David Lindsay v. Daniel Kiernan , 378 F. App'x 606 ( 2010 )

FILED
NOT FOR PUBLICATION APR 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID P. LINDSAY, an individual, No. 09-55652
Plaintiff - Appellant, D.C. No. 2:08-cv-02925-RGK-JC
v.
MEMORANDUM *
DANIEL KIERNAN, individually and in
his representative capacity as a police
officer,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted April 7, 2010
Pasadena, California
Before: PREGERSON, BEEZER and THOMPSON, Circuit Judges.
At approximately 11:30 pm on December 9, 2006, the Santa Paula Police
Department dispatched Defendant Officer Kiernan, along with several other police
officers, to respond to a telephone call from a young woman working as a clerk at a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
gas station convenience store. The clerk was concerned about an intoxicated man
who insisted on buying Zima beer and refused to leave. When Officer Kiernan
arrived at the scene, he saw Plaintiff David P. Lindsay (“Lindsay”) getting out of
his taxi, which was surrounded by four officers. Lindsay, a six foot, 220 pound,
white male, was obviously intoxicated, angry, and belligerent.
The officers repeatedly told Lindsay to get back in the cab and leave the gas
station. Lindsay refused and became increasingly hostile, yelling, “If you fuck
with me, I’m telling you . . .” He insisted that the officers go with him to confront
the young female clerk so she would sell him Zima beer. When Officer Kiernan
grabbed Lindsay’s arm to prevent him from re-entering the store and confronting
the clerk, Lindsay broke free, barreled through the other officers, and walked
quickly towards the store, yelling, “Let’s get the fuck in there and clean this place
up.”
When Lindsay was close to the glass sliding door of the convenience store,
Officer Kiernan asked Lindsay, “Okay you want the taser?” Lindsay stated, “I
don’t mind it,” and continued walking towards the store. For the first time in his
career, Officer Kiernan fired his taser in dart mode for the standard five second
interval. Lindsay fell to the ground. The officers told him, “Put your hands behind
your back. You’ll get it one more time. Roll over. Roll over, hands behind your
2
back. You’ll get it again.” When Lindsay ignored these commands and attempted
to get up, Officer Kiernan fired his taser a second time for four seconds. Lindsay
was eventually handcuffed. Lindsay’s physical resistance to the officers and the
subsequent tasings occurred within a matter of seconds. The officers called the
paramedics immediately. Lindsay was transported to a hospital, where he refused
treatment. In his deposition, Lindsay testified that he did not experience any
injuries that were “enough to make an issue over.”
Lindsay sued Officer Kiernan in federal district court for using excessive
force in violation of 42 U.S.C. § 1983 and committing various state law torts.1 The
district court granted Officer Kiernan’s motion for summary judgment on qualified
immunity and declined to exercise supplemental jurisdiction over Lindsay’s state
law claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
We review the district court’s grant of summary judgement de novo and
construe all disputed facts in favor of the non-moving party. See, e.g., Davis v.
City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007) (citation omitted); Bryan
v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009) (citation omitted).
1
We deny Lindsay’s request for judicial notice of a judgment in his favor in
a 2001 civil rights case involving several Santa Paula police officers for excessive
use of force.
3
II.
The threshold question in the qualified immunity analysis is whether a
constitutional violation occurred. See Mattos v. Agarano, 590 F.3d 1082, 1086
(9th Cir. 2010) (citation omitted). To determine whether Officer Kiernan’s
conduct violated Lindsay’s Fourth Amendment rights, we examine “whether the
officers’ actions are objectively reasonable in light of the facts and circumstances
confronting them.” Bryan, 590 F.3d at 772 (internal quotation marks and citation
omitted). The objective reasonableness of an officer’s conduct is evaluated by
balancing the degree of force applied against the government’s need to use that
force. Id. (citation omitted).
The use of a taser in dart mode qualifies as an intermediate level of force,2
which “must be justified by a strong government interest that compels the
employment of such force.” Id. at 774-75 (internal quotation marks and citation
2
In Brooks v. City of Seattle, No. 08-35526, —F.3d—, 2010 WL 1135776(9th Cir. filed March 26, 2010), we recently distinguished the use of a taser in dart
mode from the use of the taser in drive-stun mode. We recognized that the use of a
taser in dart mode qualifies as intermediate force, but held that a taser in drive-stun
mode qualifies as less than intermediate force. Id. at 4932. Because Officer
Kiernan used his taser in dart mode, Brooks does not apply.
4
omitted).3 To examine the government’s interest in the use of force, this court
considers (1) whether the suspect poses an immediate threat to the safety of the
officers or others; (2) whether the suspect is actively resisting; and (3) the severity
of the initial offense. Id. at 775 (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). Courts also may examine “the availability of alternative methods of
capturing or subduing a suspect.” Smith, 394 F.3d at 701 (citation omitted).
“The most important factor under Graham is whether the suspect posed an
immediate threat to the safety of the officers or others.” Bryan, 590 F.3d at 775(internal quotation marks and citations omitted). Here, Lindsay’s intoxicated state,
increasing hostility, physical resistance, and repeated refusal to leave the gas
station could have led a reasonable officer to believe that Lindsay posed an
immediate threat to the safety of the officers and the safety of the young female
convenience store clerk. See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.
2004) (holding that use of a taser gun was reasonable in a “difficult, tense, and
3
Lindsay fails to demonstrate on this record that deployment of a taser at a
gas station “creates a substantial risk of causing death or serious bodily injury.”
Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir. 2005) (en banc). Accordingly,
we conclude that Officer Kiernan used intermediate, not deadly, force against
Lindsay.
5
uncertain” traffic stop where the plaintiff was “hostile, belligerent, and
uncooperative”).4
Moreover, it is undisputed that Lindsay, while heavily intoxicated, actively
resisted the officers repeated verbal commands to leave the gas station, broke free
from Officer Kiernan’s grasp, and barreled through five officers to confront the
young female convenience store clerk. Moreover, Lindsay ignored Officer
Kiernan’s warning that he would deploy the taser unless Lindsay complied with the
officers’ orders. Such conduct qualifies as more than minor resistance.5 In
addition, a reasonable officer could have concluded that Lindsay continued to
actively resist arrest by attempting to get up after the first taser shot, despite
officers’ commands to stay down and submit to arrest.6
4
Our en banc decision in Smith v. City of Hemet, 394 F.3d 689 (9th Cir.
2005) is not to the contrary. Unlike the plaintiff in Smith who was not physically
threatening and eventually complied, Lindsay physically resisted the officers’
attempts to make him leave the gas station and refused to comply with any of the
officers’ commands. Id. at 702.
5
In Smith, we determined that the plaintiff, who ignored some of the
officers’ commands, only engaged in minor resistance because he did not attempt
to run from the officers and physically resisted for only a short time. See 394 F.3d
at 703. Here, Lindsay refused to halt or comply with any of the officers’
commands until after he was tased twice.
6
Lindsay’s subjective motivation for getting up is irrelevant because we
must consider whether Officer Kiernan’s actions were objectively reasonable.
Bryan, 590 F.3d at 772.
6
Given the volatile situation, Lindsay’s refusal to comply with any of the
officer’s verbal commands, and his physical resistance despite the presence of
multiple officers, Officer Kiernan could have reasonably believed that deploying
his taser after a warning would be the least intrusive method of subduing Lindsay.7
In any case, officers need not employ the “least intrusive degree of force possible.”
Bryan, 590 F.3d at 780 n.15 (internal quotation marks and citations omitted).
Although Lindsay’s offenses were relatively minor misdemeanors, every
other Graham factor suggests that Officer Kiernan had a strong interest in using
intermediate force against Lindsay. Lindsay repeatedly refused to comply with
officers’ orders, physically resisted their attempts to make him leave the gas
station, and invited Officer Kiernan to deploy his taser against him. Combined
with Lindsay’s hostility, belligerence, and intoxication, Officer Kiernan reasonably
believed that intermediate force was required to protect the young female clerk and
prevent a potentially violent physical altercation between Lindsay and the officers.
Tasers are only justified under compelling circumstances such as these.
7
Santa Paula Police Department General Order 8-8 permits use of a taser
“against subjects who are using active resistance or aggression toward officers,
displaying or using aggression towards citizens and /or are a threat to themselves.”
7
Accordingly, we hold that Officer Kiernan’s conduct did not violate Lindsay’s
Fourth Amendment rights.8
II.
The district court did not err in granting Officer Kiernan summary judgment
on Lindsay’s only federal claim. Therefore, we do not disturb the district court’s
decision to decline to exercise supplemental jurisdiction over Lindsay’s remaining
state claims. See 28 U.S.C. § 1367(c)(3) (stating that district courts may decline to
exercise supplemental jurisdiction over a claim if “the district court has dismissed
all claims over which it has original jurisdiction”).
III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Officer Kiernan on the § 1983 claim and its dismissal of
Lindsay’s state law claims for lack of jurisdiction.
AFFIRMED.
8
Because we hold that the Constitution was not violated, we need not
proceed to the second prong of the qualified immunity analysis. See Mattos, 590
F.3d at 1086. Moreover, we need not address whether Lindsay’s conviction for
violation of Cal. Penal Code § 148(a)(1) bars his lawsuit.
8