BURBANK v. DAVIS

227 F. Supp.2d 176 (2002) | Cited 0 times | D. Maine | October 23, 2002

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT1

William Burbank is the plaintiff in this 42 U.S.C. § 1983 actionseeking damages for alleged violations of his constitutional rightsduring an early morning police encounter with a group of individuals in apub parking lot in Portland, Maine. Sergeant Jeffery Davis, a Portlandpolice officer is the only remaining defendant. Two counts tethered to theFourth Amendment are still in contest: one alleging that Davis arrestedBurbank without probable cause and one alleging that Davis used excessiveforce during the arrest. Davis has moved for summary judgment. (DocketNo. 20.) For the reasons explained below the motion is GRANTED-IN-PARTand DENIED-IN-PART.

Discussion

A. Summary Judgment Standard

I can grant summary judgment to Davis only "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that [Davis] is entitled to judgment as a matter oflaw." Fed.R.Civ.P. 56(c). A fact is material if its resolution would"affect the outcome of the suit under the governing law," Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and the dispute is genuine"if the evidence is such that a reasonable jury could return a verdictfor the nonmoving party," id. I review the record in the light mostfavorable to Burbank, the opponent of summary judgment, and I indulge allreasonable inferences in his favor. See Feliciano De La Cruz v. ElConquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).

1. Davis's Motion to Strike Opposing Statements of Material Facts

On three fronts Davis has moved to strike several of Burbank's opposingstatements of material facts. (Docket Nos. 26 & 32.) First he assertsthat Burbank's opposing factual statements that rely on threedepositions2 from a different litigation must be stricken as they arenot part of the record in this case. In support of this theory Daviscites, only, Federal Rule of Civil Procedure 56, underscoring thelanguage that refers to "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with theaffidavits, ifany." I agree with Burbank: the depositions are admissible in this case.

They are sworn statements, see, e.g., Gulf USA Corp. v. Fed. Ins. Co.,259 F.3d 1049, 1056 (9th Cir. 2001) ("Sworn deposition testimony may beused by or against a party on summary judgment regardless of whether thetestimony was taken in a separate proceeding. Such testimony isconsidered to be an affidavit pursuant to Federal Rule of Civil Procedure56(c), and may be used against a party on summary judgment as long as theproffered depositions were made on personal knowledge and set forth factsthat were admissible in evidence," citation omitted), Burbank could usethe Davis and Vogel depositions to impeach Vogel, Twomey, and Davis (aparty opponent) at trial, Beiswenger Enters. Corp. v. Carletta,46 F. Supp.2d 1297 (M.D.Fla. 1999) (addressing depositions from statecourt proceeding involving same parties and subject matter, observinggeneral rule "that any evidence which is admissible at trial can be usedon summary judgment"),3 and the filing of these materials withBurbank's submission makes it part of the record in this case forpurposes of Federal Rule of Civil Procedure 56. This conclusion does notmean that the depositions in question are certainly admissible evidenceand will be used at trial for any and all purposes, any more than anaffidavit filed in support of or in opposition to summary judgment wouldnecessarily be evidence at trial.

Second, Davis asserts that as a consequence of Burbank's failure to setout additional facts in a separate section Davis is entitled to have theadditional facts stricken or deemed controverted. As Burbank points out,nothing in Rule 56 places an obligation on the nonmoving part to assertadditional material facts. Burbank had elected to only respond to thosefacts set forth in Davis's statement of material facts and not topropound additional facts. To the extent that his responses to Davis'sstatement of material facts are additional facts cloaked as facts thatrebut or qualify Davis's facts I have not considered them.

Third, Davis complains that some of the statements made in theaffidavits filed by Burbank do not stem from the affiant's personalknowledge. Both parties are correct on this score: Davis in his assertionthat information not based on personal knowledge is inadmissible, see FedR.Civ.P. 56(e), and Burbank in his observation that this court willdetermine on a statement-by-statement basis whether the affiant'sassertion is sufficiently grounded in personal knowledge, see Perez v.Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir. 2001) (courts undertakingthe Federal Rule of Civil Procedure 56(e) admissibility analysis must usea scalpel rather than a butcher knife).

Based on this analysis the motion to strike is DENIED-IN-PART, in thatthe depositions are allowed.

B. Facts Material to Burbank's Fourth Amendment Claims

The key factual disputes between the parties concern whether or notDavis participated in the arrest of Burbank; whether or not there wasprobable cause to arrest Burbank; whether or not Burbankresisted arrest;and whether or not the force used against Burbank at the time of hisarrest was excessive.

1. Officers Arrive at the Scene

There is no dispute that in the early morning hours of July 30, 2000,Officer Davis and fellow police officer Richard Vogel were patrollingPortland in separate police cruisers. After an alert that trouble wasbrewing in the parking lot of Brian Boru's Public House, Vogel, Davis,and several other officers responded to the scene.4 When Vogelarrived at the lot at 2:15 a.m. he observed at least fifteen people inthe parking lot.

The parties dispute the tenor of the group when the officers arrived.Davis contends that Vogel and Officer Dolan were confronted with "abarrage of swearing and screams about `police brutality,'" and the grouprefused to disperse. (Vogel 2002 Dep. at 17.) Burbank states that therewas no swearing or screaming and no one was being confrontational.(Burbank Aff. at ¶¶ 4, 6.)

Burbank has not disputed that when Vogel arrived on the scene he sawOfficer Libby on the ground struggling with a person Vogel saw to beresisting arrest and that when Davis arrived at the scene he also sawLibby on the ground wrestling with a person that he was attempting toarrest. Officer Libby pointed to a group of three to five males standingnear a green car and instructed Vogel to arrest them. There were morethan ten people in the parking lot where Burbank was arrested and asVogel approached the crowd he was concerned about dealing with an angryand upset crowd that outnumbered the officers and that was becomingincreasingly confrontational. His experience taught him that when anofficer must arrest a member of an angry crowd making this arrest quicklywill deescalate the emotions of the crowd. Vogel perceived a chaoticatmosphere after taking his arrestee into custody. He was hearingscreaming and yelling from the bystanders. They were calling-out about"police brutality," complaining that the police could not do what theywere doing, and declaring that it was not right. The parties dispute thetenor of these calls. (DSMF ¶ 78; POSMF ¶ 78.)

2. Orders to Disperse

With respect to orders from the responding officers to the crowd todisperse, the parties agree that one or more of the officers gave ageneral instruction to disperse to members of the crowd at the scene.Davis states that Vogel gave an order for the group to disperse upon hisarrival and eventually gave ten to twelve orders to the bystanders todisperse. (Vogel 2002 Dep. at 17, 53.) Burbank was part of a group ofeight people that were present in the lot, among them his girlfriendKristin Heath. As Officer Vogel approached Burbank's group, accompaniedby Officer Dolan, he ordered the group to leave the scene and admonishedthem that they would be arrested if they did not disperse. (Vogel 2002Dep. at 17.) In Vogel's view if his orders had been heeded nobody wouldhave been arrested for failure to disperse. Davis states that beforeBurbank was arrested an officer gave specific orders to Burbank and Heathto disperse from the scene but that Burbank didnot leave the scene. (Heath Dep. at 25, 38, 51 & Ex. 1.)

Burbank asserts that he did not hear these warnings by Vogel and thatthere was no specific or personal order to disperse directed to him.(Burbank Aff. ¶ 7; Heath Aff. ¶ 4.) While Burbank was watchingthe Lechner arrest Burbank heard someone say, "get the kid with thetattoo." After he heard this, Burbank understood that he was going to bearrested as he has tattoos on his upper left arm at the time of thearrest. He states that when the arresting officer approached him theofficer said nothing. (Heath Dep. at 37; Burbank Dep. at 31.) There is nodispute that Burbank said to one or more of the officers, "What are youdoing?" and "Why are you doing this?" and "You can't beat someone who'snot resisting arrest."

3. The Identity of Burbank's Arresting Officer

As the arresting officer approached Burbank, Burbank turned around sothat his back was facing the officer.5 Heath saw all the eventssurrounding the arrest of Burbank; she was standing about five feet fromthe arrest. Heath watched as the officer who ultimately arrested Burbankapproached Burbank. At this juncture Burbank was located near a car.

With respect to the identity of the officer who arrested Burbank, Davisasserts that Officer Dolan joined Davis in arresting a male who was notwearing a shirt, a man who was later identified as Matt Lechner. (Davis2002 Dep. Exs. 1, 4.) He states that he and Officer Dolan were in thesame general vicinity as Burbank but "nowhere near" Burbank and Vogel.(Vogel 2002 Dep. at 18-19; Davis 2002 Dep. at 7.) Davis placed hisarrestee (Lechner) in a headlock, after which Davis and this arresteewere facedown on the trunk of a vehicle. (Davis 2002 Dep. at 18.) Dolanassisted Davis in this arrest. This arrestee (Lechner) did not have ashirt on. (Davis 2002 Dep. at 24-25 & Ex. D.)

Burbank asserts that the officers involved in the Lechner arrest wereDolan and Vogel. (Twomey Dep. at 6.) Burbank and Heath are certain thatit was Davis that arrested Burbank. (Burbank Aff. ¶¶ 11, 17-20,25-26; Heath Aff. 4, 9-15.) Burbank states that only one officerparticipated in his arrest and he describes the man who arrested him astall, "pretty built," with a bushy mustache. (Burbank Dep. at 10-11, 26,49.) With respect to Davis's assertion that it was Vogel who arrestedBurbank, Burbank states that Vogel gave a "vastly different descriptionof how Vogel's arrest took place." (Compare Vogel 2001 Dep. at 8-10 withVogel 2002 Dep. at 19, 22, 25.) He also attacks Davis's credibility bynoting that Davis has previously sworn that he made one arrest that nightand this was made with the assistance of Vogel. (Davis 2001 Dep. at 16.)

There are a few things about the identity of the arresting officer thathave not been placed in genuine dispute. Vogel arrested a white male inhis early twenties who was wearing a white tank top and a baseball capand had tattoos. (Vogel 2002 Dep. at 6, Exs. 1 & 4.)6 Burbank wastwenty-years old at the time of his arrestand that evening was wearing awhite tank top and cargo pants. The officer who arrested Burbank waswearing a police uniform and police cap. He was very tall, somewherebetween six-feet and six-feet, four-inches. Officer Vogel is six-feet,four-inches and Officer Davis is six-feet, one or two-inches; Vogel isbigger and taller than Davis. Burbank perceived that the officer whoarrested him weighed in the range of 200 to 300 pounds. This officer hada very fit appearance and dark hair.7

4. The Force Used in Burbank's Arrest

Davis asserts that the arresting officer, Vogel, grabbed Burbank andthen "walked" Burbank a couple of feet to the side of a car. (Vogel 2002Dep. at 19; Heath Dep. at 37.) He states that Vogel used his knee tostrike Burbank in the thigh only when Burbank began to turn around.(Burbank Dep. at 31; Vogel 2002 Dep. at 19.) When Vogel attempted to turnthe handcuffed Burbank around Burbank fell to the ground. (Vogel 2002Dep. 22-23.) The rear-end of Burbank's body hit the ground as he fell.(Vogel 2002 Dep. at 23.)

Burbank asserts that Davis8 handcuffed Burbank, kneed him multipletimes, punched him in the back of the head, and threw him, head first,onto the gravel parking lot. (Burbank Dep. at 29, 31; Burbank Aff. ¶¶11, 17-22, 25-26.) Burbank states that he began to turn-around only afterhe was kneed by the officer. (Burbank Dep. at 31; Heath Aff. ¶ 11.)He states that after extending his arms and having his wristshandcuffed, he was thrown to the ground head first. He twisted and landedon his shoulder and knee. He ended up on his rear. (Burbank Dep. at32-33; Burbank Aff. ¶¶ 11, 17-22; Heath Aff. ¶¶ 13, 16.) Burbank wascharged with disorderly conduct and failure to disperse. (Burbank Dep.Ex. 6 at 2.)

5. The Injuries

The parties agree that Burbank's body made contact with the car as hewas being taken into custody. They also agree that the surface of theground where Burbank fell was comprised on three-inch rock and dirt andthat after falling on one of his shoulders Burbank's knee also hit theground.

Burbank's injuries consisted of an "egg" on the back of his head, anabrasion on his shoulder, an abrasion on his knee, and an abrasion orbruise on the lower part of one of his arms. The abrasion on Burbank'sknee was minor. This injury did not interfere with his ability to work.Burbank was injured on his right shoulder when he hit the ground in hishandcuffed-fall. This abrasion did not required medical treatment, healedwithin two weeks, and did not interfere with his ability to work. Thebruise or abrasion on Burbank's arm was caused during his fall. Thisabrasion did not require medical treatment and was not a continuingproblem. Burbank's thigh was sore on the day after his arrest but therewere no other medical problems with it. Burbank visited the Maine MedicalCenter on the morning of his arrest where he was examined and releasedwithoutadditional treatment.9 Burbank only suffered bruising andother minor injuries and not one of his injuries caused him to misswork. All of Burbank's injuries healed.

C. Analysis of Davis's Assertion of Qualified Immunity as Grounds for Summary Disposition

Qualified immunity shields state actors like Davis10 from civilsuit for the performance of discretionary functions, like making anarrest, so long as the complained of conduct did not violated a "clearlyestablished statutory or constitutional right of which a reasonableperson would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).In the wake of the United States Supreme Court qualified immunity casesSaucier v. Katz, 533 U.S. 194 (2001) and Hope v. Pelzer, ___ U.S.__, 122S.Ct. 2508 (2002) the First Circuit has recently encapsulated itsthree-step qualified immunity analysis:

We use a three-part test to determine whether an official is entitled to qualified immunity, Hatch v. Dep't of Children, Youth & Their Families, 274 F.3d 12, 20 (1st Cir. 2001), following the guidance provided by the Supreme Court, see Wilson v. Layne, 526 U.S. 603, 609 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998); Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The threshold inquiry is whether the plaintiff's allegations, if true, establish a constitutional violation. Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001); Siegert, 500 U.S. at 232. The second question is whether the right was clearly established at the time of the alleged violation. That inquiry is necessary because officers should be on notice that their conduct is unlawful before they are subject to suit. Hope, 122 S.Ct. at 2516-18; Anderson v. Creighton, 483 U.S. 635, 638-40 (1987). The third is whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right. Swain v. Spinney, 117 F.3d 1, 9 (1st Cir. 1997). The question of whether a right is clearly established is an issue of law for the court to decide. Elder v. Holloway, 510 U.S. 510, 516 (1994). The reasonableness inquiry is also a legal determination, although it may entail preliminary factual determinations if there are disputed material facts (which should be left for a jury). Swain, 117 F.3d at 10.

Suboh v. Dist. Atty's Office Suffolk Dist., 298 F.3d 81, 90 (1st Cir.2002).

1. Qualified Immunity and the Identity of the Officer Who Arrested Burbank

Davis asserts that he is entitled to "qualified immunity and summaryjudgment" on all of Burbank's claims because Burbank has misidentifiedDavis as the arresting officer. If indeed Davis was not the arrestingofficer than he would be entitled to judgment in his favor on the simplebasis that there is no claim againsthim.11 The doctrine of qualifiedimmunity is only implicated when a governmental defendant is a properparty and when he or she has acted in an allegedly unconstitutionalfashion. I therefore address this identity issue as an assertion by Davisthat he is not a proper party.

Davis complains that Burbank's identification of him as his arrestingofficer is not reliable. He states that Burbank had his back turned tohis arresting officer for nearly the whole arrest. Davis also seems toargue that Burbank's subsequent sighting of Davis during the Lechnertrial and on the street before and in the room during depositions in thiscase influenced Burbank's identification of Davis as his arrestingofficer.12 He states that "a fair inference may be drawn from theundisputed facts" that Burbank's identification of Davis is "not reliableand must be disregarded."

But this is not the direction I can draw inferences on Davis's motionfor summary judgment, for it is Burbank not Davis that is entitled tohave the inferences drawn in his favor. The facts material to thisdetermination are hotly disputed. With respect to the identity of hisarresting officer, Burbank has demonstrated that there is a genuine issueof material fact as to whether Vogel or Davis arrested him.

2. Qualified Immunity and Burbank's Arrest-Without-Probable-Cause Claim

As support for his claim that he had probable cause to arrest BurbankDavis asserts that there was a crowd at the scene of the arrest of ten tofifteen persons, that two other persons were being taken into custodywhile Burbank was yelling at the officers arriving at the scene, thatthere was a general order to disperse and one directed particularly toBurbank and Heath, and that Burbank did not leave the scene when soordered. In response to Davis's argument Burbank states only: "Withregard to the probable cause claim, no reasonably well-trained officercould have believed that probable cause existed for Mr. Burbank'sarrest."

Even though Burbank has fallen far short in responding to Davis'smotion vis-a-vis this count, I address the merits. Arrests made withoutprobable cause can give rise to a 42 U.S.C. § 1983 claim. Alexis v.McDonald's Rests. of Mass., Inc., 67 F.3d 341, 349 (1st Cir. 1995) ("TheFourth Amendment guaranty against unreasonable seizures of the personrequires that arrests be based on probable cause."). It is also truethat, "[a]n arrest is lawful if it was supported by probable cause."McDermott v. Town of Windham, 204 F. Supp.2d 54, 61 (D.Me. 2002) (citingBeck v. Ohio, 379 U.S. 89, 91 (1964)). The First Circuit has given stateactors wide berth when analyzing claims of arrest without probableclause:

Where an arrest is challenged as unsupported by probable cause it is deemed "objectively reasonable" unless there clearly was no probable cause at the time the arrest was made. Probable cause to arrest exists where the facts and circumstances within the police officer's knowledge and of which she had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the arrestee had committed or was committing an offense. Probable cause is to be determined based on the collective knowledge and information of all the officers involved.

Sheehy v. Town of Plymouth, 191 F.3d 15, 19 (1st Cir. 1999) (quotations,citations, and alterations omitted).

"Whether an officer is authorized to make an arrest ordinarilydepends, in the first instance, on state law." Michigan v. DeFillippo,443 U.S. 31, 36 (1979); accord Williams v. Jaglowski, 269 F.3d 778, 781(7th Cir. 2001) (quoting DeFillippo). Davis cites to Maine criminalstatutes that permit an officer to arrest an individual without a warrantif the individual has committed or is committing a Class D or Class Ecrime in the officer's presence. See 17-A M.R.S.A. § 15(1)(b) (WestSupp. 2001). He notes that 17-A M.R.S.A. 501 (West 1983 & Supp. 2001)provides that a person is guilty of the Class E crime of disorderlyconduct if he or she, while in a public place, "intentionally orrecklessly causes annoyance to others by intentionally" "[m]aking loudand unreasonable noises." Id. § 501(1)(A),(6). With respect to thefailure to disperse charge, subsection (1) of 17-A M.R.S.A. § 502states, "When 6 or more people are participating in a course ofdisorderly conduct likely to cause substantial harm or seriousinconvenience, annoyance, or alarm, a law enforcement officer may orderthe participants and others in the immediate vicinity to disperse."Subsection (2) provides that a person is guilty of a failure to dispersewhen he or she knowingly does not comply with an order to disperse madepursuant to subsection (1). Id. § 502(2). Subsection (3) provides,"Failure to disperse is a Class D crime if the person is a participant inthe course of disorderly conduct; otherwise it is a Class E crime." Id.§ 502(3).13

Taken in the light most favorable to Burbank, the party asserting theinjury, the facts alleged simply do not support a conclusion that thearrest of Burbank was without probable cause; that is, it cannot be saidthat "there clearly was no probable cause at the time the arrest wasmade." Sheehy, 191 F.3d at 19. For, framed in light of the Maine lawcited above, it is undisputed that there was a crowd of no less thaneight people in the parking lot, that the crowd was given a general orderto disperse,14 Burbank was verbally challenging the police actions intaking others into custody, and Burbank did not disperse.15

3. Qualified Immunity and the Excessive Force Count

Because, Burbank's excessive force claim "arises in the context of anarrest or investigatory stop of a free citizen, it is most properlycharacterized as one invoking the protections of the Fourth Amendment,which guarantees citizens the right `to be secure in their persons . . .against unreasonable . . . seizures' of the person." Graham v. Connor,490 U.S. 386, 394 (1989). To determine if Burbank has alleged that thisright has been violated, I ask if the force used during his arrest wasexcessive under objective standards of reasonableness. Saucier, 533 U.S.at 201-202 ("[T]here is no doubt that Graham v. CreightonConnor . . .clearly establishes the general proposition that use of force is contraryto the Fourth Amendment if it is excessive under objective standards ofreasonableness."). Graham explained:

Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. [1,] 8-9 [(1985)] (the question is "whether the totality of the circumstances justifie[s] a particular sort of . . . seizure").

490 U.S. at 396.

The facts material to this "threshold" determination are in dispute.Davis asserts that the force used was very minimal and in response toBurbank's efforts to turn on his arresting officer. It was only inresponse to this resistance that the officer used his knee to strikeBurbank in the thigh. Davis claims that any further injuries to Burbankwere due to an inadvertent fall when Vogel attempted to turn hishandcuffed arrestee around. Burbank asserts that after Davis handcuffedBurbank Davis kneed him multiple times and punched him in the back of thehead. He states that he began to turn-around only after he was kneed bythe officer. He contends that after extendinghis arms and having hiswrists handcuffed, and after the assault with the knee, he was thrown tothe ground head-first onto the gravel parking lot.

If I credit Burbank's version of the force used, I cannot conclude thatit was objectively reasonable for Davis to apply this amount of force toan arrestee that was not resisting arrest. And I must credit Burbank'sversion of the evening events to the extent that he has provided recordsupport for the allegations. Guided by Graham I conclude that theseverity of the crimes at issue — the failure to disperse anddisorderly conduct — do not inherently call for high levels offorce in effecting arrest and Davis's own version of Burbank's resistancedo not support a conclusion that much force was needed (indeed Daviscontends that he used very little). The level of threat to the safety ofthe officers or others does not stand-out from this record, though thismay be something that is more fully developed if this case proceeds totrial. Finally, at this stage I must credit Burbank's assertion that hewas not actively resisting arrest or attempting to evade arrest byflight, but was only questioning the conduct of the officers withstatements such as, "What are you doing?" and "Why are you doing this?"and "You can't beat some one who's not resisting arrest."

Several courts have concluded that allegations comparable to Burbank'sstate a claim for excessive force. See, e.g, Phelps v. Coy, 286 F.3d 295,301 (6th Cir. 2002) ("[O]n the facts as we must take them, there wassimply no governmental interest in continuing to beat [the plaintiff]after he had been neutralized, nor could a reasonable officer havethought there was."); Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir.2001) ("Gratuitous and completely unnecessary acts of violence by thepolice during a seizure violate the Fourth Amendment."); Miller v. Smith,220 F.3d 491, 495 (7th Cir. 2000) (similar); Palmer v. Sanderson,9 F.3d 1433 (9th Cir. 1993) (a sixty-seven year old man, was subjected toexcessive force when he was jerked from his car, pushed against it, andhandcuffed so tightly as to cause pain and discoloration in his wrists).This is not an instance where there are some subtleties in the facts,such as an arrestee's non-apparent medical susceptibilities, seeRodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (shoulderinjury); McDermott, 204 F. Supp.2d. at 64 (osteoporosis), that would makeit unclear to an officer whether the force used was excessive. Areasonable jury could return a verdict in favor of Burbank on this claimif it found the facts to be as Burbank alleges.

Having concluded that Burbank has alleged the violation of aconstitutional right to be free from excessive force during an arrest,"the next, sequential step is to ask whether the right was clearlyestablished." Saucier, 533 U.S. at 201. "This inquiry," Saucieremphasized "must be undertaken in light of the specific context of thecase, not as a broad general proposition." Id. To be clearlyestablished, a right's contours must be clear enough that a reasonableofficial would understand his or her conduct was unconstitutional. Hope,122 S.Ct. at 2515. Under the First Circuit's three-part qualifiedimmunity standard the "clearly established" element has two prongs: one,whether the right was clearly established at the time of the allegedviolation and, two, whether a reasonable officer, similarly situated toDavis, would understand that the force exerted violated that establishedright. Suboh, 298 F.3d at 90.

I do not pause in reaching the conclusion that it was clearlyestablished at the time of Burbank's arrest that a compliant arrestee,even one who is verbally questioning the officer's actions, has the rightto be free from gratuitous beating and manhandling by an arrestingofficer after being handcuffed. See, e.g., Graham, 490 U.S. at 396 (1989Supreme Court case articulating general standard for evaluating excessiveforce during arrests); Palmer, 9 F.3d at 1436 (1993 9th Circuit caseconcluding there was a claim for excessive force on similar facts);Rowland v. Perry, 41 F.3d 167, 174 (4th Cir 1994) (claim for excessiveforce stated when plaintiff suffered a serious leg injury after policeofficer arrested him for picking up a lost five dollar bill); see alsoPriester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000)(providing thorough discussion of the specificity requirement, concludingthat the arrestee/plaintiff had a clearly established right not to havedogs set upon him after he was face down on the ground andnon-resistant, even though there was no prior law precisely on point).

Next I ask "whether a reasonable, similarly situated official wouldunderstand that the challenged conduct violated the established right."Saucier, 533 U.S. at 201. In other words, it is possible that Davisviolated Burbank's clearly established constitutional rights but isimmune from suit because it was objectively reasonable for Davis to do sobecause the unlawfulness of his actions was not apparent to him. SeeAnderson v. Creighton, 483 U.S. 635, 643-44 (1987) (observing thatqualified immunity may extend to actors that violate the constitutionalrights of the plaintiff).

If Davis gratuitously and unnecessarily hit and manhandled Burbank forno legitimate law enforcement reason it could not be objectivelyreasonable for it to be non-apparent to him that his actions violatedBurbank's rights.16 Whether Burbank can ultimately prevail on thisclaim will depend of whose story the fact-finder credits. See Miller, 220F.3d at 495; see also Saucier, 533 U.S. at 216 (Ginsburg, J. concurring)("Of course, if an excessive force claim turns on which of twoconflicting stories best captures what happened on the street, Grahamwill not permit summary judgment in favor of the defendant official. Andthat is as it should be. When a plaintiff proffers evidence that theofficial subdued her with a chokehold even though she complied at alltimes with his orders, while the official proffers evidence that he usedonly stern words, a trial must be had."). Again, this is not an instancewhere there are some subtleties in the facts, such as an arrestee'snon-apparent medical susceptibilities, that would make it unclear to anofficer that the force used was excessive. Thus I conclude that Davis isnot entitled to summary judgment based on qualified immunity on Burbank'sexcessive force claim; indeed, perhaps because the answer is so evident,Davis did not provide real argument premised on the Saucier standard.

Instead, Davis argues principally that he is entitled to qualifiedimmunity because the use of force was de minimis. Assuming that Davisestablished in this record that the use of force was de minimis, hislegal argument is advanced in direct contravention to the FirstCircuit's, recently reiterated, rule on this question. In Bastien v.Goddard, 279 F.3d 10, 14 (1st Cir. 2002) the Court stated:

Our inquiry quickly reveals . . . that liability may be imposed for the use of excessive force even in the absence of a serious injury. . . . Although the severity of the injury also may be considered, see, e.g., Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991), we have stated explicitly that a "serious injury" is not a prerequisite to recovery. [A] trialworthy "excessive force" claim is not precluded merely because only minor injuries were inflicted by the seizure. See Lester [v. Chicago], 830 F.2d [706,] 714 [(7th Cir. 1987)] (finding reversible error in district court "excessive force" instruction which required jury to find "severe injury," thus may have led jury to find for defendant where plaintiff's physical injuries consisted only of bruises); see also Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994) (holding that plaintiff need not prove "significant injury" to assert Fourth Amendment "excessive force" claim).

Alexis, 67 F.3d at 353 n. 11. That view is widely held. See, e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (excessive force claims can be maintained regardless of whether injuries "left physical marks or caused extensive physical damage," including, as in that case, when individual's wrists are cuffed too tightly); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001); Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199 (9th Cir.), vacated and remanded on other grounds by ___ U.S. ___, 122 S.Ct. 24, 151 L.Ed.2d 1 (2001) ("[W]hether the use of force poses a risk of permanent or significant injury is a factor to be considered in evaluating the need for the force used in a particular case — but it is certainly not dispositive."); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th Cir. 1999) (circuit has rejected the "significant injury" requirement for excessive force claims, requiring instead "actual injury"); Rambo v. Daley, 68 F.3d 203, 207 n. 2 (7th Cir. 1995) (significant injury not required for Fourth Amendment excessive force claims); Wardlaw v. Pickett, 1 F.3d 1297, 1304 n. 7 (D.C.Cir. 1993) (severity of injury a "relevant factor," but "we do not suggest that an individual must suffer significant injuries in order for the force used to be unreasonable").

Id. at 14-15 (footnotes omitted). Thus, though the extent of Burbank'sinjuries will be relevant to a determination on the merits of thisclaim, the fact that the injuries may not be permanent or severe does notbar recovery under 42 U.S.C. § 1983.

Conclusion

Based upon the forgoing, vis-a-vis Burbank's claim that he was arrestedwithout probable cause Davis's motion for summary judgment isGRANTED-IN-PART.

However, Burbank's excessive force claim presents a trial-worthyissue, and with respect to this claim Davis's motion is DENIED-IN-PART.Davis's motion to strike is DENIED in that the depositions testimony maybe used by Burbank in response to the motion for summary judgment.

2 Davis also complains about a written police report but thisdocument does not play a pivotal role in my disposition.

3 In his motion and reply Davis relies solely on Federal Rule ofCivil Procedure 56 in arguing that the two earlier depositions areinadmissible. He has not suggested, nor do I address, whether there areFederal Rule of Civil Procedure 32 concerns with respect to thedepositions of these three officers. I do not suggest that by allowingthe use of these three particular witnesses' prior depositions in thecontext of the Rule 56 motion in this case that witnesses' depositionsfrom earlier cases can be used in every case for every purpose withoutconsideration of Rule 32.

4 The parties do dispute how Davis was alerted. Davis asserts thatthe officers responded after a report about the presence of a largedisorderly group in the parking lot. (Vogel 2002 Dep. at 6.) Burbankdenies this, stating that Davis testified that he heard a call fromOfficer Charles Libby who was calling out that there was a fight takingplace. (Davis 2001 Dep. at 10-11.)

5 Burbank admits this statement and then adds additional facts thatstate that Burbank "did not wish `to get the shit kicked out of him,' sohe turned around and extended his hands to be arrested." (Burbank Dep. at29-30; Burbank Aff. ¶ 17.) So framed, this is an additional statementof fact that should have been set forth in a separate statement.

6 Burbank admits this allegation but "objects" stating, "To theextent this arrest was of a person other than Mr. Burbank, it isirrelevant to this case."

7 The record supports the conclusion that at the time of Burbank'sAugust 22, 2002, deposition (more than two years after the arrest) thesides of Davis's hair were white hair but that his hair was dark on thetop. The parties dispute how dark Davis's hair actually was at the timeof the arrest, presenting competing affidavits. (Compare Burbank Aff.¶¶ 14-17, 25-26 with Davis Aff. ¶¶ 13-16.)

8 Burbank contends that he was not arrested by Vogel and thedescription of Vogel's arrestee's fall is irrelevant.

9 Burbank asserts that he went to the hospital emergency room toassure that the substantial blow to his head did not require treatment.(Burbank Aff. ¶ 93.)

10 There is no dispute that Davis was acting under color of state lawduring the incident. See 42 U.S.C. § 1983.

11 Vogel has been dismissed from the suit with prejudice perstipulation of the parties. (Docket No. 14.)

12 After Burbank was released from custody he filed an administrativecomplaint with the Portland Police Department about his treatment at thehands of the arresting officer. Burbank could not identify the officer byname. The only officers that Burbank saw again after his July 30, 2000,arrest and was able to recognize were Officers Libby, an individual thatBurbank had seen in court after his arrest, and Davis, who Burbank saw atthe court house when he attended Lechner's trial and saw again at theDavis deposition.

13 On January 31, 2003, subsection (3) will be repealed andsubsection (2) will read as amended: A person is guilty of failure todisperse if the person knowingly fails to comply with an order madepursuant to subsection 1 and:

(A) The person is a participant in the course of disorderly conduct. Violations of this paragraph is a Class D crime; or

(B) The person is in the immediate vicinity of the disorderly conduct. Violation of this paragraph is a Class E crime.

17-A M.R.S.A. § 502(2) (West Supp. 2001).

14 Burbank denies hearing any order to disperse. However, it isundisputed that the officers were aware that an order (Davis contendsmultiple orders) to disperse had been given and it is this awareness andnot Burbank's that is material.

15 Even if I were to determine that Burbank's allegations if true domake out a claim for arrest without probable cause, Davis would prevailon the next part of the qualified immunity inquiry as an objective policeofficer could reasonably believe that he had probable cause to arrestBurbank. As the Seventh Circuit noted in Williams,

Whether police officers had probable cause to arrest a suspect and whether they are entitled to qualified immunity for the arrest are closely related questions, although qualified immunity provides the officers with an "additional layer of protection against civil liability" if a reviewing court finds that they did not have probable cause. Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir. 1989). In an unlawful arrest case in which the defendants raise qualified immunity as a defense, this court will "determine if the officer actually had probable cause or, if there was no probable cause, whether a reasonable officer could have mistakenly believed that probable cause existed." Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). If the officers can establish that they had "arguable probable cause" to arrest the plaintiff, then the officers are entitled to qualified immunity, even if a court later determines that they did not actually have probable cause. Id. Accordingly, we will affirm the district court's grant of summary judgment if we find that "a reasonable police officer in the same circumstances and with the same knowledge . . . as the officer in question could have reasonably believed that probable cause existed in light of well-established law." Id.

269 F.3d at 781. See, also, Gomez v. Atkins, 296 F.3d 253, 262 (4th Cir.2002).

16 While the reasonableness inquiry is a legal determination, on thisrecord, as the First Circuit has suggested may be the case, resolution ofthis prong cannot be had without a factual determination because thereare disputed material facts. Suboh, 298 F.3d at 90; Swain v. Spinney,117 F.3d 1, 10 (1st Cir. 1997).

1. Pursuant to Federal Rule of Civil Procedure 73(b) the parties haveconsented to allow the United States Magistrate Judge to conduct allproceedings in this matter.

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