Opinion
No. 106,671.
2012-09-7
Rodger LINDSEY, Appellant, v. Doug WRIGHT and The City of Augusta, Kansas, Appellees.
Appeal from Butler District Court; David A. Ricke, Judge. Tim J. Moore and Jim Lowing, of Wichita, for appellant. Brooks Kancel and Lyndon W. Vix, of Fleeson, Gooing, Couson & Kitch, of Wichita, for appellees.
Appeal from Butler District Court; David A. Ricke, Judge.
Tim J. Moore and Jim Lowing, of Wichita, for appellant. Brooks Kancel and Lyndon W. Vix, of Fleeson, Gooing, Couson & Kitch, of Wichita, for appellees.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
GREENE, C.J.
Rodger Lindsey appeals the district court's entry of summary judgment against him, thus dismissing his claims under 42 U.S.C. § 1983 (2006) against Officer Doug Wright and his employer, the City of Augusta (collectively referred to as defendants). Lindsey argues that substantial disputed issues of material fact precluded summary judgment and that the district court erred in concluding that Officer Wright was entitled to qualified immunity. We agree with Lindsey and thus reverse the district court and remand for further proceedings.
Factual and Procedural Background
In November 2008, Lindsey left his girlfriend's house around 10:30 p.m. to take a walk to The Oaktree Bar & Grill to see if he was going to be playing darts in his league the next night. It had been about a week since Lindsey had workers compensation surgery for a neck injury. He was wearing dark clothing, a camouflage jacket, and a neck brace. As he began to cross the street near the bar, Wright approached the intersection in his patrol car. Lindsey stepped back onto the curb, but Wright stopped his car and waived Lindsey forward in front of him. Lindsey responded by waiving Wright on. After going back and forth about three times, Wright verbally told Lindsey to cross in front of his car. As Lindsey crossed, Wright asked what he was doing, and Lindsey responded shortly, “walking.”
Wright pulled his car around and got out to speak with Lindsey, partly because he thought Lindsey acted a bit suspicious and partly because of the police department's community policing initiative (whereby officers casually make contact with citizens to become more involved in the happenings of the community). Lindsey claimed that Wright demanded he show his identification (ID) immediately after Wright exited the patrol car, but the facts are in dispute. In any event, Lindsey did not appreciate Wright's conversation and the two began to argue. During the argument, Wright recognized another man walking in the area and also noticed a family hurrying into their apartment. Wright testified he believed Lindsey was a potential threat, and at some point, he thought Lindsey's argumentative outbursts (which may or may not have contained profanity) amounted to disorderly conduct in violation of the law.
During the confrontation, Lindsey took a cell phone call from his girlfriend and told her to come to him because he was getting harassed. In response to the allegation of harassment, Wright called his shift supervisor to meet him. The two continued to argue, and Lindsey began to turn away. Lindsey claims Wright then slammed him into a nearby pillar and threw him over his leg onto the ground. Wright claims that he took hold of Lindsey's shoulder and was thrown off balance when Lindsey ducked to get away. After the incident, Lindsey had officers call an ambulance and was checked out in the emergency room.
Lindsey filed a suit against Wright and the City of Augusta, Kansas, in January 2010. He sued Wright for a variety of torts, negligence, and a 42 U.S.C. § 1983 violation of his constitutional rights. He also sued the City under § 1983 for ratifying Wright's conduct. He claimed approximately 1 million dollars in damages for his injuries and lost wages. After some discovery, Wright (together with the City) filed a motion for summary judgment and, among other things, argued Wright was entitled to qualified immunity. In response, Lindsey noted some factual inconsistencies between his and Wright's depositions, but he failed to cite any controlling legal authority suggesting that Wright was not entitled to qualified immunity. The district court granted Wright's motion for summary judgment on all claims; it dismissed the intentional tort claims because the statute of limitations had passed, the negligence claim because Lindsey did not give proper notice under K.S.A. 12–105b (Kansas Tort Claims Act), and the § 1983 claims because Lindsey cited no legal authority to dispute Wright's qualified immunity.
Lindsey timely filed a motion to reconsider under K.S.A. 60–259(f), admitting that he did not properly respond to Wright's summary judgment claim based on qualified immunity. He then attempted to correct his own error by citing authority and arguing that Wright arrested Lindsey without a warrant and without probable cause, in violation of his Fourth Amendment rights. The district court denied the motion to reconsider without considering any of Lindsey's substantive arguments because the purpose of a K.S.A. 60–259(f) motion is to correct court errors-it is not a motion in which a party can make arguments for the first time. Lindsey timely appeals the district court's decision.
Standard of Review
The standard for reviewing a district court's grant of summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011); accord Warner v. Stover, 283 Kan. 453, 455–56, 153 P.3d 1245 (2007).
Did the District Court Disregard Genuine Issues of Material Fact?
Lindsey initially argues that genuine issues of material fact precluded summary judgment. We examine the district court's “Statement of Uncontroverted Facts” and compare the submission of the parties in determining whether the district court properly resolved all facts and reasonable inferences against the defendants. We conclude the following facts included in the court's judgment were not properly resolved by the district court:
“9. Officer Wright knew this was an area where there was a possibility for increased crime and that he needed to keep his eye out for things.”
Lindsey's response to the summary judgment motion controverted this fact by stating that:
“Officer Wright's response to his counsel's question as to where the City had increased police patrols as a response to increased crime was Through the whole city.' Trying to get a different answer, Wright's counsel solicited the following exchange:
‘Q. Had this been an area where crimes had been being committed?
‘A. They were happening throughout the city.
‘Q. Okay. Was this one of the areas where they were happening at?
‘A. I couldn't tell you right now.’
“Finally, on the fourth pass, counsel sort of got the desired answer, which merely proves that the area where the incident occurred is in fact an area within the city of Augusta. This much has never been in dispute.”
“12. The fact that Plaintiff was in dark clothing at 10:45 pm in an area where businesses were closed raised Officer Wright's suspicions.”
Lindsey's response to the summary judgment motion admitted that Wright responded affirmatively when asked if these aspects of the encounter raised his suspicions, but Lindsey controverted the defendant's portrayal of the nature of the area by stating:
“It is denied that all businesses in the area were closed. According to defendants' own Statement of Uncontroverted Facts ¶ 10, a gas station and two bars, including the one to which Lindsey was headed, were open for business. Moreover, this area is a mixed commercial and residential use, as noted in defendants' own Statement of Uncontroverted Facts ¶ 35, and not the ‘closed-down, increased crime, commercial district’ that defendants' motion endeavors to portray.”
“32. Officer Wright testified that he felt Plaintiff was potentially a threat to the others in the area, and was also disrupting people in their residences trying to sleep.”
“33. Officer Wright believed there was reasonable suspicion Plaintiff was being disorderly as defined by K.S.A. 21–4101 because he was using offensive, obsene and abusive language to arouse alarm in others.”
Lindsey admitted that Wright so testified, but suggested his testimony “strained credulity.”
“On the contrary, at this moment of maximum threat, Officer Wright let Lindsey reach into his pocket and take a cell phone call from his girlfriend. Despite defense counsel's brave efforts to lead the witness in deposition, no reasonable person could conclude from these facts that Officer Wright considered Lindsey, this middle-aged man in a neck brace, a threat to public safety. Wright, in any event, took no action to counter any such alleged threat.”
“34. Officer Wright testified as follows regarding the grounds for his request that Plaintiff produce his ID:
“Q. Now, reading [K.S.A. 22–2402], you first requested Mr. Lindsey's identification after the belligerent, loud, cursing activity around a family of four that you perceived he could be a threat to, correct?
“A. Yes, Ma‘am.”
Lindsey admitted that Wright so testified but denied that this was the first time Wright asked for Lindsey's ID, citing Lindsey's deposition where Lindsey testified that Wright first requested his ID upon exiting his vehicle.
“40. After Plaintiff continued walking, Officer Wright lightly touched the upper part of Plaintiff's left and right shoulder in an effort to prevent him from going forward.”
Lindsey's response was to admit “that Wright needlessly grabbed Lindsey” but to deny that he had a light touch.
“42. Officer Wright was trying to be careful because he was cognizant of the fact that Plaintiff had a neck brace on.”
Lindsey denied this allegation and stated that “Wright's actions were inconsistent with an intent to be careful of Lindsey's recent neck surgery.”
“51. Plaintiff was checked over at the hospital. X-rays were taken and he was told everything was all right.”
Lindsey denied being told “everything was all right,” citing his deposition where he qualified what he was told by the hospital. He had testified that “everything was all right that they could tell ” (Emphasis added.)
“52. Other than the trip to the emergency room, Plaintiff received no medical treatment related to his neck as a result of this incident. Rather, any additional treatment he received was a result of his work-related injury.”
Lindsey denied this statement, citing selected medical records which indicate that he told his treating physician he was doing well after his surgery “until ... he was assaulted by a police officer, tackled, and thrown to the ground.” The physician then characterized this as an “early traumatic injury after ACDF.”
When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Moreover, where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Starr v. Union Pacific Ry. Co., 31 Kan.App.2d 906, 912, 75 P.3d 266,rev. denied 276 Kan. 970 (2003). Here, we must conclude that the details of the encounter between Lindsey and Wright were disputed and the precise nature and sequence of the encounter was material to a proper legal analysis of qualified immunity. For this reason alone, summary judgment was not proper. See Warner v. Stover, 283 Kan. 453, Syl. ¶ 1, 153 P.3d 1245 (2007); Estate of Belden v. Brown County, 46 Kan.App.2d 247, 269, 261 P.3d 943 (2011).
Did the District Court Err in Granting Summary Judgment Against Lindsey on His Claims under42 U.S.C. § 1983?
Lindsey does not contest any aspect of the district court's judgment on appeal except the dismissal of his claims based on 42 U.S.C. § 1983. The defendants have complained that they were unable to discern the nature of Lindsey's claim of unconstitutional conduct because it had never been clearly articulated. We note that their summary judgment motion was premised upon excessive force as the sole basis for the claim, and both the district court and this court have analyzed the claim accordingly. We also note, however, and Lindsey argues on appeal, that his detention and arrest were not warranted. Indeed, Lindsey's original petition made the claim that “[d]efendant Wright had no probable cause to stop the plaintiff from continuing his walk.” These are three distinct bases for a § 1983 claim, and qualified immunity must be analyzed somewhat differently for purposes of each.
At the outset of this analysis, we must emphasize that the defendants' summary judgment motion and memorandum were apparently filed in advance of any pretrial order in the case, so the claims had not been articulated with precision. Moreover, the motion itself focuses exclusively on the excessive force claim and fails to address any basis to dismiss a claim for unwarranted detention or arrest. This problem alone could give rise to an inference that the defendants sought only a partial summary judgment; and Lindsey cannot be faulted for failing to defend an excessive force claim with his unwarranted detention claim, because these claims do not necessarily overlap. See Morris v. Noe, 672 F.3d 1185, 1191–98 (10th Cir.2012) (unlawful arrest and excessive force claims warrant separate and distinct analyses for purposes of determining applicability of qualified immunity); Fogarty v. Gallegos, 523 F .3d 1147, 1155–62 (10th Cir.2008).
According to the district court's judgment, however, the defendants moved for summary judgment on this claim based on the doctrine of qualified immunity rather than any failure to assert a valid claim. Thus, we analyze qualified immunity under each of Lindsey's § 1983 claims.
The district court correctly stated the governing law: to defeat a claim of qualified immunity, a § 1983 plaintiff must demonstrate on the facts alleged that (1) the defendant violated a constitutional right, and (2) the right was clearly established at the time of the alleged unlawful activity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009). The court then granted summary judgment against Lindsey because he failed to set forth case authority to establish that Wright's conduct violated a clearly established constitutional right. The court reasoned:
“The court observes that Plaintiff has not come forward with any Supreme Court or Tenth Circuit opinion on point, or any other clearly established authority from other court(s) establishing what Wright did (in Plaintiff's view) was wrong and that he should have known it was wrong. Plaintiff has not identified any law or cited any case to meet his burden and obligation of demonstrating that Wright knew (or should have known) that his actions toward Lindsey violated a clearly established constitutional right. Without this necessary legal authority before the court to consider, this court cannot determine the objective legal reasonableness (or unreasonableness) of Wright's actions assessed in the light of legal rules that were clearly established at the time of the Wright–Lindsey encounter.
“This court emphasizes that it is not merely applying some legal technicality to defeat Plaintiffs claim. Rather, Plaintiff has set forth no case law authority which establishes that conduct similar to Wright's as alleged in the complaint actually constitutes a constitutional violation. Further, Plaintiff has cited insufficient authority for this court to determine that a ‘right’ belonging to Lindsey was clearly established at the time of Wright's alleged conduct. Mere allegations and characterizations of ‘negligence,’ ‘recklessness,’ ‘excessive force,’ and ‘not the least intrusive means' in and of themselves do not meet these burdens that Plaintiff must meet to defeat the qualified immunity with which public official Wright is entitled to in regard to the remaining § 1983 claim. Asserting negligence is simply not enough.”
In contrast to this perceived need for legal authority, Lindsey argues on appeal:
“Every police officer in Augusta should have been aware, long before [this encounter] of the principle of law that an arrest without probable cause based on objectively reasonable facts violates a citizen's constitutional rights secured by the Fourth Amendment and can be the basis of recovery under 42 U.S.C. § 1983.”
We perceive the issue before us to be a procedural question, i.e., whether a failure to cite caselaw in responding to this summary judgment was fatal to all of Lindsey's claims.
We recognize at the outset that Lindsey's response to the summary judgment motion and memorandum of defendants was certainly not a model of clarity. In fact, in the motion for reconsideration, Lindsey admitted that “counsel are rightly taken to task for failing to come forward with appropriate legal authority showing defendant Wright knew or should have known that his actions toward [Lindsey] violated a clearly established constitutional right.” There is no question that legal authority could have and should have been cited to the district court under these circumstances. The question, however, is whether a failure to cite legal authority is fatal to the claims.
Excessive Force
We turn first to the claim of excessive force, because it was the sole basis argued by the defendants in seeking summary judgment. In deciding the pivotal question, we find persuasive this recent analytical paradigm from the Tenth Circuit:
“[W]e have adopted a sliding scale: The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.' Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004). In fact, we do not always require case law on point. ‘[W]hen an officer's violation of the Fourth Amendment is particularly clear from Graham [v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989),] itself, we do not require a second decision with greater specificity to clearly establish the law.’ Casey [ v. City of Feci. Heights, 509 F.3d 1278] at 1284 [ (10th Cir.2007) ] [Emphasis added.]”
____
“Ultimately, however, we may conclude a constitutional right was clearly established, even in the absence of similar prior cases, if the force is clearly unjustified based on the Graham factors. Fogarty, 523 F.3d at 1162;Casey, 509 F.3d at 1284. In Raiche [v. Pietroski, 623 F.3d 30 (1st Cir.2010) ], for example, the First Circuit concluded:
‘A reasonable officer ... would not have needed prior case law on point to recognize that it is unconstitutional to tackle a person who has already stopped ... and who presents no indications of dangerousness. Such conduct is a major departure from reasonable behavior under both the Graham factors and the officer's training. Raiche, 623 F.3d at 39.’ “ Morris, 672 F.3d 1196–98.
Thus, we conclude there was no absolute requirement for Lindsey to cite prevailing authority to save his § 1983 claims from summary judgment, if the force employed by Wright was clearly unjustified based on Graham. And, on that score, we conclude that the facts here are remarkably similar to those of Morris v. Noe. There, the Tenth Circuit determined that there was no qualified immunity where the suspect posed little immediate threat to the safety of the officers and was neither resisting arrest nor attempting to flee. Additionally, here the offense for which the officer thought he had probable cause was disorderly conduct under K.S.A. 21–4101, a class C misdemeanor—certainly not a severe or necessarily violent offense. Thus “ ‘the amount of the force used should [be] reduced accordingly.’ “ Morris, 672 F.3d at 1195 (quoting Fogarty, 523 F.3d at 1160). Again, resolving all facts and inferences in favor of Lindsey, the officer's conduct here could not possibly survive a Graham analysis for the same reasons, i.e., Lindsey posed no threat, was not resisting arrest, and was suspected of only a minor misdemeanor.
Unwarranted Detention or Arrest
Based upon the facts sifted from the parties' memoranda and resolved by our standard of review, Lindsey was detained when the officer exited the patrol car and asked for his ID. Thus, when the disputed statements are removed from the uncontroverted facts and the balance of those facts are considered favorably to plaintiff, Lindsey was seized at the moment Wright emerged from the patrol car and asked to see his ID. Examining factors bearing on reasonable suspicion at that moment, we agree with plaintiffs view of the bases for the initial detention:
“a. It was 10:45 at night;
“b. Lindsey was wearing ‘dark clothing.’
“c. Lindsey was walking, near 5 other pedestrians and a dog, in a mixed commercial/residential area in which some businesses were closed, and some were open; and
“d. There had been an increase in crime generally throughout the city.”
Lindsey was then arrested when he was thrown to the ground in the course of the argument, based upon the officer's perceived probable cause that he was committing the offense of disorderly conduct. See California v. Hodari D., 499 U.S. 621, 111 S. Ct 1547, 113 L.Ed.2d 690 (1991) (officer's application of physical force to restrain suspect constitutes arrest); Morris, 672 F.3d at 1192 (officer's actions in throwing a suspect to the ground despite no threat to officer safety and lack of suspicious activity is an arrest). Thus, a dual analysis would be required to determine whether Wright violated any clearly established constitutional right on each occasion.
The legal impact of initial detention and arrest were not briefed by the parties at summary judgment, and neither has been analyzed by the district court, so we need not lengthen this opinion needlessly with a complete analysis. Suffice it to say, however, that we seriously doubt Wright had reasonable suspicion to detain Lindsey initially, and it is indeed doubtful that the later takedown was based on any reasonable belief of probable cause that any criminal offense had been committed as of that time. See Morris, 672 F.3d at 1194. Again, it required no caselaw to support the proposition that any officer should know that reasonable suspicion for a detention cannot be based upon merely observing a subject in dark clothing walking on the public way at 10:45 p.m. in an area that is within the officer's general jurisdiction. In fact, caselaw for such an elementary principle would be difficult if not impossible of citation. Moreover, the only crime for which Wright believed there was probable cause for a takedown was disorderly conduct, and clearly established caselaw shows that this offense was not committed by Lindsey. This crime is not sufficiently proven unless the defendant's speech constitutes “fighting words.” State v. Huffman, 228 Kan. 186, Syl. ¶ 4, 612 P.2d 630 (1980); see also State v. Heiskell, 8 Kan.App.2d 667, 670–71, 666 P.2d 207 (1983). Profanity alone does not supply probable cause. Elbrader v. Blevins, 757 F.Supp. 1174, 1180 (D.Kan.1991). Lindsey's version of the facts clearly fails to establish any probable cause that Lindsey was committing this offense.
For all these reasons, we must reverse the entry of summary judgment dismissing Lindsey's claims under 42 U.S.C. § 1983. We remand these claims for further proceedings not inconsistent with this opinion. Other claims dismissed by district court have not been appealed and may not be reinstated.
Reversed and remanded with directions.
BRUNS, J., dissenting:
I respectfully dissent from the majority's opinion. As the majority notes, Lindsey admitted in his motion to reconsider that he failed to properly respond to the assertion of qualified immunity in Officer Wright's motion for summary judgment. I believe this failure to properly respond is fatal to Lindsey's § 1983 claim.
“Qualified immunity shields public officials from personal liability unless their conduct violates a clearly established constitutional right.” Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 888, 9 P.3d 1251 (2000). “The privilege is an immunity from suit rather than a mere defense to liability; like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, Syl. ¶ 3, 35 P.3d 815 (2001), cert. denied537 U.S. 841 (2002). As such, “courts have repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” 272 Kan. 627, Syl. ¶ 3.
The Kansas Supreme Court has adopted the qualified immunity analysis outlined in Saucier v. Katz, 533 U.S. 194, 201–02, 121 S.Ct.2151, 150 L.Ed.2d 272 (2001). See McCormick, 272 Kan. at 642. Once a defendant asserts qualified immunity, the plaintiff (1) must demonstrate that the defendant's actions violated a constitutional right, and (2) must show that the constitutional right he or she claims was violated was clearly established. 272 Kan. 627, Syl. ¶ 7. “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” (Emphasis added.) Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). Consequently, Officer Wright was entitled to qualified immunity in the present case unless Lindsey satisfied the two-part inquiry in his response to the motion for summary judgment. See Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir.2012).
As the majority points out, the 10th Circuit recently held in Morris v. Noe that a plaintiff is not absolutely required to cite similar prior cases to show that a constitutional right has been clearly established. 672 F.3d at 1197. But the Morris court did not discard the requirement that a plaintiff satisfy the two-part qualified immunity analysis. See 672 F.3d at 1191. Nor did the Morris court conclude that the two-part inquiry can be satisfied without articulating the clearly established constitutional right that was allegedly violated or without making any attempt to identify the defendant's actions that allegedly violated that constitutional right. Moreover, unlike the present case, the plaintiff in Morris maintained throughout the litigation that the defendant had arrested him without probable cause in violation of the Fourth Amendment. 672 F.3d at 1191.
Here, not only did Lindsey fail to cite any cases in his response to Officer Wright's assertion of qualified immunity, he also failed to articulate the constitutional right that was allegedly violated. Furthermore, Lindsey did not identify any specific action taken by Officer Wright that violated his constitutional rights. Instead, Lindsey simply recited some disputed facts in his response to Officer Wright's assertion of qualified immunity that could be construed by a jury to constitute the use of excessive force.
The 10th Circuit Court of Appeals dealt with a similarly inadequate response to qualified immunity in Albright v. Rodriguez, 51 F.3d 1531 (10th Cir.1995). In response to an assertion of qualified immunity by a law enforcement officer in a motion for summary judgment, the plaintiff in Albright simply noted that he disputed many of the officer's facts regarding his arrest. The Albright court concluded that simply listing disputed facts is not sufficient to satisfy the two-part qualified immunity analysis. See 51 F.3d at 1534–35.
Accordingly, because Lindsey made no attempt to satisfy the two-part inquiry adopted by the Kansas Supreme Court in Goldbarth and McCormick, I would conclude that Officer Wright is entitled to qualified immunity and affirm the district court's entry of summary judgment in his favor.