Howard v. Kansas City Police Department

570 F.3d 984, 2009 U.S. App. LEXIS 14415, 2009 WL 1885495

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 2, 2009
• Docket: 08-2448
• Status: Published

Opinions

BYE, Circuit Judge.

Kansas City, Missouri, police officers Ryan Bronner and Mike Sartain (collectively, the “Officers”) filed an interlocutory appeal from a district court¹ order denying their motion for summary judgment on Eddie Howard’s claim of excessive force on the basis of qualified immunity. We affirm.

I

Viewing the alleged facts in the light most favorable to Howard, this lawsuit arises from the following events.² On July 27, 2002, the temperature in Kansas City, Missouri, exceeded 100 degrees Fahrenheit, and local weather forecasters had issued a heat advisory. At approximately 4:45 p.m., Howard, who was sitting in his red Chevrolet Camaro, was shot in his upper left arm by someone in a green Mitsubishi Mirage. Howard drove away at a high rate of speed, and the assailants gave chase. Soon thereafter, Howard saw a police cruiser and attempted to get its attention by. honking and swerving his vehicle. Police officer Michael Galley observed the chase, activated his emergency lights, and pursued the speeding vehicles.

At some point during the car chase, Howard removed his shirt and wrapped it around his arm in an attempt to stem the flow of blood. Howard eventually decided to stop the vehicle and flee from his assailants on foot; he abandoned his vehicle, ran across a vacant lot, and climbed a fence. Howard’s assailants then ceased their pursuit. After climbing the fence, Howard saw another police officer and attempted to get his attention. Other police officers, including officers Bronner and Sartain, arrived on the scene.

Officers Bronner and Sartain drew their weapons and pushed Howard, who remained shirtless, onto the asphalt street. The Officers began administering first aid and questioning Howard about who shot him. After two to three minutes, Howard began complaining that the hot asphalt was burning his exposed skin. The Officers interrupted Howard’s complaints and continued to question him about his assailants. Howard continued to complain about the heat, and he asked the Officers whether he could move to a less painful spot. Specifically, he asked if he could lean on a police cruiser or if he could lay on a nearby patch of grass until an ambulance arrived. The Officers denied both requests.

As the asphalt continued to burn Howard, he began struggling to remove his exposed skin from the asphalt. In addition to his constant verbal complaints, Howard started moving his shoulders back and forth in an attempt to lift his back and arms off the asphalt. One of the Officers, however, held his arms down and restrained him against the asphalt. Howard then began moving his legs, but the other Officer grabbed hold of his legs and held them in place. After Howard was on the asphalt for seven to eight minutes, either Bronner or Sartain instructed a nearby officer to retrieve a yellow blanket from their police cruiser, and they placed the blanket underneath Howard.³ As a result of his exposure to the asphalt, Howard suffered second-degree burns on his arms, back, shoulders, neck, and upper buttocks.

Claiming they used excessive force in violation of the Fourth Amendment, Howard sued Bronner and Sartain under 42 U.S.C. § 1983.⁴ Bronner and Sartain moved for summary judgment on the grounds of qualified immunity. The district court denied the Officers’ motion, concluding the alleged facts state the violation of a clearly established right. This interlocutory appeal followed.

II

We have jurisdiction over this interlocutory appeal under the collateral order doctrine. Bonner v. Outlaw, 552 F.3d 673, 676 (8th Cir.2009). We review de novo the district court’s denial of summary judgment on the issue of qualified immunity. Ngo v. Storlie, 495 F.3d 597, 601-02 (8th Cir.2007). “Qualified immunity protects a government official from liability in a section 1983 action unless the official’s conduct violated a clearly established constitutional- or statutory right of which a reasonable person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.2006). To overcome the defense of qualified immunity, a plaintiff must show: (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation. See id. at 501-02. In Saucier v. Katz, the Supreme Court mandated us to consider these two requirements in sequential order. 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). That is, we were required to determine whether the facts demonstrated the violation of a constitutional or statutory right before determining whether that right was clearly established. See id. Recently, however, the Supreme Court abandoned this rigid sequence and allowed judges “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). In the instant case, we elect to proceed under the traditional framework and decide first whether the facts demonstrate a violation of Howard’s constitutional rights before determining whether such rights were clearly established.

A

Viewing the facts in the light most favorable to Howard, we conclude the Officers used excessive force in violation of Howard’s constitutional rights. We analyze excessive force claims in the context of the Fourth Amendment. Henderson, 439 F.3d at 502. “To establish a violation of the Fourth Amendment in a section 1983 action, the claimant must demonstrate a seizure occurred and the seizure was unreasonable.” Moore v. Indehar, 514 F.3d 756, 759 (8th Cir.2008) (quoting McCoy v. City of Monticello, 342 F.3d 842, 846 (8th Cir.2003)).

For purposes of the Fourth Amendment, a seizure occurs whenever “an officer restrains an individual’s liberty through physical force or a show of authority.” Id. Because the facts show the Officers pushed Howard to the ground and restrained him on the asphalt in spite of his attempts to move elsewhere, we conclude the Officers seized Howard. While the dissent is correct to note that Howard “voluntarily and willingly sought assistance” from the Officers, post at 994, it is equally true the Officers forced Howard to the ground, refused his verbal demands to be moved elsewhere, and actively resisted his physical efforts to remove himself from the burning pavement. Moreover, nowhere in the record is it clear that Howard felt free to leave the Officers’ care, but was simply objecting to a specific application of force as part of his treatment. Given the rapidly evolving circumstances of the situation, it is difficult to accept the dissent’s argument that a reasonable person would have viewed the seven to eight minute encounter as a series of mini-events that began as consensual, turned into a seizure, and then at some point once again became consensual. In contrast, a reasonable person who flags down police officers, is forced to the ground by those officers, is denied his requests to move elsewhere, and has his arms and legs pinned to the ground as he tries to get up would not believe that he was at “liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

Because the Officers seized Howard, we must determine whether the seizure was reasonable. “Once the predicate facts are established, the reasonableness of the official’s conduct under the circumstances is a question of law.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.2007) (quoting Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001)). The penultimate question is “whether the amount of force used was objectively reasonable under the particular circumstances.” Ngo, 495 F.3d at 602 (quoting Henderson, 439 F.3d at 502). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). In assessing the reasonableness of the Officers’ conduct, we look at the totality of the circumstances and focus on factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. We may also consider the result of the force. Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir.2004). Additionally, we must judge the reasonableness of the Officers’ conduct from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and with “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.

The present case is unusual because Howard was not a suspect in the traditional sense. Rather, the Officers contend, and Howard essentially concedes, they restrained him on the asphalt not with an intent to injure him, but to render medical aid. According to the Officers, they did not move Howard off the asphalt because they feared doing so could cause further injury. Nevertheless, by restraining Howard for the purpose of rendering medical aid and by actively preventing him from moving off the asphalt, the Officers seized Howard within the meaning of the Fourth Amendment. As such, “the question is whether the officers’ actions [we]re ‘objectively reasonable’ in light of the facts and circumstances, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. The Supreme Court has counseled that “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id.

Viewing the facts as previously described, we conclude the Officers’ use of force was objectively unreasonable. Initially, the 'Officers were justified in drawing their weapons and forcing Howard to the ground upon arriving at the scene. The Officers were aware there was a shooting and a high-speed car chase, and, even though Howard approached them trying to get their assistance, it was necessary for the Officers to ensure their safety until they could ascertain Howard’s role in the incident and determine whether he was armed.

It was the Officers’ actions after forcing Howard to the ground, however, that were objectively unreasonable. Once Howard was on the ground, it was apparent to the Officers that he was a victim of an attack and not a suspect, that he was unarmed, and that he was not attempting to flee, resist, or harm the Officers. While the Officers initially acted reasonably in administering first aid, Howard soon thereafter began complaining that the asphalt was burning his exposed skin. Howard asked to await an ambulance while leaning on a police cruiser or while lying on a nearby patch of grass; the Officers denied both requests. In spite of Howard’s constant complaints, it took the Officers four to six minutes before they responded and ordered someone to retrieve a blanket, which they then placed underneath him. Moreover, not only did the Officers fail to act in response to Howard’s complaints, they affirmatively resisted his attempts to move his exposed skin off the asphalt. The Officers were aware of the damage the asphalt was inflicting on Howard when he began to complain and move to free himself, and, instead of remedying the situation with reasonable dispatch, the Officers did nothing while Howard’s injuries worsened. As a result, Howard received severe second-degree burns. Given Howard’s persistent, specific complaints about the exposure of his exposed skin to hot asphalt on a day when the temperature exceeded 100 degrees, a reasonable officer should have recognized the danger to Howard and responded appropriately. Instead, Officers Bronner and Sartain did nothing for four to six minutes except pin Howard’s arms and legs to the ground in spite of his attempts to move his exposed skin off the asphalt. On this version of the facts, we conclude the Officers’ actions were not objectively reasonable.

Although the Officers did eventually respond to the danger by directing another officer to retrieve a blanket and placing the blanket underneath Howard, it was not reasonable for the Officers to wait seven to eight minutes after he was on the ground (four to six minutes after he began complaining) to do so. The blanket was available immediately, and there is no evidence the Officers were prevented from ordering another officer to retrieve it because of external factors or other responsibilities. Absent a good reason for waiting so long to remedy the situation while Howard’s injuries worsened, the Officers’ actions were unreasonable.⁵

The Officers contend they acted reasonably because they were trained in most circumstances not to move people who are injured and bleeding, and they did not move Howard because they feared doing so could risk further injury. The Officers’ justification, however, is unpersuasive. Their concern about moving Howard is a red herring because the Officers eventually placed a blanket underneath him; thus, the Officers must not have been concerned about the small amount of movement necessary to do so. While such a concern may have reasonably motivated their decision to prevent him from leaning on a police cruiser or moving to a nearby patch of grass, it does not explain why Bronner and Sartain waited four to six minutes after he began complaining before directing another officer to obtain a blanket. Thus, their delay in doing so was not objectively reasonable.⁶ As such, the Officers violated Howard’s Fourth Amendment right to be free from excessive force when they seized Howard.

B

We also agree with the district court that the constitutional violation was clearly established. To be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Lindsey v. City of Orrick, 491 F.3d 892, 902 (8th Cir.2007). “The question is whether the law gave the officials ‘fair warning that their alleged conduct was unconstitutional.’” Bonner, 552 F.3d at 679 (quoting Brown v. Fortner, 518 F.3d 552, 561 (8th Cir.2008)). “[0]ffi-cials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The “salient question” is whether the law in 2002 gave the officers fair warning that their alleged treatment of Howard was unconstitutional. Id.

“The right to be free from excessive force is a clearly established right' under the Fourth Amendment’s prohibition against unreasonable seizures of the person.” Mann, 497 F.3d at 825 (quoting Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998)). We have already concluded the Officers used excessive force in seizing Howard because they acted unreasonably in responding to the dangers posed by the hot asphalt. We similarly conclude a reasonable official would understand that such conduct constitutes excessive force. “The key distinction between [the reasonableness inquiry and the one made under the first step of the qualified immunity analysis] is that the right allegedly violated must be defined at the appropriate level of specificity before a court can determine it was clearly established.” Moore, 514 F.3d at 763 (quoting Craighead v. Lee, 399 F.3d 954, 962 (8th Cir.2005)) (alteration in original).

Defining the right at the appropriate level of specificity, the Officers had fair warning that their alleged conduct was not objectively reasonable, and thus unconstitutional. As of 2002, it was clearly established that the Fourth Amendment was violated if an officer unreasonably ignored the complaints of a seized person that the force applied by the officer was causing more than minor injury. This proposition was established, for example, in a series of cases involving failure to respond to complaints of overly-tight handcuffs. Kopec v. Tate, 361 F.3d 772, 778 (3d Cir.2004) (discussing clearly established law as of 2000); Heitschmidt v. City of Houston, 161 F.3d 834, 839-40 (5th Cir.1998); Martin v. Heideman, 106 F.3d 1308, 1312 (6th Cir.1997); Alexander v. County of Los Angeles, 64 F.3d 1315, 1322-23 (9th Cir.1995); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993); cf. Hanig v. Lee, 415 F.3d 822, 824 (8th Cir.2005) (discussing excessive, force claim arising in 2000). In this case, the Officers were expressly made aware, by Howard’s persistent complaints and efforts to move his arms and back off the asphalt, of the harm that the hot asphalt was inflicting on Howard. As such, it was clear to a reasonable officer that doing nothing for four to six minutes—and in fact making the situation worse by pinning Howard’s arms and back to the asphalt—without a good reason was unlawful in the situation Officers Bronner and Sartain confronted.

The dissent is incorrect to conclude that just because prior cases do not set forth a fixed period of time beyond which it is unreasonable to ignore a seized person’s complaints of pain, the constitutional violation in this case was not clearly established. Post at 1000. As noted, cases clearly establish that it is unreasonable to ignore a person’s complaints of pain resulting from an officer’s use of force. Because the Officers in this case ignored, i.e., did not reasonably respond to, Howard’s complaints of pain, the unlawfulness of their actions was apparent. We need not define at precisely what moment their delay became unconstitutional, only that waiting four to six minutes, without justification, before responding was tantamount to ignoring Howard’s complaints.⁷ Because case law clearly establishes that is a Fourth Amendment violation to unreasonably ignore a seized person’s complaints of pain, the unlawfulness of the Officers’ actions was apparent.

Moreover, the only excessive force case in existence at the time of the incident dealing with the dangers of hot asphalt on exposed skin found for the police officers only after finding several mitigating factors not present in this case. See Price v. County of San Diego, 990 F.Supp. 1230 (S.D.Cal.1998). In Price, police officers wrestled with a large suspect, hogtied him, and left him lying shirtless on hot asphalt. Id. at 1234-36. The suspect eventually died. Id. at 1236. Addressing the claim of excessive force with respect to leaving the suspect shirtless on hot asphalt, the court found the officers acted reasonably for several reasons: (1) the deputies were tired after struggling with the- suspect, which would have made it difficult to move a hefty and belligerent person; (2) the officers had to perform other tasks, such as calling for medical assistance and controlling onlookers; and (3) the suspect did not suffer any burns, which indicates the asphalt temperature was not so high that it was unreasonable to leave him lying there for a short period of time. Id. at 1241.

In this case, however, there is no evidence the Officers were unable to prevent the injuries caused by fhe hot asphalt; in fact, by placing a blanket underneath Howard the Officers demonstrate how easy and readily available such a solution was. Additionally, there is no evidence the Officers were reasonably prevented from directing another officer to retrieve the blanket because of other necessary responsibilities. Finally, Howard suffered severe second-degree burns. Because none of the mitigating factors present in Price were involved in this case, the Officers had fair warning that their use of force was not objectively reasonable. As such, the Officers’ conduct violated a clearly established right.⁸

ill

Accordingly, we affirm the district court.

1 . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.

2 . See McLean v. Gordon, 548 F.3d 613, 616 (8th Cir.2008) (construing the facts in the light most favorable to the non-moving party on review of a denial of summary judgment on the basis of qualified immunity).

3 . Both Bronner and Sartain admitted in their affidavits that they sent another officer to retrieve the blanket. ■

4 . Howard also brought an excessive force claim against police officer Michael Galley and a failure to train claim against the Board of Police Commissioners and its individual members in their official capacities. The district court dismissed Howard's claim against Galley for failure to serve, and it granted summary judgment in favor of the Board of Police Commissioners and its individual members on his claim for failure to train. Neither of these rulings are at issue in the instant appeal.

5 . While we agree with the dissent's assertion that the Officers were doing "something” during this time period to treat Howard's gunshot wound, post at 998, the relevant point is that they did "nothing” to respond to Howard’s complaints of pain caused by the hot asphalt. There is no evidence to suggest that because the Officers were administering first aid to Howard, they were prevented from simultaneously dispatching another officer to retrieve a blanket. Thus, it was unreasonable for the Officers to wait four to six minutes before directing another officer to retrieve said blanket when they could have just as easily done so immediately. Therefore, the Officers were not faced with a conflict between treating Howard’s gunshot wound and responding to Howard’s complaints of pain; they could have easily accomplished both, and it was unreasonable for them to fail to do so.

6 . Contrary to the dissent’s assertion, we are not "constructing]” a constitutional violation. Post at 997. We are affirming based on the district court's own theory of the case. See J.A. at 213-14 ("A question remains whether, in view of the circumstances present in this case, .the amount of force used by Officers Bronner and Sartain in holding plaintiff down on the hot pavement for some minutes before placing a blanket under him was objectively reasonable.”)

7 . The dissent makes much of facts that are not before the court. Had the Officers immediately directed someone to find a blanket, but it took several minutes for that person to retrieve the blanket, then it could not fairly be said that the Officers ignored Howard’s complaints. Post at 1000. Likewise, had circumstances been such that the Officers could not have retrieved the blanket because of other responsibilities (e.g., the Officers would have had to interrupt treatment to retrieve the blanket, and it would be reasonable to conclude the interruption in treatment would pose a greater threat than the hot asphalt), then they would have a good reason for delaying, and we would not say the Officers ignored Howard's complaints.

8 . We reiterate that our holding is premised on the stark factual scenario posited by Howard and the district court. In contrast, the Officers have averred that they dispatched an officer to retrieve the blanket after Howard complained about the hot pavement, and that Howard spent no more than a few minutes (as opposed to seven or eight minutes) on the pavement before he was moved to the blanket. If these facts are accepted, then the conduct of the Officers was objectively reasonable and consistent with the Fourth Amendment. At this stage of the proceedings, however, we must accept Howard’s contrary version of events, and we resolve the issue of qualified immunity on that basis.