79 F3d 1156 Thompson v. City of Kansas City D Dk M L II

79 F.3d 1156

Henry THOMPSON, Plaintiff-Appellant,
v.
CITY OF KANSAS CITY, Missouri; Kansas City, Missouri Police
Department; Randall D. Jacobs; Jeffrey Bontrager; Stephen
Bishop; Gregory Conchola, Sr.; Jerry Sipes; Allen
Jaskina; D.K. Roberts; Rob Lobner; Robert Lane; Kevin
Brandon; City of Kansas City, Kansas; Thomas Dailey;
William Ray Price, Jr.; Bailus M. Tate; Jacqueline L.
Paul; John Dillingham; and Emmanuel Cleaver, II,
Defendants-Appellees.

No. 94-3373.
(D.C.No. 93-CV-2446-EEO)

United States Court of Appeals, Tenth Circuit.

March 13, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

1

ORDER AND JUDGMENT*

2

Before BRISCOE and MURPHY, Circuit Judges, and JENKINS, Senior District Judge.**

3

Henry Thompson brought a 42 U.S.C. § 1983 action against individual police officers, alleging defendants violated his civil and constitutional rights. After the district court considered various motions for summary judgment, it ruled in favor of all defendants. Thompson appeals only the summary judgment granted to police officers Gregory Conchola, Sr., Jeffrey Bontrager, and Randall D. Jacobs (appellees) on the basis of qualified immunity. These defendants had been sued in both their individual and their official capacities. At oral argument, Thompson withdrew his appeal of the magistrate judge's July 25, 1994, order awarding fees to defendant Conchola based upon Thompson's failure to timely respond to discovery requests. We affirm.

I.

4

The underlying action involved alleged police misconduct following an automobile accident the evening of September 29, 1991. Thompson is a paraplegic as a result of injuries sustained that evening. He does not remember any of the relevant events which led to his injury and, as a result, he relies heavily on the deposition and affidavit of Brian Wilson, a passenger in the automobile, to controvert appellees' evidence.

5

Thompson, Wilson, and Michael Matthews had traveled in Thompson's automobile to Kansas City, Missouri, to buy beer, and, on their way home, the automobile overturned. Jacobs responded to a report of an overturned automobile near the Lewis and Clark Viaduct in Kansas City, Missouri, but found that the accident was actually on the James Street Bridge in Kansas. No emergency vehicles were at the site of the accident. Jacobs crossed into Kansas to investigate whether anyone was injured and, shortly thereafter, Bontrager joined him. When Jacobs arrived, Thompson, Matthews, and Wilson were sitting or standing alongside the overturned automobile. After determining they were uninjured, Jacobs asked who had been driving the automobile. Thompson responded he had, and Jacobs took Thompson's driver's license.

6

Conchola was the first Kansas City, Kansas, police officer to arrive. Jacobs testified in his deposition that he told Conchola that Thompson was the driver. Conchola remembered being told Thompson was the driver, but he did not remember who told him. Conchola noticed Wilson walking near the bridge. He thought Wilson matched the description of a suspect in another matter and apprehended him. After handcuffing Wilson, Conchola noticed Thompson walking back and forth on the railing of the bridge, holding a can of beer in his hand. The railing is approximately twelve inches wide and thirty to forty feet above the ground. Conchola and Bontrager asked Thompson to get down from the bridge railing and, after throwing the beer can off the bridge, Thompson complied. According to Conchola, Thompson smelled of alcohol. Both Conchola and Bontrager saw Thompson drink from the can of beer. Conchola testified he attempted to handcuff Thompson, but Thompson resisted and attempted to punch and kick the officers. Thompson disputed the assertion that he attempted to punch and kick the officers, but offered no evidence to support his position. Conchola struck Thompson on the leg with his baton, and Bontrager attempted to spray Thompson with pepper spray. Thompson broke free and ran across the bridge directly toward Jacobs. Jacobs stepped into Thompson's path with his arms outstretched in a "scare crow fashion." After the two collided, Thompson spun around and fell over the railing of the bridge to the ground, thirty to forty feet below.

II.

7

Thompson alleged defendants violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. As regards appellees, he claimed they lacked probable cause to arrest and they used excessive force. Appellees moved for summary judgment, arguing qualified immunity barred Thompson's claims, and the court granted their motions. On appeal, Thompson argues there are genuine issues of material fact as to whether appellees are entitled to qualified immunity. Review is de novo, applying the same legal standard as the district court. Cummins v. Campbell, 44 F.3d 847, 850 (10th Cir.1994).

8

"The general rule of qualified immunity is intended to provide government officials with the ability 'reasonably [to] anticipate when their conduct may give rise to liability for damages.' " Anderson v. Creighton, 483 U.S. 635, 646 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). Government officials performing discretionary functions receive qualified immunity "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Id. at 638. The doctrine of qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

9

"Special rules apply when a defendant raises the defense of qualified immunity in a summary judgment motion." Cummins, 44 F.3d at 850. Under these rules, Thompson bears an initial heavy two-part burden. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). He must show appellees' alleged conduct violated the law, and he must show the law was clearly established at the time of the alleged unlawful conduct. Id. If he fails to carry either part of his burden, appellees are entitled to qualified immunity. Id. at 1535. "The key to the inquiry is the objective reasonableness of the official's conduct in light of the legal rules that were clearly established at the time the action was taken." Laidley v. McClain, 914 F.2d 1386, 1394 (10th Cir.1990). If Thompson carries his burden, however, appellees then have the "usual summary judgment burden of establishing that there is no genuine controversy over a material fact which would defeat [their] claim for qualified immunity and that [they are] entitled to judgment as a matter of law." Thompson v. City of Lawrence, 58 F.3d 1511, 1515 (10th Cir.1995). We review the record in the light most favorable to Thompson. Id.

II.

10

A. Availability of qualified immunity defense to Missouri officers.

11

Thompson argues the two Missouri officers, Jacobs and Bontrager, are not entitled to qualified immunity as to either the lack of probable cause to arrest claim or the use of excessive force claim because they acted outside of their territorial jurisdiction. He contends, essentially, that since they were not in fresh pursuit, they became private citizens as soon as they crossed the state line and entered Kansas. Cf. K.S.A. 22-2404(2) (authorizing a law enforcement officer from another state to arrest a suspect in Kansas where the officer enters Kansas in fresh pursuit and continues within the state in fresh pursuit of the suspect). He further contends that private citizens are not entitled to qualified immunity.

12

It is uncontroverted that Jacobs and Bontrager crossed the river into Kansas because an automobile had overturned on the Kansas side of the bridge. No Kansas City, Kansas, officers were on the scene. They checked for injuries, positioned their patrol cars to divert traffic, and waited for the Kansas police to arrive. They assisted Conchola in the arrest of Thompson because the other Kansas police officer dispatched to the scene had not arrived. Thompson argues Jacobs and Bontrager acted under color of law, but without the protection of qualified immunity, because they were outside of their territorial jurisdiction. He analogizes the instant case to Wyatt v. Cole, 504 U.S. 158 (1992). Wyatt addresses a narrow, unrelated situation: whether a private defendant who acts under an unconstitutional state replevin, garnishment, or attachment statute is entitled to qualified immunity. In Wyatt, a private party used an unconstitutional state law to attain a private end. Here, on-duty police officers acted under the cloak of state authority to fulfill a purely public function; more specifically, they responded to a potentially serious automobile accident. "Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Wyatt, 504 U.S. at 167. We are mindful that the purpose of qualified immunity is "to safeguard government, and thereby to protect the public at large, not to benefit its agents," Id. at 168; however, we believe the rule that Thompson urges would unduly impair the public interest by hindering the ability of officers to act forcefully and decisively in their jobs. Thompson's analogy to Wyatt is unpersuasive.

13

A warrantless arrest made outside of the arresting officer's jurisdiction is actionable pursuant to 42 U.S.C. § 1983 under the appropriate circumstances. See Ross v. Neff, 905 F.2d 1349, 1353-54 (10th Cir.1990 )( § 1983 action seeking recovery from sheriff's officers for arrest on Indian land and use of excessive force to make arrest). A warrantless arrest executed outside of the arresting officer's jurisdiction is analogous to a warrantless arrest without probable cause. See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985) (warrantless arrest without probable cause is constitutionally invalid). Police officers, however, sued in their individual capacities, are entitled to qualified immunity where they could not reasonably have known their challenged actions violated the law. See Anderson, 483 U.S. at 639 ("[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time it was taken"). As regards the specific claims here against the Missouri officers, lack of probable cause to arrest and excessive force, the discussion which follows establishes the actions of Jacobs and Bontrager were objectively reasonable when viewed in light of the legal rules established at the time the officers' actions were taken.

14

B. Probable cause to arrest.

15

The court held that Conchola was immune from suit because the uncontroverted facts established he had probable cause both to arrest Thompson for DUI and to take him into custody under K.S.A. 65-4027. Thompson argues the court erred because Conchola lacked probable cause.

16

In Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995), we explained as follows:

17

We analyze the constitutionality of a warrantless arrest under the probable cause standard. [Citations omitted]. A police officer may arrest a person without a warrant if he has probable cause to believe that person committed a crime. [Citation omitted]. "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." [Citations omitted]. When a warrantless arrest is the subject of a § 1983 action, the defendant arresting officer is "entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest" the plaintiff. [Citations omitted]. "Even law enforcement officers who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." [Citation omitted].

18

Under Kansas law, it is a misdemeanor to operate a vehicle while under the influence of alcohol. K.S.A. 8-1567(a)(3). Conchola is entitled to qualified immunity if a reasonable officer could have believed there was probable cause to arrest Thompson for DUI. Conchola saw an overturned automobile near the James Street Bridge. Wilson's statement that Matthews was actually the driver does not controvert Conchola's testimony. Thus, Conchola's testimony that somebody told him Thompson was the driver is uncontroverted. Indeed, Jacobs testified he told Conchola that Thompson was the driver as soon as Conchola arrived. "Officers may rely on information furnished by other law enforcement officials ... to develop probable cause for an arrest." Albright, 51 F.3d at 1536. Conchola observed Thompson walking back and forth on a narrow bridge railing suspended thirty or forty feet above the ground with a can of beer in his hand. It is also uncontroverted that Conchola smelled alcohol on Thompson's breath. Thompson argues Conchola did not smell his breath until after he decided to arrest Thompson. Even in the absence of evidence that Thompson's breath smelled of alcohol, based on the remaining undisputed facts, a reasonable officer could have believed there was probable cause to arrest Thompson for DUI.

19

Alternatively, the court found Conchola had probable cause to take Thompson into custody under K.S.A. 65-4027, which provides a police officer is authorized to take a person into custody when the officer reasonably believes, based upon observation, that an individual is intoxicated and likely to be physically injured if allowed to remain at liberty. K.S.A. 65-4027. Conchola testified he attempted to take Thompson into custody because he appeared intoxicated and was endangering himself. Since Thompson remembers nothing of the events at issue, he relies only on Wilson's deposition testimony and affidavit to controvert Conchola's evidence. Wilson stated he did not see Thompson drink from the can of beer while Thompson was on the railing, he did not see Thompson staggering or stumbling, and Thompson did not appear intoxicated. It is undisputed Thompson was holding a can of beer and walking "tightrope-style" on a very narrow bridge railing that was at least thirty feet above ground. It also is undisputed that Thompson smelled of alcohol and had identified himself as the driver of an overturned automobile. Given these undisputed facts, Conchola's decision to take Thompson into custody under K.S.A. 65-4027 was objectively reasonable.

20

The court also concluded Jacobs and Bontrager had probable cause to arrest Thompson for DUI and to take him into custody under K.S.A. 65-4027. Thompson argues Jacobs and Bontrager lacked probable cause to arrest him for DUI. We have previously concluded that Conchola had probable cause to arrest Thompson, and that Jacobs and Bontrager were merely helping him make the arrest. Just as an officer making an arrest may rely on the collective knowledge of other officers in determining whether he has probable cause to arrest, one assisting an officer in making an arrest may rely on the arresting officer's probable cause and does not need his own, independent probable cause to arrest. See, e.g., United States v. Lee, 962 F.2d 430, 435 (5th Cir.1992) ("It is not necessary that the arresting officer himself have personal knowledge of all of the facts."), cert. denied 113 S.Ct. 1057 (1993).

21

C. Excessive force.

22

Thompson argues Conchola, Bontrager, and Jacobs used excessive force. Specifically, he argues it was excessive for Conchola to hit him with a baton, for Bontrager to spray him with pepper spray, and for Jacobs to intentionally push him off the bridge.

23

Excessive force claims must be analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). "[T]he right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. at 396. "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of ' "the nature and quality of the intrusion on the individual's Fourth Amendment interests" ' against the countervailing governmental interests at stake." Id. As we explained in Pride v. Does, 997 F.2d 712, 716-17 (10th Cir.1993),

24

[w]e judge the reasonableness of the force used not with the "20/20 vision of hindsight" or from the serenity of chambers but from the perspective of the officer on the scene, allowing for the split-second nature of most law enforcement decisions. [Citation omitted]. From that vantage point, we 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 officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

25

We agree with the district court that appellees' conduct was objectively reasonable. After Thompson got down from the railing, Conchola attempted to place him in handcuffs, but Thompson resisted. Conchola did not use his baton until after Thompson resisted. The Kansas City, Kansas, police department authorizes an officer to use a baton to strike a subject's forearm, thigh, or calf when "empty hand control techniques" are insufficient to effect an arrest. Conchola testified empty hand techniques were insufficient because Thompson was trying to punch him. Thompson's evidence does not controvert Conchola's testimony. Because Thompson continued to resist, Bontrager used his pepper spray. Thompson broke free from Conchola and Bontrager and ran directly toward Jacobs. Jacobs and Thompson collided near the railing. Although Wilson states Jacobs pushed Thompson, he admits Jacobs did not intentionally push Thompson over the railing. At most, the record reflects Thompson accidentally fell off the bridge following a collision with a third officer while fleeing from two other officers.

26

Under the facts as established by the record when viewed in the light most favorable to Thompson, and particularly given the relative seriousness of the criminal offenses involved, the extent of Thompson's resistance, and his attempt to flee, Conchola, Bontrager, and Jacobs acted in an objectively reasonable manner and are entitled to qualified immunity with respect to Thompson's excessive force claim.

27

AFFIRMED.

*

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 10th Cir. R. 36.3

**

Honorable Bruce S. Jenkins, Senior District Judge, United States District Court for the District of Utah, sitting by designation