Beverly Getz v. J. Swoap , 833 F.3d 646 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0197p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BEVERLY J. GETZ, Executrix for the Estate of Robert ┐
T. Getz, │
Plaintiff-Appellant, │
│
v. > No. 15-3514
│
│
J. SWOAP, Wood County Sheriff’s Office, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Toledo
No. 3:13-cv-01492—Jeffrey James Helmick, District Judge.
Decided and Filed: August 16, 2016
Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*
_________________
COUNSEL
ON BRIEF: Thomas A. Sobecki, Toledo, Ohio, for Appellant. Linda F. Holmes, Arlen B. de la
Serna, WOOD COUNTY PROSECUTOR’S OFFICE, Bowling Green, Ohio, for Appellee.
_________________
OPINION
_________________
CLELAND, District Judge. This Fourth Amendment excessive force claim, through
42 U.S.C. § 1983, arises from the familiar setting of an interaction between an officer and an
angry, uncooperative citizen. The facts illustrate yet again why it is a bad idea to question and
argue, and to physically resist an investigating officer’s reasonable commands and directions.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 15-3514 Getz v. Swoap Page 2
Plaintiff-Appellant is the Estate of Robert Getz, substituted for original Plaintiff Robert
Getz following his death (which was not related to these facts). Plaintiff appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee Deputy Jody Swoap. We
agree with the district court that Deputy Swoap is entitled to qualified immunity under the
circumstances, and AFFIRM the judgment of the district court.
I. BACKGROUND
A. Undisputed Facts
About 7:20 p.m. on November 27, 2011, Deputy Jody Swoap was sitting in his police
cruiser on Carter Road outside of Bowling Green, Ohio. While observing traffic, he saw an
oncoming 2004 Chevrolet Cobalt pass him with only one operational headlight. Robert Getz
was driving. Swoap turned and followed, intending to pull the car over and issue a warning
about the defective headlight. As Getz turned south on Sugar Ridge Road, Swoap switched on
his overhead lights, but Getz did not immediately pull over. Swoap followed until Getz turned
into a residential driveway. Unbeknownst to Swoap, it was Getz’s home.
Swoap also turned into the driveway and radioed the dispatcher his location. The radio
log establishes that Swoap’s transmission occurred at 7:22 p.m.
Getz did not stop in the driveway but instead passed the house, continuing down the
driveway until he reached a barn. Getz circled around in front of the barn and drove the car back
in Swoap’s direction, stopping only once he was, according to Swoap, “bumper to bumper to me
close enough to where I could not read his license plate.” Swoap radioed in a description of the
car and directed his spotlight at the car and driver, recognizing the driver as an older male. At
his deposition, Swoap described Getz at this point as appearing “agitated . . . [h]is mouth and his
forehead just looked like he was not happy.”
As Swoap was radioing the car’s description to dispatch, Getz’s car lunged forward a
short distance, started to back up, and then angled as though to drive around Swoap’s cruiser. To
prevent Getz from leaving the driveway, Swoap moved the cruiser and positioned it so that Getz
could not drive around him. Getz’s car continued to approach the cruiser, which was now
No. 15-3514 Getz v. Swoap Page 3
blocking the driveway. Swoap exited the cruiser, stood in the driveway, and yelled for Getz to
stop. Getz, however, continued to drive slowly toward Swoap as Swoap repeatedly told Getz to
stop. Eventually, Swoap drew his sidearm and again directed Getz to stop, shut off the car, and
exit the vehicle. This time Getz complied. Once Getz was out of the car and it was obvious he
was not armed, Swoap holstered his gun.
Getz was angry. Swoap stated that Getz told him to “get the fuck off his property.”
When Swoap told Getz the reason for the traffic stop and asked Getz for his name, Getz yelled,
“Do you know who I am? Everybody knows who I am.” Getz continued to yell and argue until
Getz said “fuck this” or “screw this, I’m leaving.” Swoap informed Getz several times that he
was not free to leave, but Getz got back in his car. At this point Swoap called for backup. Then,
with Getz seated in his car gripping the steering wheel, Swoap reached into the car and attempted
to remove Getz’s left hand from the wheel while ordering him out of the car. Getz resisted,
pushing Swoap away with his shoulder and generally pulling away from Swoap.
Swoap finally pulled Getz out of the car, informed him that he was under arrest, and
ordered him to put his hands behind his back. Swoap again called for backup, this time telling
dispatch to “step it up,” which Swoap says signaled that “there was a serious potential for
somebody to get hurt or there’s force being used and I needed somebody there quickly.” Getz
refused to put his hands behind his back and said he was going inside the house. The radio log
establishes that Swoap asked dispatch to “step it up” at 7:23 p.m.
When Getz walked toward the front of the police cruiser in the direction of his house,
Swoap informed him that he was not allowed to enter the house and that he needed to place his
hands behind his back. Swoap grabbed Getz’s upper arm as he told him to place his arms behind
his back. When Getz failed to comply Swoap performed a hip-check maneuver to unbalance
Getz, gain control of him, and handcuff him. In response, Getz turned around and sprawled
chest down over the hood of the cruiser gripping opposite ends of the hood, making application
of the handcuffs more difficult. Swoap repeatedly ordered Getz to put his hands behind his back
but eventually had to grab Getz’s right arm and rotate Getz’s body around towards his left arm so
that he could place the handcuffs on both wrists. When Swoap finally managed to handcuff
No. 15-3514 Getz v. Swoap Page 4
Getz, he did not check for tightness or double lock the cuffs.1 After the cuffs were on, he told
Getz to walk to the other side of the cruiser, but Getz continued to resist and again pulled away,
saying he was going into the house. Swoap maintained control and walked Getz to the other side
of the cruiser, though Getz was still noncompliant and “locked up his legs . . . [and] his upper
body,” refusing to follow Swoap’s directions. At 7:24 p.m., Swoap radioed dispatch and
reported he had Getz in custody.
At this point Trisha Getz, Robert Getz’s daughter, arrived at the scene, and here,
Plaintiff’s and Defendant’s versions of the facts diverge. The firsthand accounts of the events
that followed were provided by Robert’s wife and daughter, Trisha and Beverly; Sergeant
Timothy Spees, an officer who arrived on the scene; and Deputy Swoap.
B. Trisha’s Testimony
Trisha recounts seeing Swoap leaning against Getz and pushing Getz’s face against the
window of the Chevrolet as she pulled up to the house. When Trisha approached, Swoap told
her that Getz was under arrest. Trisha informed Swoap that she was Getz’s daughter. Around
this time Trisha says, “Dad then got to sit down in his car ‘cause he said he needed to sit . . . we
asked [Swoap] if dad could sit down.” While sitting, Getz told Trisha “these handcuffs are
killing me. My hands hurt so bad. Can you just ask him—I have asked him several times to get
the handcuffs loosened.” According to Trisha, Getz complained “20 times about his hands” and
that she could see his hands bleeding. She retrieved wipes from her car to clean up blood from
Getz’s wrists and from a cut on his face. Swoap offered to call emergency medical services, but
Getz and Trisha declined, saying he only needed his oxygen inside the house to treat a breathing
condition.
At some point after Trisha retrieved the wipes from her car, she says that Swoap asked
her if she lived at the house. Though she did not live there she told Swoap she did, and Swoap
told her to leave, go into the house, or face possible arrest for “invading my crime scene.” Trisha
asked Swoap to loosen the handcuffs and then entered the house to inform her mother, Beverly,
1
Double locking prevents the handcuffs from accidentally further tightening, which may happen if an
arrestee struggles or adjusts his arm positioning.
No. 15-3514 Getz v. Swoap Page 5
of what was happening outside. Trisha asked Beverly to go outside and monitor the situation
while she called her brother, Getz’s son, Tim. Beverley, before that point, had been unaware of
the goings-on in the driveway.
Trisha estimates that 20 minutes passed between her arrival at the scene and her call to
Tim. Trisha did not return outside until after her father was released from his handcuffs, but she
did testify that once her father came into the house, he told her that when Sergeant Spees arrived,
he “went over and took his handcuffs off immediately” and told Getz to “go inside, get yourself
cleaned up and get some oxygen.”
C. Beverly Getz’s Testimony
Mrs. Getz testified at deposition that she walked outside after Trisha spoke to her and that
“Deputy [sic] Spees pulled in shortly after that.” Though not part of Mrs. Getz’s testimony, both
parties agree, based on the police radio log, that Sergeant Spees arrived at 7:29 p.m.,
approximately four and a half minutes after Getz was arrested. When she and Getz spoke to
Spees to ask him to loosen the cuffs, “[Spees] took them right off.” Mrs. Getz could not say how
long Spees had been there when the handcuffs came off, though she thought “[h]e had just
arrived.”
D. Deputy Swoap’s Testimony
Deputy Swoap’s version of the story differs. At deposition, he stated that he tried to
make Getz sit in the back passenger seat of his cruiser but that Getz refused. Trisha arrived
around this time but remained by her car. Less than a minute later, Spees arrived and began
communicating with Getz. Spees took over primary communication with Getz because they
seemed to have a better rapport, though Swoap approached Getz “numerous” times after Spees’
arrival to ask if Getz needed medical attention. Each time, according to Swoap, Getz refused
emergency medical services and continued to either ignore Swoap or become “argumentative”
again. Swoap testified that it was Spees who got Getz to sit down and that he sat in the back of
Swoap’s cruiser, not his own car. After putting Getz in the cruiser, Spees returned to ask Swoap
if he was aware that Getz was bleeding. Swoap said he was not. Shortly thereafter Swoap says
No. 15-3514 Getz v. Swoap Page 6
he removed the handcuffs from Getz to allow Getz to use his inhaler. Swoap estimates that Getz
was handcuffed “[p]robably less than five [minutes].”
E. Sergeant Spees’ Testimony
At Sergeant Spees’ deposition, he also said he remembered Swoap removing Getz’s
handcuffs, and estimated that happened “less than ten minutes” after his arrival. Sergeant Spees’
testimony differs a bit from Swoap’s, in that he remembers both Trisha and Beverly standing
outside on the lawn when he arrived.
F. Procedural Background
On July 10, 2013 Getz filed a complaint against Deputy Swoap and the Sheriff of Wood
County. Specifically, Getz brought three § 1983 claims alleging false arrest, excessive force, and
failure to train and supervise. On March 7, 2014, Beverly Getz was appointed executrix of
Robert Getz’s estate following Robert’s death and was substituted as Plaintiff.
Defendants filed a Motion for Summary Judgment on all three claims. Plaintiff did not
contest the motion as to the false arrest and failure to train and supervise claims. The district
court granted judgment on those claims, and those claims are not before us.
The district court also granted summary judgment on the excessive force claim. The
court bifurcated its analysis, examining as two discrete actions first the application of handcuffs
and second the maintenance of handcuffs over the arrestee’s complaints of pain. First the court
held that, given Getz’s resistance and in particular his attempts to flee, the application of
handcuffs did not constitute unreasonable force violating the Fourth Amendment. As to the
maintenance of the handcuffs, the court found that “[t]he relatively short time frame in which
Mr. Getz was in handcuffs, coupled with the officer’s prompt action in removing them upon a
subsequent request after he had subdued Mr. Getz, at worst, falls into a category ‘in which
qualified immunity operates to shield officers from discretionary, on-the-spot judgments.’” Getz
v. Swoap, No. 3:13 cv 1492, 2015 WL 1530643, at *12 (N.D. Ohio April 6, 2015) (quoting
Fettes v. Hendershot, 375 F. App’x 528, 534 (6th Cir. 2010)).
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Getz filed a Notice of Appeal on May 5, 2015, challenging the district court’s entry of
summary judgment in favor of Defendant-Appellee.
II. STANDARD
We review de novo the district court’s grant of summary judgment based on qualified
immunity. Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 399 (6th Cir. 2009). “The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Qualified immunity shields government officials from civil liability in the performance of
their duties so long “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). Such immunity “gives ample room for mistaken judgments” by
protecting “all but the plainly incompetent or those who knowingly violate the law.” Johnson v.
Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 343
(1986)). Qualified immunity will ordinarily apply unless it is obvious that a reasonably
competent official would have concluded that the actions taken were unlawful. Ewolski v. City
of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002). The qualified immunity analysis is a two-step
inquiry: (1) whether a constitutional right has been violated; and (2) whether that right was
clearly established, though the steps need not be taken in that order. Pearson v. Callahan,
555 U.S. 223, 232, 236 (2009). The “clearly established” step asks whether “existing precedent
placed the conclusion” that the defendant violated the constitution under the circumstances
“beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)).
Plaintiff argues that Deputy Swoap violated Getz’s Fourth Amendment right to be free of
excessive force during his arrest. We apply the Fourth Amendment’s unreasonable seizure
jurisprudence when analyzing such claims. Morrison, 583 F.3d at 400. Whether an officer has
exerted excessive force during the course of a seizure is determined under an “objective
reasonableness” standard. Id. at 401 (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
No. 15-3514 Getz v. Swoap Page 8
In assessing objective reasonableness, “courts must balance the consequences to the individual
against the government’s interests in effecting the seizure.” Burchett v. Kiefer, 310 F.3d 937,
944 (6th Cir. 2002) (citing Graham, 490 U.S. at 396). While the analysis is fact specific, three
factors are of particular relevance: “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.” Darrah v. City of Oak Park, 255 F.3d 301, 307
(6th Cir. 2001) (citing Graham, 490 U.S. at 396). We judge the lawfulness of the conduct from
the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Morrison, 583 F.3d at 401 (quoting Graham, 490 U.S. at 396).
The parties on appeal adopt the approach of the district court in treating as two discrete
events the initial application of the handcuffs and the later maintenance of the handcuffs over
Getz’s complaints of pain. We do the same here.
A. Initial Handcuffing
We first hold that Swoap did not use excessive force in initially handcuffing Getz.
Viewing the facts in the light most favorable to Plaintiff, Swoap’s conduct in applying handcuffs
was not unreasonable, even though the first Graham factor, the severity of the crime, weighs in
favor of Getz; an equipment violation or defective headlight is not much more than an
administrative matter. When Getz began obstructing official business, and gave cause for a
custodial arrest, the confrontation began to escalate and the factor favoring Getz became more
dilute. We agree nonetheless that these remain relatively minor infractions.
The second and third Graham factors, however, weigh heavily in favor of Swoap’s
actions. As to the second factor, the threat to the officer or others, Getz’s attempts to use his car
to effectuate an escape by driving around Swoap’s cruiser posed a threat to both Swoap (Getz
drove right at Swoap until Swoap drew his firearm) and to the general public should a car chase
have become necessary. Concerning the third factor, whether the individual resisted arrest or
attempted to flee, Getz resisted arrest and continued to struggle after he was handcuffed. He also
repeatedly told Swoap he intended to flee. Getz followed up his verbal threats of flight with
No. 15-3514 Getz v. Swoap Page 9
actual attempts to drive away and to enter his house despite Swoap’s continual admonishments
that Getz was not free to leave.
It is undisputed that Getz was behaving belligerently before and after the handcuffs were
applied, that Getz actively resisted Swoap’s attempts to place him under arrest, that Getz said
that he intended to flee the scene, and that Getz did in fact try to flee the scene. Even Trisha
stated at deposition that after Getz was under arrest and handcuffed, he was still yelling at Swoap
to “get the fuck off his property.” It is also undisputed that Getz continued to lock his legs and
refused to follow Swoap’s orders after he was in handcuffs.
Swoap admits that he did not double lock or check the handcuffs for tightness. But even
assuming the handcuffs were tight enough to cause abrasions, or tightened at some point because
of the failure to double lock, a failure to take such additional cautions, in the context of a
struggling arrestee now only subdued and partially mollified, is understandable and not all
conduct that causes an arrestee discomfort or pain violates the Fourth Amendment. See Graham,
490 U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary . . . violates the
Fourth Amendment.”). This is especially true where the subject resists arrest and the use of force
is necessary to establish control and restrain the individual. See Burchett, 310 F.3d at 944.
Further, we have never held that an officer’s failure to check for tightness or double lock
handcuffs at the moment of arrest is, per se, excessive force. The analysis is, as always, fact
specific and based on the totality of the circumstances. Kostrzewa v. City of Troy, 247 F.3d 633,
639 (6th Cir. 2001).
We hold that, given the arrestee’s resistance and general noncompliance, Swoap did not
violate the Fourth Amendment when he applied handcuffs without checking for tightness and
double locking at the moment of arrest. Qualified immunity applies to this claim.
B. Maintenance of the Handcuffs
The analysis differs once an arrestee has complained that the handcuffs are too tight. In
general “[t]he Fourth Amendment prohibits unduly tight or excessively forceful handcuffing
during the course of a seizure.” Morrison, 583 F.3d at 401. In order for a handcuffing claim to
survive summary judgment, a plaintiff must offer sufficient evidence to identify a genuine issue
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of material fact that (1) he complained the handcuffs were too tight; (2) the officer ignored those
complaints; and (3) the plaintiff experienced “some physical injury” resulting from the
handcuffing. Id.Even assuming, arguendo, that the alleged facts are sufficient to establish a constitutional
violation, a “court must go beyond the question whether the facts are adequate to support a claim
that excessively (unreasonably) tight handcuffs, of which the plaintiff complained to no avail,
caused injury.” Fettes, 375 F. App’x at 535 (White, J. concurring in part and dissenting in part).
The court must also ask whether the right was clearly established, that is, “whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). Our precedents would not place a reasonable officer
on notice that the conduct in this case, especially in light of Getz’s belligerent noncompliance,
was unlawful. See Hope v. Pelzer, 536 U.S. 730, 739-41 (2002) (discussing the “notice” or “fair
warning” standard).
Our excessive-force-handcuffing cases almost exclusively involve plaintiffs who were
compliant and gave officers no reason to delay responding to their complaints, and we have
always noted such compliance. See, e.g., Baynes v. Cleland, 799 F.3d 600, 604 (6th Cir. 2015)
(“[Plaintiff] and [the officers] generally agree that Baynes was cooperative with the officers’
instructions and that he was placed in custody without incident.”); Morrison, 583 F.3d at 398(“[The arresting officer] acknowledged that [Plaintiff] was entirely compliant with his directions
while she was handcuffed and that at no point did she attempt to struggle or flee.”); Kostrzewa,
247 F.3d at 639 (“There is also no evidence that the plaintiff attempted to flee from the officers,
or that he resisted arrest in any way.”); Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 173
(6th Cir. 2004) (before being handcuffed plaintiff was “not a flight risk and, in fact, was
following [the officer’s] order” and “was not actively resisting arrest”); Walton v. City of
Southfield, 995 F.2d 1331, 1334 (6th Cir. 1993) (“[Plaintiff] put her hands behind her back, and
[the officer] then put on the handcuffs from behind [Plaintiff] and put her into the police car.”).
Even cases in which a noncompliant arrestee resists or flees fail to provide much
guidance to officers in defining the contours of the right to be free from excessively tight
handcuffing. In many of those cases we found no violation either because officers immediately
No. 15-3514 Getz v. Swoap Page 11
responded when the arrestee complained, see, e.g., Burchett, 310 F.3d at 945, or because the
arrestee failed to complain at all, see, e.g., Lyons v. City of Xenia, 417 F.3d 565, 576 (6th Cir.
2005). Because these claims would have failed even if the plaintiff were compliant, we did not
opine as to what effect noncompliance would have on the analysis. To the extent we have
addressed cases in which an arrestee disobeys an officer, we have noted that in excessive force
cases the fact of noncompliance amounts to a “critical difference” and accordingly condoned
greater use of force than we would have had the arrestee been compliant. See Marvin v. City of
Taylor, 509 F.3d 234, 248 (6th Cir. 2007) (“[W]e find that the Defendants did not violate
[Plaintiff’s] Fourth Amendment rights . . . because the Defendants acted in an objectively
reasonable manner in light of [Plaintiff’s] heavily intoxicated state, abusive language, and his
resistance to arrest.”). In Marvin we explicitly distinguished handcuffing cases where the
arrestee is compliant and indicated that officers have more leeway in the use of force where an
arrestee is noncompliant. Id. Marvin specifically noted that in judging an officer’s actions “it is
necessary to consider whether [the arrestee] was resisting arrest.” Id. at 246.
Here, it is undisputed that Getz attempted to flee, resisted arrest, belligerently continued
to disobey orders after his arrest, and continued to address Swoap with abusive language. Our
cases indicate that Swoap was entitled to some additional leeway in his approach to Getz as an
arrestee. We hold that a reasonably competent officer could conclude that Swoap’s actions were
lawful. He is therefore immune from suit. See Malley, 475 U.S. at 341 (Qualified immunity
“provides ample protection to all but the plainly incompetent or those who knowingly violate the
law.”).
Recent decisions such as Baynes v. Cleland are not to the contrary. See 799 F.3d at 600.
In that case we attempted to clarify the line between factual questions for the jury (the
reasonableness of an officer’s actions) and the question whether a right is clearly established.
Baynes reversed a district court’s grant of summary judgment based on qualified immunity,
holding that “the district court turned the factual determinations best left to the jury into factors
militating in favor of qualified immunity.” Id. at 615. That is not the case here. Our focus here
is not on the facts, but on the dearth of law putting an officer on notice that his treatment of a
belligerent and noncompliant arrestee is unlawful.
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The district court was correct in stating that “[t]he relatively short time frame in which
Mr. Getz was in handcuffs, coupled with the officer’s prompt action in removing them upon a
subsequent request after he had subdued Mr. Getz, at worst, falls into a category ‘in which
qualified immunity operates to shield officers from discretionary, on-the-spot judgments.’” Getz,
2015 WL 1530643, at *12 (quoting Fettes, 375 F. App’x at 534). The parties agree that Getz
was in handcuffs for about four-and-a-half minutes before Spees arrived. Trisha and Mrs. Getz,
Plaintiff’s primary witnesses, both agree that the handcuffs were removed very shortly after
Spees’ arrival. Further, it is undisputed that Getz attempted to flee and resisted arrest. He
continued to resist and use abusive language towards Swoap for at least some period of time after
he was placed in handcuffs.
Plaintiff relies heavily, indeed almost exclusively, on Trisha’s equivocal testimony that
she “was probably outside 20 minutes” in order to establish that Getz was in handcuffs for at
least twenty minutes. This is, Appellant argues, clearly too long for Swoap to ignore Getz and
creates a genuine issue of material fact precluding summary judgment. We disagree for two
reasons.
First, taking Trisha’s other testimony and the undisputed police log together, no
reasonable jury could credit Trisha’s opinion that she was outside for twenty minutes. “When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). In Scott the plaintiff’s story was contradicted by a videotape, here it is contradicted by
the radio log. See id. The police radio log is clear—and no party disagrees—that about four-
and-a-half minutes passed between Getz’s arrest and Spees’ arrival. Trisha’s testimony is equally
clear that she arrived after Getz’s arrest but went inside her parents’ home before Spees’ arrival.
We must view the facts in light of the objective and undisputed radio log. Id. at 380-81 (“The
Court of Appeals should not have relied on such visible fiction; it should have viewed the facts
in the light depicted by the videotape.”) The radio log “blatantly” contradicts Trisha’s
recollection. See id. at 380.
No. 15-3514 Getz v. Swoap Page 13
Appellant tries to overcome the radio log by arguing that a jury could simply believe that
Trisha was wrong about being inside the house when Spees arrived. Presumably, Appellant
thinks that a jury could conclude that she was actually outside for fifteen or more minutes while
Spees was there and just didn’t remember Spees’ presence or his interactions with her father
during that time. But a court is required to draw only reasonable inferences—from specific facts
actually alleged—in favor of the non-movant, not credit some facts, discredit others, and confect
still more in order to arrive at a story that allows a case to survive summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Second, even if a reasonable jury were to credit Trisha’s testimony, she did not testify
that Getz was in handcuffs and compliant for twenty minutes. As explained above, the fact of
compliance is a “critical difference” in cases such as this. See Marvin, 509 F.3d at 248. Even
viewing the facts in the light most favorable to Plaintiff, it is clear that Getz was in handcuffs
and compliant for a very short period of time before the handcuffs were removed. We conclude
that, considering Getz’s noncompliance, none of our precedents would have put Swoap on notice
that his conduct violated the Fourth Amendment. Swoap is entitled to qualified immunity for the
maintenance of Getz’s handcuffs.
IV. CONCLUSION
For the foregoing reasons the judgment of the district court is AFFIRMED.