the suspect was actively
resisting or attempting to escape. Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
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Appellant Reap argues that because King had put a baggie of cocaine in his
mouth, the amount of force that the deputies used to remove it was not excessive.
He cites cases from other circuits where courts have held that a certain amount of
force is acceptable when a suspect is concealing drugs within his body. In each of
those cases he cites, however, the amount of force used was significantly less than
that allegedly used here and does not affect the reasonableness inquiry that we
must make.
Here, when we examine the facts as alleged by King, the amount of force
used was not reasonable. Unlike the cases cited by Appellants, King was not
merely “manhandled”: he was beaten, while handcuffed, to the extent that two or
possibly three of his ribs were broken. Furthermore, according to King, he was
not attempting to escape or violent; indeed, King was charged with nonviolently
resisting arrest. This also was not a case where a split-second decision had to be
made: the beating, according to King, took at least five minutes.
Appellant Consalo argues that the court below erred because it did not
analyze whether King’s testimony proves that Consalo’s precise conduct violated
King’s constitutional rights. However, this Court does not require that each
individual defendant’s actions must be analyzed in an excessive force case.
Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (rejecting
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award of qualified immunity because plaintiff did not know which officer
administered the beating; who administered the beating, and whether or not it was
excessive are questions for the jury).
There is no question that the Appellants had fair warning that their actions
violated King’s cnostitutional rights. The beating, as described by King, falls
within “the core of what the Fourth Amendment prohibits”: a severe beating of a
restrained, non-resisting suspect. See generally Vinyard v. Wilson, 311 F.3d 1340(11th Cir. 2002).
B. Failure to Intervene
The Appellants argue that they are entitled to qualified immunity on the
claim of failure to intervene in the use of excessive force against King. An officer
can be liable for failing to intervene when another officer uses excessive force.
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000) (citing
Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998). This liability,
however, only arises when the officer is in a position to intervene and fails to do
so. See Ensley, 142 F.3d at 1407 (“[F]or an officer to be liable for failing to stop
police brutality, the officer must be in a position to intervene[.]”).
In Priester, we held that two minutes of a dog biting a suspect was long
enough for another officer to intervene. Here, King testified that the deputies who
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arrived on the scene later were there for his arrest and beating; each of the deputies
testified that they witnessed the beating. He also alleged that the beating took
place for about twenty minutes. Therefore, each Appellant had the opportunity to
observe that a handcuffed, non-violent suspect was being beaten but failed to
intervene, violating his constitutional rights.
C. Deliberate Indifference Claim
The Appellants argue that the district court should have granted them
qualified immunity on King’s deliberate indifference to medical needs claim.
King testified that an ambulance was called to the scene of his arrest but that the
Appellants sent the ambulance away without letting King speak to them.
Furthermore, King argues that although the deputies later took him to the hospital,
this did not constitute providing prompt attention to his medical needs as required
by our caselaw. Additionally, their purpose was to have him cleaned up, not
treated, as demonstrated by the fact that they did not report the hospital visit in
their report of the arrest.
This Court has held that the denial of prompt and proper medical care to a
pretrial detainee violates the detainee’s due process rights. Thomas v. Town of
Davie, 847 F.2d 771, 772 (11th Cir. 1988). In that case, the plaintiff argued that he
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was demonstrably injured and yet the police did not provide him with medical
care, although they handcuffed him, administered a negative sobriety test, and
transported him to the jail. Once there, he was released onto the street outside of
the Sheriff’s Office after he posted bond; he collapsed and was injured. Here,
King had been pepper-sprayed and according to Indian River County Sheriff
Officer policy, should have been decontaminated. However, the ambulance,
although summoned, was sent away without a chance to examine or assist King.
Furthermore, the beating and spray had produced on King a swollen cheek,
swollen and severely bloodshot eyes, a bruised face, lacerations in his mouth,
chipped teeth, soft tissue swelling, and broken ribs. While the broken ribs were
not visible to a lay person, the other injuries were apparent and it is reasonable to
expect that someone subjected to a twenty-minute beating would be in need of
medical attention. Additionally, the very summoning of the ambulance
demonstrates that the Appellants knew that King was in need of medical attention.
However, the sending away of the ambulance and the resulting delay in medical
attention did violate King’s constitutional rights, as demonstrated in Thomas.
The decision of the district court is
AFFIRMED.
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