Timothy C. Nelson v. City of Davis: Summary Judgment to Dismiss a Case Alleging a Violation of the Fourth Amendment Was Denied

On July 11, 2012, the Ninth Circuit Court of Appeals denied the defendants’ motion for summary judgment in the case of Nelson v. City of Davis. The plaintiff, Nelson, had sued members of the University of California, Davis (U.C. Davis), and City of Davis police departments for illegal seizure under the Fourth Amendment. He had been struck in the eye with a pepperball fired by a police officer. Officers Barragan, Chang, and Garcia—as well as Chief Handy from U.C. Davis, Sgt. Wilson, and Chief Hyde from the City of Davis—had appealed the portion of the California district court's order denying them qualified immunity for their conduct on the night of the shooting. The Ninth Circuit Court of Appeals was asked to determine whether the defendants violated Nelson's constitutional right to be free of unreasonable seizure and whether the parameters of that right were sufficiently established that a reasonable officer should have known that the conduct was unconstitutional. It was determined that the defendants' actions amounted to an unconstitutional seizure of Nelson and that the law at the time of the incident should have placed the defendants on notice that the shooting of the pepperballs under the circumstances was an act of excessive force, thus making the defendants ineligible for qualified immunity.

BACKGROUND

On April 16, 2004, approximately 1,000 people were gathered at an apartment complex in Davis, California, for the annual Picnic Day festivities at U.C. Davis. U.C. Davis student, Timothy Nelson, was among the attendees. Police officers ticketed illegally parked cars and attempted to disperse the crowd at the request of the owner of the complex but were generally ignored by the par-tygoers. After requesting and receiving backup, thirty to forty officers assembled in riot gear at the southwest corner of the apartment complex and prepared to disperse the crowd. The de-fendants, U.C. Davis Officers Barragan, Chang, and Garcia, were among these officers and were armed with pepperball guns. The defendants argued they issued a verbal order to disperse, but acknowledged that they lacked any means of amplifying their voices above the noise of the party. They admitted they had to raise the visors on their helmets to communicate with each other at close range. Nonetheless they used their weapons to discharge pepperball projectiles in order to "disperse" the remaining students and make way for the advancing "skirmish line."

The officers with pepperball guns were between forty-five and 150 feet from the breezeway in the apartment complex where Nelson and a group of fifteen to twenty other persons had congre-gated. The students were attempting to leave the party but had no means by which to get past the officers and were not provided any instructions on how to depart from the complex. The students testified that they tried several times to get the attention of the officers to find out what they were suppose to do and how they were to vacate the premises.

When officers fired pepperballs toward the breezeway, one of the projectiles struck Nelson in the eye. He immediately collapsed on the ground, was in considerable pain for ten to fifteen minutes, and was unable to see. Nelson heard the officers proceed past where he lay, but none of them provided assistance. Sometime later, an unidentified person helped Nelson and drove him to the hospital. Later, the incident commander at the scene learned that an individual had been injured and sent Wilson to the hospital to determine if that individual was injured by the officers' use of force and if that individual had committed a crime. Wilson concluded there was no evidence that Nelson committed an offense, so no charge was filed against him. As a result of his injury, Nelson suffered temporary blindness and "a permanent loss of visual acuity" and endured "multiple surgeries to repair the ocular injury he sustained." Nelson v. City of Davis, at * 874. Nelson's injury led to the loss of his athletic scholarship, which resulted in Nelson dropping out of school.

Nelson, his father, and a number of others who were present at the incident filed incident reports with the Davis and U.C. Davis police forces. Dissatisfied with the police department’s response to his complaints, Nelson filed suit in district court under 42 U.S.C. Section 1983 alleging, among other things, a violation of his Fourth Amendment right to be free from unreasonable seizure. In addition to officers Barragan, Chang, and Garcia, the officers involved directly in the shooting, Nelson sued Hyde and Handy for their actions in approving the unconstitutional actions of the officers. Defendants Chief Hyde, Chief Handy, Sgt. Wilson, and Officers Barragan, Garcia, and Chang moved for summary judgment on the basis of qualified immunity. The district court granted summary judgment to the defendants on some of Nelson's claims but ruled an unrea-sonable seizure under the Fourth Amendment had occurred and that the defendants were not entitled to qualified immunity. The defendants filed an interlocutory appeal challenging the dis-trict court's denial of qualified immunity. In their appeal, the defendants challenged only the court's conclusions that the officers' conduct violated Nelson's constitutional right and that, at the time of the incident, the law was sufficiently established and the officers should have known it was illegal.

COURT DECISION

The order of the district court denying qualified immunity to defendants was affirmed by the Ninth Circuit.

QUALIFIED IMMUNITY

Qualified immunity protection against civil rights violations is bestowed on a government actor when acting under color of law unless the plaintiff can demonstrate that the official's actions violated a constitutional right, and that the right was "clearly established" at the time of the violation (Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). To overcome qualified immunity, the plaintiff must succeed on both prongs. In this instance, the Ninth Circuit determined that adequate facts were in evidence that indicated that the police violated Nelson's right to be free from unreasonable seizure and that the case law indicating that this kind of seizure was unreasonable was sufficiently established to have provided notice to police that such conduct was in violation of the Fourth Amendment.

In its analysis, the court first established that a seizure had occurred, and then concluded it was an unreasonable seizure under Fourth Amendment jurisprudence. Finally, it argued that there was sufficient case law on the subject of unreasonable seizures that would have led a reasonable officer to conclude that the use of force that produced the seizure was unconstitutional.

FOURTH AMENDMENT

When weighing the claim that the defendants conducted an unconstitutional seizure, the Ninth Circuit first had to determine if a seizure took place. If the answer to the first question was yes, then it had to decide whether the seizure was unreasonable under the Fourth Amendment.

The defendants first asserted that Nelson was not seized under the meaning of Fourth Amendment seizures. The court of appeals rejected this argument, stating that "a person when seized by the police is entitled to challenge the government's action under the Fourth Amendment when the officer by means of physical force or show of authority terminates or restrains his freedom of movement through means intentionally applied." Id., at *875. The U.C. Davis police officers took aim and intentionally fired in the direction of the breezeway where Nelson and others were gathered. Nelson was hit in the eye by a pepperball projectile, which caused him to fall into nearby bushes and left him unable to move until he was helped by an unknown individual. "Nelson was both an object of intentional governmental force and his freedom of movement was limited as a result." Id., at *876. The court of appeals held that under these facts, Nelson was un-questionably seized under the Fourth Amendment.

The defendants then argued that Nelson was not intentionally targeted and therefore his shooting was not a Fourth Amendment violation. The Court of Appeals was not persuaded by this, stating that "The intentionality requirement is satisfied when the 'termination of freedom of movement [occurs] through means intentionally applied.'" Id. Regardless whether the police intended for the projectiles to explode around the students, the facts are that they intentionally fired the pep-perball guns in the direction of the breezeway, and one of the projectiles hit Nelson, rendering him immobile. Nelson was therefore intentionally seized under the Fourth Amendment.

Lastly, the defendants claimed that their intention was to disperse the students and not to seize anyone. Again, the circuit court dismissed their logic, citing the Supreme Court's assertion that "the Fourth Amendment regulates conduct rather than thoughts." Id., at *877. It further noted that "the intent that counts under the Fourth Amendment is the intent [that] has been conveyed to the person confronted." Id.

After establishing that a seizure, in fact, occurred, the court then considered whether the seizure was unreasonable. The court noted it had to weigh the "whether the totality of the circumstances justified a particular sort of . . . seizure" and to compare the "the nature and quality of the in-trusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id., *878. Importantly, the court had to determine if there was a need for force in this instance.

The court noted the injuries that Nelson suffered by the force of the impact and the chemicals contained within the projectile. It cited experts and guidelines that emphasized officers firing pepperball guns should avoid the head, face, and groin because of the risk of serious injury. The guidelines further stipulated that it was forbidden to fire "indiscriminately or at individuals that were not posing a threat" and "that pepperball projectiles could not be accurately targeted be-yond 30 feet." More importantly, officers were told to refrain from firing from a distance if there were individuals within the targeted area. Id., at *879. The court concluded that the injuries that Nelson sustained were "certainly relevant in evaluating the degree of the Fourth Amendment intrusion." Id.

Next, the court examined the need for the police to use such force against Nelson. In doing so, it considered three factors: "the severity of the crime at issue, whether . . .[Nelson] pose[d] an immediate threat to the safety of the officers or others, and whether he . . . actively resist[ed] arrest or attempt[ed] to evade arrest by flight." Id. In evaluating each factor, the court concluded that the need and type of force used were unreasonable and therefore in violation of the Fourth Amendment.

The final portion of the court's analysis focused on the defendants' claim of qualified immunity. Government officials charged with violating the civil rights of individuals may still claim qualified immunity if, at the time the violation occurred, it was unclear whether a reasonable person would have known that the action was unconstitutional. "The clearly established requirement protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id., at 883. The court further observed that the evaluation "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. The court cited nu-merous cases in which the unreasonableness of certain seizures under certain circumstances was established long before the date of the incident in Davis. The court concluded "there was no exigency motivating the officers' actions and they were aware at the time of the shooting that they were using force that might lead to serious injury against non-threatening individuals who had committed no serious crime." Id., at 886.

CONCLUSION

The decision of the Ninth Circuit Court of Appeals is not surprising considering the lack of clear directions provided to Nelson and his group and the fact that the pepperball projectile was di-rected to a person rather than to a structure that would have dispersed the pepper spray. Complicating the case is the lack of care provided by the officers to Nelson after he was shot. Other factors that contributed to the court’s decision include:

• The fact that Nelson and his friends did not commit any chargeable offense, or, at most, a misdemeanor, weighed heavily against the defendants' use of force but did not necessarily de-termine the outcome of the reasonableness analysis.

• The defendants admitted that they never saw Nelson throw anything—in their direction or in any other direction. The same is true of the other students gathered with Nelson in the breezeway.

• The officers never attempted to place Nelson or his associates under arrest, so it’s im-portant to consider whether the degree of force employed may be justified by a failure to comply with orders given by the officers.

• According to the events attested to by Nelson and his associates, the police did not give orders to the group until after the shooting of the projectiles had already occurred. There can therefore be no failure to comply with orders, and Nelson's actions cannot be viewed as even passive non-compliance.

• Even if Nelson heard and was in non-compliance with the officers' orders to disperse, this single act of non-compliance, without any attempt to threaten the officers or place them at risk, would not rise to the level of active resistance.

• The officers could have altered their tactics to bring them in compliance with their own training, which would have minimized the degree of force applied or eliminated the need for force altogether.

• The failure to give sufficient warnings also weighs against the government's decision to use force against Nelson and his associates.

• It is clear that the governmental interest in applying force to Nelson or any member of his group, which were party-goers posing no visible threat and demonstrating no unwillingness to comply with the officers' orders, was minimal at best.

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By Jennifer Sughrue and Kenneth E. Lane,Southeastern Louisiana University,Hammond, Louisiana