66 F.3d 339
Robert Lee WILLIAMS, Plaintiff-Appellant,
TULSA POLICE DEPARTMENT, sued as: G.L. Hamlett, N.C. Cory,
and R. Shockey, Tulsa County Police Officers,
United States Court of Appeals, Tenth Circuit.
Sept. 18, 1995.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before TACHA, LOGAN and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Pro se plaintiff Robert Lee Williams appeals the district court's dismissal of his 42 U.S.C.1983 and 1985 suit alleging that three Tulsa police officers conspired to violate his constitutional rights when they used force in arresting him for violating a protective order. Plaintiff asserted that defendants deprived him of his due process rights under the Fifth and Fourteenth Amendments, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourth Amendment protection from unreasonable search and seizure "pursuant to a racially motivated conspiracy to deprive [him] of due process, and equal protection." See I R. doc. 1. On appeal plaintiff asserts he should have been allowed to proceed to a jury trial on his allegations because he presented evidence that created a genuine issue of material fact.
In dismissing plaintiff's Fifth, Eighth, and Fourteenth Amendment Claims, the district court correctly pointed out that a claim a law enforcement officer used excessive force in the course of an arrest must be analyzed under the Fourth Amendment. Plaintiff argues that the district court erred in granting defendants' motion for summary judgment on his claim that defendants conspired to violate his Fourth Amendment rights through use of excessive force in arresting him. We review a district court's grant of summary judgment de novo, applying the same legal standard used by the district court. James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir.1994) (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). The court may grant summary judgment if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The district court applied the correct "reasonableness" standard in its summary judgment analysis: "[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. at 397 (citations omitted). The determination whether the force used exceeded the force necessary to make the arrest requires an "allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Id. at 397.
Three factors, in particular, are relevant to this fact-specific inquiry: the severity of the crime at issue, whether the suspect presents an immediate threat to the safety of the officers or others; and whether the suspect is actively resistant or attempting to evade arrest. See id. at 396. After listing these considerations, the district court stated that
Construing the evidence in the light most favorable to the Plaintiff, the Court concludes that Plaintiff has not demonstrated a factual issue as to whether the force applied by officers Cory, and Hamlett was excessive. The officers were faced with an individual who had violated a protective order and was a known convicted felon. In addition, the officers were aware that the Plaintiff could be armed and dangerous and that he had been arrested for numerous crimes. Lastly, the officers had decided to arrest the Plaintiff for violation of the protective order and to leave the child with the mother.
Based on these circumstances, it is clear that officer Hamlett's acts of applying pressure to Plaintiff's groin and later to his head and neck, in an attempt to remove the child from the Plaintiff, were reasonable. The Plaintiff had repeatedly resisted arrest and squeezed the child with both his arms and legs. Similarly, the Court concludes that officer Cory acted reasonably in placing plaintiff in a head lock after he had bitten officer Hamlett's arm and continued squeezing the child with his legs.
I R. tab 19 at 9.
Although our review of the record indicates that the district court failed to construe all of the evidence in the light most favorable to the plaintiff,2 even if the facts are as plaintiff urges, they would not support a jury finding that the officers used excessive force. Plaintiff produced no evidence to contest defendants' evidence that they had probable cause to arrest him, that they knew he was a convicted felon likely to be armed, that he refused to relinquish the child he was carrying and to be handcuffed when he was arrested. Under these circumstances, the use of measures including a head lock and pressure on the groin to effectuate the arrest was objectively reasonable. See Pride v. Does, 997 F.2d 712, 716-17 (10th Cir.1993) (officer reasonably believed plaintiff, who was intoxicated and combative, was threatening her safety; therefore officer's use of neck pressure restraint was reasonable).
Finally, the district court correctly analyzed the law in granting defendants' motion for summary judgment on plaintiff's claim under 42 U.S.C.1985.
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
For example, the record contains plaintiff's affidavit and testimony from his criminal trial asserting that he at no time "squeezed" the child or otherwise physically harmed her; rather, he asserts the officers were hurting her. I R. 11 at 2, 91-92. He also contests the defendants' assertion that he intentionally bit officer Hamlett; he testified that he "accidentally" bit into her arm because he was screaming. See id. at 90