Higginbotham v. Brauer
Filing
24
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/7/2020. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
STUART HIGGINBOTHAM
:
v.
:
Civil Action No. DKC 18-1067
:
CORPORAL J. BRAUER1
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is the motion for summary judgment filed by Corporal
J. Bauer (“Defendant”).
briefed,
and
necessary.
the
court
(ECF No. 18).
now
Local Rule 105.6.
rules,
The issues have been fully
no
hearing
being
deemed
For the following reasons, the
motion will be denied.
I.
Background2
This action arises out of a citizen’s observation of a police
officer effectuating an arrest on a third party.
On
May
14,
2015,
Stuart
Higginbotham
(“Plaintiff”)
was
walking through a shopping mall. As he walked, he noticed “a bunch
of people and a crowd . . . forming” and saw a “security guard
1
The caption of the complaint identifies the defendant as
“Brauer” while elsewhere he is identified as “Bauer.” The clerk
will be instructed to amend the docket to reflect the correct
spelling of Defendant’s last name.
2
The facts outlined here are presented in the light most
favorable to Plaintiff, the nonmoving party.
yelling at a young lady, pointing at her.”
(ECF No. 18-2, at 6).
The young lady was Morgan Branch, a Black teenager.
Jeffrey
Bauer
(“Defendant”),
an
Anne
Arundel
Corporal
County
police
officer, and the security guard spoke, and Defendant also pointed
to Ms. Branch.
(Id.).
Plaintiff observed Defendant “[run] up
behind [Ms. Branch] and then jerk[] her arm[.]”
(Id.).
Defendant
“proceeded to put [Ms. Branch] in a chokehold, pick her up[,] and
body slam her face, hitting the left side of the face into the
tile floor.”
(Id.).
Defendant then “put his knee in [Ms.
Branch’s] back and put handcuffs on her.”
Plaintiff
interjected:
somebody’s daughter.
6).
“[T]hat’s
(Id.).
excessive.
That’s not necessary.”
That’s
(ECF No. 18-2, at
Other people in the crowd, including Ms. Branch’s boyfriend,
also objected to Defendant’s actions.
(Id., at 7).
Defendant
looked directly at Plaintiff and responded: “shut the fuck up.”
(Id.).
Plaintiff countered: “don’t cuss at me, what you did to
her is not right.”
(Id.).
get out of the mall.”
Defendant replied: “shut the fuck up,
(Id.).
The security guard then also ordered
Plaintiff to leave the mall and stated that he was banned (from
that point forward).
(Id., at 9).
The crowd had not dispersed,
and a white woman commented that Plaintiff should have seen what
[Ms. Branch had done].”
(Id.).
Plaintiff commented to Defendant
that if Ms. Branch “was white [Defendant] wouldn’t have done that.”
(Id.).
Defendant again told Plaintiff to “get out, leave the
2
mall.”
(Id.).
Branch’s mother.
Plaintiff replied that he would wait for Ms.
Defendant then arrested or handcuffed Ms. Branch
while Plaintiff continued to observe.
A female officer, Corporal Katherine Beall, then approached
Plaintiff.
Defendant
instructed
Officer
Beall
to
“detain”
Plaintiff and Officer Beall asked Plaintiff to follow her.
(ECF
No. 18-2, at 9).
They walked a few paces back together and began
a conversation.
Officer Beall did not order Plaintiff to leave
the mall, advise him that he was under arrest, or order him to put
his hands behind his back.3
After Officer Beall and Plaintiff spoke for a few moments,
Defendant “walked behind [Plaintiff] and said . . . you’re under
arrest.”4
(ECF No. 18-2, at 10).
asked: “for what?”
(Id.).
Plaintiff turned around and
Defendant struck Plaintiff in the head
with his forearm, put his forearm around Plaintiff’s neck, and
choked Plaintiff. (Id.). Plaintiff said that he could not breathe
3
Officer Beall’s deposition testimony suggests that she did
tell Plaintiff to leave, tried to usher him out of the mall, and
that Plaintiff would stop every few steps, turn around, and shout.
(ECF No. 18-3, at 10). Officer Beall was unsure of what he shouted
or to whom he was speaking. (Id.).
4
Plaintiff and Officer Beall described Defendant as
effectuating the arrest from behind immediately upon joining them.
(ECF No. 18-2, at 10; ECF No. 18-3, at 13-14). Defendant described
having a face-to-face conversation about force and race with
Plaintiff before initiating the arrest. (ECF No. 19, at 14-16).
Officer Beall testified that Plaintiff did not actively or
passively resist arrest (ECF No. 18-3, at 20-21; Defendant
testified that Plaintiff did resist arrest (ECF No. 19, at 16).
3
and
remained
standing.
Defendant
“put
more
[Plaintiff’s] neck and . . . kept squeezing.”
pressure
(Id.).
on
Plaintiff
asked, “what’s going on” and Officer Beall instructed him to “go
down.”
(Id.).
Plaintiff went to the ground.
As Plaintiff went
to the ground, Defendant grabbed Plaintiff’s right arm, threw it
back, and forcefully put his knee in Plaintiff’s back.
Defendant
handcuffed Plaintiff and pulled Plaintiff to a standing position.
Plaintiff expressed that he had shoulder pain.
not
reply,
handcuffs.
but
Officer
Beall
arranged
for
a
Defendant did
second
set
of
Defendant declined to handcuff Plaintiff with his arms
in front of his body.
They continued to speak, and Plaintiff
described the conversation:
Officer Bauer came back over and he said to me, he
said you incited a riot. I said no, you did that on
your own. I said I didn’t do anything. I just said
what you did to her was not right. And then he said –
he tried to justify, and I’m like, no, that’s not right,
what you did to that young lady was not right, and he
said you’re ignorant and I said ignorant, and then he
said you people need to learn how to keep your mouth
shut and I said us black people and he said yes, and
walked back over to where the girl was.
(ECF No. 18-2, at 12).
Defendant and another officer drove
Plaintiff to the police station.
indicated
that
Plaintiff
would
During the drive, Defendant
“pay
because
[Plaintiff]
made
[Defendant] late to go pickup his kids.” Plaintiff refused medical
treatment during the booking process.
ultimately
dismissed
the
disorderly
Plaintiff.
4
The State of Maryland
conduct
charge
against
On April 12, 2018, Plaintiff filed the instant complaint and
asserted four claims: (1) violation of 42 U.S.C. § 1983 (“Count
I”); (2) battery (“Count II”); (3) false arrest (“Count III”); and
(4) false imprisonment (“Count IV”).
After full briefing, the
court granted Defendant’s motion to dismiss Counts II through IV
because
Plaintiff
failed
to
provide
timely
notice
Maryland Local Government Tort Claims Act (“LGTCA”).
at 7-15).
under
the
(ECF No. 9,
Only Count I remains.
On September 10, 2019, Defendant filed the presently pending
motion for summary judgment.
(ECF Nos. 18; 19).5
Plaintiff
responded (ECF No. 22), and Defendant replied (ECF No. 23).6
II.
Standard of Review
Summary judgment is appropriate only if “there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is
5
Defendant filed ECF No. 19 to correct ECF No. 18-4.
Defendant identified ECF No. 19 as correspondence correcting an
earlier submission but the document does not contain any
correspondence. ECF No. 18-4 provides, in numerical and sequential
order, the first 41 pages of Defendant’s deposition. ECF No. 19
omits some of the pages contained in ECF No. 18-4 and provides
additional pages of the deposition. The court must refer to both
to reference the complete deposition transcript.
6
Three of Plaintiff’s exhibits are duplicative of Defendant’s
exhibits. Compare ECF No. 22-1 with ECF No. 18-2; compare ECF No.
22-2 with ECF Nos. 18-4; 19; compare ECF No. 22-4 with ECF No. 183.
These are the transcripts of Defendant’s, Plaintiff’s, and
Officer Beall’s depositions.
The opinion will reference
Defendant’s exhibits when referencing the deposition transcripts.
5
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (2001).
The existence of only
a “scintilla of evidence” is not enough to defeat a motion for
summary judgment. Anderson, 477 U.S. at 251-22.
Instead, the
evidentiary materials must show facts from which the finder of
fact reasonably could find for the party opposing summary judgment.
Id.
The facts are to be taken in the light most favorable to the
party opposing summary judgment, the non-moving party
III. Analysis
Plaintiff’s § 1983 claim alleges violation of the Fourth and
Fourteenth Amendments to the United States Constitution.
are two aspects to Count I.
There
First, Plaintiff contends that
Defendant arrested him without probable cause violating his right
to be from an unreasonable search and seizure of his person.
No. 1, ¶ 27).
excessive force.
(ECF
Second, Plaintiff contends that Defendant used
(Id.).
Defendant contends that he “had probable
cause to arrest [Plaintiff] for disorderly conduct” and that he
“has qualified immunity from the [excessive force claim] because
it
is
not
clearly
unconstitutional.”
established
that
the
(ECF No. 18-1, at 5).
6
method
he
used
was
A.
False Arrest
Plaintiff alleges that he was arrested without a warrant and
without probable cause in violation of the Fourth Amendment, which
protects “[t]he right of the people to be secure in their persons
. . . against unreasonable searches and seizures[.]”
U.S. Const.
amend. IV. Defendant contends that he had probable cause to arrest
Plaintiff for disorderly conduct (ECF No. 18-1, at 5-8), and argues
that probable cause defeats a retaliatory arrest claim (ECF No.
23, at 2-5). Although Plaintiff did not raise a retaliatory arrest
claim
or
allege
a
First
Amendment
violation
in
Count
I,
he
maintains that he “had an absolute right [to criticize verbally]”
Defendant’s
conduct
and
argues
that
Defendant’s
“claimed
justification for the arrest . . . is a matter of disputed fact.”
(ECF No. 22, at 15-18).
“Under the Fourth Amendment, a warrantless arrest is an
unreasonable seizure unless there is probable cause to believe
that a criminal offense has been or is being committed.”
States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010).
United
The standard
is objective; probable cause “exists when, ‘at the time the arrest
occurs, the facts and circumstances within the officer’s knowledge
would warrant the belief of a prudent person that the arrestee had
committed or was committing an offense.’”
Id. (quoting United
States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)).
cause
is
determined
by
a
“Probable
‘totality-of-the-circumstances’
7
approach.”
Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017)
(citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). The probable
cause inquiry “turns on two factors: ‘the suspect’s conduct as
known to the officer, and the contours of the offense thought to
be committed by that conduct.’”
Id. (quoting Graham v. Gagnon,
831 F.3d 176, 184 (4th Cir. 2016)).
For the first factor, courts
“look to the information available to the officer on the scene at
the time,” but “apply an objective test to determine whether a
reasonably
prudent
officer
with
that
information
would
have
thought that probable cause existed for the arrest.” Hupp v. Cook,
931 F.3d 307, 318 (4th Cir. 2019).
For the second factor, courts
look to the applicable criminal statute.
Id.
Disorderly conduct is a misdemeanor under Maryland criminal
law.
Md. Code. Ann., Crim.Law § 10-201(d).
Section 10-201(c)
outlines the prohibitions and provides, as relevant here:
(1)
A person may not willfully and without lawful
purpose obstruct or hinder the free passage of
another in a public place or on a public
conveyance.
(2)
A person may not willfully act in a disorderly
manner that disturbs the public peace.
(3)
A person may not willfully fail to obey a
reasonable and lawful order that a law
enforcement officer makes to prevent a
disturbance to the public peace.
The United States Court of Appeals for the Fourth Circuit
outlined the “contours” of Section 10-201(c)(3) in Ross v. Early,
746 F.3d 546, 561 (4th Cir. 2014):
8
[Section
10-201(c)(3)]
applies
to
offenders
who
“willfully fail to obey a reasonable and lawful order of
a law enforcement officer, made to prevent a disturbance
of the public peace.” Att’y Grievance Comm’n of Maryland
v. Mahone, 435 Md. 84, 76 A.3d 1198, 1210 (2013). Under
this subsection, the “‘failure to obey a policeman’s
command to move on when not to do so may endanger the
public peace, amounts to disorderly conduct’” in
violation of Maryland law. Id. (citation omitted). This
crime “is predicated on the law enforcement officer
issuing a reasonable and lawful order,” Polk v. State,
378 Md. 1, 835 A.2d 575, 580 n.3 (2003) (internal
quotation marks omitted), and as such, the command
“cannot be purely arbitrary and . . . not calculated in
any way to promote the public order.” Mahone, 76 A.3d
at 1211 (internal quotation marks omitted).
Defendant
argues
that
he
had
probable
cause
to
arrest
Plaintiff because he observed Plaintiff “in a public place, yelling
at the police for arresting someone, and refusing multiple times
to follow lawful orders to leave the mall.”
(ECF No. 18-1, at 6).
Defendant ties his probable cause argument to subsection (2),
disturbing the public peace, and subsection (3), failing to obey
a reasonable and lawful order, of Section 10-201(c).
7).
(Id., at 6-
In response, Plaintiff emphasizes Defendant’s deposition
testimony that Plaintiff’s “conduct up to, and including, the
period of time when [Plaintiff] was speaking with Officer Beall
was lawful.”
Defendant’s
(ECF No. 22, at 17).
position
“that
the
Plaintiff also underscores
allegedly
disorderly
conduct
manifested when [Defendant] subsequently approached [Plaintiff]
and sought to engage him in some conversation.”
(Id.).
Plaintiff
notes that there is a dispute of fact regarding that conversation.
(Id.,
at
17-18).
In
reply,
Defendant
9
questions
Plaintiff’s
reliance on Defendant’s initial intention not to arrest Plaintiff
and focuses on Plaintiff’s failure to obey his orders.
(ECF No.
23, at 2-5).
There is a dispute of material fact that precludes granting
summary
judgment
on
this
claim.
Construing
the
facts
in
Plaintiff’s favor, Defendant would lack probable cause to arrest
Plaintiff for disorderly conduct under either subsection (2) or
subsection
(3).
First,
according
to
Plaintiff’s
Plaintiff did not act in a disorderly manner.
account,
Plaintiff testified
at his deposition that he objected loudly to Defendant’s actions
“to convey what [he] had to say[,]” but that he “[was not]
screaming at the top of [his] lungs.”
(ECF No. 18-2, at 8).
He
also testified that a crowd already existed, and his actions did
not draw the crowd.
At Defendant’s deposition, Defendant agreed
that Plaintiff “[had not] done anything contrary to Maryland state
law[]” “when [Defendant] asked Officer Beall to go over and talk
to him[.]”7
(ECF No. 19, at 13).
Once Officer Beall and Plaintiff
began their conversation, further genuine disputes of material
7
This testimony seems to suggest that Plaintiff had not
willfully acted in a disorderly manner when Defendant asked Officer
Beall to speak with him.
Defendant’s reply, and focus on his
initial intention not to arrest Plaintiff, seems to highlight that
Plaintiff failed to obey orders both before and after speaking
with Officer Beall.
That is a matter of disputed fact.
Plaintiff’s deposition testimony indicated that Officer Beall did
not order him to leave the mall and that Defendant arrested him
immediately upon joining the conversation – foreclosing the
opportunity to order him to leave the mall again.
10
fact
exist
regarding
Plaintiff’s
conduct;
Officer
Beall
and
Plaintiff testified that the arrest occurred immediately whereas
Defendant
yelled,
testified
and
that
Defendant
saw
a
conversation
“people
occurred,
deviate
activity” and saw “[a] crowd was forming[.]”
from
Plaintiff
their
normal
(ECF No. 18-2, at
10; ECF No. 18-3, at 13-14; ECF No. 19, at 14-16).
Viewing the
facts in Plaintiff’s favor, Defendant lacked probable cause to
arrest him for disorderly conduct both before and after his
conversation with Officer Beall.
Second, the evidence would support a finding that Plaintiff
did not willfully fail to obey a reasonable and lawful order that
a law enforcement officer made to prevent a disturbance to the
public peace.
According to Plaintiff, only Defendant and the
security guard ordered him to leave the mall and they only did so
prior to his conversation with Officer Beall. The above conclusion
that Plaintiff did not engage in disorderly conduct compels the
conclusion that Plaintiff did not fail to obey a lawful order
because Section 10-201(c)(3) “requires a public disturbance.”
In
re Micah M., 2016 WL 1733272, at *5 (Md.App. Apr. 29, 2016); see
also Spry v. State, 396 Md. 682, 691-92 (2007) (“The gist of the
crime of disorderly conduct . . . is the doing or saying, or both,
of that which offends, disturbs, incites, or tends to incite, a
number of people gathered in the same area.”); Okwa v. Harper, 360
Md. 161, 185 (2000) (“When a citizen disobeys a reasonable and
11
lawful request by a police officer ‘fairly made to prevent a
disturbance to the public peace’ that citizen has engaged in
disorderly conduct.
The police officer’s request, however, must
be intended to prevent someone from inciting or offending others.
It may not be an arbitrary directive.”) (citations omitted); United
States v. Lee, No. 08-0485-DKC, 2009 WL 774424, at *1 (D.Md. Mar.
20, 2009) (“[I]t depends very much on the circumstances as to
whether any order is – or is not – arbitrary, and whether the order
is designed to prevent the disturbance of the public peace.”).
Defendant’s discussion of retaliatory arrest claims warrants
brief mention, even though Plaintiff did not assert a First
Amendment violation or a retaliatory arrest claim.
“Official
reprisal for protected speech offends the Constitution because it
threatens to inhibit exercise of the protected right and the law
is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory
actions, including criminal prosecutions, for speaking out[.]”
Hartman v. Moore, 547 U.S. 250, 256 (2006) (alterations, citations,
and quotation marks omitted).
The Supreme Court of the United States recently considered
“whether probable cause to make an arrest defeats a claim that the
arrest was in retaliation for speech protected by the First
Amendment.”
Court
Nieves v. Bartlett, 139 S.Ct. 1715, 1721 (2019).
explained
the
“complex”
12
causal
inquiry
necessary
The
for
retaliatory arrest claims, analogizing to retaliatory prosecution
claims and its earlier decision in Hartman v. Moore.
25.
Id. at 1722-
“Hartman adopted the requirement that plaintiffs plead and
prove the absence of probable cause for the underlying criminal
charge[]” when advancing a retaliatory prosecution claim.
1723.
Id. at
Nieves applied Hartman’s rule to retaliatory arrest claims
with a “narrow qualification” explained:
Although probable cause should generally defeat a
retaliatory arrest claim, a narrow qualification is
warranted for circumstances where officers have probable
cause to make arrests, but typically exercise their
discretion not to do so. In such cases, an unyielding
requirement to show the absence of probable cause could
pose “a risk that some police officers may exploit the
arrest power as a means of suppressing speech.” Lozman
[v. Riviera Beach, 585 U.S., at ----, 138 S.Ct. 1945,
1953-1954 (2018)].
When § 1983 was adopted, officers were generally
privileged to make warrantless arrests for misdemeanors
only in limited circumstances. See Restatement of Torts
§ 121, Comments e, h, at 262-263.
Today, however,
“statutes in all 50 states and the District of Columbia
permit warrantless misdemeanor arrests” in a much wider
range of situations – often whenever officers have
probable cause for “even a very minor criminal offense.”
Atwater [v. Lago Vista, 532 U.S. 318, 344-45, 354, 121
S.Ct. 1536 (2001)]; see id., at 255-360, 121 S.Ct. 1536
(listing state statutes).
For example, at many intersections, jaywalking is
endemic but rarely results in arrest. If an individual
who has been vocally complaining about police conduct is
arrested for jaywalking at such an intersection, it
would seem insufficiently protective of First Amendment
rights to dismiss the individual’s retaliatory arrest
claim on the ground that were was undoubted probable
cause for the arrest. In such a case, because probable
cause does little to prove or disprove the causal
13
connection between animus and injury, applying Hartman’s
rule would come at the expense of Hartman’s logic.
For those reasons, we conclude that the no-probable
cause requirement should not apply when a plaintiff
presents objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in
same sort of protected speech had not been. Cf. United
States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480,
132 L.Ed.2d 687 (1996).
That showing addresses
Hartman’s causal concern by helping to establish that
“non-retaliatory grounds [we]re in fact insufficient to
provoke the adverse consequences.” 547 U.S. at 256, 126
S.Ct. 1695.
And like a probable cause analysis, it
provides
an
objective
inquiry
that
avoids
the
significant problems that would arise from reviewing
police conduct under a purely subjective standard.
Because this inquiry is objective, the statements and
motivations of the particular arresting officer are
“irrelevant” at this stage. Devenpeck [v. Alford, 543
U.S. 146, 153, 125 S.Ct. 588 (2004)]. After making the
required showing, the plaintiff’s claim may proceed in
the same manner as claims where the plaintiff has met
the threshold showing of the absence of probable cause.
See Lozman, 585 U.S., at ----, 138 S.Ct., at 1952-1953.
Id. at 1727.
Assuming arguendo that probable cause existed for Defendant
to arrest Plaintiff for disorderly conduct, this case nonetheless
falls squarely within Nieves’s “narrow qualification.”
Construing
the facts in the light most favorable to Plaintiff, a crowd already
existed when Plaintiff approached the scene and others in the crowd
also criticized Defendant’s arrest of Ms. Branch.
at 6-7).
(ECF No. 18-2,
Plaintiff recalled that other people, including Ms.
Branch’s boyfriend, commented, “that’s not right” and asked, “why
did
[Defendant]
do
that.”
(Id.,
at
7).
Notably,
however,
Plaintiff does not identify any other crowd member that commented
14
on Ms. Branch’s race.
Only Plaintiff did so, distinguishing his
speech from the speech of the others criticizing Defendant.
Defendant contends that Plaintiff “has presented no evidence
.
.
.
that
he
was
arrested
when
other
similarly
situated
individuals were not[,]” elaborating that instead, “the evidence
is that [Plaintiff] willfully ignored a lawful order from a
uniformed police officer to leave the area and spoke in a manner
. . . that caused public patrons of the mall to stop and observe.”
(ECF No. 23, at 5).
not
support
The facts, construed in Plaintiff’s favor, do
Defendant’s
contentions.
Defendant’s
deposition
testimony (ECF No. 19, at 21-22), and the Anne Arundel County
Police computer aided dispatch report (“CAD report”) (ECF No. 223, at 6), indicate that only “one adult male” was arrested and
transported to the station.
Summary judgment will be denied on
the arrest claim.
B.
Excessive Force
Plaintiff also alleges that Defendant violated the Fourth
Amendment by using excessive force when arresting him.
Defendant
contends that even if the force employed was unreasonable, summary
judgment is nevertheless appropriate because he is entitled to
qualified immunity.
“Qualified
immunity
shields
police
officers
who
commit
constitutional violations from liability when, based on ‘clearly
established
law,’
they
‘could
reasonably
15
believe
that
their
actions were lawful.’”
Estate of Jones v. City of Martinsburg,
961 F.3d 661, 667 (4th Cir. 2020) (quoting Booker v. S.C. Dep’t of
Corr., 855 F.3d 533, 537-38 (4th Cir. 2017)).
The qualified
immunity analysis requires courts to conduct a two-step inquiry,
asking, in either order: “(1) whether a constitutional violation
occurred; and (2) whether the right was clearly established at the
time of the violation[.]” Id.
Defendant’s motion for summary
judgment focuses on the second inquiry only, conceding that the
forced used was unreasonable for purposes of the motion.
(ECF No.
18-1, at 8-12; ECF No. 23, at 6 (“[Defendant] has not moved for
summary
judgment
on
the
objectively reasonable.
the
force
he
used
grounds
that
the
force
he
used
was
Instead, [Defendant] argues that even if
was
unreasonable
(and
happened
just
as
[Plaintiff] suggests), he is entitled to qualified immunity for
the use because the law is not clearly established.”)).
“To determine whether [the] right was clearly established,
[courts] must first define the right at the ‘appropriate level of
specificity.’”
Estate of Jones, 961 F.3d at 667 (quoting Booker,
855 F.3d at 539)).
favorable
to
Construing the facts in the light most
Plaintiff,
Defendant
approached
Plaintiff
from
behind, stated Plaintiff was under arrest, immediately struck
Plaintiff in the head with his forearm, put his forearm around
Plaintiff’s neck, and choked Plaintiff.
(ECF No. 18-2, at 10).
Defendant then continued to choke Plaintiff to get Plaintiff to
16
the ground, pulled Plaintiff’s right arm behind Plaintiff’s back,
and shoved his knee into Plaintiff’s back.
(Id.).
not actively or passively resist the arrest.
Plaintiff did
(ECF No. 18-3, at
20-21).
At the time of Defendant’s conduct, it was clearly established
that a police officer’s tackling to the ground a non-threatening,
nonresisting, misdemeanor suspect violates the Fourth Amendment.
See Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir. 1993) (per curiam)
(holding that “[i]t would have been apparent to a reasonable
officer” that “it was unreasonable to push [an arrestee’s face
into the pavement with such force that her teeth cracked[]” even
if the arrestee was unrestrained and initially resisted arrest
when the arrestee “did not pose a threat”); Rowland v. Perry, 41
F.3d 167, 174 (4th Cir. 1994); Jones v. Buchanan, 325 F.3d 520, 532
(4th Cir. 2003) (“[O]fficers using unnecessary, gratuitous, and
disproportionate force to seize a secured, unarmed citizen, do not
act in an objectively reasonable manner and, thus, are not entitled
to
qualified
immunity.”);
Barfield
v.
Kershaw
Cty.
Sheriff’s
Office, 638 F.App’x 196, 203 (4th Cir. 2016) (“[A] police officer’s
unprovoked tackling of a nonthreatening, nonresisting misdemeanor
suspect violates the Fourth Amendment.”); Moore v. Peitzmeier, No.
18-2151-TDC, 2020 QWL 94467, at *11 (D.Md. Jan. 7, 2020) (“[T]here
is
controlling
precedent
holding
that
assaulting
an
unarmed,
subdued suspect or arrestee violates the Fourth Amendment.”).
17
Although Plaintiff was not secured when Defendant initiated the
take down, Plaintiff did not resist arrest.
Defendant contends
that he “had no way to know if [Plaintiff] was armed until they
had secured and patted him down.”
ECF No. 23, at 6).
(ECF No. 18-1, at 12; see also
This contention is unpersuasive given that
there has been no suggestion that Plaintiff was armed or that
Defendant suspected he might be.
See Rowland, 41 F.3d at 174
(“[Plaintiff] posed no threat to the office or anyone else.
There
never has been any suggestion that [Plaintiff] was armed or that
[Defendant] suspected he might be.”).
Defendant argues “that taking down a subject from behind with
an
arm
across
the
unconstitutional.
neck”
is
not
clearly
(ECF No. 18-1, at 8-12).
established
as
Defendant relies
primarily on three cases to support his position: (1) Carter v.
Jess, 179 F.Supp.2d 534 (D.Md. 2001); (2) Post v. City of Ft.
Lauderdale, 7 F.3d 1552 (11th Cir. 1993); and (3) Wesson v. Oglesby,
910 F.2d 278 (5th Cir. 1990).
Carter
is
Each is distinguishable.
distinguishable
because
the
plaintiff
there
“attempt[ed] to pull away, twisting and turning his body to avoid
the handcuffs.”
plaintiff’s
179 F.Supp.2d at 547.
struggle,
an
officer
In response to the Carter
“put[]
an
arm
around
[the
plaintiff’s] chest and neck[]” and two other officers “attempt[ed]
to bring [the plaintiff] to his knees.”
18
Id.
The Carter plaintiff
“continue[d] to twist his body, apparently resisting the efforts
to bring him to the ground.”
Id.
Post and Wesson are similarly unavailing.
The Post plaintiff
also resisted arrest, raising his hands to one of the arresting
police officers without having been told to do so.
1560.
7 F.3d at 1559-
Moreover, “[b]efore the night of the arrests, another
officer told [the arresting police officer] that he had recently
arrested [the Post plaintiff] for resisting arrest and that [the
Post plaintiff’s] resistance had been violent.”
Id. at 1559.
Finally, the Wesson court accepted for purposes of review the
plaintiff’s
contention
that
a
chokehold
was
excessive,
unreasonable, and malicious but rejected the plaintiff’s argument
that “the intentional application of any force beyond de minimis
is unconstitutional.”
910 F.2d. at 283.
The flaw with Defendant’s various arguments lies with his
characterization of Plaintiff as “non-compliant.”
at 12; ECF No. 23, at 6).
(ECF No. 18-1,
Defendant attempts to distinguish
Barfield v. Kershaw County Sheriff’s Office, 638 F.App’x 196 (4th
Cir. 2016) by arguing that the Barfield plaintiff voluntarily
complied whereas Plaintiff here did not.
(ECF No. 23, at 6-7).
Defendant fails to construe the facts in Plaintiff’s favor, and
doing so reveals that Plaintiff did not actively or passively
resist arrest or otherwise disregard Defendant’s orders during the
19
arrest.
Summary judgment will be denied on the excessive force
claim.
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendant will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
20
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