Simpson v. State of Kansas

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 26, 2014
Elisabeth A. Shumaker
Clerk of Court
OLGA SIMPSON, individually and
as mother and next friend of A.S.,
a minor, Y.S., a minor, and S.S.,
a minor,
Plaintiff - Appellant,
v. No. 13-3272
(D.C. No. 2:12-CV-02402-JWL)
STATE OF KANSAS; DA’VON B. (D. Kansas)
BRAME,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
Ms. Olga Simpson was driving her three young children when she
was stopped for seatbelt violations. The trooper issued a citation and
began to leave. Before he left, however, words were exchanged. The
*
The Court grants the parties’ request for a decision on the briefs,
concluding that oral argument would not prove helpful. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
situation escalated, and the trooper arrested Ms. Simpson. She sued the
trooper under 42 U.S.C. § 1983 and state law. The trooper successfully
moved for summary judgment, and Ms. Simpson appealed.
There is little dispute about what took place, for most of the
exchange is captured by a video recording. In considering what transpired
against the backdrop of federal and state law, we must ask two questions:
1. Did the trooper have probable cause to arrest Ms. Simpson for
misdemeanors involving seatbelt violations?
2. Did the trooper use excessive force when trying to arrest
Ms. Simpson as she was resisting arrest on an entrance to a
busy highway?
We conclude that Ms. Simpson failed to show a genuine issue of material
fact concerning violation of the federal constitution or state law. As a
result, we uphold the award of summary judgment to the trooper.
I. The Seatbelt Violations and the Arrest
Ms. Simpson was driving her three children home from school when
she passed a state trooper, Da’von B. Brame. Trooper Brame saw that one
of the children, who was in the front seat, was not wearing her seatbelt as
required by Kansas law. The trooper made a U-turn and stopped
Ms. Simpson’s vehicle.
The stop took place on a highway on-ramp with heavy traffic. The
trooper saw the children putting on their seatbelts and noticed that
Ms. Simpson was not wearing a seatbelt.
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While Ms. Simpson was looking for her license and insurance
paperwork, Trooper Brame told her about a recent car accident resulting in
the death of a 10-year-old girl who was not wearing a seatbelt. When
Ms. Simpson shrugged in response, Trooper Brame became argumentative.
He took Ms. Simpson’s license, verified that it was valid, wrote her a
citation (notice to appear) for the seatbelt violations, and gave her the
citation. Ms. Simpson saw that the fine was $169 and argued with Trooper
Brame, saying that she was a single mother and could not afford the fine.
The trooper responded that the judge might be able to help, but he did not
want to argue and risk being hit by a car. He then wished her a safe day
and began walking toward his patrol car.
After taking a few steps, Trooper Brame heard Ms. Simpson tearing
up the citation. He turned around and saw her still shredding it.
Believing that Ms. Simpson did not intend to honor the citation,
Trooper Brame decided to arrest her for the seatbelt offenses. He returned
to her car and told her twice to get out of the car. She stayed inside, and
he opened the car door and told her that he could take her to jail because
the seatbelt violations were misdemeanors and she showed (by tearing up
the citation) that she was not going to appear as required.
The trooper again asked Ms. Simpson to get out, but she did not.
Trooper Brame pulled her from the vehicle and called for backup, stating
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that she was resisting arrest. She repeatedly told him to leave, and he
repeatedly told her to get out. The trooper then pulled her from the car,
placed one hand on the back of her neck (while keeping his other hand
firmly on her wrist), walked her to the back of her car, and firmly guided
her to the ground.
After a moment, Trooper Brame realized that Ms. Simpson’s car was
rolling down the entrance ramp because she had not yet put the car in
“park.” He released her, moved to the driver’s side of the car, and secured
the car.
Ms. Simpson stood up and followed him. He told her to go to the
rear of the car. He then grabbed her and pushed her to a grassy area
behind her car. There, he held her hands behind her back, again calling for
backup and stating that she was resisting arrest. According to
Ms. Simpson, he shoved her to the ground, put his knee in her back, put his
weight on her, handcuffed her, and pulled her to a standing position by the
handcuffs.
Ms. Simpson repeatedly yelled at Trooper Brame while twisting and
struggling in the handcuffs. In response, Trooper Brame pushed or held
her on the hood of his police vehicle. Ms. Simpson claims Trooper Brame
“repeatedly pulled up on [her] arms causing her great pain.” Aplt. Opening
Br. at 12. After backup arrived, Trooper Brame and another officer walked
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Ms. Simpson to a patrol car while she kicked and screamed. She asserts
that Trooper Brame threw her into the police vehicle.
Ms. Simpson was taken to jail, where she was booked and kept
overnight. No charges were filed and she was released from custody the
next day.
Ms. Simpson sued the trooper, claiming wrongful arrest, cruel and
unusual punishment, false imprisonment, battery, intentional and negligent
infliction of emotional distress, negligent training, and liability under the
Kansas Tort Claims Act. The trooper moved for summary judgment, and
the district court granted the motion. 1
II. Review of the Trooper’s Award of Summary Judgment
We agree with this ruling. The trooper had probable cause to arrest
Ms. Simpson for a misdemeanor, and the videotape shows that the force
used was objectively reasonable to make the arrest amidst heavy traffic on
an entry to a busy highway.
1
Ms. Simpson also sued the State, and the district court granted
summary judgment to the State based on Eleventh Amendment immunity.
In this appeal, however, Ms. Simpson does not challenge the award of
summary judgment to the State.
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A. Standard of Review
We engage in review of the summary judgment ruling based on the
standards applicable in district court. Fields v. City of Tulsa, 753 F.3d
1000, 1008 (10th Cir. 2014), petition for cert. filed (U.S. Sept. 15, 2004)
(No. 14-323). The award of summary judgment can be upheld only in the
absence of a genuine issue of material fact. Id. at 1009. To determine
whether a genuine issue of material fact existed, we view the evidence in
the light most favorable to Ms. Simpson. Id.B. Fourth Amendment Claim
Under the Fourth Amendment, the trooper could make the arrest
without a warrant only if he had probable cause to believe a criminal
offense had been or was being committed. Courtney v. Okla. ex rel. Dep’t
of Pub. Safety, 722 F.3d 1216, 1225 (10th Cir. 2013). The existence of
probable cause is gauged based on the facts known to Trooper Brame when
he made the arrest. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). His
subjective motivation is irrelevant. Id. at 153.
The arrest would have been permissible even though the crime was
minor, punishable by a fine. See Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001) (“If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the
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offender.”); see also Virginia v. Moore, 553 U.S. 164, 171 (2008)
(“[W]hen an officer has probable cause to believe a person committed even
a minor crime in his presence, the balancing of private and public interests
is not in doubt.”).
Ms. Simpson does not question probable cause for the seatbelt
offenses. But she argues that
● the Kansas seatbelt laws are merely traffic infractions
(not misdemeanors) and would not support a warrantless arrest,
and
● Officer Brame could make an arrest only if he had “new”
probable cause because he had already declined to make an
arrest for the traffic infractions.
We reject both arguments.
1. Was the Arrest for a Misdemeanor Offense?
Our threshold issue is whether a minor crime (like a seatbelt
violation) constitutes a “misdemeanor” for Fourth Amendment purposes.
For this inquiry, we examine state law. See, e.g., Atwater, 532 U.S. at 323.
Thus, we begin by examining the applicable Kansas statutes. 2
Trooper Brame cited Ms. Simpson for violation of Kan. Stat. Ann.
§§ 8-2503 and 8-1344. Section 8-2503(a)(1) requires adults in a car to
2
Ms. Simpson’s argument assumes that the Fourth Amendment
prohibits arrest for traffic infractions that are not considered
“misdemeanors.” For the sake of argument, we can assume that
Ms. Simpson is correct.
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wear a seatbelt; Section 8-1344 requires the use of a restraining system for
children 13 or younger. Violation of either section can result in a fine.
See Kan. Stat. Ann. §§ 8-2504(a), 8-1345(a).
Ms. Simpson contends that under Kansas law, violations of §§ 8-2503
and 8-1344 are non-misdemeanor “traffic infractions” that do not subject
the violator to arrest. See Kan. Stat. Ann. § 22-2401(d) (providing that
officers can make an arrest for a crime committed in their presence “except
a traffic infraction or a cigarette or tobacco infraction”). She cites
Kan. Stat. Ann. § 8-2116, which spells out the basis for distinguishing
between traffic infractions and misdemeanors:
(a) Every person convicted of violating any of the sections
listed in the uniform fine schedule in K.S.A. 8-2118 is guilty of
a traffic infraction.
(b) Except where another penalty or class of misdemeanor is
provided by statute, every person convicted of violating any
provision of the uniform act regulating traffic on highways
designated as a misdemeanor is guilty of a class C
misdemeanor, except that upon a second such offense
committed within one year after the date of the first such
offense, upon conviction thereof, such person is guilty of a
class B misdemeanor, and upon a third or subsequent such
offense committed within one year after the first such offense,
upon conviction thereof, such person is guilty of a class A
misdemeanor.
Section 8-2116(a) defines a “traffic infraction” as the violation of
“any of the sections listed in the uniform fine schedule in [Kan. Stat. Ann.
§] 8-2118.” But, Trooper Brame relied on statutory violations that are not
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listed in § 8-2118. As a result, these offenses cannot constitute mere
traffic infractions; they are misdemeanors. 3
Ms. Simpson cites other language in § 8-2116(b). This section
specifies that traffic misdemeanors are generally treated as “Class C
misdemeanors.” Kan. Stat. Ann. § 8-2116(b). Because the seatbelt
offenses have their own penalty provisions involving fines, Ms. Simpson
argues that the Kansas legislature intended to treat seat belt offenses as
traffic infractions rather than misdemeanors. This argument distorts
§ 2116(b) and fails to account for another statutory provision (§ 21-5102).
Ms. Simpson’s reading of § 2116(b) takes the statutory language out
of context. Read in context, § 8-2116(b) refers to misdemeanors (not
traffic infractions) that are subject to separate penalties set out elsewhere.
We also conclude that Ms. Simpson’s argument fails to take into
account another statutory provision, Kan. Stat. Ann. § 21-5102. That
statute unambiguously provides that “[a] traffic infraction is a violation of
3
The Kansas Court of Appeals has endorsed the defendants’ reading of
this statute in dicta without explicitly resolving whether a violation of
§ 8-2503 or § 8-1344 is a misdemeanor. See State v. Schmitter, 933 P.2d
762, 769 (Kan. Ct. App. 1997) (noting but not resolving the merits of the
state’s argument that “because failure to wear a seat belt is not listed
in . . . [§] 8-2118, it is not a traffic infraction and because it is not a
felony, it must be a misdemeanor”); see also State v. Beltran, 300 P.3d 92,
110 (Kan. Ct. App. 2013) (approving the state’s assertion in Schmitter that
“the seat belt violation was a general misdemeanor . . . and would have
supported an arrest of Schmitter”).
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any of the statutory provisions listed in [§ 8-2118(c)], and amendments
thereto.” Id. § 21-5102(b). No exception is made for seatbelt offenses,
which do not appear in § 8-2118(c). After defining felonies and cigarette
or tobacco infractions, § 21-5102(d) adds that “[a]ll other crimes are
misdemeanors.” The word “all” is unambiguous: It includes violation of
§§ 8-2503 and 8-1344.
Kansas law regards Ms. Simpson’s seatbelt offenses as
misdemeanors. Thus, the arrest would not run afoul of the Fourth
Amendment even if it prohibited arrest for mere traffic infractions. See
Moore, 553 U.S. at 171; Atwater, 532 U.S. at 354.
2. Did Trooper Brame Lose Authority to Arrest
Ms. Simpson by Issuing a Citation?
Ms. Simpson makes an alternative argument: Even if Trooper Brame
initially had probable cause for an arrest, he lost probable cause to make or
arrest for the seatbelt violations once he issued a citation. In Ms.
Simpson’s view, Trooper Brame needed “new” probable cause for the
arrest. For this proposition, she cites a Kansas statutory provision
pertaining to citations for misdemeanor traffic offenses. This provision
states that
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● a law enforcement officer has discretion to permit a violator
to give a written promise to appear in court and
● when this occurs, “the law enforcement officer shall deliver a
copy of the citation to the person and shall not take the person
into physical custody.”
Kan. Stat. Ann. § 8-2106(e) (emphasis added).
Ms. Simpson is essentially making a state-law argument, assuming
that a violation of Kansas law would render the arrest unconstitutional.
This argument misconceives the nature of a Fourth Amendment violation
and the state law.
The assumption is incorrect because a violation of state law does not
typically create a Fourth Amendment violation. See Moore, 553 U.S. at
176 (“[W]hile States are free to regulate . . . arrests however they desire,
state restrictions do not alter the Fourth Amendment’s protections.”).
Ms. Simpson’s argument also distorts state law because it required
her to sign the notice and the initial citation did not prevent a subsequent
arrest. She cites this Kansas provision:
(e) Except in the circumstances to which subsection (a) of
K.S.A. 8-2104, and amendments thereto, apply, in the
discretion of the law enforcement officer, a person charged
with a misdemeanor may give written promise to appear in
court by signing at least one copy of the written citation
prepared by the law enforcement officer, in which event the
law enforcement officer shall deliver a copy of the citation to
the person and shall not take the person into physical custody.
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Kan. Stat. Ann. § 8-2106(e) (emphasis added). This law contemplates that
the violator will make a written promise to appear by signing the written
citation. But, Ms. Simpson admits that she did not sign the citation. Aplt.
Opening Br. at 14. Instead, she ripped it up. Ms. Simpson cannot rely on
a statutory right to avoid arrest by signing a document that she ripped up
rather than sign. Thus, § 8-2106(e) did not require Trooper Brame to
obtain new justification before arresting Ms. Simpson.
3. Did Trooper Brame Violate the Fourth Amendment
Based on His Actual Motivation?
Ms. Simpson also argues that a genuine issue of material fact remains
concerning Trooper Brame’s motivation. She contends that “[Trooper]
Brame clearly stated in his deposition that he arrested Olga Simpson for
tearing up her ticket, which is clearly not an arrestable offense.” Aplt.
Opening Br. at 15. But Trooper Brame’s motive does not affect the Fourth
Amendment inquiry. See Devenpeck, 543 U.S. at 153 (“Our cases make
clear that an arresting officer’s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause.”). Probable cause
existed to arrest Ms. Simpson for the seatbelt offense; thus, the trooper did
not violate the Fourth Amendment even if he made the arrest just because
Ms. Simpson had torn up her ticket.
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C. Excessive Force
Ms. Simpson alleges excessive force, claiming that Office Brame
“pulled her from the vehicle and ultimately threw her to the ground placing
his knee in her back.” Aplt. Opening Br. at 18. The district court properly
awarded summary judgment to the trooper on this claim.
The reasonableness of the force ordinarily involves a factual question
for the jury to decide. But here, most of the episode is captured on
videotape. For the events occurring off-camera, we have assumed the truth
of Ms. Simpson’s version of events.
The disagreements do not involve what took place; instead, the
parties disagree on whether the conduct involved excessive force. “The
question of objective reasonableness is not for the jury to decide where the
facts are uncontroverted.” Meacham v. Frazier, 500 F.3d 1200, 1203 (10th
Cir. 2007).
In determining whether the force was objectively reasonable, we
consider the totality of circumstances. Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1313 (10th Cir. 2009). These circumstances include the
severity of the crime, the immediacy of a threat to one’s safety, and a
suspect’s resistance to arrest or effort to flee. Id.The misdemeanor offense was not a serious one. But the trooper had
a clear need to quickly secure the arrest. He was on an entrance ramp to a
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busy highway, and Ms. Simpson was resisting arrest. As the district court
concluded, Trooper Brame “did not use excessive force but used that
amount of force necessary to overcome [Ms. Simpson’s] resistance and to
keep her safe on the busy entrance ramp.” Aplt. App. at 185. The
videotape shows that the officer used only the level of force needed to
make the arrest without danger to himself, Ms. Simpson, or the children.
We addressed similar circumstances in Meacham v. Frazier, 500 F.3d
1200 (10th Cir. 2007). There an officer pulled a driver over for speeding
and failing to wear a seatbelt. See Meacham, 500 F.3d at 1202. During the
stop, the driver took a phone call on her cellphone and refused to put the
phone down. See id. The officer ordered the car towed and told the driver
to get out. She refused to get out until her mother arrived. See id. at 1202.
The officer sprayed the driver with pepper, removed her from the car,
pulled her, and placed her on the ground. See id. at 1203. The episode was
captured by video. See id. at 1202 n.2.
We held, as a matter of law, that the use of force was objectively
reasonable. 4 In reaching this conclusion, we pointed to the driver’s refusal
4
There the issue of objective reasonableness arose in connection with
qualified immunity. Meacham, 500 F.3d at 1204. Though we are not
addressing the trooper’s assertion of qualified immunity, the issue of
objective reasonableness applies equally here. The trooper’s use of force
would have violated the Fourth Amendment only if it was objectively
unreasonable. See p. 13, above.
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to comply with the trooper’s instructions and the proximity to a busy
highway. Id. at 1204-05.
Under Meacham, we must consider Trooper Brame’s use of force
objectively reasonable. Trooper Brame was confronting a similar refusal
to comply with his instructions, proximity to a busy highway, and a driver
who resisted arrest after being stopped for minor traffic infractions. In
light of the similarity in circumstances, we follow our decision in
Meacham and uphold the district court’s grant of summary judgment on the
claim involving excessive force.
D. Kansas Tort Act Claims
Ms. Simpson challenges the grant of summary judgment to Trooper
Brame concerning her state-law claims for false imprisonment, battery, and
intentional infliction of emotional distress. These challenges are rejected.
1. False Imprisonment
The district court granted summary judgment on the false
imprisonment claim, holding that trooper Brame enjoyed immunity under
the Kansas Tort Claims Act. We agree with this ruling.
The Kansas statute provides immunity for discretionary decisions.
Kan. Stat. Ann. § 75-6104(e). Trooper Brame’s decision to arrest
Ms. Simpson was discretionary because it involved “personal deliberation,
decision and judgment.” Soto v. City of Bonner Springs, 238 P.3d 278, 287
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(Kan. 2010) (internal quotation marks omitted). Thus, his decision to
make the arrest involved immunity under Kansas law.
Ms. Simpson argues that Trooper Brame’s actions fell outside the
immunity because he acted without legal justification. We have already
rejected this assertion in the context of the Fourth Amendment claim.
According to Ms. Simpson, Trooper Brame had no legal justification
to use force to effectuate the arrest. She refers to various instances of the
use of force, all of which she contends were unauthorized. In discussing
the Fourth Amendment claim, we concluded that the trooper’s use of force
was reasonable. For the false-imprisonment claim, the test is again the
reasonableness of the trooper’s force. See Kan. Stat. Ann. § 21-5227(a)
(“[An] officer is justified in the use of any force which such officer
reasonably believes to be necessary to effect the arrest and the use of any
force which such officer reasonably believes to be necessary to defend the
officer’s self or another from bodily harm while making the arrest.”). For
the reasons discussed earlier, we conclude that the force was reasonable as
a matter of law.
Thus, the district court properly granted summary judgment to the
trooper on the false-imprisonment claim.
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2. Battery
The district court also granted the trooper summary judgment on the
battery claim, reasoning in part that the use of force was privileged.
Ms. Simpson has not meaningfully addressed this rationale. She states in a
conclusory heading that the district court “erred in finding . . . that
Appellee Brame’s actions were reasonable.” Aplt. Opening Br. at 22. But,
she has not developed an argument for this heading. Aplt. App. at 192;
see Aplt. Opening Br. at 22-23. Rather than address the deficiency in her
evidence, Ms. Simpson focuses on the sufficiency of her complaint. Id.Based on that focus, we consider whether Ms. Simpson presented evidence
concerning the trooper’s allegation of privilege through the use of
reasonable force. In discussing the battery claim, Ms. Simpson did not
develop an argument on this issue. Thus, she waived the issue. See
Molina v. Holder, 763 F.3d 1259, 1263 n.2 (10th Cir. 2014). In light of
this waiver, we uphold the award of summary judgment to the trooper on
the battery claim.
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3. Intentional Infliction of Emotional Distress 5
The district court also determined that Ms. Simpson could not create
a fact-issue on a claim involving intentional infliction of emotional
distress. We agree. This claim requires proof that the defendant’s conduct
was “extreme and outrageous,” meaning that it “goes beyond the bounds of
decency and is utterly intolerable in a civilized society.” Valadez v.
Emmis Commc’ns, 229 P.3d 389, 394 (Kan. 2010).
Ms. Simpson argues that Trooper Brame’s conduct met this standard
because once he issued a citation and left the vehicle, he could not make an
arrest without evidence of a new criminal act. But, we have already
rejected this assertion in our analysis of probable cause. Under the
circumstances, Trooper Brame’s decision to arrest Ms. Simpson fares no
better as evidence of extreme and outrageous conduct.
She also argues that Trooper Brame’s actions were “extreme and
outrageous” because she had three small children in the car, the car was
still in gear, and the children saw the entire episode. Aplt. Opening Br. at
24. We disagree. Trooper Brame’s concern for the children’s safety led to
the traffic stop and issuance of a traffic citation. When the car began to
5
In the complaint, Ms. Simpson included claims involving intentional
infliction of emotional distress (for herself) and negligent infliction of
emotional distress (for her children). The complaint was superseded by the
final pretrial order, which omitted claims involving negligent infliction of
emotional distress.
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roll away, he helped to stop it. The actions the children witnessed were at
least in part a function of Ms. Simpson’s efforts to resist arrest, which
required the additional use of force. The district court properly determined
that the alleged facts did not rise to the level of extreme and outrageous
conduct.
III. Sealing of the Record on Appeal
Ms. Simpson filed one volume of her appendix under seal. The court
clerk’s office provisionally permitted the filing, but ordered her to state
why these portions of the appendix should remain under seal. We allowed
part (but not all) of the appendix to remain under seal.
We have discretion to allow the sealing of documents if the public’s
right of access is outweighed by other interests. Jetaway Aviation, LLC v.
Bd. of Cnty. Comm’rs, 754 F.3d 824, 826 (10th Cir. 2014) (per curiam).
“To overcome [the] presumption against sealing, the party seeking to seal
records must articulate a real and substantial interest that justifies
depriving the public of access to the records that inform our decision-
making process.” Id. (internal quotation marks omitted).
Ms. Simpson requested the sealing because the district court
determined that a protective order was proper. By itself, this is not an
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adequate justification for filing the documents under seal. Id. But
Ms. Simpson adds that “[t]he District Court found that sealing the
documents was necessary to prevent the dissemination of confidential
medical and personal information not otherwise subject to disclosure as
well as law enforcement policies and procedures that are not known and
should not be known to the general public.” Statement for Filing Appendix
Under Seal, at 1. The reference to “confidential medical and personal
information not otherwise subject to disclosure” is too broad and
conclusory to overcome the presumption against sealing. Jetaway Aviation,
754 F.3d at 827. The reference to “law enforcement policies and
procedures that are not known and should not be known to the general
public,” however, justifies sealing of the written documents in Volume II.
This reason does not justify sealing of the DVD. The evidence
depicted in the DVD is crucial to the parties’ arguments and the outcome.
With such reliance on the DVD, we have no justification for continuing to
keep the DVD out of the public record. As a result, we order unsealing of
the DVD.
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IV. Conclusion
The summary judgment ruling is affirmed. The provisional filing of
Volume II of Ms. Simpson’s appendix under seal is vacated in part (as
noted above). The remainder of Volume II shall remain under seal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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