Bettis et al v. Bean
Filing
47
OPINION AND ORDER denying 32 Motion for Partial Summary Judgment; granting 39 Cross-Motion for Summary Judgment. Signed by Chief Judge Christina Reiss on 9/29/2015. (law)
u.s. D!~_: i::c 1 co urn
DISTR!l;! 01:· 1~'cF''AQr•.JT
t 1
l
F.1' •.. r~D
¥ ,..,_
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
LORRAINE BETTIS and ROBIN POWERS,
Administrators, Estate of Wesley Bettis,
Plaintiffs,
v.
CHAD BEAN,
Defendant.
)
)
)
)
)
)
)
)
)
)
L
1
,
2015 SEP 29 PH 4: 47
C' r=-rq
~~Yw-
BY--"·--·-·"'--~-- n!:."" r"; 11 :~ \/ r~: r. ;-~ r,
'""' ..__'
'-
•
i.
c,.! I
,
~-, j
I
l \
Case No. 5:14-cv-113
OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION
FOR SUMMARY JUDGMENT
(Docs. 32 & 39)
Plaintiffs Lorraine Bettis 1 and Robin Powers, Administrators of the Estate of
Wesley Bettis (hereafter "Plaintiffs"), bring this action pursuant to 42 U.S.C. § 1983
against Defendant Officer Chad Bean. They allege Officer Bean violated Wesley Bettis's
Fourth Amendment rights by applying excessive force when he arrested Mr. Bettis in the
course of a domestic disturbance. Plaintiffs seek damages for pain and suffering under
Vermont's wrongful death and survivorship statutes, 14 V.S.A. §§ 1491, 1492.
Pending before the court is Plaintiffs' motion for partial summary judgment (Doc.
32) and Officer Bean's cross motion for summary judgment (Doc. 39). Plaintiffs seek
partial summary judgment in their favor on the issue of excessive force. Officer Bean
cross moves for summary judgment in his favor on Plaintiffs' excessive force claim, or,
in the alternative, asks the court to find he is entitled to qualified immunity with regard to
all of Plaintiffs' claims. On August 24, 2015, the court took the pending motions under
advisement.
Plaintiffs are represented by David J. Williams, Esq. and Brooks G. McArthur,
Esq. Officer Bean is represented by Nancy G. Sheahan, Esq.
1
Plaintiff Lorraine Bettis has remarried and changed her name to Lorraine Perreault.
I.
The Undisputed Facts.
A.
The Domestic Disturbance.
Plaintiffs' claims arise out of a domestic disturbance on June 26, 2012 at the Bettis
residence in Montpelier, Vermont between Wesley Bettis and his wife. At the time, Mr.
Bettis suffered from a bleeding disorder due to removal ofhis spleen in 1983, dementia,
and Parkinson's disease. He also had rotator cuff and joint issues that made it difficult
for him to lift his arms up parallel to the floor and then up over his head or up in front of
him. However, during the only range of motion testing performed on his left shoulder, he
could reach to the small of his back with reasonable strength and function. In 2005, Mr.
Bettis had also been treated for problems with both of his shoulders. Defendant Officer
2
Bean had no prior contact with Mr. Bettis and was unaware of his medical conditions or
mental health issues before the incident in question.
The incident began with a dispute over Mr. Bettis's request for additional antacids
which Ms. Bettis refused to provide to him. In response, Mr. Bettis knocked the
container of antacids out of her hand and they spilled on the floor. Ms. Bettis escorted
him into the master bedroom of their home. Mr. Bettis became very angry and grabbed
Ms. Bettis by the wrists so that he was holding her right wrist with his left hand and her
left wrist with his right hand. Ms. Bettis was able to pull a phone lying on the bed over to
her while Mr. Bettis was holding her wrists. With the phone still on the bed, she was able
to call 911. Ms. Bettis had never previously called 911 to request police assistance.
Ms. Bettis's 911 call was recorded and the recording, which has not been altered,
has been relied upon by both parties. 3 After speaking with Ms. Bettis, who was crying,
2
Officer Bean graduated from the Part-Time Vermont Police Academy in 2003 and the FullTime Academy in 2004. He has received training in the use of force, including training in a
technique known as a rear wrist lock and in the proper use of oleoresin capsicum ("OC") spray,
commonly known as pepper spray, which he is certified to use.
3
"In assessing whether there are triable issues of fact, the court may rely on facts as depicted in
an unaltered videotape and audio recording, even when such facts contradict those claimed by
the nonmoving party." MacLeod v. Town of Brattleboro, 2012 WL 5949787, at *7 (D. Vt. Nov.
28, 2012), aff'd, 548 F. App'x 6 (2d Cir. 2013) (citing Scott v. Harris, 550 U.S. 372, 379-81
2
the 911 operator contacted Capital West which is an emergency communications center
located in the Montpelier Police Station. Capital West provides dispatching services to
the Montpelier Police Department as well as dispatching services to a number of fire
department and EMS services. 4
During the 911 call, Mr. Bettis repeatedly told Ms. Bettis in a raised voice to hang
up the phone. He also asked Ms. Bettis: "What's the matter with you, bitch?" (Doc. 32-4
at 3:19-25.)
While on the phone with the 911 operator, Capital West sent various dispatches to
on-duty Montpelier police officers. An unaltered recording of those dispatches has also
been relied upon by the parties. Initially, Capital West sent a dispatch asking if one or
two officers "could slide up to 45 Pleasantview Street[.]" (Doc. 39-18 at 2:3-1 0.) The
dispatch stated that an ambulance was "headed up there for an unknown 911 call" which
was "was garbled, unintelligible" and that there was "somebody in the background saying
they needed help." !d. The dispatch stated that it"[ d]idn't sound like it was a fight, but
they just sounded like someone was concerned." !d.
At the time of the first dispatch, Officer Bean and Montpelier Police Officer Kevin
Moulton were patrolling in separate police cruisers. Montpelier Police Sergeant Wade
Cochran was the sergeant in charge at the time and he was either on the road or going out
on a call when the first dispatch was received. In a series of dispatches, Capital West
provided the following additional information:
800-units, got an update on Pleasant View. It is sort of a domestic, maybe a
mental health issue. Male in his sixties has his wife by the wrist. She is in
pain. He's ordering her to get off the phone and she said he never acted
like this before. He could be having some type of seizure.
***
He's yelling and swearing at her in the background.
***
(2007)). There is no evidence that any of the police officers listened to the 911 recording before
responding to the Bettis residence.
4
Capital West uses different frequencies for police and fire/EMS services.
3
Still ongoing.
***
800-units. Unknown weapons. She's not holding the phone anymore so
we can't ask her. They're still yelling in the background. She's in pain.
!d. at 5:2-7; 8:2-3; 11 :3; 17:2-5.
Upon hearing the first dispatch, Officer Bean activated his cruiser lights and siren
which triggered a video and audio recording from his cruiser as he proceeded to the
Bettis residence. Officer Moulton and Sergeant Cochran also separately proceeded to
that location. Two members of the Montpelier Fire and Ambulance Department, both of
whom were Emergency Medical Technicians ("EMTs"), also responded. The police
officers asked the EMTs to wait outside the Bettis residence and did not ask whether they
knew Mr. Bettis or had any prior experience with him. 5 Officer Bean, Officer Moulton,
and Sergeant Cochran have been trained that domestic dispute calls are among the most
volatile and deadly for police officers and that arrest is the preferred response.
Sergeant Cochran approached the back of the Bettis residence where he could hear
raised voices that sounded like a fight. Officer Moulton went to the door by the garage
which was locked. He could hear screaming from inside the residence. Officer Bean
proceeded to the front door of the Bettis residence and knocked on it and rang the
doorbell without receiving a response. As he did so, he could hear yelling from inside the
residence. Ms. Bettis heard the officers' knocking and told Mr. Bettis that she needed to
go to the door. Mr. Bettis did not let her do so and continued to hold her by the wrists.
Mr. Bettis was yelling at Ms. Bettis at a distance of approximately eighteen inches from
her face and stated: "I don't care who's at the door" and "I'm not taking any more of your
goddamn abuse." (Doc. 32-4 at 9: 15-18.) ·When Officer Bean continued to hear yelling
5
Prior to the date in question, the Montpelier Fire Department had been to the Bettis residence
on at least four occasions, and the responding EMTs were aware of Mr. Bettis's deteriorating
mental health. On prior occasions, Mr. Bettis opposed and actively resisted their requests that he
go to the hospital.
4
from inside the residence, he announced "Montpelier Police" and kicked in the front
door. 6
Officer Bean was the first to enter the Bettis residence, followed by Officer
Moulton and then Sergeant Cochran. The officers drew their firearms and made their
way upstairs, announcing their presence as they did so. From his vantage point in the
hallway, Officer Bean was able to see Mr. Bettis, who was considerably bigger than Ms.
Bettis, 7 holding and squeezing Ms. Bettis's wrists and yelling at her. Ms. Bettis was
visibly upset and was crying. Officer Bean again announced "Montpelier Police" and
ordered Mr. Bettis to "[l]et her go." !d. at 10:1-3. Mr. Bettis did not comply with this
command. Although the officers had no prior experience with Mr. Bettis, from his
behavior they determined that his mental health was compromised. Mr. Bettis repeatedly
stated: "I'm not taking it." !d. at 10:4-5. They also all believed that Mr. Bettis was
hurting Ms. Bettis because he was yelling at her, holding her by her wrists, and she was
crymg.
As Mr. Bettis was in his underwear, the officers determined that he did not have a
weapon on his person and so all three officers holstered their weapons. Officer Bean
entered the bedroom first and instructed Mr. Bettis to "[g]et down." !d. at 10:6. Mr.
Bettis did not comply with this order. Officer Bean then grabbed onto Mr. Bettis's left
hand and pried his fingers from Ms. Bettis's right wrist. At approximately the same time,
Officer Moulton attempted to pry Mr. Bettis's right hand away from Ms. Bettis's left
wrist. Officer Moulton noted that he felt Mr. Bettis tense up and resist his attempts to
remove his hand.
At that point, Officer Bean performed a rear wrist lock on Mr. Bettis's left hand,
which he had been taught was a low-level force technique that uses pain compliance on a
6
Plaintiffs' expert witness opines that it was reasonable for Officer Bean to force entry into the
Bettis residence and to believe that unless there was some type of intervention, death or serious
InJUry may occur.
7
At the time of the incident, Mr. Bettis was a sixty-six year old male who was approximately
5'10" to 6' tall and weighed 200 to 215 pounds. Ms. Bettis was sixty-three years old and
approximately 5'3" tall and weighed 130 pounds.
5
subject's wrist to assist officers in controlling an individual or facilitating handcuffing. 8
Officer Bean has neither been taught, nor has it been his experience, that a rear wrist lock
exposes anyone, including senior citizens, to serious bodily injury. He did not use OC
spray due to the small size of the bedroom, the proximity between Mr. and Ms. Bettis,
and the likelihood that the OC spray would have contaminated Ms. Bettis as well as the
police officers.
As Officer Bean performed the rear wrist lock by bringing Mr. Bettis's left hand
behind his back to handcuff him, he felt Mr. Bettis resist and pull away. At
approximately this same time, Officer Bean heard a snap and Mr. Bettis's left arm went
limp. Mr. Bettis then exclaimed: "my f* ***n '-he just broke-he just broke-he just
broke my arm[.]" !d. at 10:9-10. Mr. Bettis repeated this comment several times. The
recording on the 911 call appears to indicate that Ms. Bettis mentioned the word
"shoulder" as Mr. Bettis announced that his arm was broken. See Doc. 39, Ex. L at 4:30.
Ms. Bettis later described the event as follows: "The officer, on his left arm, brought it
from the back-or what I tried to tell him was he can't bring it up, because he was
bringing it back, I said you can't do that, and it was too late. It was-he'd already-he
broke it." (Doc. 32-8 at 23:9-13.)
Officer Bean instructed Mr. Bettis to give him his right hand. He also attempted
to handcuff Mr. Bettis's left wrist but was unable to do so. After Sergeant Cochran told
him it was unnecessary to proceed further with handcuffing Mr. Bettis, Officer Bean
ceased his efforts. Officer Bean directed Mr. Bettis to his knees, and he complied. In
8
Officer Bean describes the rear wrist lock as requiring an officer to use one hand to apply wrist
compression to the subject's wrist while the officer's other hand is placed on the inside of the
subject's elbow. The compression occurs by bending the subject's hand towards his or her wrist
while drawing the subject's arm along the subject's side. so that it is even with the subject's hip,
then continuing just past the subject's hip and upward to the subject's back. During the
maneuver, the subject is likely to feel pain in the metacarpals of the subject's hand, presumably
encouraging compliance.
6
doing so, Officer Bean did not apply pressure to Mr. Bettis's arm and only held Mr.
Bettis's arm in an effort to stabilize it. 9
Montpelier Fire Lieutenant Dana Houppi arrived at the Bettis residence as Officer
Bean was kicking in the front door. When Lieutenant Houppi entered the residence, he
proceeded to the master bedroom where he saw Mr. Bettis kneeling on the floor and
Officer Bean holding Mr. Bettis's left arm at his side and behind his back. It appeared to
Lieutenant Houppi that Mr. Bettis's arm was being held in an attempt to stabilize it. The
police officers asked Lieutenant Houppi to check Ms. Bettis for injuries. She told him
she was not hurt and she had no visible injuries.
Lieutenant Houppi was familiar with Mr. Bettis, had dealt with him on prior
occasions, including a couple of times within a year of the incident, and had found Mr.
Bettis to be very strong and capable of inflicting injury. Another firefighter/EMT who
responded also had prior experience with Mr. Bettis and found him to be a "big, strong
man." (Doc. 45-1 at 19, ~ 122.) Based on the amount of resistance he encountered from
Mr. Bettis, Officer Bean also believed he was strong.
As Mr. Bettis was being removed from his residence by the ambulance crew for
treatment, he took hold of one of the attendant's radio straps. The ambulance crew
forcibly removed Mr. Bettis's hand from the strap and restrained him with ties. En route
to Central Vermont Medical Center in Berlin, Vermont, Mr. Bettis attempted to "grab[]
and kick[] rescue person[nel]." (Doc. 39-16 at 2.) Mr. Bettis was transported to the
hospital, where he was admitted for treatment of an elbow fracture. Plaintiffs' expert
witness, Dr. Christian Bean, described Mr. Bettis's behavior as "disinhibited" and he
acknowledged that he appeared "to be actively trying to grab and hurt anyone who he
could get his hands on." (Doc. 45-1 at 20,
~
130.)
9
Officer Bean has been trained that officers should direct potentially violent individuals to a
kneeling or prone position whenever possible during an arrest or investigative detention. As part
of that training, he has been taught that the kneeling or prone position enhances safety for the
officer and others who are present because in order for an individual to become an increased
physical threat, he or she must generally attempt to get into a standing position.
7
B.
The Criminal Charges against Mr. Bettis.
After the incident, Officer Bean prepared an affidavit of probable cause in support
of criminal charges against Mr. Bettis for domestic assault, unlawful restraint,
interference with access to emergency services, and resisting arrest. In the affidavit of
probable cause, Officer Bean averred that:
I grabbed a hold of [Mr. Bettis's] left wrist and pried his hand off of [Ms.
Bettis's] arm. I then performed a rear wrist lock and [brought Mr. Bettis's]
left arm behind his back. I encountered resistance as [Mr. Bettis] tightened
and attempted to pull away from my rear wrist lock hold. I continued to
move his left arm behind his back and then heard a snap [after] which I
suspect [Mr. Bettis] sustained an injury as he kept repeating "You broke my
arm."
(Doc. 38-5 at 1, ~ 4.)
The Washington County State's Attorney's office subsequently brought charges
against Mr. Bettis for unlawful restraint, interference with access to emergency services,
and resisting arrest. On June 29, 2012, the Criminal Division ofthe Vermont Superior
Court, Washington Unit found probable cause for each of these charges.
On July 3, 2012, Mr. Bettis's physician, Peter Redford, M.D., wrote a letter to the
Washington County State's Attorney's office, opining that Mr. Bettis could not be held
responsible for his behavior and noting that his life expectancy was measured in weeks to
months due to unrelated health issues. On July 5, 2012, after receiving this letter, the
State's Attorney's office dismissed the criminal charges against Mr. Bettis without
prejudice. In doing so, the State's Attorney's office advised Officer Bean that if further
problems arose the charges could be refiled.
C.
Mr. Bettis's Death.
Mr. Bettis underwent surgery on June 28, 2012 to "fixate" his elbow by
restructuring the joint and holding it together with plates and screws. (Doc. 39-12 at
11: 14-22.) Mr. Bettis would have received surgery sooner but he was suffering from
pneumonia. The usual cause of the injury he sustained is a direct blow to the elbow,
usually from a fall. The treatment plan was for Mr. Bettis's injured elbow to be in a longarm cast for two to four weeks. Generally, the treatment would have been a splint,
8
however, a cast was used because Mr. Bettis's bone quality was compromised due to
suspected osteoporosis and because the treating physician had concerns regarding Mr.
Bettis's ability to cooperate with postoperative instructions.
An x-ray taken on July 20,2012 revealed that the fixation in Mr. Bettis's elbow
had "completely come apart." !d. at 16:12-20. Mr. Bettis's treating physician performed
a second surgery on July 23, 2012 to look for infection and to remove the hardware.
Initial cultures showed no infection so the majority of the hardware was removed and Mr.
Bettis's arm was placed in a splint. Mr. Bettis was briefly transferred to a residential care
facility, but returned to Central Vermont Medical Center on July 30, 2012 because the
surgical site had become infected. Mr. Bettis was reexamined by his treating physician
who advised Mr. Bettis's family that they could elect to have his arm amputated or ask
medical personnel to attempt to treat the infection. The Bettis family elected not to
pursue further medical intervention. On August 5, 2012, Mr. Bettis died as a result of the
infection.
A medical examiner, Dr. Elizabeth Bundock, performed an autopsy on August 6,
2012 and determined that the cause of Mr. Bettis's death was "sepsis due to surgical site
infection ... due to failed fixation of left humerus fracture due to blunt force injury of
left arm" and characterized the manner of death as a homicide, stemming from an
"altercation with other(s)." (Doc. 32-5 at 2.) 10
D.
The Subsequent Investigations.
Pursuant to the Montpelier Police Department's "Response to Resistance" policy,
Officer Bean completed a Montpelier Police Department Use of Force Report. In the
report, he stated that he "used [a] rear wrist lock to gain control over [a] male[.] I
encountered resistance from [the] male. I brought [his] left arm to the back and heard [a]
snap. Male brought to [the] ground." (Doc. 38-4 at 2.)
After Mr. Bettis's death, Montpelier Chief of Police Anthony Facos requested that
Captain David Covell of the Vermont State Police ("VSP") conduct an investigation into
10
The medical examiner is required to choose the manner of death from five categories: "natural,
accident, suicide, homicide, and undetermined." (Doc. 43-10 at 4:2-5.)
9
the incident. ChiefFacos also conducted his own review of the incident and concluded
that Officer Bean complied with the Montpelier Police Department's policy on "Dealing
with Persons of Diminished Capacity." The policy is intended to "provide field officers
with the essential
tact~cal
and processing skills necessary to effectively deal with persons
of diminished capacit[y]" so as to "protect the community, to safeguard the officers
involved in the encounter and to enhance the agency's risk management." (Doc. 32-12 at
1.) The policy provides that officers should "limit observable indications of force[,]" use
"non-threatening" verbal communication, and avoid "[ s]harp, authoritative commands"
because "threats to arrest or use force are not productive when dealing with persons with
diminished capacities." !d. at 3-4. The policy further provides:
Officers should utilize all available tactics to de-escalate the situation where
possible, however if an officer is faced with a dynamic and violent situation
which poses a threat to the officer or other persons present, then officers
should utilize their law enforcement control tactics outlined under the
"Response to Resistance" policy to gain control.
!d. at 3.
The Montpelier Police Department's Use of Force Policy provides that "[w]hen
the use of force is objectively reasonable the degree of force employed should generally
be in direct relationship to the amount of resistance employed by the person or the
immediate threat the person poses to the officer or others." (Doc. 32-13 at 1.) Under the
Use of Force Policy, an officer "must weigh the circumstances of each case and employ
only that amount of force which is objectively reasonable to control the situation or
persons." !d. at 2.
ChiefFacos concluded that Officer Bean's actions were justified because he faced
a volatile situation that posed a threat to Ms. Bettis. ChiefFacos further concluded that it
was appropriate for Officer Bean to apply a rear wrist lock and attempt to handcuff Mr.
Bettis.
In the course of the VSP investigation, VSP detectives interviewed Officer Bean,
Officer Moulton, and Sergeant Cochran, among others. Officer Moulton stated in hil
interview that the dispatcher had "mentioned, you know, possible, you know, mental
10
health issues or something like that." (Doc. 32-18 at 25:12-14.) Sergeant Cochran told
VSP detectives that he ordered Officer Bean "to take [Mr. Bettis] down[.]" (Doc. 32-19
at 10:9-10.) He also advised Officer Bean that "if we cuff [Mr. Bettis], let's cuff him in
the front[.]" !d. at 14:9.
Officer Bean told VSP detectives during his interview that, "[a]t some point, I
don't know which point it was, whether it was-whether it was here, or whether it was
going back with his arm touching his back, I heard a snap." (Doc. 32-16 at 18:8-11.)
Officer Moulton advised VSP detectives that after Mr. Bettis sustained an apparent
injury, "the fight kind of came right out ofhim[.]" (Doc. 32-18 at 16:18-19.) The
Vermont Attorney General's Office completed its review of the investigation by the VSP
on November 21,2012, concluding that there was no evidence of criminal misconduct on
the part of any of the officers involved.
II.
The Disputed Facts.
Although the parties dispute various facts, their challenges are directed to the
proper characterization of the facts rather than a dispute regarding the facts themselves.
For example, the parties do not dispute that Mr. Bettis was grabbing Ms. Bettis and
causing her pain, even if they dispute whether Ms. Bettis told the 911 operator that she
was in pain or that Mr. Bettis was hurting her. II
Similarly, the parties do not dispute that Mr. Bettis was noncompliant with the
officers' orders, but they dispute the extent to which the officers should have been aware
of Mr. Bettis's mental health problems. The parties agree that Mr. Bettis resisted Officer
Bean's attempt to arrest him but dispute the degree of resistance and whether that
resistance caused Mr. Bettis's arm to break.
The parties offer various arguments regarding the extent to which Ms. Bettis's
comments placed Officer Bean on notice regarding Mr. Bettis's shoulder condition before
Officer Bean applied the rear wrist lock. They also dispute whether Officer Bean's
attempt to handcuff Mr. Bettis thereafter was a further use of force.
11
The 911 recording appears to be incomplete as it begins when the 911 operator is speaking to a
dispatcher and recounting information provided by Ms. Bettis.
11
Finally, Plaintiffs argue that Officer Bean has provided inconsistent statements
regarding how and when Mr. Bettis's elbow was broken and assert that this is an effort to
conceal how the injury occurred.
Mere disagreement as to legal implications of the material facts does not bar
summary judgment. See Beard v. Banks, 548 U.S. 521, 530 (2006). "Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "[W]hile the materiality determination rests on the substantive law, it is the
substantive law's identification of which facts are critical and which facts are irrelevant
that governs." !d.
In this case, the court concludes that any disputes over the proper characterization
of the facts do not preclude summary judgment. Likewise, it does not matter for
purposes of summary judgment whether Mr. Bettis's resistance contributed to his injury
or to what location on Mr. Bettis's body Officer Bean had moved Mr. Bettis's arm when
he heard it snap.
III.
Conclusions of Law and Analysis.
A.
Standard of Review.
"The court shall grant summary judgment if the movant shows that 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). "[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of' the record that "demonstrate the absence of a genuine issue
of material fact." Celotex Corp. v. Catrett, 4 77 U.S. 317, 323 (1986). "The evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor." Liberty Lobby, Inc., 477 U.S. at 255. "Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary judgment
or for a directed verdict." !d. "When both sides have moved for summary judgment,
12
each party's motion is examined on its own merits, and all reasonable inferences are
drawn against the party whose motion is under consideration." Chandok v. Klessig, 632
F.3d 803, 812 (2d Cir. 2011).
"Although the burden of demonstrating that no material fact exists lies with the
moving party, '[u]nless the nonmoving party offers some hard evidence showing that its
version of the events is not wholly fanciful, summary judgment is granted to the moving
party."' Miner v. Clinton Cty., 541 F.3d 464, 471 (2d Cir. 2008) (quoting McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)). "[M]ere speculation and
conjecture is insufficient to preclude the granting of the motion." Harten Assocs. v. Inc.
Vi!!. of Mineola, 273 F .3d 494, 499 (2d Cir. 2001 ).
B.
Qualified Immunity.
The doctrine of qualified immunity protects government officials, including law
enforcement officers, "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." McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir. 1997) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It applies regardless of whether the
alleged harm stems from "a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact." Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).
To succeed on this affirmative defense, Officer Bean must establish that his
actions did not violate clearly established rights of which an objectively reasonable
official would have known. See Spavone v. N.Y. State Dep 't of Carr. Servs., 719 F .3d
127, 134 (2d Cir. 2013) ("Qualified immunity ... is an affirmative defense that the
defendants have the burden of raising in their answer and establishing at trial or on a
motion for summary judgment.") (internal quotation marks omitted). It is undisputed that
the right to be free from excessive force is clearly established. Green v. Montgomery,
219 F.3d 52, 59 (2d Cir. 2000); Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996).
Accordingly, in this case, the only issue is whether the force Officer Bean used was
reasonable under the circumstances. See Cowan ex ref. Estate of Cooper v. Breen, 352
13
F.3d 756, 764 n.7 (2d Cir. 2003) (observing that in excessive force cases, the qualified
immunity inquiry ultimately "converge[s] on one question: Whether in the particular
circumstances faced by the officer, a reasonable officer would believe that the force
employed was lawful.").
C.
Whether Officer Bean Used Excessive Force.
In order to prevail on a claim brought under 42 U.S.C. § 1983, Plaintiffs must
establish ( 1) actions taken under color of law; (2) a deprivation of a constitutional or
statutory right; (3) causation; and (4) damages. See Roe v. City of Waterbury, 542 F.3d
31, 36 (2d Cir. 2008); Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir.
2010). In this case, Plaintiffs allege a violation of Mr. Bettis's Fourth Amendment right
to be free from an unreasonable seizure. Officer Bean does not dispute that he was acting
under color of law, however, all other elements ofPlaintiffs' § 1983 claim are contested.
Under the Fourth Amendment, officers are generally permitted to use some degree
of force to effect an arrest. See Graham v. Connor, 490 U.S. 386, 396 (1989). Claims of
excessive force that arise in this context are analyzed under a reasonableness standard.
Graham, 490 U.S. at 395; Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006).
"Determining whether the force used to effect a particular seizure is 'reasonable' under
the Fourth Amendment requires a careful balancing of 'the nature and quality of the
intrusion on the individual's Fourth Amendment interests' against the countervailing
governmental interests at stake." Graham, 490 U.S. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)).
At the summary judgment stage, once the court has determined the relevant
undisputed facts and drawn all appropriate inferences, the court's determination of
reasonableness is a question oflaw. See Scott v. Harris, 550 U.S. 372, 381 n.8 (2007);
Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (quoting Warren v. Dwyer, 906 F.2d
70, 76 (2d Cir. 1990)). The court's inquiry must "embody allowance for the fact that
police officers are often forced to make split-second judgments-in circumstances that
are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in
a particular situation." Graham, 490 U.S. at 396-97. The determination "requires careful
14
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight." !d. at 396. The court may also consider "whether there were exigent
circumstances, whether the use of less force was feasible and prudent, and whether the
officer took reasonable steps to minimize the use of force and any injury resulting from
that force." MacLeod v. Town of Brattleboro, 2012 WL 1928656, at *5 (D. Vt. May 25,
2012), aff'd, 548 F. App'x 6 (2d Cir. 2013).
1.
Mr. Bettis's Fourth Amendm~nt Rights.
It is undisputed that Mr. Bettis had a Fourth Amendment right to be free from an
unreasonable seizure accomplished through the use of excessive force. It is further
undisputed that the injury he sustained as a result of the incident was a serious one. In
determining whether Officer Bean used excessive force, the court must therefore start
from the proposition that the Fourth Amendment interests at stake were substantial.
2.
The Crimes at Issue and the Governmental Interests at Stake.
The court next examines the crimes at issue and the magnitude of the
governmental interests at stake. In this-case, Officer Bean was responding to a 911 call
reporting a domestic disturbance with unknown weapons, a victim who was no longer on
the 911 call, and the perpetrator experiencing a potential seizure or mental health crisis.
As Officer Bean approached the Bettis residence, he heard yelling from within and made
a lawful warrantless entry in response. See Tierney v. Davidson, 133 F.3d 189, 196 (2d
Cir. 1998) (holding "[p]olice officers may enter a dwelling without a warrant to render
... assistance to a person whom they reasonably believe to be in distress").
As the first officer to enter the master bedroom, Officer Bean was confronted with
an agitated individual holding his wife apparently against her will and yelling at her at
close range. Ms. Bettis appeared to be in pain and was upset and crying. Mr. Bettis, who
was much taller and heavier than his wife, was in striking distance of her and appeared to
believe he had been the victim of her abuse. Officer Bean attempted to secure Ms.
Bettis's release through verbal commands, but this proved unsuccessful. Thereafter,
15
Officer Bean and Officer Moulton pried Mr. Bettis's hands from Ms. Bettis's wrists and
attempted to take him into custody. Mr. Bettis resisted those efforts. At that point, Mr.
Bettis posed an immediate threat to both Ms. Bettis and the responding officers. 12 The
threat of harm to Ms. Bettis and the responding officers was arguably compounded by
their concern that a mental health condition or a seizure was causing Mr. Bettis's erratic
behavior because it rendered it more difficult to predict how Mr. Bettis would respond to
police intervention. See Tierney, 133 F.3d at 196-97 (noting a court must consider "the
circumstances then confronting the officer, including the need for a prompt assessment of
sometimes ambiguous information concerning potentially serious consequences"); see
also Kerman v. City of New York, 261 F.3d 229, 241 (2d Cir. 2001) (observing that
"police officers are often forced to make spot judgments about a person's mental health
and should be entitled to reasonable leeway in those situations.").
In addition to responding to a volatile and escalating domestic disturbance, the
responding officers were also investigating a potential crime. When Officer Bean
encountered Mr. Bettis, he was holding Ms. Bettis and would not release her when
commanded to do so. The officers were aware that Ms. Bettis had placed a 911 call that
she did not complete. Mr. Bettis was ultimately charged with and propable cause was
found for the crimes of unlawful restraint, interference with access to emergency
services, and resisting arrest. Although misdemeanors, each of these crimes had the
potential to result in bodily injury to either the victim or law enforcement, or both.
12
Courts recognize that domestic disputes not only place the physical safety of victims at risk,
but also often threaten the physical safety of responding officers. See Mattos v. Agarano, 661
F.3d 433,450 (9th Cir. 2011) ('"The volatility of situations involving domestic violence' makes
them particularly dangerous.") (internal alteration omitted) (quoting United States v. Martinez,
406 F.3d 1160, 1164 (9th Cir. 2005)). Consequently, "[w]hen officers respond to a domestic
abuse call, they understand that violence may be lurking and explode with little warning. Indeed,
more officers are killed or injured on domestic violence calls than on any other type of call." !d.
(quoting Martinez, 406 F.3d at 1164).
16
Officer Bean also had at least arguable probable cause to arrest Mr. Bettis for
domestic assault. 13 He had witnessed Mr. Bettis apparently causing his wife pain by
grabbing and restraining her wrists and was aware of the possibility of a fight. The fact
that Mr. Bettis was not ultimately charged with domestic assault is of no consequence.
See Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989) ("[P]robable cause does not
require an officer to be certain that subsequent prosecution of the arrestee will be
successful."). Because the safety of the victim, the perpetrator, and the responding
officers was threatened, and because Officer Bean was investigating a number of offenses
including an assault, the governmental interests at stake were significant and the crimes at
.
.
Issue were senous.
3.
The Degree of Force Used and Lesser Alternatives.
Finally, the court considers whether the degree of force used by Officer Bean was
reasonable under the circumstances and whether a lesser degree of force was feasible.
See Graham, 490 U.S. at 395 (explaining that "the 'reasonableness' of a particular
seizure depends not only on when it is made, but also on how it is carried out."); see also
Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000) (holding that where the subject is
resisting arrest, the force used "must be reasonably related to the nature of the
resistance"); Brayshaw, 2015 WL 1523019, at *12 (noting that a court deciding whether
force was excessive should consider whether "lesser measures could have accomplished
the same objective."). There is, however, no requirement that an officer use the least
amount of force necessary. See Bryan v. MacPherson, 630 F.3d 805, 818 (9th Cir. 2010)
(holding "an officer need not have perfect judgment, nor must he resort only to the least
amount of force necessary to accomplish legitimate law enforcement objectives.").
13
Under Vermont law, "[a]ny person who attempts to cause or wilfully or recklessly causes
bodily injury to a family or household member, or wilfully causes a family or household member
'to fear imminent serious bodily injury shall be imprisoned not more than 18 months or fined not
more than $5,000.00, or both." 13 V.S.A. § 1042 (emphasis supplied). Household members
include "persons who, for any period oftime, are living or have lived together, are sharing or
have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship, or
minors or adults who are dating or who have dated." 15 V.S.A. § 1101(2); see also 13 V.S.A.
§ 1041 (defining household member by referencing the definition in Title 15). Domestic assault
is a misdemeanor under Vermont law.
17
Rather, available alternatives are relevant because excessive force may sometimes be
found where the force used was clearly excessive to accomplish the task at hand. See,
e.g., Weather v. City of Mount Vernon, 474 F. App'x 821, 823-24 (2d Cir. 2012)
(upholding jury verdict finding excessive force where plaintiff"was breaking no law, was
not resisting arrest, and was not placing himself or others in danger" and defendant
officer "twisted plaintiffl's] arm behind plaintiffs back" and "shove[ d) or push[ed]
plaintiff forcefully into the brick wall").
Plaintiffs concede that the officers were justified in using force to remove Mr.
Bettis's hands from Ms. Bettis's wrists. They argue, however, that once Mr. Bettis was
separated from Ms. Bettis, Officer Bean's use of further force was unnecessary and
excessive. Plaintiffs challenge both Officer Bean's use of a rear wrist lock to restrain Mr.
Bettis and his attempts to handcuff him thereafter. Officer Bean counters that he used a
minimal degree of force against a noncompliant individual who was actively resisting
efforts to take him into custody and that other forms of force were either more aggressive
or not reasonably available.
The Supreme Court's "Fourth Amendment jurisprudence has long recognized that
the right to make an arrest ... necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. In addition,
courts recognize that the refusal to comply with lawful police commands may, itself,
render the use of force reasonable to achieve compliance. See Husbands ex rei. Forde v.
City ofNew York, 335 F. App'x 124, 128 (2d Cir. 2009) (holding officer's use of force
was reasonable where suspect ignored command to stay still and refused to allow officer
to apply handcuffs). 14
14
Failure to comply with a lawful police order can constitute a "serious infraction," Hayes v.
City of Seat Pleasant, 2010 WL 3703291, at *7 (D. Md. Sept. 16, 2010), and may justify not
only a show of force but the use of force. See Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir.
2002) (determining it was reasonable for law enforcement to use force where the suspect had
already disobeyed one direct order from law enforcement); Jackson v. City of Bremerton, 268
F.3d 646, 652-53 (9th Cir. 2001) (stating law enforcement officers' use of force was not
excessive where officers "were faced with a group that refused to obey the officers'
commands").
18
In this case, when the officers made their way to the master bedroom and
discovered Mr. Bettis unarmed, they immediately holstered their firearms which was an
appropriate de-escalation of force. Mr. Bettis, however, remained noncompliant with
Officer Bean's verbal order to release his wife. After Officer Bean and Officer Moulton
forcibly removed Mr. Bettis's hands from his wife's wrists, he remained noncompliant,
agitated, and difficult t subdue. Plaintiffs' suggestion that Officer Bean should have
used OC spray on Mr. Bettis would have escalated the use of force and would have
contaminated everyone in the bedroom. See Tracy v. Freshwater, 623 F.3d 90, 98 (2d
Cir. 201 0) (holding use of pepper spray "constitutes a significant degree of force" and
should not be used "lightly or gratuitously").
Although the responding officers soon became aware that Mr. Bettis's mental
capacity was impaired, they had no means of discerning whether Mr. Bettis was likely to
be violent. 15 Mr. Bettis was a large man who appeared strong and capable of inflicting
injury and he was not wearing a sling, cast, bandage, or other indicia that he was
suffering from any kind of pre-existing injury. He was swearing, repeatedly stating that
he was not taking any more abuse, and he appeared both angry and upset. The fact that
Mr. Bettis was surrounded by law enforcement did not necessarily render the situation
less volatile. See Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) ("[W]e note that at
least one other court has rejected the idea that a surrounded suspect presents no danger to
others") (citing Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991)).
While authoritative commands may not have been the preferred approach to
subduing a person of diminished capacity, Officer Bean's request that Mr. Bettis get
down on the ground so that he posed less of a threat was a reasonable response under the
15
Plaintiffs fault the responding officers for not consulting with the EMTs at the scene (who had
dealt with Mr. Bettis on prior occasions). Not only did there appear to be exigent circumstances
that rendered an immediate entry into the Bettis residence advisable, it is far from clear that a
consultation would have altered the police officers' response. Despite their prior experience with
Mr. Bettis, the EMTs also had to physically restrain him to prevent him from hurting others.
19
circumstances. 16 When Mr. Bettis failed to comply with this command, Officer Bean
reasonably decided to attempt to take him into custody. See Draper v. Reynolds, 369
F.3d 1270, 1277-78 (11th Cir. 2004) (holding deputy's use of a taser gun to effect arrest
of motorist stopped for an unilluminated registration tag did not constitute excessive
force as motorist was noncompliant with requests to retrieve certain relevant documents
and was "acting belligerently and confrontationally" and thus deputy's use of force was a
reasonable response to a "tense and difficult" situation).
Thereafter, Officer Bean attempted to use a rear wrist lock to gain compliance of
Mr. Bettis's hands to facilitate handcuffing. Although Plaintiffs are correct that the
Second Circuit has held "handcuffing [is] not per se reasonable" to effect an arrest, it has
also held that "[n]either the Supreme Court nor the Second Circuit has established that a
person has the right not to be handcuffed in the course of a particular arrest, even if he
does not resist or attempt to flee." Soares v. Connecticut, 8 F.3d 917, 921-22 (2d Cir.
1993). Moreover, notwithstanding "a general consensus among courts to have addressed
the issue that otherwise reasonable force used in handcuffing a suspect may be
unreasonable when used against a suspect whom the officer knows to be injured," the
Second Circuit has observed that it is "aware of no case ... where a court held that
ignoring an uncooperative suspect's claim of invisible injury (such that handcuffing could
16
Plaintiffs argue that Officer Bean violated the Montpelier Police Department's policy for
Dealing with Persons of Diminished Capacity. A violation of policy, however, does not
automatically render an officer's conduct unreasonable or give rise to a constitutional violation.
See Soares v. Connecticut, 8 F.3d 917, 922 (2d Cir. 1993) ("We further note that the district
court placed unwarranted reliance on whether the officers complied with a written ...
handcuffing policy. To be sure the written policy might bear upon whether the officers' actions
were objectively reasonable, but it has no bearing on whether the officers violated clearly
established constitutional or statutory rights unless it somehow created a protected interest in the
plaintiff in not being handcuffed"); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992)
("Under§ 1983, the issue is whether [the officer] violated the Constitution, not whether he
should be disciplined by the local police force. A city can certainly choose to hold its officers to
a higher standard than that required by the Constitution without being subjected to increased
liability under § 1983. To hold that cities with strict policies commit more constitutional
violations than those with lax policies would be an unwarranted extension of the law, as well as a
violation of common sense.").
20
be harmful) made during the course of handcuffing constituted excessive force." Beckles
v. City ofNew York, 492 F. App'x 181, 182-83 (2d Cir. 2012).
Here, Officer Bean had no prior notice that Mr. Bettis was injured or was
otherwise more susceptible to injury than the average arrestee, and by her own admission
Ms. Bettis's warning about Mr. Bettis's shoulder consisted of a briefwaming that came
too late. Cf Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998) (permitting excessive
force claim where, despite visible shoulder injury marked by use of a sling, officer
grabbed plaintiffs wrist, pushed him, and held him against a door). No rational jury
could conclude that Officer Bean performed the rear wrist lock with an intent to cause
Mr. Bettis injury or with knowledge that it was likely to cause Mr. Bettis injury. See
Sheridan v. Trickey, 2010 WL 5812678, at *9 (D. Or. Dec. 16, 2010), report and
recommendation adopted, 2011 WL 588769 (D. Or. Feb. 10, 2011) ("Furthermore, [the
officer] made an honest mistake of fact when he concluded that a takedown could be
executed under the circumstances in a manner that minimized harm to [the plaintiff];
there is no evidence that suggests [the officer] acted to deliberately harm [the plaintiff] or
that he executed the takedown knowing that [the plaintiff] likely would be hurt.").
The rear wrist lock is a minimal use of force that generally does not pose a
significant risk of injury. 17 Officer Bean's training indicated that it was not likely to
cause injury and was appropriate for use on senior citizens. Although Plaintiffs argue
that it is relevant whether Officer Bean heard Mr. Bettis's arm snap when Mr. Bettis's
arm was near his side or near his back, any dispute in this respect is immaterial as there
17
See, e.g., Fuller v. Cty. of Orange, 276 F. App'x 675, 680 (9th Cir. 2008) ("[P]lacing [the
plaintiff] in a rear wristlock did not constitute an unreasonable use of force."); Lee v. Hefner, 136
F. App'x 807, 813 (6th Cir. 2005) ("Plaintiffs' own expert ... conceded that the wrist lock is 'a
low level of force with minimal probability of injury."'); Wilson v. Stallard, 2010 WL 3291798,
at *8 (W.D. Va. Aug. 19, 2010), aff'd, 403 F. App'x 797 (4th Cir. 2010) ("[T]he de minimis
nature ofthe injury inflicted on [the plaintiffs] wrist by [the officer's] use ofthe wrist lock
indicates that this use of force was also de minimis."); Johnson v. Nwankwo, 2004 WL 1660375,
at * 1 (N.D. Tex. July 23, 2004) ("[The plaintiff] was subdued and restrained with a wrist-lock,
which was the minimum amount of force necessary to ensure [the plaintiffs] compliance and to
prevent any further attack on any Officer."); Bermudez v. Kelly, 1998 WL 798893, at *3 (N.D.
Cal. Nov. 9, 1998) ("[T]he force used by these officers was minimal, placing plaintiff in wrist
locks, taking him to the ground, and holding him against the patrol car.").
21
can be no reasonable claim that Officer Bean briefly continued the maneuver in order to
exacerbate Mr. Bettis's injury. Officer Bean was not required to perform the maneuver
perfectly and it was objectively reasonable for him to apply more force in the face of Mr.
Bettis's perceived resistance. See Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled
'
on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009) ("If an officer reasonably,
but mistakenly, believed that a suspect was likely to fight back, for instance, the officer
would be justified in using more force than in fact was needed."). Correspondingly, the
fact that Mr. Bettis suffered a serious injury in the course of the rear wrist lock does not
render Officer Bean's conduct unreasonable or his use of force excessive. "[T]he Fourth
Amendment addresses 'misuses of power,' not the accidental effects of otherwise lawful
government conduct." Brower v. Cty. oflnyo, 489 U.S. 593, 596 (1989) (internal citation
omitted); see also Brayshaw, 2015 WL 1523019, at *11 (noting that "officers do not use
excessive force where they make an objectively reasonable mistake of fact regarding the
amount of force required or their ability to employ a ... maneuver in a manner that
minimizes harm to the suspect"). Officer Bean's use of the rear wrist lock was thus a
reasonable means of obtaining control of an agitated and noncompliant individual whom
he had probable cause to arrest and who appeared to pose an immediate threat to those in
close proximity to him.
Plaintiffs' argument that once Mr. Bettis had suffered an injury it was
unreasonable to attempt to handcuff him is equally unpersuasive. After Mr. Bettis stated
that his arm was broken and it appeared limp, Officer Bean tried to secure a handcuff on
him. There is no evidence that this effort caused Mr. Bettis additional pain or additional
injury. As soon as Sergeant Cochran advised that handcuffing was not necessary, Officer
Bean ceased his efforts. No more than a few minutes had elapsed in the interim, and Mr.
Bettis was ultimately not handcuffed. See Graham, 490 U.S. at 397 (observing that
officers are required to make "split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving"). The fact that Mr. Bettis had to be restrained with ties
as he was transported to the hospital for treatment underscores the conclusion that it was
objectively reasonable for Officer Bean to believe that Mr. Bettis's injury did not render
22
him incapable of further physical aggression. See Kerman, 261 F.3d at 239 (noting that
"[q]ualified immunity ... protects officers from the sometimes 'hazy border between
excessive and acceptable force."') (citation omitted).
On balance, the governmental interests at stake outweighed Mr. Bettis's interest in
being free from handcuffs in a situation where he was noncompliant with verbal
commands, physically and verbally aggressive, and at least appeared to be resisting an
arrest supported by probable cause. The minimal force used by Officer Bean was
therefore reasonable in the circumstances. Because the court has concluded that Officer
Bean did not violate Mr. Bettis's Fourth Amendment rights by using excessive force,
Plaintiffs have failed to establish an essential element of their § 1983 claim. The court
therefore DENIES Plaintiffs' partial motion for summary judgment on the issue of
excessive force and GRANTS Officer Bean's cross motion for summary judgment on this
same issue.
As the court has found no constitutional violation, it need not proceed further with
its qualified immunity inquiry. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
("Courts have discretion to decide the order in which to engage these two prongs" of the
qualified immunity analysis); see also O'Brien v. Barrows, 2013 WL 486655, at *5 (D.
Vt. Feb. 7, 2013) ("Answering either prong in the negative will bar suit against the
official") (citing Pearson, 555 U.S. at 232). The court nonetheless notes that "there is
still no clear authority on whether and under what circumstances, if any, a person has a
constitutional right not to be handcuffed in the course of an arrest ... even if he does not
resist or attempt to flee." Soares, 8 F.3d at 922. Plaintiffs would thus face an uphill
battle in arguing that any reasonable officer would know that Officer Bean's conduct in
this case violated the Constitution. See Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(holding that a right is "clearly established" only if it is "sufficiently clear that a
reasonable official would understand that what he is doing violates that right"); see also
Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) ("Only Supreme Court and Second
Circuit precedent existing at the time of the alleged violation is relevant in deciding
whether a right is clearly established."). "As the qualified immunity defense has evolved,
23
it provides ample protection to all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Here, even had the court
found excessive force, qualified immunity would have been available because the right
not to be handcuffed in the circumstances of this case was not clearly established.
CONCLUSION
For the reasons set forth above, the court DENIES Plaintiffs' motion for partial
summary judgment (Doc. 32) and GRANTS Officer Bean's cross motion for summary
judgment (Doc. 39).
SO ORDERED.
h
Dated at Burlington, in the District of Vermont, this z_tf day of September, 2015.
Christina Reiss, Chief Judge
United States District Court
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?