Opinion
CASE NO. 5:02CV00083
April 17, 2003
REPORT AND RECOMMENDATION
This action alleging violations of 42 U.S.C. § 1983 and asserting pendent state law claims for assault and battery is before the undersigned under authority of 28 U.S.C. § 636(b)(1)(B) to render to the presiding District Judge a report setting forth findings, conclusions, and recommendations for the disposition of Defendants' February 10, 2003, Motion for Summary Judgment. The parties appeared before the undersigned and presented oral argument on March 6, 2003. For the reasons that follow, the undersigned will RECOMMEND that the presiding District Judge GRANT Defendants' motion.
BACKGROUND
On February 9, 2002, Russell L. Metcalf (Metcalf) and two other City of Harrisonburg police officers, Sergeant Roy and Officer Aderholz, attempted to serve a warrant on Stephanie Thompson (Thompson) at Plaintiffs residence. Aware that Thompson was wanted by the police, Plaintiff permitted a search of his home, but informed the officers that she was not there. At the conclusion of the search, and without locating Thompson, the officers left Plaintiffs residence. Plaintiff then departed in a taxi. Metcalf was informed that the taxi picked up a woman matching Thompson's description and, after following the vehicle and observing that a woman was bobbing up and down in the backseat looking out the rear window, he pulled over the taxi.
Thompson had been wanted since November 1, 2001, on a parole violation, and the officers had on several occasions been unsuccessful in their attempts to locate her. They approached Plaintiffs residence with the expectation that Thompson likely would flee if she were there, and, in fact, the officers had reason to believe that she had fled into the building adjacent to Plaintiffs residence upon the officers' approach.
Many of the events that followed were captured on videotape. (Defs.' Brief Supp. Mot. Summ. J. at Ex. 3.) The footage itself is in two separate segments shot from surveillance cameras in two police cruisers. The first segment of footage was filmed by a camera in Metcalf s patrol vehicle; the second segment was filmed by the camera in the back-up patrol vehicle.
Both parties offer their own narrative characterizations of the events captured on video. However, after viewing the footage, the undersigned is of the view that each version is slanted to the party offering it, and that both accounts leave something to be desired. Of course, the Court need not rely on the characterization and recollection of events offered by either Plaintiff or Metcalf, though all inferences must be drawn in a light most favorable to Plaintiff. The video speaks for itself.
The first video segment begins while Metcalf was trailing the subject taxi cab, and it ends with the arrest of Plaintiff. The tape discloses that, as the taxi was pulling to a stop, both the front and rear passenger doors of the taxi were opened, and two people immediately jumped out, one of whom was Thompson. Metcalf quickly exited his patrol vehicle, approached Thompson, and led her away from the taxi and out of camera range. Plaintiff then got out of the taxi and proceeded out of camera view in the direction of Metcalf and Thompson. A few seconds later, Plaintiff returned to the taxi and sat down on the back seat, from which position he was apprehended by another officer. He was removed from the vehicle, taken to the ground, and secured.
In the parties' statement of the facts, it is evident that Thompson exited the taxi as it stopped. Metcalf pursued Thompson, and though accounts vary as to whether he forced her to the ground or whether she went to the ground as a consequence of attempting to pull free of the him, there is no dispute that Metcalf ultimately controlled Thompson with a basic two-hand grip.
Besides Plaintiff and Thompson, the taxi driver and another passenger also are shown exiting the taxi. Neither of these individuals played a role in the events which form the gravamen of Plaintiff s Complaint.
The second video segment was recorded by a surveillance camera in the back-up patrol vehicle. This vehicle pulled onto the scene after Metcalf had apprehended Thompson, but before the exchange between Plaintiff and Metcalf which forms the basis of this action. Metcalf was in the process of restraining Thompson, who was kneeling on the ground. Plaintiff, who clearly is depicted in the video as head-and-shoulders taller than Metcalf, rapidly moved toward Metcalf and Thompson. While standing virtually over the Officer, Plaintiff leaned closer to Metcalf, shouting and gesticulating to the him while he was in the process of executing an arrest of Thompson. The words Plaintiff spoke are not clearly discernable, but appeared to challenge the Officer's authority or at least call his conduct into question. As this was occurring, Metcalf released his two-hand grip on Thompson, turned to face Plaintiff, and then struck Plaintiff with a single blow in the vicinity of his face, neck, and right shoulder. Plaintiff recoiled only slightly, then he turned and immediately returned to the taxi, where he was arrested. The entire encounter between Plaintiff and Metcalf was very brief, lasting only a matter of seconds. Plaintiff premises his excessive force claim on the single blow thrown by Metcalf under the circumstances captured on the videotape.
CONTENTIONS OF THE PARTIES
Contentions of the Defendants
Defendants first assert that Metcalf is entitled to qualified immunity from liability as a matter of law. They rely on the two-part test for qualified immunity set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001). The first step requires a determination of whether a constitutional right would have been violated on the facts alleged, and the second requires the Court to determine whether the right alleged to have been violated was clearly established at the time of the incident. See id. Defendants contend that there is no genuine issue of material fact as to whether Metcalf used force that was reasonable under the circumstances. In particular, they point out that Metcalf arrived on the scene and began to effectuate an arrest without backup, and that Plaintiff, who is shown by the video to be a large man, had no legitimate reason to exit the taxi and then move rapidly toward Metcalf in what is shown to have been a threatening manner. The single blow, Defendants say, was a "conservative amount of force" and represented only that which was necessary to maintain the officer's safety and to remove Plaintiff from a situation that Metcalf reasonably perceived to be threatening. As to the second prong, Defendants assert that, even if Metcalf was mistaken in the amount of force used, his mistaken belief was reasonable under the totality of the circumstances the Court can see on the videotape. According to Defendants, "[t]he only evidence is that [Metcalf] believed that he was justified in using the single blow to remove plaintiff from his immediate presence until other officers could assist him." (Defs.' Brief Supp. Mot. Summ. J. at 10.)
Defendants next contend that Metcalf is entitled to summary judgment as to Plaintiffs state law claims for assault and battery. Put simply, Defendants offer that lawful force was used by a police officer, under the circumstances, thus defeating, as a matter of law, any claim for battery under Virginia law.
Defendants urge that the City of Harrisonburg likewise is entitled to summary judgment on Plaintiffs § 1983 claim. First, they offer that Plaintiff has failed to show that Metcalf used excessive force, and, if there is no underlying excessive force, then there is no basis for holding the City of Harrisonburg liable. Moreover, they point out that Plaintiff has produced no evidence that the City improperly trained its officers or customarily used excessive force in order to establish liability apart from Metcalf s conduct. To the contrary, Defendants offer that the evidence in this case demonstrates that the City officers displayed proper training by the use of reasonable force in circumstances like this one.
Finally, Defendants argue that the City of Harrisonburg is entitled to summary judgment on Plaintiffs state law claims because municipalities are immune from liability for the alleged intentional torts committed by their employees in the exercise of governmental functions like those that form the basis for Plaintiffs action in this case.
Contentions of the Plaintiff
Plaintiffs response to Metcalf s motion is rather straightforward. He contends that there are genuine issues of material fact on both prongs of the Saucier analysis, and that there is sufficient evidence to establish a prima facie case of assault and battery under applicable state law. In particular, Plaintiff emphasizes that Metcalf punched an unarmed man who had not touched him in any way. Plaintiff advanced no argument in opposition to the City's motion.
After oral argument, it was unclear to the undersigned whether Plaintiff was arguing that qualified immunity cannot be established under each prong of the Saucier analysis or whether the Court should combine both prongs into a "fused" finding. Of course, the latter approach was attempted by the plaintiffs in Saucier but rejected by the Court.
ANALYSIS
Summary Judgment Standard
Summary judgment should enter in any case where the evidence shows that there is no genuine issue of material fact, and the court determines that a defendant is entitled to judgment as a matter of law. See Celotex v. Catrett, 477 U.S. 317 (1986). Once a party moves for summary judgment, the non-moving party must demonstrate sufficient evidence to support each element of each claim asserted. See id. Of course, the court must assess the evidence and draw all inferences from the record evidence in a light most favorable to the non-moving party, which, in this case, is the Plaintiff. See Myers v. Finkle, 950 F.2d 165 (4th Cir. 1991).
§ 1983 Claims
A. Officer Metcalf
In order to evaluate Metcalf s assertion of qualified immunity to Plaintiffs § 1983 claim of excessive force, the Court must engage in a two-pronged analysis. See Saucier v. Katz, 533 U.S. 194 (2001). The first step is to determine whether a constitutional right would have been violated on the facts shown in the record. The second is to determine whether the right alleged to have been violated was clearly established at the time of the incident. In that connection, if the officer reasonably believed that his conduct did not exceed the bounds of the law, then qualified immunity should attach.
The Saucier inquiry peculiarly relates to excessive force claims and occurs at two levels. Each is to be considered separately. To the extent that Plaintiff is asking for a "fused" analysis, reducing the inquiry only to a question of reasonableness, he misunderstands the nature of qualified immunity as explained by Saucier, and the undersigned declines to fuse the inquiries. Turning to the first inquiry, the Court considers the reasonableness of the force used by the officer under the circumstances present at the time the event occurred. The second prong addresses an officer's perceptions or knowledge of the state of the law at the time of the incident, irrespective of whether the force used is determined to be reasonable. Thus, the Court should inquire both into the substantive circumstances surrounding the use of force and the legal perceptions or the evaluations of the Defendant at the time force was used.
If a picture is worth a thousand words, then a video is worth ten thousand. Here it is clear that Metcalf was involved in a rapidly transpiring, ever changing set of circumstances. No reasonable police officer, or reasonable person for that matter, could have interpreted Plaintiffs conduct as anything but threatening. He had no right to interfere with Thompson's arrest, he was wildly gesticulating, and he unquestionably was verbally challenging Metcalf s authority. Moreover, Plaintiff is much taller than Metcalf, who was alone at the beginning of the incident, and Plaintiff clearly loomed large over Metcalf as he wildly gesticulated and questioned Metcalf s authority. That Metcalf perceived imminent physical danger is clearly reasonable, and the single blow used to fend off Plaintiff, as a matter of law, was far from excessive under the circumstances. No reasonable trier of fact could find other than that the force used in this case was only that amount necessary to maintain or restore order and to protect Metcalf from what he reasonably perceived as an immediate threat of harm. Accordingly, Metcalf is entitled to qualified immunity because Plaintiff has failed to produce that the force was constitutionally excessive in the first instance.
Of course, such a finding renders moot any further Saucier inquiry. For completeness, however, the undersigned will evaluate the second prong of the qualified immunity test. First, the undersigned observes that no clearly established rule or law prohibited Metcalf from subduing a threatening citizen with a single blow, particularly under the circumstances present here. Therefore, Metcalf could not reasonably have believed himself to have been in violation of established law governing the use of force. In fact, even had Metcalf s actions been sufficient for a jury to find excessive force, his conduct, nonetheless, would meet the reasonableness standard under the second prong of the Saucier analysis because, as a matter of law, it was not so excessive as to exceed Metcalf s reasonable expectation he was acting within the bounds of the law. Metcalf is entitled to qualified immunity as a matter of law on both prongs.
Plaintiff seems to suggest that any determination of qualified immunity is for the jury. Qualified immunity is to be determined by the court and is a protection against having to stand trail and face the burdens of litigation though entitled to immunity. See Mitchell v. Forsyth, 472 U.S. 511(1985).
B. City of Harrisonburg
Plaintiff did not respond to the City's motion for summary judgment. In fact, during the hearing on March 6, 2003, Plaintiffs counsel acknowledged that he produced no evidence during discovery that indicated inadequate training or systemic use of excessive force. Nor does he assert that there is any evidence showing that the City tacitly authorized or acquiesced in any wrongful conduct. Therefore, under Celotex v. Catrett, 477 U.S. 317 (1986), the City of Harrisonburg is entitled to summary judgment on Plaintiffs § 1983 claim.
Assault and Battery under State Law
Plaintiffs counsel conceded that the vitality of the state law claim for assault and battery depends on a determination of whether there are genuine issues of material fact concerning excessive force. See Austin v. Town of Blacksburg, 66 F. Supp.2d 771, 776 (W.D. Va. 1998). For the reasons set forth above, the undersigned finds that there are no genuine issues of material fact as to whether Metcalf used excessive force when he fended off the Plaintiff. As a matter of law, he acted reasonably and justifiably in the exercise of his police function. Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs state law assault and battery claim also should be GRANTED.
CONCLUSION
The undersigned hereby RECOMMENDS that Defendants' February 10, 2003, Motion for Summary Judgment be GRANTED in its entirety, and Plaintiffs action be DISMISSED.
The Clerk is directed immediately to transmit the record in this case to the Hon. James H. Michael, Jr., Senior United States District Judge. Both sides are reminded that pursuant to Rule 72(b) they are entitled to note objections, if any they may have, to this Report and Recommendation within ten (10) days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned not specifically objected to within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636(b)(1)(C) as to factual recitations or findings as well as to the conclusions reached by the undersigned may be construed by any reviewing court as a waiver of such objections.
The Clerk of the Court hereby is directed to send a certified copy of this Order to all counsel of record.