Ryan Lash v. Jennifer Lemke ( 2015 )


Menu:
  •  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.