Marcus Bounds v. Benjamin Parson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-01033-JFM Copies to all parties and the district court/agency. [1000118259].. [16-1686]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1686

MARCUS BOUNDS,
Plaintiff - Appellant,
v.
DEPUTY BENJAMIN C. PARSONS, Individually and in his official capacity as
Deputy with the Wicomico County Sheriffʹs Department; CORPORAL CRISTAN
K. TAYLOR, Individually and in his official capacity as Corporal with the
Wicomico County Sheriffʹs Department; OFFICER KEITH HEACOOK,
Individually and in his official capacity as Officer with the Delmar Police
Department; OFFICER TRAVIS DALLAM, Individually and in his official
capacity as Officer with the Delmar Police Department,
Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cv-01033-JFM)

Argued: March 24, 2017

Decided: July 14, 2017

Before FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY, United States
District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Luke Americus Rommel, ROMMEL & ASSOCIATES, Salisbury, Maryland,
for Appellant. Kevin Bock Karpinski, KARPINSKI, COLARESI & KARP, PA,

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Baltimore, Maryland, for Appellees. ON BRIEF: Jeffrey Bredeck, Megan G. Anderson,
ECCLESTON & WOLF, PC, Hanover, Maryland, for Appellees Heacook and Dallam.
Paul N. Rouhana, LAW OFFICE OF SEIGEL TULLY FURRER ROUHANA &
TULLY, Towson, Maryland, for Appellee Heacook.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcus Bounds sued four police officers under § 1983, alleging that the officers
used excessive force during his arrest. The district court granted the officers’ motion for
summary judgment. For the reasons that follow, we affirm.

I.
In the early morning of April 14, 2013, Benjamin C. Parsons, an officer with the
Wicomico County Sheriff’s Department in Maryland, responded to reports of a possibly
intoxicated driver slumped over the wheel of a vehicle on the side of a highway. Parsons
woke the driver – Marcus Bounds – and asked him to perform a field sobriety test.
Bounds refused, even after Parsons warned him that he would be arrested if he did not
take the test. Parsons then informed Bounds that he was under arrest and instructed him
to turn around and place his hands behind his back.
At this point, the accounts of the parties diverge, at least in part. It is undisputed
that after initially complying with Parsons’s instructions, Bounds, with his hands out and
not behind his back, tried to turn around. According to Bounds, he was attempting to
assure Parsons, who was screaming at him, that he was not resisting arrest. According to
Parsons, Bounds was “clearly intoxicated, . . . failing police commands, and [] resisting
arrest,” and posed a threat to Parsons’s safety. J.A. 370. Parsons twice deployed his
taser against Bounds and then placed Bounds in handcuffs.
As to the rest of the encounter, there is no testimony from Bounds, who was able
to remember only “bits and pieces.” J.A. 289. We do have the account of Parsons, along
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with those of three officers who arrived on the scene as back-up: Christopher Taylor,
Keith Heacook, and Travis Dallam. According to the officers, Bounds actively fought
their efforts to secure him in the back of the police car, jerking back and forth and
pushing his way out of the vehicle; was “very intoxicated [and] very disorderly”; and
refused to obey any of their commands. J.A. 88–89. We also have video footage from a
nearby security camera, which is generally consistent with the officers’ accounts. During
this stage of the encounter and before he finally was secured in the police car, Bounds
was tased a third time and brought to the ground several times by the officers.
Bounds was tried and convicted under state law for driving while intoxicated and
resisting arrest. With respect to the resisting arrest charge, the Maryland trial court,
relying in part on the video evidence, specifically found that during the first part of his
encounter with Parsons, Bounds turned and appeared to pull away from Parsons even
after he was told that he was under arrest.
Bounds served his sentence on his state convictions and then brought this action in
federal court under 42 U.S.C. § 1983, alleging that all four officers involved in his arrest
used excessive force against him. In a brief memorandum opinion, the district court
granted summary judgment to the officers. According to the district court, Bounds’s
version of events was refuted by the video tape evidence. Though the tape was “general
in nature, having been taken some distance away from the occurrence,” the district court
concluded that it confirmed the officers’ testimony. J.A. 420. Given the absence of a
genuine dispute of material fact, the court held, the officers were entitled to summary
judgment on Bounds’s claim of excessive force.
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This timely appeal followed.

II.
We review the district court’s grant of summary judgment de novo. Estate of
Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). In
so doing, we view “the evidence and all reasonable inferences drawn therefrom” in the
light most favorable to Bounds, the non-moving party. Id. at 895–96 (internal quotation
marks omitted). Summary judgment is appropriate only if no material facts are disputed
and the officers are entitled to judgment as a matter of law. Id.
It appears that the district court granted summary judgment to the officers on the
merits of Bounds’s claim, without reaching the officers’ alternative argument that they
are entitled to qualified immunity. But we may affirm on any ground that would support
the district court’s judgment, Catawba Indian Tribe of S.C. v. City of Rock Hill, S.C., 501
F.3d 368, 372 n.4 (4th Cir. 2007), and we conclude that the officers are indeed entitled to
qualified immunity.
“A government official sued under § 1983 is entitled to qualified immunity unless
the official violated a statutory or constitutional right that was clearly established at the
time of the challenged conduct.” Carroll v. Carman, 135 S. Ct. 348, 350 (2014). The
first prong of the qualified immunity inquiry asks whether the officer’s conduct actually
violated a federal right; the second, whether that right was clearly established at the time
of the violation, meaning that then-existing precedent was sufficiently clear that it put the
statutory or constitutional question “beyond debate.” Smith v. Ray, 781 F.3d 95, 100 (4th
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Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see Armstrong, 810
F.3d at 907. Here, we exercise our discretion to begin and end with the second question –
whether the asserted right was “clearly established” at the time of Bounds’s arrest. See
Smith, 781 F.3d at 100 n.3; Pearson v. Callahan, 555 U.S. 223, 236 (2009).
As the district court acknowledged, the video tape of the occurrence, filmed at
night and from a distance, is not of perfect quality, and it is not unambiguous in all
respects. But taken together, the record evidence in the case puts beyond genuine dispute
that Bounds, at a minimum, was physically resistant and noncompliant with officer
instructions. And in 2013, when Bounds was arrested, relevant precedent did not clearly
prohibit an officer from using force, including a taser, in order to effectuate an arrest of a
suspect who physically resists. It was not until 2016, in Armstrong, that we made clear
that a taser “may only be deployed when a police officer is confronted with an exigency
that creates an immediate safety risk,” and not “in the face of stationary and non-violent
resistance to being handcuffed.” 810 F.3d at 909–10. Nor does Meyers v. Baltimore
Cty., Md., 713 F.3d 723 (4th Cir. 2013), decided before Bounds’s arrest, clearly establish
any limit on the use of force to restrain a suspect who is resisting: At the time excessive
force was applied in Meyers, the suspect “was not actively resisting arrest,” id. at 735
(emphasis added), whereas Bounds resisted arrest throughout, starting with his efforts to
turn and face Parsons while being handcuffed and continuing through the officers’
multiple efforts to secure Bounds in the police car.
To satisfy the “clearly established” prong of the qualified immunity inquiry, we do
not require “a case directly on point.” Smith, 781 F.3d at 100 (quoting al-Kidd, 563 U.S.
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at 741). “[O]fficials can . . . be on notice that their conduct violates established law even
in novel factual circumstances.” Armstrong, 810 F.3d at 907 (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). “But they must, in fact, have notice in order to be held
liable.” Id. At the time of Bounds’s arrest, neither Meyers nor any other precedent
would have made clear to “every reasonable official,” see id. (internal quotation marks
omitted), that they were precluded from using force to effectuate the arrest of a physically
resistant and noncompliant suspect.

The officers are therefore entitled to qualified

immunity.

III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED

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