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Harris v. City of Hot Springs

United States District Court, W.D. Arkansas, Hot Springs Division

June 27, 2017

TYRONE HARRIS PLAINTIFF
v.
CITY OF HOT SPRINGS, ARKANSAS; and OFFICER SHANE LEWIS, in his individual and official capacities DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court are Defendants' motion for summary judgment (Doc. 10), brief in support (Doc. 11), and statement of facts (Doc. 12); Plaintiff's response (Doc. 15), response to the statement of facts (Doc. 16), and brief in support (Doc. 17); and Defendants' reply (Doc. 18). The motion for summary judgment will be granted.[1]

         I. Analysis

         Plaintiff's complaint raises claims under 42 U.S.C. § 1983 for violations of his Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff also asserts various state law civil rights and tort claims. Plaintiff's federal claims against Defendant Lewis allege an unreasonable seizure premised on false arrest, false imprisonment, and excessive use of force. Plaintiff's federal claims against Defendant the City of Hot Springs allege an unconstitutional failure to train. All claims arise out of a September 21, 2012 incident during which Plaintiff was pepper sprayed while walking away from officers, fled, and was later physically taken into custody.

         The cases following Heck v. Humphrey[2] require the Court to grant judgment in Defendants' favor on Plaintiff's § 1983 unreasonable seizure claims premised on false arrest and false imprisonment. “Heck states that, in order to recover damages for harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal.” Schaffer v. Beringer, 842 F.3d 585, 594 (8th Cir. 2016). For his September 21, 2012 conduct, Plaintiff was convicted of disorderly conduct, fleeing apprehension, and third degree assault. (Docs. 12-3, 12-5). To succeed on his § 1983 unreasonable seizure claims premised on false arrest or false imprisonment, Plaintiff must show that his state conviction was rendered invalid. Anderson v. Franklin Cty., Mo., 192 F.3d 1125, 1131-32 (8th Cir. 1999) (affirming dismissal of § 1983 false arrest and false imprisonment claims where state conviction and sentence had not been rendered invalid).

         Heck does not mandate dismissal of Plaintiff's § 1983 unreasonable seizure claims premised on an excessive use of force, however. Colbert v. City of Monticello, Ark., 775 F.3d 1006, 1007 (8th Cir. 2014) (“A finding that [Defendant] used excessive force would not necessarily imply the invalidity of [Plaintiff's] convictions.”). On a motion for summary judgment on the § 1983 unreasonable seizure claims premised on excessive force, the Court views the evidence in a light most favorable to Plaintiff and draws all reasonable inferences in his favor. Malone v. Hinman, 847 F.3d 949, 952 (8th Cir. 2017). In excessive force claims, “[t]he reasonableness of a use of force turns on whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his subjective intent or motivation.” Id. at 952-53.

         A. Officer Shane Lewis

         Having reviewed the facts in a light most favorable to Plaintiff, the Court is compelled to find that Defendant Lewis is entitled to qualified immunity from suit on Plaintiff's excessive force claims, which are premised on Defendant Lewis's use of pepper spray against Plaintiff and Defendant Lewis striking Plaintiff and putting him roughly into a patrol car. “‘An official is entitled to qualified immunity unless (1) the evidence, viewed in the light most favorable to the plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation.'” Id. at 952 (quoting Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012)).

         The Court has no doubt that a reasonable jury could find Defendant Lewis's use of pepper spray was objectively unreasonable, and therefore was a constitutional violation. In an analogous case, the Eighth Circuit applied the Graham[3] factors for measuring reasonable use of force-the severity of the crime, whether the suspect poses an immediate threat to the safety of others, and whether the suspect is actively resisting or evading arrest-and determined that a jury could find an officer's use of pepper spray was objectively unreasonable:

Here, by the undisputed facts, Robinson informed Tatum he was a police officer, told him he was under arrest, told him to put his hands on a clothes rack, warned him he would use pepper spray if he did not calm down, and then pepper sprayed him. Tatum was given an opportunity to comply. He did not, instead arguing angrily with Robinson. It was reasonable for Robinson to use some force. But it was not reasonable to immediately use significant force. In addition to the lack of justification from the three Graham factors, other facts and circumstances indicate only limited force was reasonable. Robinson was not alone-another security officer was close by, as were at least two Dillard's employees. Robinson was off-duty and in plain clothes.
It was not reasonable for Robinson to immediately use pepper spray. Pepper spray can cause more than temporary pain. Robinson presents no evidence he attempted to use other force to secure compliance-no evidence he tried to grab Tatum's hands and place them on the clothes rack, for example. Instead, he proceeded to pepper spray Tatum 14 seconds after he encountered him, and necessarily fewer seconds after Tatum failed to comply with his command.

Tatum v. Robinson, 858 F.3d 544, No. 16-1908, pp. 8-9 (8th Cir. May 30, 2017) (slip copy) (emphasis in original, citations and parentheticals omitted). On the facts as considered on summary judgment, Plaintiff was suspected of committing relatively minor crimes, was leaving the scene at another officer's direction, and Defendant Lewis deployed pepper spray against Plaintiff nearly immediately after telling Plaintiff “you're not going anywhere” and without having attempted to secure Plaintiff's compliance through a less severe use of force.

         Whether a jury could find that Defendant Lewis acted objectively unreasonably is not the end of the analysis, however. Qualified immunity extends where the right in question was not clearly established at the time of the incident. Plaintiff was leaving a “heated” situation while officers wanted to search his wife's vehicle, and was told not to go anywhere. (Doc. 12-1, pp. 50:24-53:20).[4] In light of the Eighth Circuit's discussion in Tatum of the state of the law in 2014, and because one of the Graham factors is whether the suspect is fleeing or evading arrest, Plaintiff's right to be free from the use of pepper spray under these facts was not sufficiently definite in September, 2012. See Tatum, No. 16-1908 at 9-10 (discussing state of the law as of April 29, 2014). Defendant Lewis is therefore entitled to qualified immunity from suit on the pepper spray claims.

         Defendant Lewis is also entitled to qualified immunity on Plaintiff's excessive force claims arising out of Defendant Lewis's arrest of Plaintiff. After being pepper sprayed, Plaintiff fled to the porch of his parents' business. Defendant Lewis came through the gate, took Plaintiff over to Defendant Lewis's patrol car, struck Plaintiff several times (including once in the eye), and then shoved Plaintiff into the back of the patrol car. (Doc. 12-1, pp. 57:23-61:24). Based on his conviction for assault in the third degree, Plaintiff also engaged in conduct that “purposely create[d] apprehension of imminent physical injury in another person.” Ark. Code Ann. 5-13-207(a). Two of the Graham factors-whether Plaintiff posed an immediate threat to the safety of officers or others, and whether he was actively resisting-directly bear on the reasonableness ...


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