Tucker v. Las Vegas Metropolitan Police Department

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 02 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANFORD TUCKER, individually, and as No. 09-17141
Special Administrator of the Estate of
Keith Tucker, and as Guardian ad Litem of D.C. No. 2:05-cv-01216-LDG-RJJ
Frans Kai Mann Tucker, a minor,
Plaintiff - Appellee, MEMORANDUM*
v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; PATRICK DENNEY,
Officer; MARK HUTCHINSON, Officer,
Defendants - Appellants,
and
TASER INTERNATIONAL, INC.; BILL
YOUNG, Sheriff, individually and in his
official capacity,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 14, 2012
San Francisco, California
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.
Keith Tucker (“Keith”) died following an altercation with two police
officers, Defendants Patrick Denney and Mark Hutchinson. Keith’s father,
Plaintiff Sanford Tucker (“Sanford”) brought a wrongful death civil rights action
under 42 U.S.C. § 1983, claiming that the force used by Officers Denney and
Hutchinson deprived Keith of his right to be free from excessive force, as
guaranteed by the Fourth and Fourteenth Amendments to the United States
Constitution, and caused his death.1 The officers brought this interlocutory appeal
from the district court’s denial of their motion for summary judgment on grounds
of qualified immunity. We affirm in part, reverse in part, and remand.
As the parties moving for summary judgment, the officers bear “the burden
of showing the absence of a genuine issue as to any material fact, and for these
purposes the material . . . lodged must be viewed in the light most favorable” to
Sanford. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary
judgment “‘should be granted sparingly’” in excessive force cases, because the
1
Sanford also sued several other defendants on various legal theories not
pertinent to this appeal.
2
excessive force inquiry often “‘requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom.’” Smith v. City of Hemet, 394 F.3d
689, 701 (9th Cir. 2005) (en banc) (quoting Santos v. Gates, 287 F.3d 846, 853
(9th Cir. 2002)). In this case, we agree with the district court that, with respect to
the force used after Keith was handcuffed, there are genuine issues of material fact
rendering summary judgment inappropriate. We conclude, however, that there are
no genuine issues of material fact concerning whether the force used before Keith
was handcuffed was excessive, and that summary judgment should have been
granted in favor of the defendants with regard to that period.
We use a two-pronged test to determine whether qualified immunity is
justified: (1) we must decide whether the officer violated a plaintiff’s constitutional
right; and (2) we must determine whether the asserted right was “‘clearly
established in light of the specific context of the case’ at the time of the events in
question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)
(quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)), petitions for cert.
filed, --- U.S.L.W. ---- (U.S. Jan. 11, 2012) (No. 11-1032), 80 U.S.L.W. 3457 (U.S.
Jan. 17, 2012) (No. 11-898), --- U.S.L.W. ---- (U.S. Feb. 21, 2012) (No. 11-1045).
In determining whether an officer violated a plaintiff’s right to be free from
3
excessive force, we first assess the severity of the force used and then measure the
governmental interests at stake by evaluating a range of factors. See id. at 441.
1. The force used by the officers before Keith’s handcuffing was reasonable
under the circumstances of Keith’s violent resistance. Sanford argues that the
officers should be held liable for the defensive force they used in handcuffing
Keith, because Officer Denney’s decision to grab Keith’s hand may have provoked
the violent altercation that ensued. We disagree. “Where a police officer
‘intentionally or recklessly provokes a violent confrontation, if the provocation is
an independent Fourth Amendment violation, he may be held liable for his
otherwise defensive use of force.’” Espinosa v. City & Cnty. of San Francisco,
598 F.3d 528, 538 (9th Cir. 2010) (quoting Billington v. Smith, 292 F.3d 1177,
1189 (9th Cir. 2002)), cert. denied, 132 S. Ct. 1089 (2012). Officer Denney’s
decision to grab Keith’s hand was not an intentional or reckless provocation that
independently violated Keith’s Fourth Amendment rights, see Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), and therefore
cannot “render the officer[s’] otherwise reasonable defensive use of force
unreasonable as a matter of law,” Billington, 292 F.3d at 1190–91.
Summary judgment should therefore have been granted with respect to the
force used before Keith was handcuffed.
4
2. A jury could, however, reasonably conclude that the officers used
excessive force in tasing Keith and applying their body pressure to restrain him
after he was handcuffed and face down on a bed. See Drummond, 343 F.3d at1059–60. Although the officers testified that Keith continued to threaten their
safety even after he was handcuffed, and that they exercised considerable restraint
in their use of force, the district court accurately identified significant discrepancies
and omissions in their respective accounts of the altercation. A jury, after hearing
live testimony and cross-examination, might therefore discredit the officers’
testimony and conclude that, in light of the degree of danger Keith posed once
handcuffed, if any, and other pertinent circumstances (including Keith’s apparent
physical and mental state at the time), the degree of force used was excessive. See
Santos, 287 F.3d at 852. Because genuine issues of material fact remain as to both
the extent of the force used by the officers and the nature of the threat posed by
Keith’s handcuffed resistance, we cannot hold that the officers acted reasonably as
a matter of law.
3. Turning to the clearly established law inquiry, we conclude that existing
law recognized a Fourth Amendment violation where two officers use their body
pressure to restrain a delirious, prone, and handcuffed individual who poses no
serious safety threat. See Drummond, 343 F.3d at 1059–60. Keith, unlike
5
Drummond, continued to resist the officers after handcuffs were applied, but this
distinction does not, by itself, suffice to bring this case out of Drummond’s orbit.
See Davis v. City of Las Vegas, 478 F.3d 1048, 1057 (9th Cir. 2007).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Costs on appeal awarded to Plaintiff-Appellee.
6
FILED
Tucker v. Las Vegas Metro. Police Dep’t, No. 09-17141 MAR 02 2012
TALLMAN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the Court’s disposition insofar as it deems summary judgment
inappropriate in this case.
Excessive force cases involving a deceased victim “pose a particularly
difficult problem [at the summary judgment stage] because the officer defendant is
often the only surviving eyewitness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994). I am bound by our precedent, which clearly says the court cannot simply
take officers at their word. Rather, the court must “carefully examine all the
evidence in the record . . . to determine whether the officer’s story is internally
consistent and consistent with other known facts.” Id. (citing Hopkins v. Andaya,
958 F.2d 881, 885–88 (9th Cir. 1992); Ting v. United States, 927 F.2d 1504,
1510–11 (9th Cir. 1991)). That is why most jurisdictions conduct a public inquest
into deaths like these in police custody. See Nev. Rev. Stat. § 259.050.
In this case, there appear to be inconsistencies in the testimonies of Officers
Denney and Hutchinson. While Officer Hutchinson stated that he placed light
pressure on Tucker’s back while Tucker was prone and handcuffed, Officer
Denney stated that Hutchinson never placed pressure on Tucker’s back. And while
Officer Hutchinson claims he got off of Tucker as soon as he heard Tucker’s pleas
for air, Officer Denney never mentioned this fact in his deposition. I agree with
the district court that the inconsistent testimony creates issues of fact that can only
be resolved by a jury.
I write separately, however, to note that police officers have no duty to
retreat when threatened with physical assault. See Reed v. Hoy, 891 F.2d 1421,
1428 (9th Cir. 1989) (“[Plaintiff] has not cited to this court a single case from any
jurisdiction suggesting that police officers have the same duty to retreat as ordinary
citizens.”). Notwithstanding our decision in Drummond v. City of Anaheim, 343
F.3d 1052, 1059 (9th Cir. 2003), officers need not flee from a suspect bent on
continued attack, regardless of whether the suspect is handcuffed. Such a
requirement would “be inconsistent with police officers’ duty to the public,” Reed,
891 F.2d at 1428, and would subject officers to unnecessary threats to their own
health and safety. And I do not agree with the assumption implicit in the Court’s
disposition that a suspect, once handcuffed, no longer poses any danger to arresting
officers. See George T. Payton & Michael Amaral, Patrol Operations and
Enforcement Tactics 242 (11th ed. 2004) (“Even when cuffed, a prisoner could
strike a heavy blow. . . . Handcuffs are not escape proof. They are meant to be a
temporary restraint. Don’t put too much faith in them.”).