Hawker et al v. Sandy City Corporation et al
Filing
32
MEMORANDUM DECISION granting 22 Motion for Summary Judgment. Signed by Judge Robert J. Shelby on 09/03/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BRITT JOY HAWKER and CRAIG DEE
HAWKER, as guardians for C.G.H., a minor,
Plaintiffs,
MEMORANDUM DECISION
AND ORDER
vs.
SANDY CITY CORPORATION and
OFFICER TINA MARIA ALBRAND,
Case No. 2:12-cv-1
Defendants.
This case arises out of an incident that occurred on August 31, 2011, between C.G.H., a
fourth grader at Bell View Elementary School, and Defendant Tina Maria Albrand, a School
Resource Officer who was employed by the Sandy City Police Department. Plaintiffs Britt Joy
and Craig Dee Hawker, who are C.G.H.’s grandparents and guardians, allege that Officer
Albrand used excessive force when she arrested C.G.H. after he stole an iPad from the school.
The Plaintiffs have asserted additional claims against Sandy City under the theory that the city
failed to properly train or supervise Officer Albrand. The Plaintiffs also maintain that Sandy City
is liable for C.G.H.’s injuries because it ratified and approved of Officer Albrand’s allegedly
unlawful actions.
For the reasons stated below, the court finds that Officer Albrand did not commit a
constitutional violation. Since the Plaintiffs’ other claims all require that a constitutional
violation occurred, these remaining causes of action must be dismissed. Accordingly, the court
GRANTS the Defendants’ Motion for Summary Judgment.
FACTUAL BACKGROUND
On the morning of August 31, 2011, Bell View Elementary Principal Christine Webb
noticed that C.G.H. was carrying what appeared to be a school iPad. She asked him to return it,
and he became agitated when she looked to see whether the iPad was school property. C.G.H.
grabbed the iPad back from her and ran down the hall. Multiple teachers became involved in the
chase and struggle that ensued, in which C.G.H. became aggressive and was eventually put in a
Mandt hold.1 Principal Webb contacted Officer Albrand twice during this encounter. In the first
phone call, Principal Webb asked Officer Albrand to help with an incident involving a student
who was in possession of school property and was resisting. In the second call, Principal Webb
asked her secretary to tell Officer Albrand that the situation had escalated and that Officer
Albrand should come right away.
By this time, Ms. Hawker had also come to the school. Principal Webb, Ms. Hawker, and
the school psychologist, Rebecca Scharton, were all sitting across the hall from C.G.H. when
Officer Albrand arrived, and C.G.H. was no longer being restrained by any teachers. Principal
Webb asked Officer Albrand to issue C.G.H. a citation for the theft. The parties dispute the
events that occurred next.
Officer Albrand says that she approached C.G.H. and tried to start a conversation with
him. (Albrand Dep. 24-25; see also Webb Dep. 25, 66; Scharton Dep. 16.) C.G.H. did not look
at her or otherwise respond. (Albrand Dep. 25; see also Webb Dep. 65-66; Scharton Dep. 100.)
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In a Mandt hold, the teacher stands behind the student and puts his or her arms around
the student’s body with the student’s arms on top of the teacher’s arms. Ms. Hawker gave the
school permission to use a Mandt hold on C.G.H. if he became aggressive.
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Officer Albrand then asked C.G.H. to stand up, but he did not do so. (Webb Dep. 26, 30, 65; see
also Albrand Dep. 28-29; Scharton Dep. 15-16.) Ms. Scharton testified that she saw C.G.H. kick
his legs out toward Officer Albrand during this conversation. (Scharton Dep. 25.) Officer
Albrand then placed her left hand on C.G.H.’s left hand and her right hand on C.G.H.’s left
elbow to assist him to stand up. (Albrand Dep. 29.) As soon as Officer Albrand grabbed
C.G.H.’s arm, he started twisting and fighting. (Id. at 26.) Officer Albrand thought that C.G.H.
was grabbing for her duty belt, where she wore her gun, so she got a tighter grip on C.G.H.’s arm
using a twist lock technique. (Id. at 30.) Officer Allbrand held C.G.H.’s arm at his side with
both hands, twisting his arm in a painful way so C.G.H. could not kick or flail around. (Id. at 3031.) Officer Albrand was then able to put handcuffs on C.G.H., at which point he stopped
resisting. (Webb Dep. 27.) In total, Officer Albrand fought with C.G.H. for about three to four
minutes. (B. Hawker Dep. 103.) Principal Webb and Ms. Hawker then accompanied Officer
Albrand and C.G.H. to the school office. (Webb Dep. 26.) Officer Albrand’s account of what
happened was corroborated by Principal Webb and Ms. Scharton, although Ms. Scharton
admitted that her view was blocked because of the way that Officer Albrand and C.G.H. were
positioned. (Scharton Dep. 17-18.)
Ms. Hawker disputes this version of events because she claims that Officer Albrand put
C.G.H. in a twist lock directly after encountering him. According to Ms. Hawker, when C.G.H.
looked at Officer Albrand but did not respond to her questions, Officer Albrand immediately
“grabbed his arm, yanked him up off the floor, [and] put him in a twist lock.” (B. Hawker Dep.
90, 100.) Ms. Hawker stated that C.G.H. was crying “You’re hurting me” when he was placed in
the twist lock. (Id. at 90.) Ms. Hawker also testified that it was only after Officer Albrand
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grabbed C.G.H. and “put him against the wall” that C.G.H. attempted to kick at Officer Albrand.
(Id. at 90, 101.) The Plaintiffs emphasize that the twist lock hold is a type of pain compliance
technique designed to inflict pain so that the subject will be distracted from whatever activity he
is doing that the officer wishes to stop. (Albrand Dep. 31.) The Plaintiffs also point out that
none of the eyewitnesses saw C.G.H. grab for Officer Albrand’s gun. (See, e.g., Webb Dep. 6364.)
Once everyone was in the school office, Officer Albrand asked her supervisor, Sergeant
Brenda Sanders, to come to the school. In her deposition, Sergeant Sanders testified that she
asked C.G.H. if he had touched Officer Albrand’s gun. (Sanders Dep. 7.) According to Sergeant
Sanders, C.G.H. responded that he had only touched the handle but not the trigger. (Id.) The
Plaintiffs point out Sergeant Sanders did not mention this statement in her incident report, and
that no other eyewitnesses who were present in the office testified that C.G.H. said anything
about the gun.
The extent of C.G.H.’s injuries as a result of the incident are unclear. After Officer
Albrand completed C.G.H.’s citation, Ms. Hawker and C.G.H. left the school. Ms. Hawker then
took C.G.H. to the Intermountain Health Care Sandy Clinic because he was complaining of
shoulder pain. (B. Hawker Dep. 118.) Dr. Melinda Liddle examined him and ordered x-rays
after noting that C.G.H. had full range of motion and no other external evidence of injury.
(Liddle Dep. 14-15.) The radiologist determined that C.G.H.’s shoulder x-ray was normal, but
noted a possible hairline fracture in C.G.H.’s left clavicle. (Id. at 13-14.) Dr. Liddle
recommended that C.G.H. keep his arm in a sling and that he return to the clinic in a week for a
proper diagnosis. (Id. at 17, 20.) The Defendants note that Ms. Hawker never brought C.G.H.
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back to the hospital for this follow-up visit. (Id. at 14.) Ms. Hawker testified that, if C.G.H. uses
his arm a lot, “his shoulder still bothers him to this day.” (Hawker Dep. 122.) The parties also
dispute the extent of any psychological injuries that C.G.H. may have suffered as a result of his
encounter with Officer Albrand. The evidence most favorable to the Plaintiffs is the assessment
of Dr. Christopher Lang, C.G.H.’s treating psychiatrist, who saw C.G.H. about a month after the
incident and stated that C.G.H. was “experiencing high levels of anxiety that is almost moving
towards Post-Traumatic Stress Disorder after the incident with the police officer.” (Valley
Mental Health Records, Ex. 4 to Pls.’ Opp. Mem., at 33.)
ANALYSIS
I.
Standard of Review
The court grants summary judgment when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court
“view[s] the evidence and make[s] all reasonable inferences in the light most favorable to the
nonmoving party.” N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir.
2008).
The Defendants argue that Officer Albrand is entitled to qualified immunity for her
actions that occurred at Bell View Elementary School. The doctrine of qualified immunity
protects government officials “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant raises the
defense of qualified immunity, the plaintiff must “come forward with facts or allegations
sufficient to show both that the defendant’s alleged conduct violated the law and that the law was
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clearly established when the alleged violation occurred.” Pueblo Neighborhood Health Ctrs.,
Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). “Only after plaintiff has shown a violation
of a clearly established right does the defendant assume the normal burden of a movant for
summary judgment of establishing that no material facts remain in dispute that would defeat her
or his claim of qualified immunity.” Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir. 1989).
Overall, even though the burden shifts to the non-movant, the court must view the facts in a light
most favorable to the non-moving party. See Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th
Cir. 2010).
II.
Violation of Constitutional Rights
The Hawkers assert that Officer Albrand used excessive force when she pulled C.G.H. off
the floor and put him in a twist lock hold before handcuffing him. The Hawkers agree that this
allegation must be analyzed under the Fourth Amendment’s prohibition on unreasonable
seizures. Graham v. Connor, 490 U.S. 386, 394-95 (1989). To ascertain whether Officer
Albrand violated C.G.H.’s Fourth Amendment rights, the court must determine whether Officer
Albrand’s actions were objectively reasonable in light of the facts and circumstances confronting
her, and without regard to her underlying intent or motivation. See id. at 397. In its analysis, the
court must carefully balance the “nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Id. at 396. To
balance the government’s interest against the nature of the intrusion, the court applies the three
factors enunciated by the Supreme Court in Graham: (1) the severity of the crime at issue;
(2) whether the suspect poses an immediate threat to the officer or others; and (3) whether the
suspect is actively resisting arrest or fleeing to avoid arrest. Id.
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A.
Analysis of the Graham Factors
1.
Severity of the Crime
When Officer Albrand arrived at the school, she knew that C.G.H. had been fighting with
teachers and causing a school disruption for a period of time that was significant enough to
warrant two phone calls. She also knew that Principal Webb wanted to file criminal charges
against C.G.H. for stolen property. These crimes are relatively minor offenses, especially given
that they were committed by a child. As a result, this factor weighs in favor of the Plaintiffs.
2.
Whether C.G.H. Posed an Immediate Threat to Officer Albrand or Others
The Plaintiffs maintain that C.G.H. did not pose a threat to anyone before Officer Albrand
used the twist lock technique on him or otherwise handled him aggressively. According to the
Plaintiffs, Officer Albrand placed C.G.H. in the twist lock control hold immediately after he
refused to comply with her verbal commands. Ms. Hawker testified that after Principal Webb
told Officer Albrand that she wanted C.G.H. cited for theft, Officer Albrand told C.G.H., “[W]e
can do this the easy way by you talking or me, or we can do this the difficult way or hard way by
you not talking to me.” Ms. Hawker alleges that Officer Albrand then immediately placed
C.G.H. in a twist lock hold, which caused C.G.H. to scream in pain.
But Ms. Hawker also testified that C.G.H. grabbed Officer Albrand’s arm after Officer
Albrand first grabbed C.G.H.’s arm. (Hawker Dep. 100.) This testimony is inconsistent with
Ms. Hawker’s assertion that Officer Albrand immediately placed C.G.H. into a twist lock hold.
If C.G.H. had been placed in a control hold as soon as Officer Albrand touched him, it would
have been difficult for C.G.H. to grab her arm. As Officer Albrand testified, “I had [C.G.H.] by
his arm, and it was the beginning of a twist lock, and it was not a control hold at that point,
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because it allowed him to grab my gun and kick at me.” (Albrand Dep. 44.) Officer Albrand
also stated that if she had C.G.H. in a full, proper twist lock, he would not have been able to
resist and flail about. In addition, both Principal Webb and Ms. Scharton confirmed in their
depositions that Officer Albrand’s first physical contact with C.G.H. was to help him stand up.
While the court views the facts in the light most favorable to the Plaintiffs on this motion,
the Plaintiffs must nevertheless provide evidence “such that a reasonable jury could return a
verdict for a non-moving party.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000).
Given the contradictory testimony of every other witness, as well as Ms. Hawker’s own vague
and inconsistent statements, the court finds that Ms. Hawker’s statement that Officer Albrand
immediately placed C.G.H. in a twist lock hold is not sufficiently supported to allow a reasonable
jury to infer this version of the facts. As a result, there is no genuine dispute that Officer Albrand
had a brief physical interaction with C.G.H. before a struggle ensued and Officer Albrand placed
C.G.H. in the twist lock hold.
According to Officer Albrand, she felt she needed to apply this pain technique because
she was concerned that C.G.H. was trying to grab her gun. The Plaintiffs dispute that C.G.H.
ever reached for Officer Albrand’s gun, arguing that testimony from Sergeant Sanders about this
issue is inconsistent. Sergeant Sanders stated in her deposition that C.G.H. said in the school
office that he touched the handle of the gun, but not the trigger. But Sergeant Sanders did not
mention this statement in her initial report of the incident. The court is not persuaded that it must
disregard Sergeant Sanders’s deposition testimony simply because she omitted this information
from an earlier report. But even if the court assumes for the purposes of the summary judgment
motion that C.G.H. never said anything about the gun, the court still finds that there is no genuine
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issue of material fact about whether Officer Albrand believed that C.G.H. might grab her gun.
All the eyewitnesses to the encounter between C.G.H. and Officer Albrand, including Ms.
Hawker, testified that C.G.H. was struggling and grabbing Officer Albrand’s arm. A reasonable
officer could have believed that someone fighting with her in this manner might grab for her gun.
As a result, the court finds that it was objectively reasonable for Officer Albrand to believe that
C.G.H. could pose a threat to people in his vicinity. This factor weighs against the Plaintiffs.
3.
Whether C.G.H. Was Actively Resisting Arrest or Fleeing
For the reasons stated above, there is no genuine dispute that C.G.H. was actively
resisting Officer Albrand’s attempts to restrain C.G.H. when she applied the twist lock hold
technique to him. This factor also weighs against the Plaintiffs.
B.
Objective Reasonableness
Applying the Graham factors in this case, the court finds that Officer Albrand reasonably
thought that C.G.H. was resisting arrest and could pose a threat to Officer Albrand or others.
Although C.G.H. was a child who had committed minor offenses, Officer Albrand had a
legitimate interest in using some degree of physical coercion to restrain C.G.H. in these
circumstances. See Cortez v. McCauley, 478 F.3d 1108, 1125 (10th Cir. 2007). Even so, the
amount of force that Officer Albrand could permissibly use “is not unlimited,” and must still
meet the Fourth Amendment’s reasonableness standard. See id.
The court is persuaded that the amount of force that Officer Albrand used during her
encounter with C.G.H. was objectively reasonable. It is undisputed that Officer Albrand first
attempted to take control of the situation by verbally asking C.G.H. to stand up and accompany
her to the school office. When C.G.H. refused to speak to her, Officer Albrand either helped him
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to his feet or yanked him off the floor. Even if Ms. Hawker is correct that Officer Albrand
aggressively pulled C.G.H. from the floor, this amount of force does not constitute a
constitutional violation when an officer is attempting to effect an arrest, even in the regrettable
circumstance that the officer is arresting a child. After this initial physical contact, C.G.H. began
to struggle. Officer Albrand testified that C.G.H. grabbed for her belt, whereas Ms. Hawker
stated that C.G.H. grabbed Officer Albrand’s arm. Either way, Officer Albrand could have
believed that C.G.H. might be able to grab her gun if C.G.H. was not restrained more effectively.
In this situation, it was objectively reasonable for Officer Albrand to place C.G.H. in a twist lock
control hold while she put handcuffs on him. While intrusive, Officer Albrand’s actions were a
reasonable response to C.G.H.’s repeated refusal to comply with her requests.
The Plaintiffs urge the court to note the similarities between Officer Albrand’s use of
force and the circumstances in two cases in which the Tenth Circuit found a violation of a
constitutional right.2 In Novitsky v. City of Aurora, the court determined that a jury could find
that the use of a twist lock hold was unreasonable. 491 F.3d 1244, 1254-55 (10th Cir. 2007).
But in Novitsky, the police officer used the hold on an intoxicated man who was found asleep in
the back of a parked vehicle while the officers were performing routine “community caretaking”
rounds, despite evidence that Mr. Novitsky was complying with the officer’s requests and that his
demeanor was “benign.” United States v. Novitsky, 58 F. App’x 432, 436 (10th Cir. 2003)
2
The Plaintiffs also filed a Notice of Supplemental Authority asking the court to consider
an opinion that was recently issued by the United States District Court for the Western District of
New York. Rhodes v. Sanford, 2013 U.S. Dist. LEXIS 106910 (W.D.N.Y. July 29, 2013). The
Rhodes case is not binding authority on this court, but in any event, the court notes that a number
of factual differences distinguish Rhodes from the Plaintiffs’ case. For instance, the plaintiff in
Rhodes suffered extensive injuries, including a broken jaw, a broken tooth, a dislocated thumb,
and facial abrasions and contusions. See id. at *5.
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(unpublished).3 Here, Officer Albrand had been called to the school because C.G.H. was causing
a lengthy disturbance, and C.G.H. was resistant to her commands once she arrived at the school.
Even in Novitsky, the officers were granted qualified immunity because the Tenth Circuit found
that there were no cases that would put the officers on notice that their use of a twist lock in these
circumstances would be a violation of the Fourth Amendment. Novitsky, 491 F.3d at 1257. The
court does not need to reach the question of whether the law was clearly established here,
because it finds that Officer Albrand did not commit a constitutional violation.
Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), another Tenth Circuit case cited by the
Plaintiffs, is similarly inapposite. In Morris, the police tackled a man to the ground with such
force that he was hospitalized for nearly one month following the incident. Id. at 1190. Here,
the extent of C.G.H.’s injuries include a possible hairline fracture of his collarbone, some
lingering discomfort in his shoulder, and an aversion to police officers that may be a symptom of
psychological trauma. The court does not discredit or minimize the severity of any of these
injuries. But the consequences of C.G.H.’s encounter with Officer Albrand simply do not rise to
level of the injuries in Morris or other Tenth Circuit cases. While any injury that occurs during
the course of an arrest is unfortunate, especially when that injury occurs to a child, none of
C.G.H.’s physical or psychological complaints after the incident cause the court to question its
finding that Officer Albrand used a constitutionally appropriate amount of force given the
circumstances with which she was confronted.
At the hearing the court held on this motion on August 1, 2013, the Plaintiffs stressed that
3
This citation comes from an earlier case that involved a criminal prosecution against Mr.
Novitsky, who was carrying a handgun at the time of the incident and was subsequently indicted
for being a felon in possession of a firearm. Both Novitsky cases involve the same set of facts.
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even if Officer Albrand’s use of the twist lock hold was justified, a reasonable jury could find
that her initial physical contact with C.G.H. was a constitutional violation. The court disagrees
that there is sufficient evidence to support such a finding. After C.G.H. refused to comply with
Officer Albrand’s verbal commands, it was reasonable for her to employ a hands-on approach to
get C.G.H. off the floor. And at the point when Officer Albrand touched C.G.H., all the
eyewitnesses agree that a struggle began. Even Ms. Hawker testified that C.G.H. grabbed Officer
Albrand’s arm. Given these facts, there is not enough evidence to support a verdict that Officer
Albrand’s actions were objectively unreasonable. As a result, the court finds that no
constitutional violation occurred.
III.
Clearly Established Right
If the undisputed material facts show that there was no violation of a constitutional right,
“there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533
U.S. 194, 201 (2001). As a result, the court need not determine whether C.G.H.’s right to be free
of a twist lock hold or other aggressive handling in these circumstances was clearly established.
IV.
Municipal Liability
The Plaintiffs assert that Sandy City is liable for Officer Albrand’s acts under a number of
theories, including the arguments that Sandy City failed to adequately train and supervise its
police force, and that it encouraged or condoned the use of excessive force by concluding that
Officer Allbrand’s actions were lawful. To prevail on any of these theories, a plaintiff must
prove: “(1) that a municipal employee committed a constitutional violation; and (2) that a
municipal policy or custom was the moving force behind the constitutional deprivation.” Myers
v. Okla. Cnty. Bd. Of Cnty. Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citation omitted).
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Because the court finds that Officer Albrand did not commit a constitutional violation, Sandy
City cannot be liable to the Plaintiffs under § 1983.
CONCLUSION
For the reasons stated above, the court finds that Officer Albrand did not commit a
violation of the Fourth Amendment. Accordingly, Officer Albrand is entitled to qualified
immunity. The court GRANTS the Defendants’ Motion for Summary Judgment (Dkt. No. 22)
and orders the Clerk of the Court to close the case.
SO ORDERED this 3rd day of September, 2013.
BY THE COURT:
______________________________
ROBERT J. SHELBY
United States District Judge
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