United States District Court, E.D. Arkansas, Western Division
JERICA MOORE-JONES, Individually and as Parent and Next Friend of DEL MOORE PLAINTIFF
ANTHONY TODD QUICK, Trooper, Arkansas State Police DEFENDANT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Moore-Jones commenced this action on her own behalf and on
behalf of her minor daughter against Colonel Bill Bryant, in
his official capacity as Director of the Arkansas State
Police; and Anthony Todd Quick, individually and in his
official capacity as a trooper for the Arkansas State Police.
The Court previously dismissed the claims against Bryant and
the claims against Quick in his official capacity.
Moore-Jones's remaining claims against Quick allege
excessive force in violation of the United States and
Arkansas constitutions and assault and battery. Quick now
moves for summary judgment. For the reasons explained below,
Quick's motion is denied.
argues that he is entitled to qualified and statutory
immunity and that assault and battery may not be maintained
against a police officer attempting to make an arrest.
Specifically, Quick argues that use of the PIT maneuver was
not an excessive use of force. Document #22 at 3. He
alternatively argues that even if it were excessive, the law
at the time was not clearly established that such force was
constitutionally unreasonable. Id. at 11. The Court
previously held that the law at the time clearly established
that a PIT maneuver used against nonviolent misdemeanants who
pose little or no threat to the safety of officers or others
and who do not actively resist arrest or flee constitutes
excessive force. Nothing has changed the Court's
understanding of the maneuver or the law.
has changed from the Court's previous order is the
introduction of Quick's dash-camera recording, his
affidavit, and other record evidence. In the motion to
dismiss, the Court accepted as true the allegations in
Moore-Jones's complaint. On summary judgment, the Court
must view the record as a whole. A court should grant summary
judgment if the evidence demonstrates that there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). The moving party bears the initial burden of
demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
evening of November 7, 2015, Moore-Jones was driving in a
white Dodge Challenger west on the Interstate 30 service
road. Document #23 at ¶1. As she passed Quick, who was
parked on the right shoulder in a fully marked state police
car, Quick ran her license plate number. Id.
¶¶2-3. Quick learned that her car registration was
expired and pulled onto the road to initiate a traffic stop.
Document #23-1 at ¶3. Quick's car had a dash-camera
that recorded the ensuing events. Document #23-12. The
footage begins at 8:22:28 p.m., with Quick's car on the
road. Id. He accelerates to catch up to Moore-Jones,
at times reaching speeds of 84 miles per hour. Id.
Quick is soon behind Moore-Jones and turns his lights on at
8:23:27 p.m. Id. He activates his sirens at 8:23:35
p.m., and he shines his spotlight on the car at 8:23:38 p.m.
8:23:41 p.m., Moore-Jones slows her speed and goes around a
car that is pulled off on the right shoulder. Id.
Once around the car, she begins to pull her car to the
shoulder but then pulls back onto the road. Id. The
shoulder is narrow-much less than a car-width-and quickly
falls off into a ditch. Id. The area is also unlit
and dark. Id. When Moore-Jones pulls back onto the
road, she increases her speed from 14 miles per hour to 35
miles per hour. Id. She continues to drive at speeds
between 35 and 38 miles per hour. Id. The posted
speed limit is 55 miles per hour. Id. The stretch of
road remains unlit with a narrow shoulder. Id.
8:24:16 p.m., she passes the exit for Raymar Road on her
right but does not stop. Id. At 8:24:18 p.m., Quick
accelerates and uses the Raymar exit to position his front,
left bumper alongside of the right, rear fender of
Moore-Jones's car. Id. He then strikes her
fender with his bumper, causing her car to spin clockwise
into the ditch. Id. This is referred to as a
“PIT maneuver.” Moore-Jones's car comes to
rest after running headlong into a cement culvert. Document
#23 at ¶21. Moore-Jones was cited for expired vehicle
tags and failure to yield to an emergency vehicle. Document
#23-1 at ¶15.
testified in his affidavit that he believed Moore-Jones was
fleeing. Id. ¶6. He came to this conclusion, he
says, because of what he describes as excessive activity
among the occupants and Moore-Jones's failure to yield.
Id. Quick says he used the PIT maneuver when he did
because he feared a high-speed chase could have ensued and he
knew that a more-populated area was approaching. Id.
¶¶7-12. Quick testified in his deposition that
Moore-Jones was never speeding, that he did not observe any
unsafe driving by Moore-Jones, and that Moore-Jones posed no
danger to himself or others at the time he decided to use the
PIT maneuver. Document #23-1 at 13-14.
Darran Austin, one of Quick's superiors, testified that
he believed “the PIT maneuver was issued very
quickly” and that he “would have waited
longer” before using the maneuver. Id. at 46.
Austin also counseled Quick to “be mindful of the
people that may not feel safe to stop in that location and
may be moving to what they feel is a safer location.”
Document #26-1. Major John Michael Foster testified that a
PIT maneuver should be used to reduce risk. Document #23-1 at
alleges that Quick used excessive force in violation of the
fourth amendment to effectuate the traffic stop. Quick does
not dispute that his decision to force Moore-Jones's
vehicle off the road constituted a “seizure”
under the fourth amendment. See Scott v. Harris, 550
U.S. 372, 381, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007);
Brower v. Cnty. of Inyo, 489 U.S. 593, 596-597, 109
S.Ct. 1378, 103 L.Ed.2d 628 (1989) (“[A] Fourth
Amendment seizure [occurs] . . . when there is a governmental
termination of freedom of movement through means
intentionally applied.”). At bottom, Quick's
argument is that a reasonable officer would have believed
that Moore-Jones was fleeing and that it was reasonable to
employ a PIT maneuver against a fleeing motorist.
excessive force claims against Quick are analyzed under the
doctrine of qualified immunity. “The doctrine of
qualified immunity 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.'” Pearson v. Callahan, 555 U.S.
223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). Qualified immunity provides
immunity from suit, not just immunity from liability.
Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th
Cir. 2007). A government official is entitled to qualified
immunity if (1) the facts, viewed in the light most favorable
to the plaintiff, do not amount to violation of a
constitutional right, or (2) the constitutional right was not
clearly established at the time of the violation. Jones
v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). Either
inquiry may be addressed first. Pearson, 555 U.S. at
236, 129 S.Ct. at 818.
fourth amendment requires law enforcement's use of force
to be objectively reasonable. Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989).
Unreasonable, or excessive, use of force is unconstitutional,
but it is not always apparent what constitutes an
unreasonable use of force. This determination demands a
“careful balancing” of the individual's
liberty interests against the government's countervailing
interests. Id. at 396, 109 S.Ct. at 1871 (citation
omitted). Courts must pay “careful attention to the
facts and circumstances of each particular 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.” Id., 109 S.Ct. at
1872. Importantly, the above analysis is judged from the
vantage of a reasonable officer on the scene-not hindsight
nor the particular beliefs of Quick or Moore-Jones.
explained in the Court's previous order, courts routinely
begin excessive-force analysis with the factors set forth in
Graham: 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 flee. See, e.g., Montoya
v. City of Flandreau, 669 F.3d 867, 871 (8th Cir. 2012);
Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th
Cir. 2009); Brown v. City of Golden Valley, 574 F.3d
491, 496 (8th Cir. 2009). Application of these factors
produces the following principle: the use of force is least
justified against nonviolent misdemeanants who pose little or
no threat to the safety of officers or others and who do not
actively resist arrest or flee. Montoya, 669 F.3d at
871. Notwithstanding, courts are mindful that the totality of
the circumstances must be considered. Id.
initiated a traffic stop because Moore-Jones was driving with
expired tags, a nonviolent misdemeanor offense. See
Ark. Code Ann. § 27-14-304. He says that the PIT
maneuver was warranted because Moore-Jones was fleeing. He
agrees that absent his conclusion that Moore-Jones was
fleeing, it would have been unreasonable to use a PIT
maneuver to effectuate a traffic stop for expired tags. After
reviewing the evidence in the light most favorable to
Moore-Jones and drawing all reasonable inferences in her
favor, the Court cannot say as a matter of law that a
reasonable officer on the scene would have concluded that
Moore-Jones was fleeing. Cf. Sharp v. Fisher, 532
F.3d 1180, 1184 (11th Cir. 2008) (holding that law
enforcement reasonably used PIT maneuver when driver failed
to respond to blue lights and sirens, driver gave no
indication of stopping the pursuit or slowing down, driver
was driving erratically, and there were several civilian
vehicles on the Interstate during the pursuit); Wertish