Ryan Lash v. Jennifer Lemke , 786 F.3d 1 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2014 Decided May 15, 2015
No. 13-5308
RYAN BARTON LASH,
APPELLANT
v.
JENNIFER LEMKE, OFFICER, IN HER INDIVIDUAL CAPACITY AND
TODD REID, SERGEANT, IN HIS INDIVIDUAL CAPACITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00822)
Jeffrey L. Light argued the cause and filed the briefs for
appellant. Edward J. Elder entered an appearance.
Marina U. Braswell, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: GARLAND, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge:
Police officers tried to arrest Ryan Lash after he
confronted them within the Occupy D.C. encampment at
McPherson Square in downtown Washington, D.C. Lash
actively resisted arrest, and one officer used a Taser to subdue
him. Lash sued the officers alleging violations of his First and
Fourth Amendment rights. The district court granted summary
judgment to the officers, concluding they were protected by
qualified immunity against Lash’s claims because the
officer’s use of the Taser did not violate the Constitution. We
also conclude that qualified immunity shields the officers
from Lash’s Fourth Amendment claim, but on a different
basis that does not require us to take up the constitutional
issue the district court reached: A person actively resisting
arrest does not have a clearly established right against a single
use of a Taser to subdue him. We also grant summary
judgment to the officers on Lash’s First Amendment claim
because he failed to meaningfully advance the argument on
appeal.
I
During the winter of 2011 to 2012, participants in the
Occupy D.C. movement took up residence in McPherson
Square, living in tents and other shelters. On January 29,
2012, United States Park Police (USPP) officers entered the
square to post notices advising the protestors that USPP
would begin enforcing anti-camping regulations the following
day. The USPP officers were under the supervision of
Sergeant Todd Reid, a defendant here. As the officers
distributed notices through the park, they were followed by a
crowd of protestors shouting objections and profanities.
Several members of the crowd videorecorded this
3
confrontation. Those recordings are part of the record on
appeal, and we rely on them as we describe what followed.
Lash, the plaintiff here, emerged from his tent in the
encampment into this tense situation. He confronted the
police officers, challenged their presence and purpose in the
park, shouted profanities, and tore down some of the notices
they had posted. The officers ordered Lash to stop removing
the notices, and he complied. But as he walked away, Lash
again shouted profanities at the police.
A number of USPP officers followed him. Among their
number were Officer Jennifer Lemke, also a defendant here,
and Officers Frank Hilsher and Tiffany Reed. Lash, observing
the officers walking after him, began to retreat through a
group of tents, insisting with increasing agitation that he had
“done nothing wrong” and demanding to know why they were
“coming at” him. Some officers followed Lash’s route among
the tents. Other officers surrounded the area of the park
through which Lash was walking. Lash continued to retreat
across the encampment and to protest his innocence.
Officer Tiffany Reed, who had been following Lash as he
hurried through the tents, stepped up behind Lash and seized
his arms from the rear. Lash pulled his arms away and held
them in front of his body, continuing to walk away as he
insisted that he was innocent. Reed again sought to restrain
Lash from behind and Lash again pulled his arms away from
her. Reed then took hold of Lash’s left arm while Hilsher
approached and seized his right arm. Lemke approached at the
same time and drew her Taser from its holster, holding it
ready.
Though Lash’s arms were now held by two different
officers, he continued to struggle to keep his feet while Reed
4
and Hilsher worked for several moments to gain control of
him. Lemke, standing nearby and behind the trio, fired her
Taser into Lash’s lower back. He fell to the ground, and the
officers handcuffed him.
The officers carried Lash, now handcuffed, to a nearby
police car. Lash refused to enter the police car, so the officers
called for a police van. When the van arrived, the officers left
the scene with Lash, who was charged with disorderly
conduct. Lash contends that he has suffered a variety of
painful and debilitating effects from being tased.
Lash filed the complaint in this action against Officer
Lemke and Sergeant Reid in their individual capacities
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The complaint
alleged that Lemke’s use of the Taser constituted excessive
force in violation of Lash’s Fourth Amendment rights and
was motivated by retaliatory animus against his protected
expression in violation of his First Amendment rights as well.
Reid, he alleged, was liable for failing either to supervise the
situation adequately or to intervene to prevent Lemke’s use of
excessive force. 1
1
Lash also alleged that his arrest, as distinct from the force
used in effecting his arrest, constituted a separate First Amendment
violation because it too was motivated by retaliatory animus. After
Lash filed his complaint but before the district court ruled below,
the Supreme Court held in Reichle v. Howards that “it was not
clearly established that an arrest supported by probable cause could
give rise to a First Amendment violation” even if also motivated by
retaliatory animus. 132 S. Ct. 2088, 2097 (2012). Lash conceded
below that probable cause existed for his arrest and so Reichle
precludes any First Amendment claim arising on that score. He
does not argue otherwise here.
5
The officers moved to dismiss or, in the alternative, for
summary judgment, arguing that qualified immunity should
shield them from liability. The district court agreed and
granted summary judgment, concluding that neither of Lash’s
claims could survive because, under the circumstances, the
use of the Taser was not excessive force. Lash v. Lemke, 971
F. Supp. 2d 85, 93-98 (D.D.C. 2013). Lash appealed. We have
jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth,
472 U.S. 511, 524-30 (1985).
II
We review the grant of summary judgment on the basis
of qualified immunity de novo. Johnson v. District of
Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008).
A
Because the officers’ conduct here did not violate any
clearly established law, they have qualified immunity against
Lash’s Fourth Amendment claim. 2 Qualified immunity exists
to protect officers “from undue interference with their duties
and from potentially disabling threats of liability,” Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982), and applies in Bivens
actions as it does elsewhere, Atherton v. District of Columbia,
567 F.3d 672, 689 (D.C. Cir. 2009). An official who asserts a
qualified immunity defense can only be held liable if the
plaintiff suing him establishes that the official “violated a
constitutional right” that “was clearly established” at the time.
Saucier v. Katz, 533 U.S. 194, 201 (2001).
2
There is no question that Lash may pursue an excessive
force claim under Bivens. 403 U.S. at 395-96.
6
We have “discretion to decide which of the two prongs of
qualified-immunity analysis to tackle first.” Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2080 (2011). Determining that a
constitutional right exists and has been abridged by official
conduct is not only difficult at times, but asks much of a court
that should resolve matters on constitutional grounds only
when there is no other way to do so. See Pearson v. Callahan,
555 U.S. 223, 241 (2009). In some cases, it is easier for a
court to see that the claimed right, whether it exists or not, is
by no means “clearly established.” Id. at 237. This is such a
case and we will accept the invitation of the Court in Pearson
to dispose of this suit by holding that the conduct of the
officers in arresting Lash did not violate any clearly
established law. Thus we need not consider whether the
district court was right to conclude that the use of a Taser
against Lash in these circumstances was constitutionally
permissible.
1
Qualified immunity applies because the defendants’
conduct did not violate clearly established law.
For a right to be clearly established, its “contours [must
be] 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). “This is not to say that an official action is protected
by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be apparent.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal
citation omitted). In addition, the Court “‘ha[s] repeatedly told
courts . . . not to define clearly established law at a high level
of generality,’ . . . since doing so avoids the crucial question
7
whether the official acted reasonably in the particular
circumstances that he or she faced.” Plumhoff, 134 S. Ct. at
2023 (quoting al-Kidd, 131 S. Ct. at 2084). Thus the “clearly
established” prong of qualified immunity analysis requires us
to determine the right at issue “in light of the specific context
of the case,” not simply as a statement of general legal
principles. Saucier, 533 U.S. at 201.
Because this case was decided at summary judgment, we
must draw reasonable factual inferences in the light most
favorable to Lash, the nonmovant. Scott v. Harris, 550 U.S.
372, 378 (2007). The Court has cautioned us that we “must
take care not to define a case’s context in a manner that
imports genuinely disputed factual propositions.” Tolan v.
Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation
marks omitted). Nonetheless, our obligation to view the facts
“in the light most favorable to the nonmoving party” only
attaches “if there is a ‘genuine’ dispute as to those facts.”
Scott, 550 U.S. at 380 (quoting Fed. R. Civ. P. 56(c)). “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.” Id. And when a nonmovant’s account of the facts
is “utterly discredited” by the clear evidence provided by a
videorecording, the Court has instructed us not to rely on a
“visible fiction” but rather “view[] the facts in the light
depicted by” the video record. Id. at 380-81.
The question of “context” here turns principally on
whether Lash was resisting arrest at the time he was tased.
Lash has averred by affidavit that he did not resist arrest.
Because this case comes to us at summary judgment, we have
a duty to draw all inferences “in favor of the nonmovant” and
may not resolve disputed fact issues. Tolan, 134 S. Ct. at
8
1866. Thus Lash insists, relying on Tolan, that we cannot
define the “context” for this case by concluding as a matter of
law that he was resisting arrest. Doing so, he argues, would
“import[] genuinely disputed factual propositions” into the
qualified immunity analysis, exactly as Tolan forbids us to do.
Id. We disagree: Here, there is no genuine dispute regarding
Lash’s conduct. Multiple videorecordings of the episode make
perfectly clear that Lash resisted the officers’ efforts to arrest
him. He pulled his arms free from the officers’ efforts to
restrain them twice in succession. The first of these, Lash
argues in his affidavit, was no more than a natural reaction to
being seized when he did not know who had seized him. But
Lash does not even acknowledge, much less attempt to
justify, the second occasion on which he pulled away. Much
worse, Lash further claims that as soon as he realized that
officers were trying to arrest him he immediately acquiesced
and allowed them to put his arms behind his back. And in his
brief he insists that the officers “began to place [his arms]
behind his back” while he “continued to insist he had done
nothing wrong.” But it is plain from multiple videorecordings
that each of these claims is a “visible fiction.” Scott, 550 U.S.
at 381. Even when each of Lash’s arms was firmly held by a
uniformed USPP officer, Lash continued to resist, straining to
remain upright despite the officers’ efforts to destabilize him
and force him to the ground. Nor did Lash allow the officers
to move his arms behind his back before handcuffing him. His
arms remained extended even as the officers attempted to
restrain him and were never pinned until after Lemke used her
Taser. Just as in Scott, the video record here makes the normal
factual solicitude for the nonmovant at summary judgment
both unnecessary and inappropriate. No matter what Lash
claims now, we know to a certainty that he resisted arrest
because we can see him doing so.
9
Lash argues that we may not rely on the videorecordings
in this way because they “cannot fully convey everything that
people at the scene felt” such as “how much force one person
is exerting” or “the level of detail a person will experience in
the moment.” This is no argument at all. The Supreme Court
has explained that we determine whether a right is clearly
established based on the “objective legal reasonableness of an
official’s acts,” Harlow, 457 U.S. at 819, protecting officers
from liability unless “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted,”
Saucier, 533 U.S. at 202. Subjective factors like those Lash
identifies here cannot shed any light on whether a reasonable
officer in these circumstances would have believed her
actions violated Lash’s clearly established rights. It is that
objective test, not Lash’s knowledge or Lemke’s thoughts,
that determines the scope of qualified immunity. The
videorecordings in the record provide us all we need to
determine what a reasonable officer would have known at the
scene. And we do not hesitate to conclude from the
videorecording that there is “no genuine issue of material
fact” regarding Lash’s active resistance. Scott, 550 U.S. at
380 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)) (emphasis omitted).
2
In light of the foregoing, we must determine whether it
was clearly established that the single use of a Taser by
arresting officers violated the Fourth Amendment rights of a
person actively resisting arrest. A right is clearly established
when “‘existing precedent [has] placed the statutory or
constitutional question beyond debate.’” Taylor v. Reilly, 685
F.3d 1110, 1114 (D.C. Cir. 2012) (quoting al-Kidd, 131 S. Ct.
at 2083). We find clearly established rights by looking “‘to
cases from the Supreme Court and this court, as well as to
10
cases from other courts exhibiting a consensus view,’ . . . if
there is one.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir.
2011), as amended (Mar. 29, 2011) (quoting Johnson, 528
F.3d at 976). “The facts of such cases need not be materially
similar . . . but have only to show that the state of the law [at
the time of the incident] gave [the officer] fair warning that
[his alleged misconduct] . . . was unconstitutional.” Id.
(alterations in Bame) (internal quotation marks omitted).
No such clearly established right existed. The officers
could not have been on notice that using a Taser in these
circumstances would violate Lash’s Fourth Amendment
rights. Though there is no case from the Supreme Court or our
court that is on point, consulting the decisions of our sister
circuits reveals a telling pattern. The use of a Taser against a
person who is not resisting arrest or merely passively resisting
may violate that person’s rights. See, e.g., Brown v. City of
Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009). The use of
a Taser may also violate an individual’s rights even in the
face of resistance if the officer uses the Taser to excess, such
as firing multiple times after the officers have gained control
of the scene. See, e.g., Meyers v. Baltimore Cnty., Md., 713
F.3d 723, 735 (4th Cir. 2013). But “[t]here is no clearly
established right for a suspect who actively resists and refuses
to be handcuffed to be free from a Taser application.”
Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir.
2015) (internal quotation marks omitted). The Seventh
Circuit, surveying the state of the law, found that “[c]ourts
generally hold that the use of a [T]aser against an actively
resisting suspect either does not violate clearly established
law or is constitutionally reasonable.” Abbott v. Sangamon
Cnty., Ill., 705 F.3d 706, 727 (7th Cir. 2013). The Sixth
Circuit reached the same result. See Hagans v. Franklin Cnty.
Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir. 2012)
(observing that courts generally find that “[i]f a suspect
11
actively resists arrest and refuses to be handcuffed, officers do
not violate the Fourth Amendment by using a [T]aser to
subdue him”). See also Aldaba v. Pickens, 777 F.3d 1148,
1158 (10th Cir. 2015) (finding that “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”). And our own examination of the cases similarly
has found that officers who tased individuals actively resisting
arrest had qualified immunity against excessive force claims.
See, e.g., De Boise v. Taser Int’l, Inc., 760 F.3d 892, 897 (8th
Cir. 2014); Buchanan v. Gulfport Police Dep’t, 530 F. App’x
307, 314 (5th Cir. 2013); Meyers, 713 F.3d at 733; Hoyt v.
Cooks, 672 F.3d 972, 979-80 (11th Cir. 2012). Because this
right is still not clearly established today, a reasonable officer
in January 2012 would certainly have been justified in
believing that she could use a Taser a single time against a
resisting suspect.
Lash makes only one argument, raised for the first time in
his reply brief, that the officers’ conduct violated clearly
established law. He relies on a negative inference from a 2004
decision of the Eleventh Circuit in which that court held that a
single Taser discharge against a “hostile, belligerent, and
uncooperative” suspect did not constitute excessive force.
Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004).
Draper examined a traffic stop in which the driver,
increasingly frustrated at an officer’s questions, became
“belligerent, gestured animatedly, continuously paced,
appeared very excited, and spoke loudly.” Id. at 1272-73.
After the driver had disobeyed an order multiple times and
ignored a warning that he was risking arrest, the officer tased
him. Id. at 1273-74. The court found that the use of the Taser
did not violate the Constitution because “the amount of
12
force . . . was reasonably proportionate to the need for force.”
Id. at 1278. Lash seems to suggest that because he was less
obstreperous than the arrestee in Draper and did not ignore a
warning or refuse to comply with orders, Draper should have
made it clear that Lash’s behavior did not warrant the use of a
Taser. We think Draper counsels for our conclusion, not
against it. Though Lash’s confrontation with the USPP
officers was shorter than the standoff with police in Draper,
Lash actively resisted arrest even after officers actually had
their hands on him. Draper, in contrast, involved only
aggressive conduct, agitation, and refusal to comply with
police orders. There, police did not even attempt to subdue
and handcuff the arrestee before discharging a Taser against
him. The USPP officers here had already made multiple
successive attempts to restrain Lash and were still struggling
with his physical resistance when Lemke tased him. If
anything, reading Draper could have led a reasonable officer
to feel confident that the force used in this case was
reasonable, not the opposite. At a minimum, Draper certainly
did not establish beyond doubt that using a Taser a single time
on someone behaving as Lash did would violate his rights.
The strongest, though ultimately futile, argument we have
found for the proposition that the officers’ conduct violated
clearly established law comes from Mattos v. Agarano, 661
F.3d 433 (9th Cir. 2011) (en banc). There the Ninth Circuit
considered two consolidated cases regarding the use of a
Taser during arrests. In the first case, a pregnant woman,
pulled over as part of a traffic stop, refused to sign a citation
and to get out of her car; officers tased her three times before
handcuffing her. This arrestee, the Ninth Circuit concluded,
“engaged in some resistance to arrest” when she “stiffened
her body and clutched her steering wheel to frustrate the
officers’ efforts to remove her from her car.” Id. at 445. In the
second case, an officer trying to arrest an individual suspected
13
of domestic violence tased the suspect’s wife when she did
not move out of the officer’s way. Id. at 449. This individual
“minimally resisted . . . arrest” when she “extended [her]
arm . . . to protect her own body” from contact with the
advancing officer; the Ninth Circuit noted that this
“minimal[]” resistance was more akin to “failure to facilitate
an arrest,” not “active resistance to arrest,” because the
advancing officer was seeking to arrest her husband, not the
woman herself. Id. at 449-50. In both cases the Ninth Circuit
held that using a Taser violated the arrestee’s rights, though it
also concluded that at the time of the episodes (November
2004 and August 2006, respectively) no clearly established
law put officers on notice that using a Taser in those
circumstances would violate the Constitution. Id. at 444-52.
Even if Mattos were manifestly contrary to the many
cases we discussed above, such an outlier would not
invalidate broad agreement among other circuits. The
“‘consensus view’” we have found necessary to create a
clearly established right for qualified immunity purposes
requires more than a single decision departing from an
otherwise consistent pattern. Bame, 637 F.3d at 384 (quoting
Johnson, 528 F.3d at 976). But more to the point, Mattos does
not actually contradict the other cases on which we rely. In
Mattos the Ninth Circuit carefully noted that the level of
resistance offered by both arrestees was quite limited: “some
resistance” in one case and “minimal resistance,” ultimately
more akin to “failure to facilitate an arrest” than “active
resistance to arrest,” in the other. Lash’s case offers a
different context. Lash twice evaded the officer’s efforts to
seize him and, even after two officers held his arms,
continued struggling between them and fighting against their
efforts to force him to the ground. This was not “some” or
“minimal” resistance, much less a failure to facilitate the
arrest of another. As the video record makes clear, Lash was
14
actively resisting arrest in the face of increasing police efforts
to control him without resorting to more substantial force.
Mattos was a different case and in consequence the Ninth
Circuit’s holding could not have put these officers on notice
that using a Taser in this “specific context,” Saucier, 533 U.S.
at 201, would violate Lash’s rights. And even if Mattos had
dealt with closely analogous facts, that decision alone would
be outweighed by the consensus position: No clearly
established right is violated when an officer uses a Taser a
single time against an individual actively resisting arrest.
Thus the force used here violated no clearly established
law, regardless of whether it may have violated the Fourth
Amendment. For that reason Lemke and Reid have qualified
immunity as to Lash’s Fourth Amendment claim.
B
Lash’s First Amendment retaliatory force claim fares no
better, though for the different reason that he simply did not
argue it on appeal. Because the officers have not argued on
appeal that Bivens does not apply here, we will “assume,
without deciding,” that Lash’s First Amendment retaliatory
force claim “is actionable under Bivens.” Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009). Compare Wood v. Moss, 134 S. Ct.
2056, 2066 (2014), with Hartman v. Moore, 547 U.S. 250,
256 (2006). Even so, Lash’s First Amendment claim is
doomed by his failure to provide any meaningful argument on
appeal in support of it. His opening brief offers a single
paragraph regarding the First Amendment with only two
sentences devoted to legal argument. He insists that because
the force used against him was, in his judgment, excessive,
his First Amendment claim in connection with that force
should survive. He did not refer to the First Amendment at all
on reply. As a general matter, we decline to consider
15
arguments made in such a perfunctory fashion. See, e.g.,
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005) (“It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel’s work.” (citation omitted)).
Admittedly, Lash framed his First Amendment argument
in the context of the district court’s decision dismissing that
claim on the basis that the force used against him was not
excessive. But even had we decided that the use of the Taser
did constitute excessive force under the Fourth Amendment,
Lash’s argument would have remained inadequate. A plaintiff
pressing a First Amendment retaliatory force claim must
show, among other things, that the officer who used force
against him had “‘retaliatory animus.’” Trudeau v. Fed. Trade
Comm’n, 456 F.3d 178, 191 n.23 (D.C. Cir. 2006) (quoting
Hartman, 547 U.S. at 260). But Lash did not argue that a jury
could reasonably find in his favor on the presence of a
retaliatory motive. He drew our attention to nothing in the
record, and we have found nothing ourselves, that suggests
Lemke’s use of force was retaliatory. It is not this court’s
obligation to resolve issues when the party concerned argues
them so cursorily. Wash. Legal Clinic for the Homeless v.
Barry, 107 F.3d 32, 39 (D.C. Cir. 1997) (“Because the
District raises this issue in such a cursory fashion, we decline
to resolve it.” (internal quotation marks omitted)). For this
reason we grant summary judgment to the officers on Lash’s
First Amendment claim as well. 3
3
Lash also argues that Sergeant Reid’s affidavit submitted
in support of the officers’ motion for summary judgment suffered
from various flaws. As we do not rely on that affidavit in our
decision here, however, we need not consider whether, as Lash
contends, Reid failed to provide support for his testimony or
included inappropriate legal conclusions.
16
III
For the foregoing reasons, we affirm the district court’s
grant of summary judgment for the defendants.