Wernert v. Washington , 419 F. App'x 337 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1360
CHARLES EDWARD WERNERT, II,
Plaintiff - Appellee,
v.
JOSHUA GREEN, Deputy Sheriff, sued in his individual
capacity,
Defendant – Appellant,
and
RYANT L. WASHINGTON, Sheriff, sued in his official capacity,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:09-cv-00031-nkm-bwc)
Argued: December 10, 2010 Decided: March 22, 2011
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.
Affirmed by unpublished opinion. Justice O’Connor wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.
ARGUED: John Adrian Gibney, Jr., THOMPSON MCMULLAN, PC,
Richmond, Virginia, for Appellant. Jeffrey Edward Fogel,
Charlottesville, Virginia, for Appellee. ON BRIEF: Steven D.
Rosenfield, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
O’CONNOR, Associate Justice:
Charles Edward Wernert II, the Appellee, filed suit against
Fluvanna County Police Department Deputy Joshua Greene, 1 alleging
that Greene used excessive force against him. Appellant Greene
invoked a defense of qualified immunity and moved for summary
judgment. For the reasons explained herein, we affirm the
district court’s denial of summary judgment.
I
On the evening of May 4, 2007, Fluvanna County Police
Department Deputy Joshua Greene was on patrol with auxiliary
Deputy Francis Ferki. The deputies heard over their radio first
that an individual had jumped onto an ambulance on Kents Store
Road and then that a man had committed an assault at a residence
on the same road. The man who committed the assault was
described as being approximately six feet tall, wearing a white
tee shirt and blue jeans, and carrying one or two suitcases.
Near the location of the assault, the deputies saw Appellee
Wernert, who matched the description they had received.
When Wernert saw the deputies, he started walking away,
carrying a bag. The deputies stopped him and asked for
1
Deputy Greene’s name has been inconsistently spelled in
filings. We adopt the spelling employed in his brief to this
court.
3
identification, which Wernert provided. Wernert, who appeared to
be intoxicated, explained that he was on parole in Pennsylvania
and therefore was not supposed to leave that state. The radio
dispatcher confirmed that Wernert was a Pennsylvania parolee and
informed the deputies that Pennsylvania authorities wanted the
Fluvanna County authorities to detain Wernert. The deputies
then handcuffed Wernert behind his back.
The deputies spoke with individuals at the home where
Wernert allegedly committed the assault. A person at the home
explained that Wernert became angry and began to swing at
people; he also claimed that Wernert had head-butted someone who
attempted to calm him down. Wernert claims that there was only
a verbal argument.
The deputies then drove Wernert to the Sheriff’s
Department. Upon arrival, Deputy Greene instructed Wernert to
take off his belt and shoes. Wernert asked how he was supposed
to do that while still in handcuffs and was told to “figure it
out.” Wernert Dep. at 57 (J.A. 35). Wernert managed to remove
his belt. Deputy Greene then told Wernert to “kick your shoes
off.” Id. at 59 (J.A. 36). Wernert kicked off his right shoe,
but had difficulty removing his left shoe. When he managed to
kick off his left shoe “it flipped up on [him], and it
accidentally hit [Deputy Ferki] in the face.” Id. Wernert
quickly apologized. Id. at 60 (J.A. 115). Deputy Greene then
4
slammed Wernert to the ground. Upon seeing a pool of blood
around Wernert’s face, the deputies sought medical assistance.
Wernert suffered multiple facial fractures and impacted and
displaced teeth. He received stitches, had his teeth
straightened, and had a wire splint placed in his mouth.
Wernert filed suit against Deputy Greene in the U.S.
District Court for the Western District of Virginia. 2 Wernert
brought a 42 U.S.C. § 1983 claim alleging that Greene subjected
him to excessive force in violation of the Fourteenth Amendment. 3
Construing the facts in the light most favorable to Wernert, the
district court concluded that Deputy Greene’s actions violated
Wernert’s Fourteenth Amendment rights, which were clearly
established at the time of the incident. The district court
therefore denied Greene’s motion for summary judgment on the
basis of qualified immunity. Wernert v. Washington, No. 3:09cv-
2
Wernert also filed state law assault, battery, and gross
negligence claims against both Greene and Fluvanna County
Sheriff Ryant L. Washington. The district court granted the
defendants’ summary judgment motion on the assault claim and
denied their motions for summary judgment on the other two
state-law claims. Wernert v. Washington, No. 3:09cv-00031, 2010
WL 924281, at *8-*9 (W.D. Va. Mar. 11, 2010). The state law
claims are not at issue in this appeal.
3
Wernert also cited the Eighth Amendment as a basis for his
excessive force claim, but the district court properly granted
summary judgment on the Eighth Amendment claim because excessive
force claims by pretrial detainees are the purview of the
Fourteenth Amendment. See Orem v. Rephann, 523 F.3d 442, 446
(4th Cir. 2008).
5
00031, 2010 WL 924281 (W.D. Va. Mar. 11, 2010). Deputy Greene
appeals the district court’s denial of his motion for summary
judgment on qualified immunity grounds.
II
Under 28 U.S.C. § 1291, this Court has jurisdiction over
all final district court orders. Qualified immunity is an
“immunity from suit rather than a mere defense to liability; and
. . . it is effectively lost if a case is erroneously permitted
to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Therefore, “[t]o the extent that an order of a district court
rejecting a governmental official’s qualified immunity defense
turns on a question of law, it is a final decision within the
meaning of § 1291 under the collateral order doctrine recognized
in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),
and . . . is subject to immediate appeal.” Winfield v. Bass,
106 F.3d 525, 528–29 (4th Cir. 1997) (en banc) (citing, inter
alia, Behrens v. Pelletier, 516 U.S. 299 (1996), and Mitchell,
472 U.S. at 524–30).
However, a defendant invoking a qualified immunity defense
“may not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” Johnson
v. Jones, 515 U.S. 304, 319–320 (1995). In other words, on an
6
interlocutory appeal “we possess no jurisdiction over a claim
that a plaintiff has not presented enough evidence to prove that
the plaintiff’s version of the events actually occurred, but we
have jurisdiction over a claim that there was no violation of
clearly established law accepting the facts as the district
court viewed them.” Winfield, 106 F.3d at 530; see also Witt v.
W. Va. State Police, 2011 WL 338792, No. 10-1008, at *2 (4th
Cir. Feb. 4, 2011); Iko v. Shreve, 535 F.3d 225, 235 (4th Cir.
2008).
Contrary to Appellee Wernert’s contention, we have
jurisdiction over this appeal. Wernert’s reliance on Culosi v.
Bullock, 596 F.3d 195 (4th Cir. 2010), is misplaced. Culosi
involved a § 1983 excessive force claim under the Fourth
Amendment. There we determined that we did not have jurisdiction
over an interlocutory appeal because the district court denied
summary judgment due to a genuine dispute of material fact over
what happened—whether the police officer discharged his weapon
intentionally or accidentally—not simply due to a dispute over
the legal effect of an agreed set of facts. Id. at 202. In
this case, by contrast, Deputy Greene does not dispute what
happened on the night of May 4; he disputes its legal effect:
whether the force he used violated Wernert’s clearly established
constitutional rights under the Fourteenth Amendment.
Therefore, this is a “claim that there was no violation of
7
clearly established law accepting the facts as the district
court viewed them,” Winfield, 106 F.3d at 530, over which we
have jurisdiction.
We now proceed to consider Greene’s arguments on the
merits.
III
Generally, “government officials performing discretionary
functions . . . are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity ensures that “[o]fficials are not
liable for bad guesses in gray areas; they are liable for
transgressing bright lines.” Iko, 535 F.3d at 238 (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
In evaluating a qualified immunity claim, we first
determine whether, construing the facts in the light most
favorable to the nonmoving party, the government official’s
actions violated a constitutional right. If so, we must
ascertain whether the right was clearly established at the time
of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Although that order of decision is no longer mandatory, Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009), we have
8
discretion to follow it in appropriate cases, id., and we do so
here.
We review a district court’s denial of summary judgment and
qualified immunity de novo, construing the facts in the light
most favorable to the non-moving party, here Wernert. Orem v.
Rephann, 523 F.3d 442, 445 (4th Cir. 2008).
A
The district court correctly understood that Wernert’s
excessive force claim falls under the Due Process Clause of the
Fourteenth Amendment. Wernert, 2010 WL 924281, at *5; see Orem,
523 F.3d at 446.
To prevail on his claim, Wernert must show that Deputy
Greene “‘inflicted unnecessary and wanton pain and suffering.’”
Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998) (quoting
Whitley v. Albers, 475 U.S. 312, 320 (1986)), abrogated on other
grounds by Wilkins v. Gaddy, 130 S. Ct. 1175, 1178–79 (2010)
(per curiam). In other words, he must show that “the officers’
actions amounted to punishment and were not merely ‘an incident
of some other legitimate governmental purpose.’” Robles v.
Prince George’s Cnty., Md., 302 F.3d 262, 269 (2002) (quoting
Bell v. Wolfish, 441 U.S. 520, 538 (1979)). “In determining
whether [this] constitutional line has been crossed, a court
must look to such factors as the need for the application of
force, the relationship between the need and the amount of force
9
used, the extent of the injury inflicted, and whether the force
was applied in a good faith effort to maintain and restore
discipline or maliciously and sadistically for the very purpose
of causing harm.” Orem, 523 F.3d at 446 (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
Construing the facts in the light most favorable to
Wernert, a reasonable jury could conclude that Deputy Greene’s
“takedown” of Wernert was “wanton” and “unnecessary,” rather
than “a good faith effort to maintain and restore discipline,”
id., and that it therefore constitutes a constitutional
violation.
The injuries inflicted on Wernert were severe. Medical
records from the University of Virginia Health System, which
treated Wernert, show that he suffered multiple facial fractures
and impacted and displaced teeth. J.A. 162–63. He required
stitches for facial lacerations and a wire splint to treat the
affected teeth. Id.Turning to the need for and amount of force employed, the
facts support the conclusion that the force used was excessive.
Neither Wernert’s actions nor his possible actions about which
Deputy Greene claims to have been concerned appear particularly
threatening. Wernert’s act of kicking off his shoe, an act he
avers that Deputy Greene told him to do, did not result in
injury to Deputy Ferki. In fact, Deputy Ferki explained that
10
when he felt an object strike his cheek and realized it was
Wernert’s shoe, he smiled and “was going to say good shot or
nice shot,” Ferki Dep. at 53 (J.A. 144), when Greene took
Wernert to the ground. Wernert, of course, alleges that it was
an accident that the shoe hit Deputy Ferki at all. Wernert Dep.
at 60 (J.A. 115).
Deputy Greene’s own statements support the proposition that
Wernert did not pose a threat. Deputy Greene stated that when
they arrived at the police station, Wernert “wasn’t being
disrespectful or aggressive,” and so he planned to remove
Wernert’s handcuffs. Greene Dep. at 81 (J.A. 61). Greene also
stated that prior to the shoe hitting Deputy Ferki, he did not
perceive Wernert to be a threat to either deputy. Id. at 90
(J.A. 65). When Wernert kicked off his shoe, however, Greene
explained that he used an “escort takedown” maneuver to take
Wernert to the floor because Wernert might “[k]ick me, at the
very least.” Id. He further explained, “at the time [Wernert]
was a threat to me, as well as still a threat to Ferki. I was,
you know, within a few inches, a foot of Mr. Wernert. He had
already been involved in one altercation . . . that night. He
appeared intoxicated at the time. Once you are on the ground,
it eliminates the whole threat.” Id. at 89–90 (J.A. 64–65).
In the district court, Wernert submitted an affidavit by
Timothy Lynch, an expert in police defensive tactics. Lynch
11
explained that, in his opinion, “[t]he need to stabilize a
restrained subject such as Mr. WERNERT, who offered no
resistance or signs of aggression, would not require the use of
an Escort Takedown.” Lynch Declaration at 3 (J.A. 170). He
concluded that “no reasonable law enforcement officer would have
felt threatened under these circumstances.” Id. at 2 (J.A.
169).
The particular manner in which Deputy Greene took Wernert
to the floor further suggests that the type of force used was
excessive. Greene claims that he used an “escort takedown”
because he believed it would be less harmful than the
alternative “leg sweep” maneuver, which could have caused
Wernert to break his arm or wrist. Greene Dep. at 108 (J.A.
72). Greene describes the “escort takedown” he performed as
“help[ing]” Wernert to the ground. Id. at 96 (J.A. 134).
Greene concedes that he then got on top of Wernert, putting his
knee on Wernert’s back.
Lynch’s declaration, however, explains that Deputy Greene’s
use of the escort takedown maneuver was “not consistent with the
purpose for which it was intended.” Lynch Declaration at 2
(J.A. 170). He explained that the proper technique “requires
the subject’s controlled arm to be extended at a right angle to
the body, with downward pressure directed to the triceps area of
the arm just above the elbow. The subject is in a position to
12
brace his fall with the ‘free’ hand as the officer can control
the angle and direction of the takedown to the prone position.
In this manner, the subject’s fall is directed to the chest and
abdomen.” Id. In this case, however, with Wernert handcuffed
and impaired by alcohol, Lynch explained that “it would be
extremely difficult, if not improbable, for [Wernert] to brace
his fall in a forward direction . . . [and] equally difficult
for Deputy GREENE to be able to control Mr. WERNERT’s body
weight during the takedown.” Id. Lynch concluded that
application of the escort takedown in the circumstances of the
restraints imposed on Wernert “would most likely cause a subject
to hit the floor face first, rather than chest first.” Id.
All of this evidence, again construed in the light most
favorable to Wernert, supports the conclusion that even if force
was justified at all, the force applied here was
disproportionate to any threat posed, especially since Wernert
was no longer wearing shoes and was still handcuffed.
The question remains whether the force “was applied in a
good faith effort to maintain and restore discipline or
maliciously and sadistically for the very purpose of causing
harm.” Orem, 523 F.3d at 446 (quoting Johnson, 481 F.2d at
1033). Given the minimal and allegedly accidental nature of the
breach of discipline Wernert committed, coupled with Deputy
Greene’s own perception that Wernert was not aggressive, the
13
fact and magnitude of force employed against Wernert suggests
that it was unnecessary to “restore discipline.” Lynch’s
declaration suggests the example of “[w]ristlock controls” as a
“less forceful and more effective” technique. Lynch Declaration
at 2 (J.A. 170). Deputy Ferki’s account of the incident also
suggests that Deputy Greene may have acted in a retaliatory
manner. Ferki recounts that Greene told Wernert to “[g]et on
the ground” and stated “don’t be kicking your shoes off at my
deputy. Don’t be trying to assault my deputy. That’s assault
on an officer.” Ferki Dep. at 59 (J.A. 83).
Although “‘[n]ot every push or shove, even if it may later
seem unnecessary,’” Graham v. Connor, 490 U.S. 386, 396 (1989)
(quoting Johnson, 481 F.3d at 1033), violates an individual’s
constitutional rights, the facts in this case, viewed in the
light most favorable to Wernert, demonstrate that the force
Deputy Greene employed was not a good faith effort to restore
discipline.
B
Having concluded that Deputy Greene’s conduct violated
Wernert’s Fourteenth Amendment right as an arrestee to be free
from punishment, we must determine whether the constitutional
right was clearly established at the time of the incident. We
have no difficulty in concluding that in May 2007, it was
“clearly established that an arrestee or pretrial detainee is
14
protected from the use of excessive force.” Orem, 523 F.3d, at448 (citing Bell, 441 U.S. 520); Martin v. Gentile, 849 F.2d
863, 870 (1988) (“[T]he pretrial detainee, who has yet to be
adjudicated guilty of any crime, may not be subjected to any
form of ‘punishment.’”).
Greene nonetheless argues that “a reasonable officer would
not have known that the force used by Greene violated the
plaintiff’s due process rights.” Appellant’s Br. at 20. He is
entitled to qualified immunity if “a reasonable officer could
have believed [Greene’s actions] to be lawful, in light of
clearly established law and the information the . . . officers
possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987);
Orem, 523 F.3d at 448 (citing Hunter v. Bryant, 502 U.S. 224,
227 (1991)).
The unreasonableness of Greene’s actions is put into sharp
relief by Deputy Ferki’s very different perception of the shoe
incident. Ferki stated that after the shoe hit him, he was
smiling and “was going to say good shot or nice shot.” Ferki
Dep. at 53 (J.A. 144). There is a world of difference between
the reaction of Deputy Ferki—the person who absorbed the blow
from the shoe—and that of Deputy Greene. In addition, Lynch’s
declaration supports the idea that a “reasonable law enforcement
officer” would not “have felt threatened under these
circumstances to take someone in custody to the ground so
15
violently.” Lynch Declaration at 2 (J.A. 169). In these
circumstances, a reasonable officer in Deputy Greene’s position
could not have believed that it would be lawful to slam an
already restrained detainee face first into a concrete floor.
This conclusion finds further support in this court’s
decision in Orem v. Rephann, 532 F.3d 442, which bears factual
similarities to this case. In Orem, we affirmed the district
court’s denial of summary judgment on qualified immunity grounds
to a police officer who twice tasered an unruly woman while she
was restrained in the back of a police car. We held that,
viewing the facts in the light most favorable to the tasered
woman, the officer’s use of the taser in such circumstances “was
wanton, sadistic, and not a good faith effort to restore
discipline.” Id. at 447. We recognized there, as we do here,
that the right of an arrestee to be free from the use of
excessive force was clearly established. Id. at 448 (citing
Bell, 441 U.S. 520). Considering the behavior of the officer
who used the taser in comparison to that of other officers
present at the scene who merely secured the woman’s restraints,
we concluded that the use of the taser was “not objectively
reasonable.” Id. at 449.
Similarly here, Deputy Greene’s use of force against
Wernert, who was already restrained and posed little possibility
of harm to the officers, was not objectively reasonable and
16
contravened clearly established law. Therefore, Deputy Greene
is not entitled to qualified immunity.
IV
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
17