Lewis v. Sandoval , 428 F. App'x 808 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
June 27, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
DAMON LEWIS,
Plaintiff-Appellant,
v. No. 10-2075
(D.C. No. 1:09-CV-00136-KBM-WDS)
MICHAEL SANDOVAL, an Officer (D. N.M.)
of the Los Lunas Police Department,
Indivdually; VILLAGE OF LOS
LUNAS, a Municipal entity organized
under the laws of the State of New
Mexico,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.
Damon Lewis appeals the grant of summary judgment based on qualified
immunity to Michael Sandoval, a police officer with the Village of Los Lunas,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
New Mexico. Lewis claims that disputed facts preclude summary judgment in
this case. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
In April 2007, Lewis was driving home from work. Sandoval had been
operating a radar unit and detected Lewis traveling forty-nine miles per hour in a
thirty-miles-per-hour zone. Sandoval pulled behind Lewis in his marked patrol
car and turned on his emergency overhead lights, but Lewis did not stop.
Sandoval activated his police siren as well, but still Lewis drove on. With
Sandoval in pursuit, Lewis continued through a residential area, accelerating
down multiple streets until he arrived home and got out of his truck. Sandoval
pulled in the driveway behind him and ordered him back into the truck. Other
officers soon arrived, and Lewis was arrested for eluding and operating without
insurance. He was taken to the police station, booked, and released later that day.
The charges were eventually dropped, but a police dispatch recording captured
audio of the incident.
Lewis subsequently initiated this civil rights action, flatly denying that he
was speeding or saw Sandoval while driving home. He therefore claimed
Sandoval lacked probable cause to arrest him or initiate any criminal prosecution.
He also claimed Sandoval used excessive force by over-tightening his handcuffs
and making him wait ten minutes before loosening the handcuffs at the police
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station. Based on these alleged constitutional violations, Lewis lodged municipal
liability claims against the Village of Los Lunas as well.
Sandoval moved for summary judgment on qualified immunity grounds,
and a magistrate judge acting on the consent of the parties granted his request.
The magistrate judge concluded the arrest was supported by probable cause,
Sandoval acted reasonably in handcuffing Lewis, and the claims against the
Village of Los Lunas were unsustainable absent any constitutional violation.
Lewis insisted there could be no probable cause because he was neither speeding
nor eluding, but the magistrate judge rejected his contention as insufficient to
contradict evidence in the record. Lewis now appeals, arguing that the magistrate
judge misapplied our summary judgment standard by rejecting his factual account
of the incident.
Discussion
We review the grant of summary judgment based on qualified immunity
de novo, using the same standard as the district court. Thomson v. Salt Lake
County, 584 F.3d 1304, 1311 (10th Cir. 2009). When a defendant raises the
defense of qualified immunity, the plaintiff must demonstrate (1) the defendant
violated a constitutional right and (2) the right was clearly established. Id. at
1312. We choose which of these two prongs to address first, viewing the facts in
the light most favorable to the non-moving party. Lundstrom v. Romero, 616 F.3d
1108, 1118 (10th Cir. 2010). As we recently explained,
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[w]e review whether, under the plaintiff’s version of the facts,
defendants violated clearly established law. In making this
determination, we must scrupulously avoid second-guessing the
district court’s determinations regarding whether plaintiff has
presented evidence sufficient to survive summary judgment. Rather,
we review only whether defendants’ conduct, as alleged by plaintiff,
violated clearly established law.
Howards v. McLaughlin, 634 F.3d 1131, 1139 (10th Cir. 2011) (quotation and
brackets omitted).
Based on this standard, Lewis contends the magistrate judge was obliged to
accept the facts as he alleged them to be. At the very least, says Lewis, summary
judgment was foreclosed by a number of material fact issues, particularly whether
he was speeding or saw Sandoval initiate the stop. We agree that Lewis was
entitled to a favorable construction of the record, but we need not resolve these
alleged factual disputes because the dispositive inquiry is simply whether
Sandoval had probable cause to initiate the stop and effect the arrest. And that
question turns solely on whether Sandoval held an objectively reasonable belief
that Lewis was speeding and eluding, even if he was not. See United States v.
Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006) (“This court has consistently held
that an officer’s mistake of fact . . . may support probable cause . . . necessary to
justify a traffic stop, provided the officer’s mistake of fact was objectively
reasonable.” (quotation omitted)).
Here, Sandoval clearly had an objectively reasonable belief that Lewis was
speeding because the radar unit detected Lewis traveling at forty-nine miles per
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hour in a thirty-miles-per-hour zone. Sandoval was qualified to operate the radar
unit and testified that the device was properly calibrated and accurate. These
circumstances, taken in the light most favorable to Lewis, establish probable
cause to initiate the stop. See United States v. Ludwig, ___ F.3d ___, 2011 WL
1533520, at *2 (10th Cir. Apr. 22, 2011) (“The decision to stop an automobile is
reasonable, and so consistent with the Fourth Amendment, where the police have
probable cause to believe that a traffic violation has occurred.” (quotation
omitted)). Lewis’s failure to stop, to which he freely admits, then gave rise to
probable cause to effect the arrest for eluding. See York v. City of Las Cruces,
523 F.3d 1205, 1210 (10th Cir. 2008) (“Probable cause exists if facts and
circumstances within the arresting officer’s knowledge and of which he or she has
reasonably trustworthy information are sufficient to lead a prudent person to
believe that the arrestee has committed or is committing an offense.” (quotation
omitted)).
Additionally, Sandoval’s reasonable belief was corroborated by Andrew
Garcia, an off-duty police officer who happened to be standing along the chase
route when Lewis drove past. According to Garcia, a light colored Dodge truck
drove recklessly in the middle of the road at approximately forty-five to fifty
miles-per-hour. Garcia somehow missed Sandoval, but thirty to sixty seconds
later, he flagged down Officer Paul Gomez, who was en route to provide back-up.
Garcia told Gomez he had just seen a white-colored pickup go through the
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neighborhood at a high rate of speed. Lewis contends this testimony cannot be
used as a post-hoc justification for the arrest, but we have explained that probable
cause existed before the arrest, based on Sandoval’s independent observations.
Still, Lewis insists summary judgment is foreclosed by other disputed facts.
He refers us to the statement of probable cause, in which Sandoval indicated that
Garcia witnessed him pursuing Lewis. This is false, says Lewis, because Garcia
testified that he never actually saw a police cruiser in immediate pursuit (with
lights and siren activated) of the truck. And given this factual dispute, which we
must construe in his favor, Lewis contends we must accept that there was no
pursuit at all. See Aplt. Br. at 12.
Lewis’s argument goes too far. Garcia’s failure to observe Sandoval does
not establish there was no pursuit; it establishes that Garcia did not see Sandoval.
And although we might imagine that no pursuit took place, the police dispatch
recording unequivocally establishes that Sandoval was, in fact, chasing Lewis.
On the recording, the police siren is clearly audible; Lewis is identified as the
driver of the truck; and Sandoval remains in contact with dispatch throughout the
pursuit until Lewis is taken into custody at his home address. We view the facts
as depicted in this recording. See Scott v. Harris, 550 U.S. 372, 380-81 (2007);
see also Green v. Post, 574 F.3d 1294, 1296 n.4 (10th Cir. 2009). Accordingly,
there was no constitutional violation, and Sandoval was entitled to qualified
immunity on all claims except that alleging excessive force.
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Regarding the excessive force claim, Lewis maintains that a jury could
have found a constitutional violation because Sandoval over-tightened the
handcuffs and needlessly made him wait before removing them. We evaluate the
objective reasonableness of the handcuffing under several non-exclusive factors,
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.” Fisher v. City of Las
Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (quotation omitted). Lewis’s arrest
for aggravated fleeing, which is a class 4 felony in New Mexico, see N.M. Stat.
Ann. § 30-22-1.1, certainly qualifies as a sufficiently serious offense to justify the
initial handcuffing, particularly where the record reflects the danger posed to the
public. Yet even when the initial handcuffing is justifiable, prolonged duration
can upset the balance of interests under the Fourth Amendment and render the
continued handcuffing unreasonable. See Fisher, 584 F.3d at 894. Indeed, “‘[i]n
some circumstances, unduly tight handcuffing can constitute excessive force
where a plaintiff alleges some actual injury from the handcuffing and alleges that
an officer ignored a plaintiff’s timely complaints (or was otherwise made aware)
that the handcuffs were too tight.’” Vondrak v. City of Las Cruces, 535 F.3d
1198, 1208-09 (10th Cir. 2008) (quoting Cortez v. McCauley, 478 F.3d 1108,
1129 (10th Cir. 2007)). Lewis, however, did not complain of any discomfort until
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he arrived at the police station. At that point, Sandoval immediately checked that
he could insert his fingertip between Lewis’s wrist and the cuff and then loosened
the handcuffs within ten minutes of Lewis’s request. Under these circumstances,
the handcuffing was reasonable and Sandoval was entitled to qualified immunity.
Absent any constitutional violation, the Village of Los Lunas was entitled to
summary judgment on the municipal liability claims as well.
Conclusion
The judgment of the district court is AFFIRMED. 1
Entered for the Court
David M. Ebel
Circuit Judge
1
To the extent Lewis challenges the denial of his motion to strike, we do not
consider arguments raised for the first time in a reply brief. Wheeler v. Comm’r,
521 F.3d 1289, 1291 (10th Cir. 2008).
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