Dixon v. Somersworth, NH, City of et al
Filing
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///ORDER granting 10 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bryan Dixon
v.
Civil No. 14-cv-397-LM
Opinion No. 2015 DNH 190
City of Somersworth, and
Police Officer Michael
McCarthy
O R D E R
Bryan Dixon brought three claims against the city of
Somersworth and two Somersworth police officers, Michael
McCarthy and Edward Correia, seeking to recover for injuries he
sustained when McCarthy and Correia took him into custody.
Before the court is defendants’ motion for summary judgment.
Dixon objects.
After Dixon filed his objection, the parties
“stipulate[d] that all claims in [this] action except Count I
with regard to the use of [a] taser shall be dismissed with
prejudice.”
Stip. (doc. no. 12) 1.
Accordingly, this case now
consists of a single claim against a single defendant: a Fourth
Amendment excessive-force claim against Officer McCarthy,
brought pursuant to 42 U.S.C. § 1983, based upon Officer
McCarthy’s use of a taser on Dixon.
For the reasons that
follow, defendants’ motion for summary judgment is granted.
I. Summary Judgment Standard
A movant is entitled to summary judgment where he “shows
that there is no genuine dispute as to any material fact and
[that he] is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant.
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
II. Background
The following facts, drawn from Officer McCarthy’s
affidavit, are undisputed.
Plaintiff acknowledges the lack of
any factual dispute, noting in his memorandum of law that he
does not recall the incident on which his claim is based.
At the time of the incident, McCarthy was a patrolman with
the Somersworth Police Department (“SPD”).
On October 20, 2011,
an SPD dispatcher notified Officer McCarthy of a report that a
male subject had broken into a parked car.
After responding to
the location of the break-in, Officer McCarthy briefly saw the
suspect, whom he has since identified as Dixon, fleeing from the
scene.
Officer McCarthy was then informed that Dixon had been
seen on a bicycle heading toward the General Electric plant
located along the Salmon Falls River in Somersworth.
Officer
McCarthy pursued the suspect to that location in his car.
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When he arrived at the General Electric plant, Officer
McCarthy was told that Dixon had climbed under a fence and was
running along the Salmon Falls River. Officer McCarthy began
driving to the river along the plant’s access road.
While
driving, Officer McCarthy spotted Dixon running near the river
and saw him climb under a second fence.
Dixon changed direction
and continued to run parallel to the river.
shouted at Dixon to stop.
Officer McCarthy
Dixon ignored Officer McCarthy’s
orders and continued running.
Officer McCarthy then pulled his cruiser closer to Dixon,
who again changed direction and headed toward the river.
Officer McCarthy exited his cruiser, and as Dixon ran by,
Officer McCarthy again ordered him to stop.
Dixon did not stop.
Instead, Dixon climbed over a chain-link fence and jumped
off of a ledge and across an open gap onto a metal staircase
attached to the side of a pump building.
At the bottom of the
staircase was a landing that overlooked a 50-foot drop to the
fast-flowing river and its rocky bed.
The only barrier between
the landing and the river below was a chain-link fence of about
the same height as the fence that Dixon had already climbed
over.
Dixon began running down the staircase toward the landing.
Officer McCarthy then shouted: “Stop or I will tase you.”
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Dixon
ignored Officer McCarthy’s command.
At that point, an eight-
foot fence secured with a padlock separated Officer McCarthy
from Dixon and the staircase.
He decided that climbing the
fence would be dangerous, and that he needed to use his taser to
prevent Dixon from climbing over the fence in front of him and
jumping into the river.
Officer McCarthy’s concern that Dixon
would jump into the river was based upon Dixon’s repeated
failures to obey commands and Officer McCarthy’s perception that
Dixon was acting as if he was under the influence of unknown
substances.
Officer McCarthy turned on his taser, aimed at the middle
of Dixon’s back, and shouted at least two more times: “Stop or I
will tase you.”
Dixon did not stop.
After waiting until Dixon
had nearly reached the bottom of the staircase, Officer McCarthy
fired his taser.
When he fired, Dixon was within five feet of
the taser’s maximum effective range.
Although Officer McCarthy
aimed for Dixon’s back, the taser’s probes struck him in the
head and arm.
Dixon brought this action, alleging claims that Officer
McCarthy used excessive force against him in violation of the
Fourth and Fourteenth Amendments to the United States
Constitution.
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III. Discussion
McCarthy argues that he is entitled to summary judgment on
grounds of qualified immunity and because his actions were
consistent with the Fourth Amendment.
Dixon objects, contending
that the reasonableness of Officer McCarthy’s actions is a
question of fact that should not be taken from the jury at this
stage of the litigation.
Officer McCarthy’s qualified immunity
argument is persuasive and dispositive.
Generally speaking, 42 U.S.C. § 1983 “provides a civil
remedy for state action that deprives persons of federal
statutory or constitutional rights.”
Rivera-Corraliza v. Puig-
Morales, 794 F.3d 208, 213 (1st Cir. 2015) (citing Klunder v.
Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015)).
The Fourth
Amendment, in turn, bars police officers from using a “level of
force [that is] objectively unreasonable under the
circumstances.”
Fernandez-Salicrup v. Figueroa-Sancha, 790 F.3d
312, 326 (1st Cir. 2015) (citing Asociación de Periodistas de
P.R. v. Mueller, 529 F.3d 52, 59 (1st Cir. 2008)).
More
specifically:
To determine whether an officer’s actions were
objectively reasonable, [a court] must balance “the
nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.”
[Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014)]
(internal quotation marks and citation omitted). In
so doing, [a court] analyze[s] the totality of the
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circumstances, taking the “perspective of a reasonable
officer on the scene, rather than . . . the 20/20
vision of hindsight.” Id. (internal quotation marks
omitted).
Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015).
As noted, McCarthy argues that he is entitled to qualified
immunity from Dixon’s Fourth Amendment claim.
“Qualified
immunity is a doctrine that shields government officials
performing discretionary functions from liability for civil
damages ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’”
Fernandez-Salicrup, 790
F.3d at 325 (quoting Estate of Bennett v. Wainwright, 548 F.3d
155, 167 (1st Cir. 2008); citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
The doctrine is intended to give “government
officials breathing room to make reasonable but mistaken
judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.”
Mitchell, 790 F.3d at 77
(quoting City & Cty. of S.F., Cal. v. Sheehan, 135 S. Ct. 1765,
1774 (2015)).
To determine whether defendants in § 1983 actions are
entitled to qualified immunity, courts employ a two-pronged
analysis.
See Fernandez-Salicrup, 790 F.3d at 325 (citing Glik
v. Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011).
Under the first
prong, a court must “decide ‘whether the facts alleged or shown
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by the plaintiff make out a violation of a constitutional
right.’”
Id. (quoting Glik, 655 F.3d at 81; citing Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).
Under the second
prong, a court “determine1s whether the right was clearly
established at the time of the defendant’s alleged violation.”
Id. (citation and internal quotation marks omitted).
Determining whether a right was clearly established, in turn,
involves a two-part inquiry into:
(a) whether the legal contours of the right in
question were sufficiently clear that a reasonable
officer would have understood that what he [or she]
was doing violated the right, and (b) whether in the
particular factual context of the case, a reasonable
officer would have understood that his [or her]
conduct violated the right.
Id. (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32–33 (1st Cir.
2011)).
Finally, a court considering a qualified immunity
defense may begin – and end – its analysis with the second prong
rather than having to start with the first.
See Rivera-
Corraliza, 794 F.3d at 215, 223 (citing Pearson v. Callahan, 555
U.S. 223, 236 (2009)); see also Mitchell, 790 F.3d at 77-78.
The court begins with the second prong.
When a defendant
invokes qualified immunity, “[t]he plaintiff bears the burden of
demonstrating that the law [the defendant purportedly violated]
was clearly established at the time of the alleged violation.”
Mitchell, 790 F.3d at 77; see also Rivera-Corraliza, 794 F.3d at
7
215 (citing Quintero de Quintero v. Aponte-Roque, 974 F.2d 226,
228 (1st Cir. 1992)).
To meet this burden, the plaintiff must:
[I]dentify controlling authority or a robust consensus
of persuasive authority such that any reasonable
official in the defendant’s position would have known
that the challenged conduct is illegal in the
particular circumstances that he or she faced — thenexisting precedent, in other words, must have placed
the statutory or constitutional question . . . beyond
debate.
Rivera-Corraliza, 794 F.3d at 214-15 (quoting Plumhoff, 134 S.
Ct. at 2023; citing Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083,
2084 (2011); Rocket Learning, Inc. v. Rivera–Sánchez, 715 F.3d
1, 9, 10 (1st Cir. 2013)) (internal quotation marks omitted).
Here, plaintiff does not even attempt to carry his burden
of identifying legal authority that would have placed Officer
McCarthy on notice that his actions would violate Dixon’s Fourth
Amendment rights.
In fact, plaintiff’s memorandum of law does
not include a single legal citation.
Rather, plaintiff’s
argument amounts to the following paragraphs:
A reasonable jury may decide that Defendant McCarthy’s
deployment of the taser had nothing to do with
preventing a suicide. The jury may determine that in
the heat of pursuit of the plaintiff, Defendant
McCarthy acted unreasonably and ignored his training
in the use of the taser and unreasonably deployed the
taser at someone running down a flight of stairs.
. . . [A] jury may find that Defendant McCarthy’s
firing of the taser while plaintiff was running down
the stairs was unreasonable. Therefore, it is
inappropriate at this stage of the proceeding for this
Court to take that decision from a jury.
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Pl.’s Mem. of Law (doc. no. 11) 3-4 (citation to the record
omitted).
Notwithstanding Dixon’s reference to suicide
prevention, Officer McCarthy never said he was concerned that
Dixon might attempt suicide.
Rather, he said in his affidavit
and his police report that he was concerned, based upon Dixon’s
actions up to that point – climbing over or under three
different fences and jumping across an open gap to the stairway
– that Dixon might attempt to continue eluding capture by
jumping over another fence and into the river.
More importantly, plaintiff’s attempt to stave off summary
judgment fails to account for the fact that under the
circumstances of this case, qualified immunity is a legal hurdle
that he must clear before his case can even get to a jury.
See
Mlodzinski, 648 F.3d at 28 (noting that “whether a particular
constitutional right existed” is a legal question); Raiche v.
Pietroski, 623 F.3d 30, 35 (1st Cir. 2010) (citing Iacobucci v.
Boulter, 193 F.3d 14, 22 (1st Cir. 1999)).
Moreover, it is well
established that qualified immunity, when properly invoked, “is
an immunity from suit rather than a mere defense to liability.”
Penn v. Escorsio, 764 F.3d 102, 109 (1st Cir. 2014) (quoting
Plumhoff, 134 S. Ct. at 2019).
Thus, the law is clear that Dixon bears the burden of
identifying legal authority that would have put Officer McCarthy
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on notice of the unconstitutionality of his actions, and the
court of appeals for this circuit has characterized that burden
as a heavy one.
See Mitchell, 790 F.3d at 77 (citing McGrath v.
Tavares, 757 F.3d 20, 29 (1st Cir. 2014)).
carried his burden.
Dixon has not
And, despite a diligent search, the court
has been unable to locate any legal authority that would have
put Officer McCarthy on notice that his use of a taser, under
the circumstances of this case, violated the Fourth Amendment’s
proscription of unreasonable force.
The opinion of the court of appeals in Mitchell offers
useful guidance on the state of the law regarding the use of
force against fleeing suspects on the date of the events giving
rise to Dixon’s claims.
In Mitchell, the alleged Fourth
Amendment violation took place in April of 2011, approximately
six months before Officer McCarthy’s encounter with Dixon.
The
plaintiff in Mitchell claimed that a police officer violated the
Fourth Amendment by shooting him with a gun as he was fleeing,
by car, from an attempt to take him into custody.
at 75-76.
See 790 F.3d
After pointing out that Mitchell had “the burden of
demonstrating that as of April 10, 2011, the time of the alleged
violation, the law was clearly established that a reasonable
officer in Miller’s shoes would be on notice that his actions
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would violate the Fourth Amendment,” id. at 78, the court of
appeals continued:
To determine the state of the law as of that date, we
first turn to the Supreme Court’s opinion in Brosseau
v. Haugen, 543 U.S. 194 (2004).
The conduct at issue in Brosseau occurred in
February 1999. Id. at 200 n.4. Police Officer
Brosseau responded to a fight in progress and chased
one of the participants (Haugen) on foot. Id. at 196.
When Haugen jumped into a parked Jeep and locked the
doors, refusing to exit the vehicle, Officer Brosseau
struck the Jeep’s window several times with her
handgun before shattering it. Id. She then reached
into the car and attempted to wrest the keys from
Haugen. Id. Haugen prevailed in the struggle,
managing to start the Jeep and throw it into gear,
driving in the direction of an occupied vehicle and
forcing Brosseau to jump back. Id. Brosseau fired
one shot as the Jeep drove off, hitting Haugen in the
back. Id. at 196–97. Haugen filed a § 1983 action
alleging that Brosseau used excessive force. Id. at
194–95. Officer Brosseau argued that she fired her
gun in reasonable fear for the safety of other
officers in the area, passengers in the occupied
vehicle, and “any other citizens who might be in the
area.” Id. at 197. The district court granted
summary judgment to Brosseau on the grounds of
qualified immunity, and the Ninth Circuit reversed.
Id. at 195. The Supreme Court “express[ed] no view as
to the correctness of the Court of Appeals’ decision
on the constitutional question,” but held that the
right was not clearly established, and Brosseau was
entitled to qualified immunity. Id. at 198. As the
Supreme Court has since instructed, “Brosseau makes
plain that as of February 21, 1999 — the date of the
events at issue in that case — it was not clearly
established that it was unconstitutional to shoot a
fleeing driver to protect those whom his flight might
endanger.” Plumhoff, 134 S. Ct. at 2023.
Mitchell, 790 F.3d at 78 (parallel citations omitted).
While
Brosseau is not directly on point, the requisite analysis does
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not require perfect congruence.
See id.
And, given the result
in Brosseau, this court concludes that as of October 2011, it
was not clearly established that it was unconstitutional to
shoot a seemingly impaired suspect fleeing on foot with a taser
to prevent that suspect from engaging in further flight that
appeared to pose a high risk of serious injury.
In sum, because Dixon has not carried his burden of
identifying any legal authority that would have put Officer
McCarthy on notice that using a taser on him violated the Fourth
Amendment, McCarthy is entitled to the protection of qualified
immunity and to judgment as a matter of law on the only claim
that remains in this case.
IV. Conclusion
For the reasons described above, defendants’ motion for
summary judgment, document no. 10, is granted.
The clerk of the
court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 5, 2015
cc:
Charles P. Bauer, Esq.
Caroline Leonard, Esq.
Lawrence A. Vogelman, Esq.
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