George Redding v. D.P. Boulware , 501 F. App'x 238 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7455
GEORGE DAVID REDDING, Administrator of the Estate of Daphne
Stubbs Redding,
Plaintiff - Appellant,
ESTATE OF DAPHNE STUBBS REDDING,
Party-In-Interest,
v.
TROOPER D.P. BOULWARE; DEPUTY B.A. HILL; SOUTH CAROLINA
HIGHWAY PATROL,
Defendants – Appellees,
and
LEXINGTON COUNTY SHERIFF'S DEPARTMENT,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Henry F. Floyd, District Judge.
(0:09-cv-01357-HFF)
Argued: September 20, 2012 Decided: December 20, 2012
Before NIEMEYER and KEENAN, Circuit Judges, and Michael F.
URBANSKI, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Urbanski joined. Judge Keenan wrote a
dissenting opinion.
ARGUED: John Dewey Elliott, Columbia, South Carolina, for
Appellant. Patrick John Frawley, DAVIS, FRAWLEY, ANDERSON,
MCCAULEY, AYER, FISHER & SMITH, LLC, Lexington, South Carolina,
for Appellees. ON BRIEF: David A. Fedor, Columbia, South
Carolina, for Appellant. Michael S. Pauley, LIDE AND PAULEY,
LLC, Lexington, South Carolina, for Appellees Trooper D.P.
Boulware and South Carolina Highway Patrol; Daniel C. Plyler,
DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for
Lexington County Sheriff's Department.
Unpublished opinions are not binding precedent in this circuit.
2
NIEMEYER, Circuit Judge:
This case presents the issue of whether law enforcement
officers used excessive force in effecting the arrest of Daphne
Redding, of Columbia, South Carolina, following a traffic stop.
During the course of a traffic stop, Redding (1) failed to
stop in response to South Carolina State Trooper D.P. Boulware’s
use of his police car’s blue light and siren; (2) failed to obey
the trooper’s repeated directives to sit down in her car after
she was stopped; (3) refused to produce her driver’s license and
registration; and (4) in other respects failed to cooperate with
the trooper’s lawful commands. When Redding pushed Trooper
Boulware out of her way in an effort to walk past Boulware to
her apartment, Trooper Boulware attempted to place Redding under
arrest for assaulting a police officer. Redding, however,
refused to be handcuffed. Trooper Boulware was able to place a
handcuff on one of Redding’s wrists but, because of her
continuing and active resistance, was unable to place the
handcuff on the other.
In response to Trooper Boulware’s call for assistance,
Lexington County Deputy Sheriff B.A. Hill arrived and directed
Redding to place her unsecured arm behind her back so that it
could be cuffed. As she refused, Deputy Hill repeated the
command six more times. Because Redding continued to resist,
Deputy Hill used force to move Redding’s hand behind her back
3
and place the second handcuff on her. After being cuffed,
Redding ceased resisting, and charges against her were processed
in the normal course.
During the course of the scuffle, however, Redding
sustained abrasions when resisting as she was held on the ground
and a broken arm when Deputy Hill forced her arm behind her to
be cuffed. She commenced this action under 42 U.S.C. § 1983,
contending that the officers used excessive force in arresting
her. The district court granted summary judgment to the
officers, and we now affirm.
I
The record in this case is substantially not in dispute, 1 as
the entire encounter was recorded on videotape, with a clock
recording the passage of time on the videotape, and discloses a
continually escalating series of events that developed over a
period of some 20 minutes.
A few minutes after 4 a.m. on May 28, 2007, Trooper
Boulware observed a vehicle on I-26 in Columbia, South Carolina,
1
Redding does dispute that she was going only 35 miles per
hour on I-26, below the minimum speed of 45 miles per hour, as
claimed by Trooper Boulware. She testified that she was going
the speed limit. The district court, however, found that this
factual dispute over Redding’s speed was not material. We agree
because the traffic stop was justified by various other traffic
violations, as well as Trooper Boulware’s initial suspicion that
Redding had been drinking, although, as it turned out, he
concluded later that she had not been drinking.
4
traveling at about 35 miles per hour, which was below the
minimum 45-mile-per-hour speed limit on the Interstate. As he
observed the vehicle, it was also weaving from lane to lane; its
brakes were being applied for no apparent reason; and, when
turning right from the Interstate, its turn signal was not used.
Trooper Boulware turned on his marked police car’s blue light
and, on an intermittent basis, his siren in an effort to stop
the vehicle. The vehicle, however, failed to stop and continued
driving for about a half a mile, after which it entered the
parking lot of an apartment complex. Using his public address
microphone, Trooper Boulware directed the driver to stop the
car, and he focused his search light on the vehicle. The
vehicle stopped, and Daphne Redding, a 67-year-old woman, exited
the vehicle. Trooper Boulware asked Redding why she took so
long to stop, and Redding responded that she could not tell
whether he was a policeman. Boulware then told Redding to “have
a seat back in your car.” Redding, however, refused, and
Boulware repeated the command four separate times. Redding
stated that she was going to go to her apartment to get her
husband. When the officer told her that she could not do that,
she started to honk the horn. Again Trooper Boulware instructed
her not to honk the horn.
Trooper Boulware demanded that Redding produce her driver’s
license, registration, and proof of insurance, and Redding
5
responded, “Wait just a minute,” and she continued to yell for
her husband. Boulware continued to insist that Redding produce
her registration and insurance on four different occasions over
the next several minutes. On each occasion, Redding told the
trooper to wait a minute. Redding also tried to use her cell
phone to call her husband, and after she ignored Trooper
Boulware’s command not to call anyone, Boulware moved to take
her phone. Redding then attempted to walk to the apartment to
get her husband. As Trooper Boulware blocked her way and
pressed Redding for her license, Redding pushed Trooper Boulware
backward, and walked by him. At that point, at 4:09 a.m.,
Trooper Boulware announced that he was placing Redding under
arrest.
When Trooper Boulware sought to effect the arrest by
placing handcuffs on Redding, Redding resisted. Trooper
Boulware then pushed Redding against the front of a nearby
automobile in an effort to handcuff her. As Redding continued
to resist, he took her to the ground. Trooper Boulware told
Redding reportedly to quit fighting him; she was under arrest;
and “you are going to be charged with resisting if you do not
put that other hand behind your back.” Redding, however, kept
calling for her husband and kept resisting. While the officer
was able to get one handcuff on, he was unable to get the other
on, despite instructing Redding several times, “Give me your
6
hand.” After struggling unsuccessfully to place Redding in
handcuffs for a period of some four minutes, Boulware called the
dispatcher for assistance. He stated, “I’ve got one cuff on
her. I can’t do much else with her.” Trooper Boulware and
Redding were about the same size. Boulware was approximately 5
feet 7 inches tall and weighed 175 pounds; Redding was
approximately 5 feet 6 inches tall and weighed 190 pounds.
Over the next five to ten minutes, while Trooper Boulware
was holding Redding on the ground and waiting for assistance,
Redding continued to resist. At one point, she said she was
hurting, and the officer indicated “we both are. I think you
dislocated my finger.” When Redding asked, “what do you want
from me?”, the trooper stated, “You are under arrest for
assaulting a police officer.” After several minutes passed,
Trooper Boulware stated again, “Now you need to quit fighting me
and give me your other hand so that we can get this over with
instead of fighting me because you ain’t doing nothing but
hurtin’ yourself.” Several minutes later, when the dispatcher
asked Officer Boulware, “Have you got the subject in custody
now?”, Officer Boulware stated, “Negative. Not Yet. I am just
trying to do what I can without hurting her any --.”
At 4:21 a.m., some 12 minutes after Trooper Boulware first
sought to effect the arrest of Redding, Lexington County Deputy
Sheriff Hill arrived. Deputy Hill then instructed Redding,
7
“Ma’am come, you need to bring hands behind your back.” After
Redding refused and resisted, Deputy Hill repeated the command
six more times as he attempted to place her wrist into the
handcuffs, warning her that her resisting was “going to cause
[him] to break [her] arm.” Finally, at 4:22 a.m., while Officer
Boulware was holding Redding down, Deputy Hill forced Redding’s
wrist into the handcuffs and thus placed her in custody. At
that point, Redding stopped resisting, and the officers called
for medical help to treat Redding’s injuries -- abrasions and
what turned out to be a broken arm.
In May 2009, Redding commenced this action against the
officers under 42 U.S.C. § 1983, contending that Trooper
Boulware and Deputy Hill used excessive force, in violation of
her Fourth Amendment rights. She alleged that when Deputy Hill
came to assist Trooper Boulware, he “grabbed her right hand and
jammed it into Boulware’s handcuff, twisting her arm and
breaking it.” She alleged that this use of physical force was
“clearly excessive in light of the circumstances that existed at
the time of the traffic stop.”
On the defendants’ motion for summary judgment, in which
the defendants contended that Redding had failed to establish a
constitutional violation and that, in any event, they enjoyed
qualified immunity, the district court ruled that
8
in light of plaintiff’s persistent resistance and
attempts to leave the scene, the force applied by
defendant Boulware and defendant Hill was objectively
reasonable. The facts -- as recounted by the
magistrate judge and not objected to by the plaintiff
-- demonstrate that the level of force applied by the
officers was tailored to that necessary to effectuate
the seizure. Plaintiff’s behavior from the outset was
marked by continual resistance and evasiveness.
Addressing more particularly the conduct of Deputy Hill, on
which Redding’s claims centered, the court concluded
the force applied by defendant Hill was not
gratuitous. It was designed at all times to
effectuate the seizure by putting the handcuffs on
plaintiff, who continually resisted his efforts. Upon
arriving, he instructed plaintiff at least six times
to put her hands behind her back, but she persisted in
her resistance and refused to do so.
The court thus held that the force used by the law enforcement
officers was not excessive and did not contravene the
reasonableness requirement of the Fourth Amendment. Because the
court found no constitutional violation, it concluded that it
need not address the issue of qualified immunity.
This appeal followed. 2
II
The Fourth Amendment protects the people against
unreasonable seizures -- i.e., as applicable in this
2
Shortly before oral argument, Redding died of unrelated
causes, and pursuant to Federal Rule of Appellate Procedure
43(a)(1), we have substituted the administrator of her estate as
the appellant.
9
case -- against officers’ use of excessive force in effecting a
seizure. See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.
2003) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The
standard for whether an officer uses excessive force is
“objective reasonableness.” Graham, 490 U.S. at 388.
In this case, Redding does not challenge an officer’s right
to place a person under arrest for assaulting a police officer,
nor an officer’s right to place that person in handcuffs as part
of the arrest process. Rather, she contends that the law
enforcement officers used excessive force in putting on the
handcuffs. 3
While it is undisputed that Redding sustained injuries, it
is also undisputed that throughout the entire encounter, Redding
resisted arrest and that the officers used such force as was
necessary to handcuff her, and no more. Indeed, Trooper
3
Redding also challenges the justification of “her
custodial arrest for the offense of driving below the minimum
limit,” arguing that she had the right to resist such an arrest
as unlawful. But this argument fails because it relies on an
erroneous reading of the record. Trooper Boulware’s initial
traffic stop of Redding was justified, as we explained in
footnote 1, and Redding was arrested later for assaulting a
police officer after pushing Trooper Boulware. As Boulware
tried to take Redding into custody, Redding asked, “What do you
want from me?” Boulware answered, “You are under arrest for
assaulting a police officer.” In addition, as Redding resisted
Trooper Boulware’s attempt to place her in custody, Boulware
told Redding, “You are going to be charged with resisting if you
do not put that other hand behind your back.” Despite the
warning, Redding continued to resist.
10
Boulware could not accomplish the task alone and needed the
assistance of Deputy Hill.
When Deputy Hill finally came, he commanded Redding to
succumb to handcuffing. Only when she refused to comply, after
seven separate commands, Deputy Hill forced Redding’s wrist into
the handcuffs. That force was not greater than necessary to
effect the arrest, and any injury resulting from it, while
unfortunate, was the result of Redding’s resisting arrest and
refusing the officers’ efforts to place her in handcuffs. There
was no evidence on the videotape or in the transcript of it
showing or suggesting any gratuitous violence by either officer.
To the contrary, the officers repeatedly expressed regret to
Redding, noting that all she had to do was to obey the officers’
commands and there would be no problem. Indeed, Officer
Boulware told Redding that she would not even have received a
traffic ticket.
We conclude that the force used by the officers was only so
much as was necessary to effect the arrest and, therefore, was
not objectively unreasonable.
Accordingly, the judgment of the district court is
AFFIRMED.
11
BARBARA MILANO KEENAN, Circuit Judge, dissenting:
Daphne S. Redding, a 67-year-old woman returning home from
a local hospital, committed the minor traffic violation of
failing to activate her vehicle’s “turn signal” upon making a
right turn. The majority concludes that the use of force to
arrest her, which included breaking her arm, was not excessive.
I respectfully dissent.
“The Fourth Amendment’s prohibition on unreasonable
seizures bars police officers from using excessive force to
seize a free citizen.” Jones v. Buchanan, 325 F.3d 520, 527
(4th Cir. 2003) (citing Graham v. Connor, 490 U.S. 386, 395
(1989)). In determining whether a particular use of force
violated an individual’s right to be free from an unreasonable
seizure, “the question is whether a reasonable officer in the
same circumstances would have concluded that a threat existed
justifying the particular use of force.” Elliott v. Leavitt, 99
F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-
97).
In the present case, South Carolina Highway Patrol Trooper
D.P. Boulware activated his vehicle’s emergency lights after
observing Redding’s traffic violation, and followed her a short
12
distance to her apartment complex. 1 Upon arriving at the
apartment complex and being confronted by Trooper Boulware,
Redding exhibited clear signs of fear and confusion, 2 and sought
to contact her husband using her cellular telephone. Trooper
Boulware denied Redding this request and attempted to gain
control of her cellular telephone. After Boulware failed in
this effort, he informed Redding that she was under arrest.
Redding made no attempt to leave the scene.
After unsuccessfully trying to place both Redding’s hands
in handcuffs, Trooper Boulware executed a maneuver forcing
Redding to the concrete surface, injuring her in the process.
Even while “straddling” Redding on the ground, Trooper Boulware
was unable to secure Redding in handcuffs. At this point, he
sought “backup assistance,” which resulted in Lexington County
Deputy Sheriff B.A. Hill arriving at the scene of the incident.
1
The majority emphasizes the fact that, after Trooper
Boulware activated his emergency lights Redding “failed to stop
and continued driving for about half a mile.” (Maj. slip op. at
5.) However, the policy of the Lexington County Sheriff’s
Department recognizes that female or elderly drivers “may be
hesitant to stop for a law enforcement vehicle while [alone] on
an unlighted or desolate roadway,” and provides that “[i]n non-
felony situations, this is a reasonable expectation.”
2
The video recording of the incident establishes that any
reasonable observer would have been able to ascertain that
Redding was frightened and confused, almost to the point of
being disoriented. In fact, Redding immediately informed
Trooper Boulware that she was “really afraid.” Redding was not
under the influence of alcohol, drugs, or medication.
13
Deputy Hill informed Redding that if she did not follow his
directions, she was “going to cause [him] to break [her] arm.”
When Redding did not acquiesce, Deputy Hill forcibly placed her
hands into handcuffs, breaking her arm as he warned he would.
The injury to Redding’s arm required surgery and resulted in
permanent injury. As stated in their deposition testimony, at
no point in the encounter did Trooper Boulware or Deputy Hill
think that Redding posed any threat to their safety.
Rather than recite these facts and all reasonable
inferences in the light most favorable to the plaintiff, as we
are required to do at this stage of the proceedings, see Bonds
v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011), the majority
states the facts from Trooper Boulware and Deputy Hill’s
perspective. Among other omissions, the majority fails to
account for Deputy Hill’s statement that Redding would “cause”
him to break her arm if she did not allow him to place her hands
into the handcuffs.
Based on the above facts, I would conclude that Trooper
Boulware and Deputy Hill (collectively, the officers) were not
entitled to qualified immunity. However, the egregious nature
of the officers’ actions in injuring Redding is even more
apparent when considering other evidence before the district
court. This evidence included the preliminary report and
deposition testimony of Melvin L. Tucker, who had served as
14
chief of police in four cities during a 25-year career in law
enforcement 3 and had worked as a special agent for the Federal
Bureau of Investigation.
After reviewing the evidence in this case, including the
video recording from Trooper Boulware’s patrol car camera,
Tucker concluded that the officers’ use of force against Redding
was unreasonable, and that “properly trained police officers
would not have used the same level of force if confronted with
the same or similar circumstances.” Tucker observed that
Redding, a 67-year-old woman, posed no immediate threat to the
officers’ safety and was not attempting to evade arrest by
flight. In Tucker’s opinion, informed by his law enforcement
experience involving the use of force, “[t]o use a takedown
maneuver to place a [67-year-old] female on the ground and then
to sit on her lower back for several minutes while awaiting for
another officer to pull her arms behind her back to handcuff her
. . . are not actions that other reasonable officers would have
3
Tucker served as chief of police for the cities of
Tallahassee, Florida; Asheville, North Carolina; Hickory, North
Carolina; and Morristown, Tennessee. Tucker has written
numerous published articles concerning police use of force, has
provided training to hundreds of law enforcement officers on the
legal and professional standards governing police use of force,
and has served as an expert witness, on behalf of plaintiffs and
defendants, on many legal matters relating to police practices.
15
taken under the same or similar circumstances.” 4 Yet, without
explanation, the majority fails to acknowledge this evidence
concerning proper police tactics under these circumstances.
The majority also fails, without explanation, to apply this
Court’s four-factor test for determining whether an application
of force was unreasonable and excessive. Under this approach,
as set forth by the district court, a reviewing court must
examine (1) “the severity of the crime at issue”; (2) “whether
the suspect poses an immediate threat to the safety of the
officers or others”; (3) “whether the suspect is actively
resisting arrest or attempting to evade arrest by flight”; and
(4) the extent of the plaintiff’s injury. Jones v. Buchanan,
325 F.3d 520, 527 (4th Cir. 2003) (quoting Graham, 490 U.S. at
396); see also Wilson v. Flynn, 429 F.3d 465, 468 (4th Cir.
2005) (applying Buchanan factors); Turmon v. Jordan, 405 F.3d
202, 206 (4th Cir. 2005) (same). Applying these factors, I
would conclude that while the third factor weighs in favor of
the officers, the remaining factors, and the factors as a whole,
favor Redding.
4
Tucker further elaborated on this conclusion in his
deposition testimony, stating “to use an arm bar take-down and
hold her down and handcuffing her with her hands behind her back
is certainly not the minimum level of force that could have been
used.”
16
Instead of employing this analytical framework, the
majority merely concludes summarily that “the officers used such
force as was necessary to handcuff her, and no more.” (Maj.
slip op. at 10.) In my view, this conclusion is erroneous
because, as an initial matter, the conclusion is not grounded in
the facts of the case.
Further undermining the majority’s position is Trooper
Boulware’s unequivocal statement during his deposition that
“[t]here was no reason to break [Redding’s] arm to make an
arrest.” Thus, while the majority concludes that the breaking
of Redding’s arm was “necessary to effect the arrest” (Maj. slip
op. at 11), Trooper Boulware himself, as well as a former police
chief with 25 years of law enforcement experience, reached the
opposite conclusion. So would I, in keeping with our duty to
view the facts in the light most favorable to Redding on summary
judgment.
Simply put, the officers’ conduct was objectively
unreasonable in the context of the enforcement of traffic
regulations. Redding, a 67-year old woman who was resisting
arrest but did not pose a threat to the officers’ safety and was
not attempting to flee, was thrown to the pavement and forcibly
placed in handcuffs, when it was apparent to at least one of the
officers that doing so would break her arm. Thus, I would
17
conclude that the officers’ use of force against Redding was
excessive.
Although the majority did not reach the second step of the
qualified immunity analysis, I would conclude that the officers’
use of excessive force in this case violated Redding’s “clearly
established constitutional rights.” Government officials are
entitled to qualified immunity as a matter of law so long as
they have not violated “‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir.
1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982));
see also Saucier v. Katz, 533 U.S. 194, 202 (2001). Although
“the contours of the right [at issue] must be specifically
clear,” Anderson v. Creighton, 483 U.S. 635, 640 (1987), there
is no requirement that the conduct involved in this specific
fact pattern have been found previously to violate an
individual’s rights. See Pritchett v. Alford, 973 F.2d 307, 314
(4th Cir. 1992) (“The fact that an exact right allegedly
violated has not earlier been specifically recognized by any
court does not prevent a determination that it was nevertheless
‘clearly established’ for qualified immunity purposes.”).
The right not to have one’s arm fractured when being placed
into handcuffs under the circumstances presented here is
“manifestly included within more general applications of the
18
core constitutional principle invoked,” id., namely, the right
to be free from the use of excessive and unreasonable police
force. See Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir. 1993)
(discussing the use of unreasonable police force, and observing
that “[i]t would have been ‘apparent’ to a reasonable officer in
[defendant’s] position that, after he had pinned to the ground a
woman half his size and the woman did not pose a threat to him,
it was unreasonable to push her face into the pavement with such
force that her teeth cracked.”). Thus, I would conclude that
the officers’ use of excessive force in arresting Redding
violated her clearly established constitutional rights, which
the officers should have known. See Torchinsky, 942 F.2d at
261. Accordingly, I would hold that Trooper Boulware and Deputy
Hill were not entitled to qualified immunity as a matter of law.
19