Waters v. Coleman , 632 F. App'x 431 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 3, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GAIL WATERS, as personal
representative of the Estate of Alonzo
Ashley,
Plaintiff - Appellee,
No. 14-1431
v. (D.C. No. 1:12-CV-01856-MSK-BNB)
(D. Colo.)
PHILLIP COLEMAN, a Denver Police
Department Officer, in his official and
individual capacity; PETE CONNER, in
his official and individual capacity; JOE
GASCA, in his official and individual
capacity; JUSTIN JONES, in his official
and individual capacity,
Defendants - Appellants,
and
CITY AND COUNTY OF DENVER,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
_________________________________
Police officers Phillip Coleman, Pete Conner, Joe Gasca, and Justin Jones
appeal from the district court’s denial of qualified immunity in this 42 U.S.C. § 1983case alleging excessive use of force against Alonzo Ashley, who tragically died after
struggling with and being restrained by the officers. We reverse in part and dismiss
in part for lack of jurisdiction.
I. BACKGROUND
On July 18, 2011, Mr. Ashley and his girlfriend visited the Denver Zoo.
Mr. Ashley attempted to cool off under a water fountain and zoo patrons called
security. Aplt. App., Vol. IV at 346. A zoo security guard questioned Mr. Ashley
and the situation escalated. According to the zoo security guard, he was attacked by
Mr. Ashley resulting in a few cuts and scrapes. Id. at 354; Aplee. Br. at 6 n.1.
Because of Mr. Ashley’s conduct, zoo employees called the police, and Officer Jones
responded to what was reported as a domestic violence incident. When Officer Jones
arrived, a zoo employee told him that Mr. Ashley had assaulted a security officer.
Officer Jones drew his Taser, approached Mr. Ashley and ordered him to sit
down. Mr. Ashley did so, but then he got up and starting walking toward the exit.
Officer Jones followed him, noticing that Mr. Ashley was sweating profusely. That
is a symptom of a physiological condition known as excited delirium. As recognized
by the district court, “It is often impossible to control individuals experiencing
excited delirium using traditional pain compliance techniques. Paradoxically, these
2
individuals are physiologically more likely to die from a prolonged struggle, but also
more likely to physically resist restraint.” Aplt. App., Vol. IV at 539.
After about fifteen yards, Mr. Ashley stopped walking. He then moved toward
Officer Jones, and the officer attempted to grab his arms to put them behind his back.
Mr. Ashley resisted, and a zoo security officer joined the struggle. Officer Jones
tackled Mr. Ashley, and at least two more zoo employees attempted to assist.
Mr. Ashley threw punches, and Officer Jones punched him twice in the abdominal
area. He also deployed his Taser in “drive stun” mode to Mr. Ashley’s back.
Officer Coleman was the next officer to arrive. He perceived that Mr. Ashley
was resisting Officer Jones and several zoo employees. After Officer Coleman
arrived, Officer Jones deployed his Taser a second time, this time on Mr. Ashley’s
side. Officer Coleman deployed his Taser in “drive stun” mode twice. He noticed
that “Mr. Ashley seemed extremely strong,” and he heard Mr. Ashley say “something
to the effect of ‘help me Grandma. I don’t want to go.’” Id. (internal quotation
marks omitted). Unusual strength and mental confusion are both symptoms of
excited delirium.
As other officers arrived, they joined the struggle. Lieutenant Conner and two
other officers unsuccessfully used his Orcutt Police Nunchaku (OPN)1 to try to
control Mr. Ashley’s legs. Lieutenant Conner then assisted a zoo employee with
handcuffing Mr. Ashley’s right wrist and helped control his left arm so his left wrist
1
The Orcutt Police Nunchaku is a controlling device made of two pieces of
hard plastic that are connected with a short piece of nylon rope.
3
could be handcuffed. Lieutenant Conner noticed that Mr. Ashley exhibited no
reaction to pain-compliance techniques. He suspected that Mr. Ashley was
intoxicated or suffering from excited delirium.
When Officer Gasca arrived, he saw two people with their knees on
Mr. Ashley’s shoulders. He also saw that Mr. Ashley had vomited. He restrained
Mr. Ashley’s legs by crossing his ankles, bending his knees, putting his ankles to his
buttocks, and kneeling or leaning on his legs. Officer Gasca remained in this position
for several minutes after Mr. Ashley was handcuffed. He recognized that Mr. Ashley
exhibited superior strength and profuse sweating and that the officers had difficulty
controlling him.
After Mr. Ashley was handcuffed, he remained on his stomach from two to
five minutes, with Officer Gasca restraining his legs during some or all of this time.
Lieutenant Conner called for medical assistance. Mr. Ashley again vomited, and
Lieutenant Conner directed officers to move him away from the vomit. Mr. Ashley
then stopped breathing, and an officer began chest compressions. Paramedics arrived
and transported him to the hospital, where he was pronounced dead.
Mr. Ashley’s mother, as his personal representative, brought suit against the
city, the zoo, and their employees under § 1983 and state law. As relevant to this
appeal, the district court denied the officers qualified immunity on the § 1983 claims,
holding that a reasonable jury could conclude that the officers used excessive force
against Mr. Ashley and that the law prohibiting such excessive force was clearly
established at the time of the incident.
4
II. ANALYSIS
A. Standard of Review
Our review is de novo. Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir.
2005). “A district court’s denial of a summary judgment motion . . . is subject to
immediate appeal when the defendant is a public official asserting qualified
immunity and the issue appealed is one of law.” Id. at 966. But “the scope of our
inquiry is limited to legal challenges to the denial.” Id. “Where the district court has
identified facts that it assumed in denying summary judgment, we generally lack
jurisdiction to review underlying questions of evidentiary sufficiency. Instead, [we]
usually take[] the facts as assumed by the district court in conducting its review of
pertinent legal questions” Id. (citation omitted).
With regard to certain findings, defendants urge us to apply the exception
created by Scott v. Harris, 550 U.S. 372, 380 (2007), where the Supreme Court
declined to accept facts that were “blatantly contradicted by the record, so that no
reasonable jury could believe it.” We decline this invitation. Defendants do not
present the type of conclusive evidence as was involved in Scott (a videotape
showing the events) and many of their arguments amount to questioning evidentiary
sufficiency, which we lack jurisdiction to address. “[W]e must scrupulously avoid
second-guessing the district court’s determinations regarding whether [the plaintiff]
has presented evidence sufficient to survive summary judgment.” Fancher v.
Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (internal quotation marks omitted).
5
B. Legal Standards
The legal standards for qualified immunity are well-established: “When a
defendant asserts qualified immunity at summary judgment, the burden shifts to the
plaintiff to show that: (1) the defendant violated a constitutional right and (2) the
constitutional right was clearly established. Only if the plaintiff has satisfied both
steps is qualified immunity defeated.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir.
2012) (citation and internal quotation marks omitted). We have discretion to
determine which prong to examine first, Estate of Booker v. Gomez, 745 F.3d 405,
412 (10th Cir. 2014), although “the Supreme Court has recently instructed that courts
should proceed directly to, ‘should address only,’ and should deny relief exclusively
based on the second element” in certain circumstances, Kerns v. Bader, 663 F.3d
1173, 1180 (10th Cir. 2011) (quoting Camreta v. Greene, 563 U.S. 692, 131 S. Ct.
2020, 2032 (2011)).
As to the first qualified-immunity prong, this case is governed by the Fourth
Amendment’s “objective reasonableness” test. Graham v. Connor, 490 U.S. 386,
388, 394-95 (1989). Under this standard, “the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at
397. We pay “careful attention to the facts and circumstances of each particular case,
including [1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3] whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. at 396. “The
6
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.“The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation.” Id. at 396-97.
As for the second qualified-immunity prong, “a defendant cannot be said to
have violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes would have understood
that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). “The
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (internal
quotation marks omitted). “Ordinarily, in order for the law to be clearly established,
there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as
the plaintiff maintains.” Morris, 672 F.3d at 1196. Given the unlikelihood of cases
that are factually identical, however, “we have adopted a sliding scale: The more
obviously egregious the conduct in light of prevailing constitutional principles, the
less specificity is required from prior case law to clearly establish the violation.” Id.
(internal quotation marks omitted). But “existing precedent must have placed the
statutory or constitutional question confronted by the official beyond debate.”
7
Plumhoff, 134 S. Ct. at 2023 (internal quotation marks omitted). If the facts place the
case in the “hazy border between excessive and acceptable force,” the law is not
clearly established. Brosseau, 543 U.S. at 201 (internal quotation marks omitted).
The district court examined the conduct of each officer individually. The
parties do not object to this procedure, so we do the same. See, e.g., Walker v. City
of Orem, 451 F.3d 1139, 1159 (10th Cir. 2006) (“We will consider the officers’
conduct separately for purposes of this de novo [qualified immunity] inquiry.”).
C. Officer Jones
The district court concluded that Officer Jones’ conduct could be considered
unconstitutional and that Graham alone clearly established the law. We need not
decide the constitutional issue because the district court erred in concluding that the
law was clearly established.
The Supreme Court has “repeatedly told courts not to define clearly
established law at a high level of generality, since doing so avoids the crucial
question whether the official acted reasonably in the particular circumstances that he
or she faced.” Plumhoff, 134 S. Ct. at 2023 (citation, ellipsis, and internal quotation
marks omitted). And the Court has characterized Graham as “cast at a high level of
generality,” indicating that it alone can establish the law only in an “obvious case.”
Brosseau, 543 U.S. at 199. As in Brosseau, “[t]he present case is far from the
obvious one where Graham . . . alone offer[s] a basis for decision.” Id.The district court found sufficient evidence to support the following facts with
regard to Officer Jones. Officer Jones had probable cause to arrest Mr. Ashley for
8
assault. Mr. Ashley initially obeyed the command to sit down but then he got up and
started walking toward the exit. Officer Jones followed Mr. Ashley, and he noticed
that Mr. Ashley was sweating heavily. But then Mr. Ashley stopped and moved
toward Officer Jones. At that point, Officer Jones grabbed Mr. Ashley’s arms.
Mr. Ashley resisted; Officer Jones then tackled him, and as they struggled, punched
him in the stomach twice and deployed the Taser twice.
The question then is whether case law existing as of July 2011 would alert any
reasonable officer that (1) when faced with an assault suspect who was apparently
attempting to leave the area, who may have been suffering from excited delirium, and
who then moved toward him, it would be excessive force for the officer to grab the
suspect’s arms; and (2) when the suspect forcibly resisted, it would be excessive to
escalate the amount of force and tackle him to the ground, punch him twice in the
stomach, and deploy a Taser twice. We conclude that the law in this circuit as of
July 2011 would not have put a reasonable officer on notice that this conduct could
be considered excessive.
First we consider the initial use of force. Officer Jones had probable cause to
arrest Mr. Ashley for assault. “In Graham, the Court noted that the Fourth
Amendment recognizes the right of the police, in making an arrest or a stop, ‘to use
some degree of physical coercion or threat thereof to effect it,’” Hinton v. City of
Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (quoting Graham, 490 U.S. at 396), and
grabbing Mr. Ashley’s arms was not a great use of force, see Gallegos v. City of
Colo. Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) (grabbing person’s arm was “a
9
relatively minor application of force”). If the encounter had ended there, it is
unlikely that a court would conclude even the first qualified-immunity prong was
satisfied. See Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007) (“We have
little difficulty in concluding that a small amount of force, like grabbing [plaintiff]
and placing him in the patrol car, is permissible in effecting an arrest under the
Fourth Amendment.”).
The district court was troubled by the fact that Officer Jones noticed that
Mr. Ashley was sweating profusely, implying that the officer should have recognized
that Mr. Ashley was suffering from excited delirium. This court has held that a
detainee’s mental health is part of the factual circumstances that the court considers
under Graham. See Aldaba v. Pickens, 777 F.3d 1148, 1155 (10th Cir.), petition for
cert. filed, 83 U.S.L.W. 3934 (U.S. June 17, 2015) (No. 14-1492). But Ms. Waters
identifies no Supreme Court or Tenth Circuit decision existing in July 2011 that
required officers to refrain from a minimal use of force when dealing with an
impaired individual, particularly one who reportedly has committed a crime against
another person. To the contrary, in a published decision in 2005, this court upheld
the use of force against a man taking antidepressant medication, see Phillips v.
James, 422 F.3d 1075, 1081, 1083 (10th Cir. 2005); in an unpublished decision in
2007, this court upheld the use of force against a woman with mental health
problems, see Giannetti v. City of Stillwater, 216 F. App’x 756, 762-66 (10th Cir.
2007); and in a published decision in 2008, this court did not disapprove of the initial
10
use of force against a detainee who was apparently intoxicated and behaving
bizarrely, see Weigel v. Broad, 544 F.3d 1143, 1148, 1155 (10th Cir. 2008).2
The district court also noted that Officer Jones’ use of force “appears to have
triggered Mr. Ashley’s response and the escalation in force to subdue him.” Aplt.
App., Vol. IV at 538. It is (and was) clear, however, that the totality of the
circumstances matter and “[t]he reasonableness standard does not require that
officers use alternative less intrusive means.” Medina v. Cram, 252 F.3d 1124, 1133
(10th Cir. 2001) (internal quotation marks omitted). Moreover, “in order to
constitute excessive force, the conduct arguably creating the need for force . . . must
rise to the level of recklessness, rather than negligence.” Id. at 1132. Given what
occurred previously, Ms. Waters identifies no decisions indicating that grabbing a
suspect’s arms when he is approaching an officer rises to the level of recklessness.
Next we consider the escalation in force. The key fact here is that while
Officer Jones was applying force, Mr. Ashley was resisting being taken into custody.
In several cases decided before 2011, this court upheld use of force by officers who
2
As discussed below with regard to Officer Coleman, Weigel involved a
protracted struggle between a detainee and two state troopers in which the detainee
was kept under restraint even after being subdued. 544 F.3d at 1148-49. This court
ultimately held that the troopers were not entitled to qualified immunity because a
reasonable jury could conclude that the continued restraint, after the detainee was
under control, was excessive. See id. at 1153, 1155. But the court “acknowledge[d]
that, up to a point, the troopers were protecting themselves and the public from [the
detainee] and [the detainee] from himself.” Id.; see also id. (Hartz, J., concurring)
(“I do not think that the defendants violated [the detainee’s] constitutional rights
before his legs were bound.”); id. at 1156 (O’Brien, J., dissenting) (“[The decedent’s]
acts, not those of these troopers, escalated the violence to an extremely dangerous
level. His behavior fully justified the restraints employed as well as their duration.”).
11
faced physical resistance, including against persons who were impaired. See Weigel,
544 F.3d at 1148, 1155 (tackling to ground, chokehold); Gallegos, 114 F.3d at
1030-31 (tackling to ground); Hinton, 997 F.2d at 781, 782 (wrestling to ground and
using stun gun); Giannetti, 216 F. App’x at 760, 762, 765 (struggle in which multiple
officers held detainee’s legs, arms, head, and held her back down); see also Aldaba,
777 F.3d at 1158 (“In cases where the subject actively resisted a seizure, whether by
physically struggling with an officer or by disobeying direct orders, courts have held
either that no constitutional violation occurred or that the right not to be tased in
these circumstances was not clearly established.”). Further, the pre-2011 cases
holding that force may have been excessive tend to emphasize a detainee’s lack of
resistance. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 665-66 (10th Cir.
2010); Casey v. City of Fed. Heights, 509 F.3d 1278, 1285 (10th Cir. 2007). In light
of these decisions, it would not have been clear to a reasonable officer that the
conduct at issue might be unlawful in these circumstances. At best, the facts place
the case in the “hazy border between excessive and acceptable force.” Brosseau,
543 U.S. at 201 (internal quotation marks omitted).
For these reasons, we conclude that in July 2011 it was not clearly established
that the force used by Officer Jones could be considered excessive. Officer Jones is
entitled to qualified immunity.
D. Officer Coleman
The district court held that Officer Coleman’s conduct could be
unconstitutional and that the law was clearly established by Weigel, 544 F.3d at 1152.
12
As with Officer Jones, we need not decide whether Officer Coleman violated
Mr. Ashley’s constitutional rights because the law was not clearly established.
The district court found sufficient evidence to support the following facts with
regard to Officer Coleman. The struggle had already begun when Officer Coleman
arrived. When he arrived, Officer Jones and three zoo employees were holding
Mr. Ashley on the ground. Officer Coleman perceived that Mr. Ashley continued to
resist; at the least, he was flailing his arms. After Officer Coleman’s arrival,
Officer Jones deployed his Taser on Mr. Ashley’s side. During the struggle,
Officer Coleman deployed his Taser twice. In his opinion, “Mr. Ashley seemed
extremely strong,” and he heard Mr. Ashley say “something to the effect of ‘help me
Grandma. I don’t want to go.’” Aplt. App., Vol. IV at 539 (internal quotation marks
omitted). The district court stated that these were “both signs of a physiological
condition known as excited delirium” and that officers receive training on how to
recognize the symptoms of excited delirium and respond appropriately. Id.In light of these facts, then, the question is whether case law existing as of
July 2011 would alert any reasonable officer that it would be excessive force to join
in a struggle between an officer and civilians on the one hand and a detainee on the
other hand and to deploy a Taser twice, where the detainee appears to be resisting but
may be suffering from excited delirium. We conclude that the law in this circuit as
of July 2011 would not have put a reasonable officer on notice that such conduct
could be considered excessive.
13
Again, the key fact is that the struggle was ongoing when Officer Coleman
applied the force that is complained of. Officer Coleman perceived that Mr. Ashley
seemed very strong and continued to resist. Therefore, the cases cited above with
regard to Officer Jones also support applying qualified immunity to Officer Coleman.
Moreover, even if the officer was mistaken in his belief that Mr. Ashley was
resisting, the belief was not unreasonable under the circumstances. It is well-
established that “[i]f an officer reasonably, but mistakenly, believed that a suspect
was likely to fight back the officer would be justified in using more force than in fact
was needed.” Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004) (ellipsis
and internal quotation marks omitted).
In discussing the state of the law, the district court relied solely on Weigel:
[I]n Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008) an officer “applied
pressure to [the decedent’s] upper body, including his neck and
shoulders, by using either one or both knees and his hands” despite [the
facts that] the decedent’s “apparent intoxication, bizarre behavior, and
vigorous struggle made him a strong candidate for positional
asphyxiation.” Id. at 1152, 1148. There, the Tenth Circuit reversed the
district court’s grant of summary judgment in favor of the defendant
because holding the decedent in this manner “was constitutionally
unreasonable due to the significant risk of positional asphyxiation
associated with such actions.” Id. at 1155.
The incident at issue here occurred in July 2011, nearly three
years after the Tenth Circuit decided Weigel. Accordingly there was
sufficient precedent to put the Defendants on notice that a reduced use
of force is appropriate for an individual suffering from excited delirium.
Aplt. App., Vol. IV at 544-45 (footnote omitted). What the district court failed to
recognize, however, is that this court did not consider all the force in Weigel
14
unconstitutional. Rather, if the Weigel plaintiffs’ version of the facts were proved, a
constitutional use of force evolved into excessive force.
During the first phase of the incident in Weigel, the detainee was struggling
with officers. This court did not consider this initial use of force unconstitutional;
rather, we recognized that “up to a point, the troopers were protecting themselves and
the public from [the detainee] and [the detainee] from himself.” Weigel, 544 F.3d at
1155; see also id. (Hartz, J., concurring) (“I do not think that the defendants violated
[the detainee’s] constitutional rights before his legs were bound.”); id. at 1156(O’Brien, J., dissenting) (“[The detainee’s] acts, not those of these troopers, escalated
the violence to an extremely dangerous level. His behavior fully justified the
restraints employed as well as their duration.”). During the second phase, the
detainee was subdued and under control, yet officers continued to apply pressure to
his back for a significant period after he was no longer a threat and no longer
struggling. Id. at 1152. The second-phase behavior was what this court held could
be considered to be excessive force. See id. at 1152-53, 1155.
Officer Coleman’s actions occurred before Mr. Ashley was restrained and
therefore his conduct is analogous to Weigel’s first phase, not its second phase.
Accordingly, Weigel does not clearly establish that Officer Coleman’s actions could
be considered excessive.3
3
With regard to Officers Coleman and Gasca and Lieutenant Conner,
Ms. Waters also relies on Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).
The conduct at issue in Cruz was “the tying of the decedent’s arms behind his back,
(continued)
15
For these reasons, we conclude that in July 2011 it was not clearly established
that the force used by Officer Coleman could be considered excessive in these
circumstances. Officer Coleman is entitled to qualified immunity.
E. Lieutenant Conner
Ms. Waters sued Lieutenant Conner both for his hands-on participation in the
struggle and his supervisory conduct.
1. Hands-On Participation
The district court concluded that there was a fact issue as to the
constitutionality of Lieutenant Conner’s hands-on participation. It did not make a
separate state-of-the-law analysis but instead addressed the state of the law as to him
and Officers Coleman and Gasca together. Thus, as discussed above, the district
court relied solely on Weigel to hold that the law was clearly established. We need
not address the constitutionality of Lieutenant Conner’s hands-on participation,
because the law was not clearly established.
The district court found sufficient evidence to support the following facts with
regard to Lieutenant Conner’s hands-on participation. After Lieutenant Conner got
to the zoo, but before he reached the struggle, he heard the sound of a Taser being
deployed. When he arrived on the scene he saw Mr. Ashley lying on his side with
binding his ankles together, securing his ankles to his wrists, and then placing him
face down on the ground.” Id. at 1188. This conduct is not analogous to the force
employed by Officer Coleman or Lieutenant Conner. Cruz is more analogous to
Officer Gasca’s post-handcuffing conduct. But as discussed below, we lack
jurisdiction to consider the denial of qualified immunity for post-handcuffing
conduct, and so we need not discuss Cruz.
16
Officers Jones and Coleman and two zoo employees holding him down. He joined
the struggle by applying his OPN to Mr. Ashley’s legs, but was unsuccessful;
Mr. Ashley showed no reaction to the pain-compliance technique. Lieutenant Conner
then assisted a zoo employee with handcuffing Mr. Ashley’s right wrist and helped
control Mr. Ashley’s left arm so the left wrist could be handcuffed. During the
struggle he noticed that Mr. Ashley had “super human strength” and he believed
Mr. Ashley “was under some type of intoxication or maybe excited delirium.” Aplt.
App., Vol. IV at 540 (internal quotation marks omitted).
The question then is whether case law existing as of July 2011 would alert any
reasonable officer that it would be excessive force to join in a struggle between two
officers and civilians on the one hand and a detainee on the other hand, to apply an
OPN, and to hold the detainee’s arms and assist in handcuffing, where the detainee
appears to be resisting but may be intoxicated or suffering from excited delirium.
Again, the key fact is that the struggle was ongoing when Lieutenant Conner
applied the complained-of force. Lieutenant Conner perceived that Mr. Ashley
exhibited no reaction to pain-compliance measures and had superhuman strength
given his size. Therefore, the body of case law cited above with regard to Officers
Jones and Coleman again supports granting qualified immunity to Lieutenant Conner
for his hands-on participation in the struggle. Further, for the reasons discussed
above with regard to Officer Coleman, Weigel does not clearly establish the law with
regard to this stage of the incident.
17
For these reasons, we conclude that in July 2011 it was not clearly established
that Lieutenant Conner’s hands-on conduct could be considered excessive in these
circumstances. Lieutenant Conner is entitled to qualified immunity for his hands-on
participation in the struggle.
2. Supervisory Conduct
Lieutenant Conner was the ranking officer on the scene. After Mr. Ashley was
handcuffed, he summoned medical assistance and directed other officers in the
performance of their duties. The district court allowed a claim against him in his
supervisory capacity to proceed because “[d]espite being a supervisory officer and
recognizing that Mr. Ashley was experiencing excited delirium, Officer Conner
testified that he did not intervene when the other officers continued to hold
Mr. Ashley on his stomach for between two and five minutes after being
handcuffed.” Aplt. App., Vol. IV at 545; see Booker, 745 F.3d at 421 (“[W]e
have . . . denied qualified immunity when an officer failed to prevent others from
using excessive force even though the officer himself did not engage in excessive
force.”).
Lieutenant Conner’s argument regarding his supervisory conduct essentially
challenges the district court’s factual findings. Particularly, he argues that there is no
showing that he failed to intervene in the use of excessive force by any other officer.
But the district court concluded otherwise. Accordingly, we lack jurisdiction to
consider the denial of qualified immunity for Lieutenant Conner’s post-handcuffing
18
supervisory conduct. See Fancher, 723 F.3d at 1199-1200. We dismiss this portion
of Lieutenant Conner’s appeal.
F. Officer Gasca
As with Lieutenant Conner, the district court concluded that there was a fact
issue as to the constitutionality of Officer Gasca’s conduct. And as with
Officer Coleman and Lieutenant Conner, the court concluded that Weigel clearly
established the law. We reverse the district court’s decision in part and dismiss
Officer Gasca’s appeal in part.
The district court found sufficient evidence to support the following facts with
regard to Officer Gasca’s conduct. When Officer Gasca arrived, he saw two people
with their knees on Mr. Ashley’s shoulders. He also perceived that Mr. Ashley had
vomited. He restrained Mr. Ashley’s legs by crossing Mr. Ashley’s ankles, bent his
knees back, put his ankles to his buttocks and kneeled on them; in an alternate
description, the district court stated that he “used body weight to keep Mr. Ashley on
his stomach and to press his legs into his back.” Aplt. App., Vol. IV at 541.
Officer Gasca “remained in this position for several minutes after Mr. Ashley was
handcuffed.” Id. Officer Gasca perceived the various signs of excited delirium
already mentioned: his strength, he was sweating profusely, and the officers could
not control him.
For the reasons discussed above, if Officer Gasca applied the complained-of
force in an effort to control Mr. Ashley while he was resisting arrest and struggling
with officers, the law would not have been clearly established and Officer Gasca is
19
entitled to qualified immunity. Although the district court’s order is somewhat
equivocal, it stated that “Officer Gasca joined the struggle,” id.; it weighed the first
Graham factor in favor of Officer Gasca, as it did with Officer Coleman and
Lieutenant Graham; and it noted Officer Gasca’s perception that officers could not
control Mr. Ashley. It also explicitly found that Officer Gasca’s restraint of
Mr. Ashley’s legs continued after he was handcuffed. Therefore, we understand the
district court to have found that Mr. Ashley had not been handcuffed and continued
to act in a manner indicating he was resisting arrest at the time Officer Gasca arrived.
In those circumstances, consistent with our discussion of the other officers’ conduct,
the law was not clearly established that Officer Gasca’s actions before Mr. Ashley
was handcuffed could be considered excessive force. He is entitled to qualified
immunity for his conduct up to that point. Accordingly, the district court’s denial of
qualified immunity is reversed to the extent it applies to force Officer Gasca used
before Mr. Ashley was handcuffed.
The district court, however, explicitly found that the evidence would support a
determination that Officer Gasca continued to restrain Mr. Ashley’s legs, while he
was in a prone position, for several minutes after he was handcuffed. And the district
court found that there was evidence that Officer Gasca did so after perceiving that
Mr. Ashley had vomited and that he had exhibited symptoms of excited delirium.
These findings are analogous to the force considered potentially excessive in Weigel,
544 F.3d at 1153 (“[T]here is evidence that for three minutes the troopers subjected
[the detainee] to force that they knew was unnecessary to restrain him and that a
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reasonable officer would have known presented a significant danger or asphyxiation
and death.”). Officer Gasca’s argument that he is entitled to qualified immunity rests
on the fact that Mr. Ashley was struggling when he arrived; he does not address the
findings regarding his post-handcuffing conduct. Thus, as to the portion of the
proceedings beyond the point that Mr. Ashley was handcuffed, Officer Gasca’s
argument implicitly “depends upon a challenge to the facts the district court
concluded a reasonable jury could infer based upon the evidence in the summary
judgment record.” Fancher, 723 F.3d at 1199. This court therefore lacks jurisdiction
to consider the denial of qualified immunity for Officer Gasca’s post-handcuffing
conduct. See id. at 1199-1200. This portion of Officer Gasca’s appeal is dismissed.
III. CONCLUSION
We reverse the district court’s decision denying qualified immunity to
(1) Officer Jones, (2) Officer Coleman, (3) Lieutenant Conner for his hands-on
participation in the struggle with Mr. Ashley, and (4) Officer Gasca for his
participation in the struggle before Mr. Ashley was handcuffed, and we remand with
instructions to grant qualified immunity on the excessive-force claims in accordance
with this decision. We dismiss the appeal as to the denial of qualified immunity
(1) to Officer Gasca for his conduct after Mr. Ashley was handcuffed, and (2) to
Lieutenant Conner for his supervisory conduct after Mr. Ashley was handcuffed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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