Sellier v. City of Colorado Springs et al
Filing
59
ORDER denying 43 Defendants' Motion for Summary Judgment; granting 52 Plaintiff's Unopposed Motion to Dismiss Defendant Felix Juliano without Prejudice, by Judge John L. Kane on 07/13/2011.(wjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-01219-JLK
DOUGLAS SELLIER
Plaintiff,
v.
J. FLORES,
ALAN VAN’T LAND,
STEVEN COLLINS, and
FELIX JULIANO, in their individual capacities,
Defendants.
ORDER
Kane, J.
Plaintiff Douglas Sellier is a fifty-one-year-old white male. The instant action arises out of
Mr. Sellier’s contact with Defendants, Colorado Springs Police Officers Juan Flores, Alan Van’t
Land, Steven Collins and Felix Juliano 1 on June 2, 2009 regarding Mr. Sellier’s grandson,
Joseph.
On that date, Mr. Sellier was at home when his daughter called to inform him that the
police were attempting to take Joseph pursuant to a protection order, of which she was allegedly
in violation. Mr. Sellier instructed his daughter to bring Joseph to the house. Pl.’s Ex. 1, Sellier
Dep. 32:12-32. Upon her arrival, Mr. Sellier immediately took the child inside. Id. at 34:8-15,
35:17-23. When he returned outside moments later, he found Officer Newell of the CSPD
standing at his fence. Id. at 35:24-36:1-6; see also Defs.’ Ex. 2, Newell Aff. 1 ¶3.
1
Both parties agree that Officer Juliano should be dismissed from this lawsuit, and Plaintiff filed a motion to that end. See Mot.
to Dismiss Def. Felix Juliano without Prejudice (doc. 52).
1
Officer Newell insisted that Mr. Sellier deliver Joseph, indicating that if Mr. Sellier failed
to comply, he would resort to force. Pl.’s Ex. 1, Sellier Dep. 37:6-7. When Mr. Sellier did not
comply, Officer Newell repeated his demand. Id. at 37:22-23. Mr. Sellier then asked if the officer
was “trying to force [Mr. Sellier] to protect [his] family and [his] home in a questionable
manner?” Id. at 37:24-38:3. When asked if that was his true intent, Mr. Sellier responded with an
equivocal “I guess.” Id. at 38:3-40:7. Interpreting this response as a threat of resistance, Officer
Newell declared Mr. Sellier under arrest, and ultimately called for back up. Id. at 40:8-10; see
also Defs.’ Ex. 2, Newell Aff. 2 ¶5. He did not, however, restrain Mr. Sellier, even though Mr.
Sellier had extended his hands in apparent acquiescence. Pl.’s Ex. 1, Sellier Dep. 44:20-25.
Confused by the situation, Mr. Sellier asked Officer Newell to explain what was
happening. Officer Newell stated that he was acting pursuant to a protection order for Mr.
Sellier’s grandson Joseph. Id. at 44:14-19, 48:16-49:13. Mr. Sellier requested to see the order
and attempted to explain that Joseph’s father was a registered sex offender. Id. at 49:9-24.
Officer Newell disregarded these statements, id. at 49:24-50:24, and despite Mr. Sellier’s
renewed requests to see the protection order, Officer Newell refused to retrieve a copy from his
car. Instead he declared Mr. Sellier under arrest once more. Mr. Sellier again offered his hands in
compliance, and Officer Newell again chose not to restrain him. Id.
Thus, still unrestrained, Mr. Sellier went into the house to grab his computer to show
Officer Newell the online sex-offender registry. Id. at 56:9-15, 57:23-58:6. When he returned
shortly thereafter, the back-up officers, including all four Defendants, were arriving on scene. Id.
at 56:25-57:22. Defendants had been informed that the situation was a code three, and therefore
warranted immediate emergency response and the use of patrol lights and sirens. Specifically,
Defendants had been told that a man was holding a baby in violation of a protection order and
2
had threatened to protect his property. See, e.g., Defs.’ Ex. 3, Juliano Dep. 24:3-25:6; see also
Defs.’ Ex. 2, Newell Aff. 2 ¶5.
After they arrived, Defendants and Officer Newell approached Mr. Sellier, who was now
sitting on his front porch waiting for his laptop to boot up. See Pl.’s Ex. 1, Sellier Dep. 63:3-9;
see also Defs.’ Ex. 3, Juliano Dep. 25. Officer Newell reached for Mr. Sellier’s left wrist and
exchanged head gestures with Officer Flores, who was approaching Mr. Sellier from behind.
Pl.’s Ex. 1, Sellier Dep. 63:17-64:6. Mr. Sellier recalls feeling, as he was raised to his feet, a
sudden sharp pain in his lower back and experiencing a lapse of consciousness that lasted for
some duration. Id. at 64:6-9. He awoke pinned facedown on the dirt by Defendants Collins,
Flores, and Van’t Land.2 Id. at 71-74. Drawing all reasonable inferences in the light most
favorable to the Plaintiff, as I must, it is logical to infer that this initial pain and loss of
consciousness were caused by the use of a taser or some other considerable force.
As Mr. Sellier lay face-down in the yard, Defendants repeatedly commanded that he
remove his arms from underneath his chest and put his hands behind his back, but Mr. Sellier did
not comply. Pl.’s Ex. 1, Sellier Dep. 73:7-15. In an effort to free Mr. Sellier’s arms, Defendant
Van’t Land struck Mr. Sellier’s right shoulder three times—first with an open hand, then with a
closed fist. Id. at 141:7-19; see also Defs.’ Ex. 6, Van’t L. Dep. 63:1-64:6. After physical force
proved unsuccessful, Officer Flores resorted to drive stunning Mr. Sellier.3 See, e.g., Defs. Ex. 5,
Flores Dep. At 55:19-56, 57:13-58:9; Defs.’ Ex. 7, Defs.’ Disclosures Pursuant to Fed. R. Civ. P.
26(a)(2) at 3-4.
All parties agree that Officer Flores tased Mr. Sellier’s upper-mid back in drive-stun mode
2
Defendants refute any suggestion that Mr. Sellier was tased while still on the front porch. Rather, the officers contend that the
taser was deployed only after Mr. Sellier became resistive of their attempts and commands to place his arms behind his back. See,
e.g., Defs.’ Ex. 4, Van’t L. Dep. 62-65; see also infra pp. 3-4.
3
According to Defendants, deploying a taser in drive-stun mode inflicts only localized pain, and is less debilitating than if
deployed in probe mode. See Defs.’ Ex. 7, Defs.’ Disclosures Pursuant to Fed. R. Civ. P. 26(a)(2) at 3-4.
3
at least once for a minimum of three seconds, and that Mr. Sellier responded by attempting to
pull the taser off his back, thereby prompting Officer Flores to tase Mr. Sellier’s hip for
approximately ten seconds. See, e.g., Defs. Ex. 5, Flores Dep. 55:19-56, 57:13-58:9; Pl.’s Ex. 1,
Sellier Dep. 69:1-94:11. Mr. Sellier ultimately succumbed to the tasing and surrendered his arms
to the officers. See Pl.’s Ex. 1, Sellier Dep. 95:18-96:25; see also Defs.’ Disclosures Pursuant to
Fed. R. Civ. P. 26(a)(2) at 4. Defendants handcuffed him and helped him to a sitting position,
Pl.’s Ex. 1, Sellier Dep 96:20-25, at which point he complained of difficulty breathing. The
officers requested an ambulance to transport Mr. Sellier to Memorial Central Hospital
Emergency Room to receive medical attention. Id. at 100-101:24. Mr. Sellier’s EKG was normal,
but he did not remain at the hospital long enough for further tests to be performed, opting instead
to return home, humiliated by the events that had transpired. Pl.’s Ex.1, Sellier Dep. 124:16126:15.
In this lawsuit, Mr. Sellier asserts that Defendants violated his Fourth and Fourteenth
Amendment rights by using excessive force in the course of arresting him.4 Defendants now
move for summary judgment on qualified immunity grounds. Having reviewed the parties’
briefs, I find oral argument unnecessary. Defendants’ Motion for Summary Judgment (doc. 50) is
DENIED.
STANDARD OF REVIEW
Ordinarily, the party moving for summary judgment bears the burden of demonstrating that
no genuine issue of material fact exists. Adamson v. Multi. Cmty. Diversified Servs., Inc., 514
F.3d 1136, 1145 (10th Cir. 2008). Because Defendants in this case assert a defense of qualified
immunity, however, Plaintiff bears the burden of establishing liability. See, e.g., Cortez v.
4
Mr. Sellier also sued the City of Colorado Springs, but he moved for, and I granted, voluntary dismissal with prejudice of his
municipal liability claims. See Order Granting Plaintiff’s Mot. to Dismiss Def. City of Colorado Springs with Prejudice (doc. 15).
4
McCauley 478 F.3d 1108, 1114 (10th Cir. 2007) (citing Medina v. Cram, 252 F.3d 1124, 1128
(10th Cir. 2001), for the proposition that summary judgment orders deciding qualified immunity
issues demand a standard of review distinct from other summary judgment decisions).
Qualified immunity shields officials acting within the scope of their authority from
individual liability for constitutional injuries “insofar as their conduct does not violate clearly
established statutory rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 229 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Accordingly, in order to establish liability, Plaintiff must show that (1) the alleged actions
violated a constitutional or statutory right and (2) the rights were clearly established at the time
of the alleged injury. See Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1184
(10th Cir. 2010).
Despite this altered framework, however, I apply many principles familiar to the review
of “ordinary” summary judgment motions. In determining whether Plaintiff has established a
constitutional violation, I do not weigh the evidence and instead view it and draw all reasonable
inferences from it in the light most favorable to Plaintiff. Adamson, 514 F.3d at 1145 (noting
that all factual inferences must be drawn in favor of the non-moving party). No such deference
is required, however, in resolving questions of law. Accordingly, Plaintiff bears a heavier
burden in establishing that the right allegedly violated was clearly established at the time of his
injury. He “must do more than simply allege the violation of a general legal precept; rather, [he
is] required to demonstrate a substantial correspondence between the conduct in question and
prior law allegedly establishing that [Defendants’] actions were clearly prohibited.” Id. (quoting
Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992)) (internal quotation marks omitted).
5
If Plaintiff clears these hurdles, Defendants assume the normal summary judgment
burden of establishing that there is no genuine dispute as to any material fact and they are
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adamson v. Multi. Cmty.
Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if it could affect
the outcome of the suit under governing law; a dispute of fact is genuine if a rational jury could
find for the nonmoving party on the evidence presented. Id.
Once Defendants meet this burden, Plaintiff must demonstrate more than “some
metaphysical doubt” as to the material facts to survive summary judgment. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Neither unsupported conclusory
allegations nor mere scintilla of evidence are sufficient to create a genuine dispute of material
fact on summary judgment. See Mackenzie v. City & County of Denver, 414 F.3d 1266, 1273
(10th Cir. 2005). In order to establish a genuine dispute as to a material fact, Plaintiff must
either cite to particular parts of materials in the record, or show that the materials cited by
Defendants do not demonstrate the absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1).
ANALYSIS
Constitutional Violation
Mr. Sellier asserts Defendants violated his Fourth and Fourteenth Amendment rights by
using excessive force in the course of his arrest.5 To establish this, Mr. Sellier must show that the
level of force used by Defendants was not objectively reasonable in light of the facts and
circumstances at the time of the alleged violation. Graham v. Connor, 490 U.S. 386, at 396.6 In
assessing the reasonableness of the officers’ force, I must carefully balance “the nature and
5
In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment
incorporated the Fourth Amendment as to the states.
6
Because the Fourth Amendment “provides an explicit textual source of constitutional protection against . . . physically intrusive
governmental conduct,” all claims “that law enforcement have used excessive force—deadly or not—in the course of an
arrest . . . of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a
‘substantive due process’ approach.” Graham, 490 U.S. at 395.
6
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing government interests at stake.” Id. The time at which the force was applied is as
important as the manner in which the force was applied. Id. at 395. Thus, the totality of the facts
and circumstances are to be considered, including such factors as “the severity of the crime at
issue, whether the suspect posed an immediate threat to the safety of the officers or others, and
whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Saucier v
Katz, 533 U.S. 194, 200 (quoting Graham, 490 U.S. at 396).
The first of the Graham factors is not disputed in this case. Mr. Sellier’s conduct was not a
severe crime; rather, obstructing a peace officer, the crime with which Mr. Sellier was ultimately
charged and for which prosecution was deferred, is a class 2 misdemeanor, punishable by as little
as $250. Colo. Rev. Stat. §§ 18-1.3-501, 18-8-104. Accordingly, my inquiry will be framed by
the remaining two Graham factors, the resolution of which demands a more nuanced
consideration of the factual circumstances of each particular episode of alleged use of force.
I begin by addressing the first tasing alleged by Mr. Sellier. As an initial matter, although
Defendants’ depositions reveal no evidence that a taser was used before Mr. Sellier was forced to
the ground, in his deposition, Mr. Sellier testified to the contrary under oath. He stated that after
he stood up on the front porch in compliance with the officers’ demands, he felt a sharp twinge
in his lower back and suddenly lost consciousness. Viewing the facts in the light most favorable
to the Plaintiff, it is reasonable, if only natural, to infer that Mr. Sellier was drive-stunned or
subjected to some other considerable force at this time and was then pinned facedown on the
ground even before he had shown any meaningful resistance.
While subsequent events may have reinforced an objectively reasonable belief that Mr.
Sellier “posed an immediate threat” and was “actively resisting arrest,” Mr. Sellier’s initial
7
compliance with the officers’ commands could not support such beliefs. Accordingly, the facts
of this case, when viewed most favorably to the Plaintiff, simply preclude a determination that
no reasonable jury could find the officers’ initial use of force and takedown of Mr. Sellier was
excessive. For the purposes of summary judgment and qualified immunity, Mr. Sellier has
sufficiently established that Defendants violated his constitutional rights under the Fourth
Amendment by using excessive force in the course of the first tasing.
Because I have found that Mr. Sellier has established that the officers’ initial use of force
violated his constitutional rights, I need not and, in fact, decline to reach consideration of the
final two tasings. I do note, however, that it is doubtful that these tasings—the only undisputed
tasings—would alone be sufficient to establish a constitutional violation. Yet, in construing the
facts in the light most favorable to the Plaintiff, these tasings cannot be considered independently
of the first; and when viewed in the context of the alleged initial use of force—the veracity of
which may be challenged at trial—the argument for reasonableness is greatly diminished.
Clearly Established
Having established that Defendants’ actions violated Mr. Sellier’s constitutional rights,
Defendants’ qualified immunity defense now hinges on a determination of whether those rights
were “clearly established” at the time and in the context of the circumstances that existed.
Saucier, 533 U.S. at 207 (2001). “The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 202. For reasons I will discuss, a reasonable
officer would not believe that Defendants’ initial use of force, as alleged by Mr. Sellier, was
permissible under the law.
8
To determine whether a right is clearly established, the Tenth Circuit ordinarily looks to see
if there was a Supreme Court or Tenth Circuit decision on point, or if the weight of authority
from other courts confirms that the law was as the plaintiff claims. Murrell v. Sch. Dist. No. 1,
186 F.3d 1238, 1251 (10th Cir. 1999). Because excessive force jurisprudence requires a highly
fact-intensive inquiry and a nuanced consideration of all the circumstances, however, there need
not be binding precedent on point. See Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)
(“[A] general constitutional rule . . . can apply with obvious clarity to the specific conduct in
question, even though [such conduct] has not previously been held unlawful.” (internal quotation
marks and alterations omitted)). Thus, the Tenth Circuit has adopted a sliding scale: “The more
obviously egregious the conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish the violation.” Pierce v. Gilchrist,
359 F.3d. 1279, 1298 (10th Cir. 2004). The plaintiff ultimately bears this burden of
demonstrating the necessary “substantial correspondence” between the conduct in question and
the contemporaneous state of the law. Adamson, 514 F.3d at 1145 (quoting Janz, 976 F.2d at 627
(10th Cir.)) (internal quotation marks omitted).
In the case at hand, it is sufficient to note that “an officer’s violation of the Graham
reasonableness test is a violation of clearly established law if there are ‘no substantial grounds
for a reasonable officer to conclude that there was legitimate justification’ for acting as [he or]
she did.” Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (quoting
Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1197 (10th Cir. 2001)). Here, each of
the Graham factors advised against the initial, unforewarned application of force. Mr. Sellier’s
compliance prior to the first tasing casts doubt on any suggestion that the officers believed he
was actively resisting arrest or presented an immediate threat at the time. Notably, the court in
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Casey remarked that it did “not know of any circuit that has upheld the use of a Taser
immediately and without warning against a misdemeanant like [the plaintiff],” who was similarly
compliant. Id. I, too, am unaware of any such instance, and thus I find that on the record before
me—which will likely be contested at trial—Defendants’ initial use of force, as alleged by Mr.
Sellier, was clearly without “legitimate justification.” Thus, Mr. Sellier has cleared the second,
and final hurdle demonstrating that Defendants are not entitled to qualified immunity from suit.
Defendants now assume the traditional summary judgment burden of establishing that
there is no genuine dispute as to any material fact. Because Mr. Sellier has established, as noted
above, that there exists a genuine dispute of fact regarding the first tasing—an event central to
his claim—Defendants have not carried their burden and their motion is DENIED.7
CONCLUSION
Based on the foregoing discussion, Defendants’ Motion for Summary Judgment is
DENIED. Furthermore, Plaintiff’s unopposed Motion to Dismiss Defendant Felix Juliano
without Prejudice is GRANTED.
DATED: July 13, 2011
7
BY THE COURT:
s/ John. L. Kane
Senior U.S. District Judge
See discussion supra pp. 7-8.
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