MACLEOD v. TOWN OF BRATTLEBORO ( 2013 )

12-5113-cv
MACLEOD V. TOWN OF BRATTLEBORO
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of November, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DENNY CHIN,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 DANA MACLEOD,
13 Plaintiff-Appellant,
14
15 -v.- 12-5113-cv
16
17 TOWN OF BRATTLEBORO and CHAD EMERY,
18 Defendants-Appellees.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: THOMAS W. COSTELLO and James A.
22 Valente, Costello Valente &
23 Gentry, PC, Brattleboro,
24 Vermont.
25
26 FOR APPELLEES: James F. Carroll, English
27 Carroll & Boe, PC, Middlebury,
28 Vermont.
1
1
2 Nancy G. Sheahan and KEVIN J.
3 COYLE, McNeil Leddy & Sheahan,
4 PC, Burlington, Vermont.
5
6 Appeal from a judgment of the United States District
7 Court for the District of Vermont (Reiss, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Appellant Dana MacLeod appeals from the judgment of the
14 United States District Court for the District of Vermont
15 (Reiss, C.J.), granting summary judgment in favor of
16 appellees Officer Chad Emery and the Town of Brattleboro
17 (the “Town”) (collectively, “Appellees”) on MacLeod’s claim,
18 brought under 42 U.S.C. § 1983, that Officer Chad Emery used
19 excessive force against MacLeod in violation of the Fourth
20 Amendment to the United States Constitution.1 We assume the
21 parties’ familiarity with the underlying facts, the
22 procedural history, and the issues presented for review.
23
24 “‘We review a grant of summary judgment de novo,
25 construing the record in the light most favorable to the
26 non-moving party.’” Gilles v. Repicky, 511 F.3d 239, 243
27 (2d Cir. 2007) (internal quotation marks omitted).
28 “[C]laims of excessive force are to be judged under the
29 Fourth Amendment’s ‘objective reasonableness’ standard.”
30 Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting Graham
31 v. Connor, 490 U.S. 386, 388 (1989)). Assessing whether the
32 use of force to make an arrest is “reasonable” under the
33 Fourth Amendment “requires a careful balancing of ‘the
34 nature and quality of the intrusion on the individual’s
35 Fourth Amendment interests’ against the countervailing
36 governmental interests at stake.” Graham, 490 U.S. at 396
37 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “[T]he
38 factfinder must determine whether, in light of the totality
39 of the circumstances faced by the arresting officer, the
40 amount of force used was objectively reasonable at the
1
In addition, MacLeod lodged claims against Officer
Emery under Vermont law, and against the Town under § 1983
for “unconstitutional policy and practice / inadequate
training.” MacLeod does not appeal the district court’s
grant of summary judgment to Appellees on these claims.
2
1 time.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
2 123 (2d Cir. 2004). The balancing must be done with
3 sensitivity to the factual circumstances of each case,
4 “including the severity of the crime at issue, whether the
5 suspect poses an immediate threat to the safety of the
6 officers or others, and whether he is actively resisting
7 arrest or attempting to evade arrest by flight.” Graham,
8 490 U.S. at 396.
9
10 Once the court has determined the relevant undisputed
11 facts and drawn all inferences in favor of the nonmoving
12 party, the court’s determination of reasonableness at the
13 summary judgment stage is a pure question of law, and must
14 be made from the “perspective of a reasonable officer on the
15 scene, rather than with the 20/20 vision of hindsight.”
16 Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1,
17 20-22 (1968)). The “calculus of reasonableness must embody
18 allowance for the fact that police officers are often forced
19 to make split-second judgments--in circumstances that are
20 tense, uncertain, and rapidly evolving--about the amount of
21 force that is necessary in a particular situation.” Graham,
22 490 U.S. at 396-97.
23
24 Here, the relevant facts are undisputed. MacLeod was
25 tased by Officer Emery after leading another police officer,
26 Officer Adam Belville, on a high-speed chase through the
27 rainy, “slick” streets of Brattleboro in the pre-dawn hours
28 of September 28, 2009. MacLeod Dep. 62:12. MacLeod was
29 originally pulled for speeding. When Officer Belville
30 approached the vehicle to speak with the driver, MacLeod
31 sped off without warning–-nearly sideswiping Officer
32 Belville–-and a chase ensued that placed the officers, the
33 passenger, and other motorists and any pedestrians in
34 substantial, immediate danger.
35
36 MacLeod concedes that “the seriousness of his crimes
37 prior to the use of force was not trivial[,]” but he
38 nonetheless claims that the use of force was unreasonable
39 because he had “voluntarily ceased his criminal conduct and
40 was attempting to surrender at the time he was tased[.]”
41 Appellant’s Br. 15. Whatever MacLeod’s subjective intent,
42 the undisputed facts demonstrate that after suddenly
43 speeding away from an investigating officer on “slick,” dark
44 roads at “a rate of speed higher than the speed limit” to
45 evade arrest, MacLeod Dep. 61:20-21, he entered into a
46 deserted a parking lot, exited the vehicle, kneeled on the
47 ground, and then–-contravening clear, repeated instructions
3
1 that he acknowledges he understood2–-rose to his feet,
2 turned to face the officers with his hands free and
3 outstretched, and refused to return to the ground. Rising
4 from the ground rather than submitting to arrest exacerbated
5 a “tense, uncertain, and rapidly evolving” situation that
6 threatened the lives of officers, bystanders, and MacLeod
7 himself. Graham, 490 U.S. at 397.
8
9 Viewed objectively, MacLeod’s actions immediately prior
10 to being tased do not evince “passive resistance” merely
11 because MacLeod was not actually in the act of fleeing. Cf.
12 Crowell v. Kirkpatrick, 400 F. App’x 592, 595 (2d Cir. 2010)
13 (finding use of taser reasonable in part because
14 “[protesters] were actively resisting their arrest at the
15 time they were tased by the officers in this case, having
16 chained themselves to a several hundred pound barrel drum
17 and having refused to free themselves”); Davis v. Callaway,
18 2007 U.S. Dist. LEXIS 29468, at *14 (D. Conn. Apr. 9, 2007)
19 (noting that “[officer] could reasonably have interpreted
20 [arrestee’s] previous noncompliance, i.e., standing up, as
21 indicative of the possibility of further resistance”).
22
23 Officer Emery used a Taser, once, to subdue an actively
24 non-compliant suspect reasonably believed to be engaged in
25 dangerous criminal activity and who posed a real and
26 imminent threat to the safety of the officers and any
27 bystanders.3 In that situation, it was reasonable for
28 Officer Emery--after repeated, clear commands that MacLeod
29 return to the ground--to decided that using the Taser was
30 required to effect the arrest. This avoided a “hands-on”
31 situation with an unrestrained, dangerous individual. Tracy
32 v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010) (“From [the
33 officer’s] perspective, a suspect he strongly--and
2
MacLeod’s briefing argues that he could not hear
the officers’ instructions to remain on or return to the
ground. In his deposition, however, MacLeod stated that he
could in fact hear “clearly” the officers’ instructions.
MacLeod Dep. 91:22-24. Moreover, the passenger evidently
overheard the officers’ instructions, as he complied fully.
3
Indeed, because MacLeod was unsubdued and had made
one clear attempt to evade arrest, “the scope of crime in
question was not simply [speeding], but was unknown and
potentially far more serious.” Tracy v. Freshwater, 623
F.3d 90, 97 (2d Cir. 2010).
4
1 correctly--presumed to be a fugitive from the law, made a
2 quick and sudden movement as [the officer] attempted to
3 effect an arrest without the assistance of other officers.
4 His decision to use his flashlight to protect himself and
5 subdue an arrestee he perceived to be actively resisting was
6 therefore a reasonable response.”). Given the totality of
7 these circumstances, no rational factfinder could conclude
8 that the officer’s course of action was unreasonable.
9 Accordingly, Officer Emery’s actions did not violate the
10 Fourth Amendment.
11
12 For the foregoing reasons, and finding no merit in
13 MacLeod’s other arguments, we hereby AFFIRM the judgment of
14 the district court.
15
16 FOR THE COURT:
17 CATHERINE O’HAGAN WOLFE, CLERK
18
5