Rivera v. Washington , 57 F. App'x 558 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RENZO RIVERA; JUANA THERESA 
JIMINEZ; MANUEL SALAZAR; AURORA
LEZAMA; MITCHELL RIVERA, by his
next best friend, Juana Theresa
Jiminez; BRAZO RIVERA, by his next
best friend, Juana Theresa Jiminez,
Plaintiffs-Appellants,
v.
DAMON WASHINGTON; HENRY THOMAS
TRUMBLE, III,  No. 01-1595
Defendants-Appellees,
and
JOHN RIZIK; LEONARDO GARCIA; FOUR
UNKNOWN ARLINGTON COUNTY,
VIRGINIA POLICE OFFICERS, aka John
Doe No. 1, John Doe No. 2, John
Doe No. 3, & John Doe No. 4;
ARLINGTON COUNTY, VIRGINIA,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-776-A)
Argued: December 3, 2002
Decided: January 30, 2003
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
2 RIVERA v. WASHINGTON
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Roger Allen Eddleman, Falls Church, Virginia, for
Appellants. Mary Ellen McGowan, SICILIANO, ELLIS, DYER &
BOCCAROSSE, Fairfax, Virginia, for Appellees. ON BRIEF:
Stephanie S. Ryan, SICILIANO, ELLIS, DYER & BOCCAROSSE,
Fairfax, Virginia; Ara L. Tramblian, Deputy County Attorney,
COUNTY ATTORNEY’S OFFICE OF THE COUNTY OF
ARLINGTON, Arlington, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The appellants, Renzo Rivera (Renzo), Juana Theresa Jiminez
(Jiminez), Manuel Salazar (Salazar), Aurora Lezama (Lezama),
Mitchell Rivera (Mitchell), and Brazo Rivera (Brazo), appeal the dis-
trict court’s dismissal of their claims asserted under 42 U.S.C. § 1983and Virginia law against two Arlington County, Virginia police offi-
cers, Damon Washington (Officer Washington) and Henry Thomas
Trumble, III (Officer Trumble). We affirm.
I
A
Salazar, Jiminez, Mitchell, and Brazo resided at an apartment (the
Rivera Apartment) located at 2038 Columbia Pike in Arlington, Vir-
ginia. Jiminez is the mother of Mitchell and Brazo, as well as the
RIVERA v. WASHINGTON 3
mother of Renzo, who was married to Lezama and resided with
Lezama elsewhere. Juan Rivera (Juan), another of Jiminez’s sons,
also resided at a different location with Jessica Zaubitz (Jessica), the
mother of his child.
On the evening of May 10, 1998, the entire family went to a local
restaurant to celebrate Mother’s Day. Juan, Jessica, and their child
were the first to leave the restaurant and were followed by other mem-
bers of the family. After they arrived at the Rivera Apartment, Juan
and Jessica argued in the parking lot behind the back door of the
Rivera Apartment. Juan wanted to spend the night at the Rivera
Apartment, but Jessica wanted to leave, so the argument went. After
the argument became more heated, a resident of the apartment build-
ing called 911, and Officers Washington and Trumble were separately
dispatched to investigate the domestic disturbance.
As Officer Washington approached the scene in his police cruiser,
Juan and Jessica continued to argue in the parking lot. According to
Lezama, you could hear their voices from inside the Rivera Apart-
ment, but "not clearly." (J.A. 413). According to Mitchell, Juan was
"[i]ntoxicated," at the time, but not "[d]runk to a point where he
[could not] walk." (J.A. 156).
As he exited his police cruiser, Officer Washington saw that Jes-
sica had gotten into a white vehicle parked near the back door of the
Rivera Apartment. Officer Washington approached the group, asking
what was going on. Renzo told Officer Washington that it was a
"‘family matter’ and that there was no problem." (J.A. 389). Officer
Washington advised Renzo that he needed to interview the involved
parties himself to determine what had happened and ordered Renzo
to get out of his way. Officer Washington also ordered Juan to stand
by while he interviewed Jessica.
Jessica advised Officer Washington that she and Juan had an argu-
ment, denied that Juan had physically assaulted her, but admitted that
he had assaulted her in the past. Jessica also advised Officer Washing-
ton that Juan was the father of her child, that she was afraid and
wanted to leave, but could not because Juan had her car keys. Officer
Washington told Jessica that he would get her car keys for her and
talk to Juan about the situation. While Officer Washington was talk-
4 RIVERA v. WASHINGTON
ing to Jessica, Juan disobeyed Officer Washington’s order to stand by
and entered the Rivera Apartment through the back door.
Meanwhile, Officer Trumble arrived on the scene. Unlike Officer
Washington, Officer Trumble arrived in the parking lot in front of the
front door of the Rivera Apartment. Officer Trumble knocked on the
front door of the Rivera Apartment and was admitted with no protest
by Mitchell. Officer Trumble asked where the other officer was and
was directed through the Rivera Apartment and out the back door to
the parking lot where Officer Washington was interviewing Jessica.
After Officer Washington finished interviewing Jessica, he and
Officer Trumble approached the back door of the Rivera Apartment,
which was open. Officer Washington then repeatedly asked Juan to
leave the Rivera Apartment so that he could speak with him. After
Juan refused to comply with Officer Washington’s oral requests to
leave the Rivera Apartment, Officer Washington entered the Rivera
Apartment and grabbed Juan, who was seated on the couch, by the
arm and began to pull him out of the Rivera Apartment. At this point,
Juan resisted Officer Washington’s efforts to get him out of the
Rivera Apartment. While Juan was being pulled out of the Rivera
Apartment, Salazar, "with [his] hand," "separated both of them."
(S.J.A. 220). At this point, Officer Washington pushed Salazar and
Salazar pushed back. Salazar then moved into a position to block
Officer Trumble’s entry and, in fact, placed his hand on Officer
Trumble’s wrist as Officer Trumble entered the Rivera Apartment. At
this point, according to Salazar, "all the trouble started." (S.J.A. 225).
Officer Trumble entered the Rivera Apartment, notwithstanding
Salazar’s attempt to block his entry. Renzo then "attempted to inter-
vene in and stop the assault." (J.A. 390). A struggle ensued between
Renzo and the officers, and Renzo was struck in the head and beaten,
slammed against the wall, and had a gun pointed at his head. After
Renzo was slammed against the wall and continued to resist Officer
Washington’s efforts to subdue him, Jiminez, who was protesting the
officers’ actions, was struck with a flashlight, arguably several times,
by Officer Trumble. Jiminez was also thrown on a table by Officer
Trumble.
RIVERA v. WASHINGTON 5
In an attempt to defend Jiminez, Mitchell tried to stop Officer
Trumble from hitting Jiminez. In response, Officer Trumble grabbed
Mitchell by the neck, pushed him back, and told him to back off.
Additional officers then arrived on the scene and the melee ended
shortly thereafter.1
Renzo, Jiminez, Salazar, and Lezama were arrested and charged
with numerous offenses under Virginia law. Specifically, Renzo was
charged with impeding a police officer in the discharge of his duties
and attempted murder of a police officer. Jiminez and Salazar both
were charged with impeding a police officer in the discharge of his
duties and assault and battery of a police officer. Lezama was charged
with assault and battery of a police officer. In July 1998, the charges
against Jiminez were dismissed. In January 1999, the charges against
Renzo, Salazar, and Lezama were dismissed.
B
On May 9, 2000, the appellants filed this action against Arlington
County, Virginia and four Arlington County police officers, including
Officers Washington and Trumble, in the United States District Court
for the Eastern District of Virginia.2 The appellants asserted claims
under 42 U.S.C. § 1983 for unlawful entry (Count VII), unlawful
arrest (Count VIII), excessive force (Count IX), perjury and conceal-
ment of exculpatory evidence (Count X), and conspiracy (Count XI).
The appellants also asserted claims under Virginia law for assault and
battery (Count I), false arrest (Count II), malicious prosecution
(Count III), abuse of process (Count IV), intentional infliction of
emotional distress (Count V), and civil conspiracy (Count VI).
On March 16, 2001, Officers Washington and Trumble filed a
motion for summary judgment, alleging, inter alia, that they were
entitled to qualified immunity on the appellants’ § 1983 claims. On
March 30, 2001, the district court granted the motion for summary
1
According to Brazo, during the melee, Lezama hit one of the officers
in the back with a telephone.
2
Two police officers (John Rizik and Leonardo Garcia) and Arlington
County were later dismissed from the action and are not parties to this
appeal.
6 RIVERA v. WASHINGTON
judgment, dismissing the appellants’ federal claims (Counts VII-XI)
with prejudice and the appellants’ Virginia state law claims (Counts
I-VI) without prejudice. The appellants noted a timely appeal.
II
The appellants argue that the district court erred when it concluded
that Officers Washington and Trumble were entitled to qualified
immunity on their § 1983 unlawful entry claim. This argument is
without merit.
Entitlement to qualified immunity must be analyzed in two steps,
which are to be "considered in proper sequence." Saucier v. Katz, 533
U.S. 194, 200 (2001). As a "threshold question," a court must ask
whether, "[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show [that] the officer’s conduct violated
a constitutional right." Id. at 201. If the answer is no, then the analysis
ends; the plaintiff cannot prevail. Id. If the answer is yes, then "the
next, sequential step is to ask whether the right was clearly estab-
lished" at the time of the events at issue. Id. This determination must
be made "in light of the specific context of the case, not as a broad
general proposition." Id. If the right was not "clearly established" in
the "specific context of the case"—that is, if it was not "clear to a rea-
sonable officer" that the conduct in which he allegedly engaged "was
unlawful in the situation he confronted"—then the law affords immu-
nity from suit. Id. at 201-02. Accordingly, the answer to both Saucier
questions must be in the affirmative in order for a plaintiff to defeat
a defendant police officer’s motion for summary judgment on quali-
fied immunity grounds.
As to the first Saucier question, the facts alleged do not demon-
strate that the officers violated the appellants’ constitutional right
against an unlawful entry because courts have recognized that a per-
son cannot avoid a Terry stop simply by retreating into a home.3 For
example, in Harbin v. City of Alexandria, 712 F. Supp. 67 (E.D. Va.
3
We need not decide if Lezama, as a non-resident of the Rivera Apart-
ment, has standing to contest the constitutional validity of the officers’
entry into the Rivera apartment because, as discussed infra, the officers’
entry into the Rivera apartment was constitutionally permissible.
RIVERA v. WASHINGTON 7
1989), aff’d, 908 F.2d 967 (4th Cir. 1990), the court upheld the stop
of the plaintiff in his home after the police followed the plaintiff on
the street and called to him to stop as he crossed the threshold of his
house and entered his living room. Id. at 71. The court relied upon the
Supreme Court’s decision in United States v. Santana, 427 U.S. 38(1976), which recognized that a criminal suspect cannot thwart an
otherwise valid arrest by retreating from the doorway of her home
into the vestibule of the house, noting that this principle had been sen-
sibly extended to Terry stops. Harbin, 712 F. Supp. at 71-72; cf.
United States v. Pace, 898 F.2d 1218, 1228-29 (7th Cir. 1990) (hold-
ing that, once police officers had reasonable suspicion to stop defen-
dant, defendant could not avoid Terry stop by entering his
condominium’s garage and attempting to close the garage door); Alto
v. City of Chicago, 863 F. Supp. 658, 661-62 (N.D. Ill. 1994) ("[A]n
officer who stops a person because of a reasonable, articulable suspi-
cion of criminal activity . . . need not terminate the stop merely
because the suspect flees to his home."); United States v. Gomez, 495
F. Supp. 992, 1005 (S.D.N.Y. 1979) (holding that agents who contin-
ued attempted Terry stop of suspects after they retreated and slammed
the door of apartment did not contravene the Fourth Amendment, as
a valid Terry stop occurred within), aff’d, 633 F.2d 999 (2d Cir.
1980).
In this case, the appellants do not dispute, nor could they, that Offi-
cer Washington was entitled to conduct a Terry stop of Juan once he
arrived at the scene of the Juan/Jessica domestic dispute. Officer
Washington approached Jessica first, but before he had a chance to
question Juan, Juan entered the Rivera apartment. Under these cir-
cumstances, Officer Washington, as well as Officer Trumble, was
entitled to enter the Rivera apartment to conduct the Terry stop inside
the Rivera apartment.
In sum, the district court properly dismissed the appellants’ unlaw-
ful entry claim.
III
Salazar, Mitchell, Jiminez, and Renzo contend that the district
court erred when it concluded that Officers Washington and Trumble
8 RIVERA v. WASHINGTON
were entitled to qualified immunity on their § 1983 excessive force
claim. This argument has no merit.
Excessive force claims are analyzed under the Fourth Amend-
ment’s objective reasonableness standard. In evaluating excessive
force claims, the reasonableness of the officer’s belief as to the appro-
priate level of force should be judged from an on-scene perspective.
Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002). The objective
reasonableness test requires careful attention to the facts and circum-
stances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight. Id. This court must make allow-
ance for the fact that police officers are often forced to make split-
second judgments in circumstances that are tense, uncertain, and rap-
idly evolving. Graham v. Connor, 490 U.S. 386, 397 (1989); Ander-
son v. Russell, 247 F.3d 125, 129 (4th Cir.), cert. denied, 122 S. Ct.
342 (2001).
As to the first Saucier question, the facts alleged do not demon-
strate that the officers violated Salazar, Mitchell, Jiminez, and
Renzo’s constitutional right against the use of excessive force. The
officers were confronted with a highly volatile domestic disturbance.
Jessica wanted her car keys returned and Juan, who was under the
influence of alcohol, was refusing to cooperate with Officer Washing-
ton’s efforts to conduct his Terry questioning. Officer Washington
entered the Rivera apartment, grabbed Juan, and began to pull him out
of the Rivera apartment. This action was constitutionally protected
because it was reasonable for Officer Washington to conduct his
Terry questioning of Juan away from the Rivera apartment and out-
side the presence of numerous family members, and the mild and tem-
pered force used against Juan was reasonable because Juan was
refusing to cooperate.
In response to Officer Washington’s actions, Juan resisted, and
Salazar attempted to separate Officer Washington and Juan. Officer
Washington’s push of Salazar was reasonable under the circum-
stances because Salazar was interfering with Officer Washington’s
attempt to question Juan. Salazar attempted to block Officer Trum-
ble’s entry by moving in front of the doorway and then placed his
RIVERA v. WASHINGTON 9
hand on Officer Trumble’s wrist as Officer Trumble entered the
Rivera apartment. At this point, Renzo intervened and a struggle
between Renzo and the officers ensued. The officers’ actions concern-
ing Renzo were reasonable because unquestionably the officers were
entitled to defend themselves once Renzo decided to intervene.
Thereafter, Jiminez was struck with a flashlight, arguably several
times, by Officer Trumble. Additionally, she was thrown on a table
by Officer Trumble. While the excessive force claim of Jiminez is
perhaps stronger than the rest, there is no question that Jiminez was
protesting the officers’ actions at the time she was struck, the melee
was already underway, and the officers were confronted with a vola-
tile domestic disturbance involving numerous participants in a small
confined area. Under these circumstances, we find Officer Trumble’s
actions were reasonable.
Finally, Officer Trumble’s modest and tempered treatment of
Mitchell was reasonable because Mitchell was attempting to physi-
cally intervene in the melee which was well underway.
In sum, the district court properly dismissed Salazar, Mitchell,
Jiminez, and Renzo’s excessive force claim.
IV
For the reasons stated herein, the judgment of the district court is
affirmed.4
AFFIRMED
4
We have reviewed the argument of Lezama, Jiminez, Salazar, and
Renzo concerning the district court’s dismissal of their unlawful arrest
claim and find it to be without merit. We also decline to address the
appellants’ arguments concerning the merits of their state law claims
because the district court did not abuse its discretion in declining to exer-
cise jurisdiction over the state law claims once it dismissed the federal
claims. Jordahl v. Democratic Party of Virginia, 122 F.3d 192, 203 (4th
Cir. 1997).