Opinion
Civil Action No. 03-3945.
August 20, 2004
MEMORANDUM AND ORDER
In this civil rights action, the two defendants, Guy Anhorn and T. Michael Beaty, both officers of the Whitemarsh Township, Montgomery County police department, ask this Court in motions for summary judgment to find that they are entitled to qualified immunity with regard to Plaintiff Bobby Lee Brittingham's claims under the Fourth and Fourteenth amendments to the United States Constitution. For the reasons that follow, we find they are not.
This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 in that the complaint alleged federal civil rights claims under 42 U.S.C. § 1983 and supplemental state law claims. Section 1983 provides a remedy for deprivation of rights established elsewhere in the Constitution or federal laws. Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir. 2003).
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
FACTS
The facts of this case are disputed. For the purposes of summary judgment, however, the parties agree that on the evening of Saturday, July 14, 2001, Brittingham and his two passengers, all African American males, stopped in the parking lot of a restaurant to add coolant to the radiator of Brittingham's overheated car. The restaurant was closed for the night; how long it had been closed is in dispute. The departing manager saw Brittingham's car in the parking lot and telephoned the police to ask them to check it out.
Officer Beaty responded to the dispatcher's call. When Beaty arrived on the scene, he put Brittingham and his two passengers in "investigatory detention" because they were "in the area of a closed business at night in a residential neighborhood." Beaty deposition, pp. 31-2. Sergeant Anhorn arrived on the scene about three minutes after the initial stop. Both Beaty and Anhorn are Caucasians.
The officers questioned Brittingham and the others about where they had been and asked for identification. Brittingham and his passenger, Solomon Jones, identified themselves with valid drivers's licenses on the officers' demand, but the third passenger, Kerry Pugh, told the police he was Kevin Perry and presented no identification. When Brittingham was identifying himself, the first identification card which fell out of his wallet was that of Kerry Pugh. Brittingham told the officers the owner of that card was his cousin in Philadelphia. At some point when Brittingham and the other two were out of the car, the officers searched the car, apparently with Brittingham's consent. In dispute is whether the three were ordered out of the car or free to get in and out of the car as they chose.
The officers then frisked the three men, telling them to turn their pockets out. The search revealed nothing out of the ordinary. When the car would not start, the officers told the men they were free to go and allowed them to telephone a friend for a ride.
When Pugh went from the parking lot to the road side to wait for the ride, Beaty followed him. Pugh then ran from the scene. Beaty gave chase, ultimately unsuccessfully. While Beaty chased Pugh, Brittingham claims Anhorn pulled his weapon and pointed it first at Brittingham's head and then at Jones. Anhorn denies putting his weapon against Brittingham's head.
Anhorn handcuffed Brittingham and Jones with their hands behind their backs and forced the two to kneel at the rear of the car. A K-9 unit was brought in to search for Pugh and Brittingham's car was impounded. After Brittingham and Jones were transported to the Whitemarsh Township police station, Jones was released with a citation for disorderly conduct. Brittingham was photographed, fingerprinted and incarcerated.
Brittingham was, on Beaty's Affidavit of Probable Cause, charged with Hindering Apprehension, Resisting Arrest and Criminal Conspiracy. After his preliminary hearing, Brittingham was held for trial only on the charge of Hindering Apprehension. The last charge against Brittingham was dismissed after a hearing on his Writ of Habeas Corpus. It cost Brittingham $267.50 to get his car from the impound lot.
In keeping with our obligations under Forbes v. Township of Lower Merion, this court identifies the additional facts which are in dispute: the demeanor of Brittingham and of the officers, the language employed by Anhorn, whether Anhorn pointed his gun at Brittingham's head, whether Pugh was free to go when he fled the scene and whether the allegations in Beaty's Affidavit of Probable Cause were truthful. 313 F.3d 144, 149 (3d Cir. 2002),
DISCUSSION
Summary judgment is proper when the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court is required to view the facts and inferences therefrom in the light most favorable to Brittingham, as the party opposing the motion. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004) (reversing grant of qualified immunity in a case in which a trespasser was so tightly handcuffed that he passed out).
Qualified immunity is intended to shield government officials performing discretionary functions, including police officers, "from liability from 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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A defendant must establish that he is entitled to qualified immunity. Kopec, 361 F.3d at 776. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 512, 105 S.Ct. at 2808 (emphasis in original). As a result, the Supreme Court stresses "the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).
The Supreme Court commands that a ruling on qualified immunity involves two steps. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, the court must ask whether "the facts alleged show the officer's conduct violated a constitutional right." If so, "the next, sequential step" is to resolve the qualified-immunity claim by asking "whether the right was clearly established." Saucier 533 U.S. at 200-01, 121 S.Ct. at 2155-56. "If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity." Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002).
When a plaintiff alleges, as does Brittingham here, his seizure was unreasonable under the Fourth Amendment because it involved excessive force, the validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard. Tennessee v. Garner, 471 U.S. 1, 7-22, 105 S.Ct. 1694, 1699-1707 (1985) (holding a claim of excessive force to effect arrest should be analyzed under a Fourth Amendment standard, not under substantive due process).
Whenever government actors "by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen," a "seizure" triggering the Fourth Amendment's protections occurs. Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968). The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Terry, 392 U.S. at 22-27, 88 S.Ct. at 1880-83.
"Reasonable suspicion" is more than an ill-defined hunch; it must be based upon "a particularized and objective basis for suspecting the particular person . . . of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). It requires "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" an investigatory stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998), cert. denied, 525 U.S. 1123, 119 S.Ct. 906, 142 L.Ed.2d 904 (1999). The requisite level of suspicion "is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
The Fourth Amendment requires the scope of a detention to be carefully tailored to its underlying justification. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality). 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 v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871 (1989). The balance is determined by facts and circumstances of each 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. Graham, 490 U.S. at 396, 109 S.Ct. at 1872 (citing Tennessee v. Garner, 471 U.S. at 8-9, 105 S.Ct. at 1700) (holding the question is "whether the totality of the circumstances justifie[s] a particular sort of . . . seizure"). "The calculus of reasonableness 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, 109 S.Ct. at 1872.
An officer may use reasonable physical force under the circumstances to effect a Terry-stop without converting the stop into an arrest. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). If the circumstances warrant, the use of handcuffs does not necessarily exceed the bounds of a Terry-stop. Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th Cir. 1999) (holding that handcuffing during a Terry stop a person whom the officers reasonably believed was involved in a shooting in which another officer was injured was not remediable under Section 1983). The officers must demonstrate that any detention or seizure was justified on the basis of reasonable suspicion and was sufficiently limited in scope and manner to satisfy the conditions of an investigative stop. Florida v. Royer, 460 U.S. at 500, 103 S.Ct. at 1319.
The Third Circuit reversed a grant of qualified immunity in a case in which park officials had handcuffed and held for hours three Hispanic men and a woman who were singled out of a crowd swimming in a park lake 15 minutes after a 6 p.m. closing time. Carrasca v. Pomeroy, 313 F.3d 828 (3d Cir. 2002). On the other hand, handcuffing and physically subduing a suspect did not exceed the limits of force in a Terry stop, when the police officers believed they were chasing a suspect in a bank robbery in which shots had been fired. U.S. v. McGrath, 89 F. Supp.2d 569, 577 (E.D.Pa. 2000). In Kopec, the Third Circuit called the circumstances of an encounter between two trespassing ice skaters and a police officer "benign" and reversed a grant of qualified immunity. Kopec, 361 F.3d at 777. The court, however, noted that its decision might have been different had the officer been "in the midst of a dangerous situation involving a serious crime or armed criminals. Kopec, 361 F.3d at 777. Under Kopec, then, this Court must first decide whether Brittingham has alleged facts which more closely resemble those of Carrasca or McGrath to determine whether Officers Anhorn and Beaty are entitled to qualified immunity.
The beginning of the encounter was within the parameters of the Fourth Amendment under Terry when the officers asked Brittingham and his passengers who they were, why they were in the parking lot and where they were coming from and going to. In addition, the officers's search of the car was apparently consensual.
The encounter becomes problematic when the confrontation changed from a Terry-stop to a full-blown arrest with no intervening action by Brittingham. Brittingham merely had the bad luck to have his car break down in Whitemarsh Township. The officers have pointed to no facts which rise to the level of articulable suspicion to justify the pat down of Brittingham under Terry and Graham, which require the force in a Fourth Amendment case be tailored to the circumstances of the case. Nor do the facts as alleged support as reasonable Anhorn's use of his weapon, threats, handcuffing of Brittingham, and forcing Brittingham to kneel. While none of those actions per se is excessive, excess is measured by the factors identified in Tennessee v. Garner. In this case there was no crime at issue, there was no immediate threat to the safety of the officers or others, and Brittingham was not actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
The actions of the officers during the encounter with Brittingham are those described in other cases as acts employed in "high risk felony stops." Flowers v. Fiore, 359 F.3d 24, 27 (1st Cir. 2004) (holding officers who drew their weapons, frisked a detained motorist, handcuffed him, and forced him to kneel acted reasonably within the parameters of the Fourth Amendment when they were on the lookout for two armed men.) In Flowers, the First Circuit found no Fourth Amendment violation, noting particularly that Flowers was never transported to a police station. The same can not be said in this case. In this case, the officers were investigating a visibly disabled car with generally cooperative occupants. There is no reason on the record to employ the tactics of a high risk felony stop. And, Brittingham and Jones were transported to a police station, incarcerated and charged.
Our inquiry does not, however, end with a finding that Brittingham has alleged facts sufficient to articulate a Fourth Amendment violation, warranting a 1983 cause for damages. This Court must now determine whether the constitutional right was sufficiently well-established to put the officers on notice that their conduct was impermissible. To grant qualified immunity, the court would have to say "as a matter of law . . . a reasonable officer would not have known that this conduct was in violation of the Fourth Amendment." Kopec, 361 F.3d at 777. The Third Circuit formulated the test as whether "reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." Good v. Dauphin County Social Serv., 891 F.2d 1087, 1092 (3d Cir. 1989).
To take the second step, this Court asks whether the state of the law gave the officers sufficient warning their alleged treatment of Brittingham was unconstitutional. Hope v. Pelzer 536 U.S. 730, 739-41, 122 S.Ct. 2508, 2515-16 (2002). This is an objective inquiry, to be decided by the court as a matter of law. Doe v. Groody, 361 F.3d 232, 237-38 (3d Cir. 2004) (affirming the denial of qualified immunity to officers who strip searched a woman and her 10-year-old daughter while serving a warrant for drugs). A right may be clearly established "even if there is no previous precedent directly in point." Doe, 361 F.3d at 243.
The Third Circuit adopted a "broad view of what constitutes an established right of which a reasonable person would have known." Kopec, 361 F.3d at 778 (citation omitted). The Third Circuit held there does not have to be "precise factual correspondence" between the case at issue and a previous case in order for a right to be "clearly established," and it would not be "faithful to the purposes of immunity by permitting . . . officials one liability-free violation of a constitutional or statutory requirement." People of Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 144-45 (3d Cir. 1984).
This case more closely resembles Carrasca and Kopec, in which the officials were not entitled to qualified immunity because the intrusion exceeded that demanded by the circumstances, than it does McGrath, in which the circumstances justified the force used.
The encounter between Brittingham and Officers Beaty and Anhorn occurred in 2001. Terry was decided in 1968. Tennessee v. Garner was decided in 1985. Graham was decided in 1989. There can be no question that the Fourth Amendment prohibition against the use of force which exceeds that required by the circumstances was well-established in 2001. Therefore, Officers Anhorn and Beaty are not entitled to qualified immunity.
In conclusion, we find that Brittingham has alleged facts sufficient to constitute a violation of his Fourth Amendment rights and that those rights — to be free of excessive force and to be arrested only on probable cause — were sufficiently well-established to put the officers on notice that their conduct was impermissible. Accordingly, this court denies Anhorn's and Beaty's motions for partial summary judgment based on claims of qualified immunity and enters the following:
ORDER
AND NOW, this 20th day of August, 2004, it is hereby ORDERED that Defendant Anhorn's and Defendant Beaty's Motions for Summary Judgment (Documents 27 and 30) are DENIED.