LISA Y.S. WEST, Plaintiff - Appellant,
DEPUTY TERRY DAVIS, Defendant - Appellee
Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:12-cv-00661-RWS.
For Lisa Y.S. West, Plaintiff - Appellant: Craig Thomas Jones, The Orlando Firm, LLC, Decatur, GA.
For Terry Davis, Defendant - Appellee: Mary Janet Huber, Law Offices of Mary J. Huber, Decatur, GA.
Before JORDAN and BENAVIDES,[*] Circuit Judges, and BARTLE,[**] District Judge. BENAVIDES, Circuit Judge, dissenting in part.
BARTLE, District Judge
This action arises out of a confrontation in the Fulton County Courthouse between plaintiff Lisa Y.S.West, an attorney and former city judge, and defendant Terry Davis, a deputy sheriff. West has
sued Davis under 42 U.S.C. § 1983 for subjecting her to an unreasonable seizure and for using excessive force in the course of the seizure in violation of the Fourth Amendment as incorporated into and applicable to the states and local governmental entities through the Fourteenth Amendment. See, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513 (1961). The complaint also contains a supplemental state law claim under the Georgia Constitution. The District Court granted summary judgment on both claims in favor of Davis, and West has appealed. Our standard of review is plenary. Harris v. Liberty Cmty. Mgmt., Inc., 702 F.3d 1298, 1301 (11th Cir. 2012).
When deciding on the propriety of the grant of summary judgment, the court must consider the facts and the justifiable inferences in the light most favorable to the non-moving party, that is, West. Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1175 (11th Cir. 2012). Summary judgment may be granted only if there is no genuine dispute of any material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011).
According to West, she entered the Fulton County Courthouse on December 9, 2010 at about 12:55 p.m. for a 1:00 p.m. court appearance on the fourth floor. She was not wearing an overcoat. At the security checkpoint in the courthouse, she placed her briefcase and purse on the conveyor belt of the x-ray machine and walked through the metal detector, which was activated. At that point, Davis, as part of the security detail, commanded her to remove her suit jacket. She responded that she would not do so because it would improperly expose her undergarments. Davis continued to insist that she remove her suit jacket and that if she refused to do so, her choices were to allow him to look under her clothes, to leave the courthouse, or to be arrested. When West replied, " You are kidding," he retorted, " No, I'm not." He motioned to her chest and stated " I can see you have something on underneath your coat" as he came very close to her. Several times West asked him to call his supervisor, but ignoring her request he reiterated what she needed to do to avoid arrest. He also reached toward his waist belt and behind his back in the vicinity of his handcuffs, all the while glaring at her. After several minutes, he finally contacted his supervisor.
As West waited for the supervisor to appear, she called her husband, an attorney, on her cell phone to apprise him of what was occurring. Significantly, no signs were posted prohibiting cell phone use in that part of the courthouse. West then called her client to say that she was being delayed in arriving at the courtroom. At this point, Davis ordered, " Get off the phone." While she was holding the phone to her ear, Davis forcibly grabbed her hand, jerking the hand and arm away from her face and toward his body. He squeezed her hand and fingers hard and twisted her wrist back and forth, causing her severe pain. He wrenched the cell phone from her fingers and flung it into her purse.
Shortly thereafter, the supervisor arrived and told West she did not have to remove her suit jacket. Instead, as directed by his supervisor, Davis wanded her without incident -- something he could have done at the outset. Following her court appearance, West drove to a hospital emergency roomwhere she received medication
and a splint for her wrist. Thereafter, she saw a hand specialist and had a carpal tunnel release procedure on the wrist that Davis had grabbed and twisted.
As a result of the incident, Davis was suspended from his job for a short period and was reassigned to work in the local jail.
It is West's position that the Fourth Amendment governs her claim that she was unreasonably seized and subjected to excessive force during the seizure. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Davis counters that no seizure occurred and that the proper analysis is whether he applied excessive force in violation of substantive due process under the Fourteenth Amendment.
Whether the Fourth Amendment or substantive due process is applicable is of critical importance. The test under the Fourth Amendment is whether Davis' conduct was objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). It is a fact intensive inquiry. The " nature and quality of the intrusion on the individual's Fourth Amendment interests" must be carefully balanced against " the countervailing governmental interests at stake." Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Under substantive due process, the question is whether Davis' use of force shocks the conscience, a more onerous standard of proof than under the Fourth Amendment. Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009).
The District Court rejected West's argument that she was the subject of a Fourth Amendment seizure. It concluded that the proper analytical framework for determining whether the force was excessive was under substantive due process. After reviewing the record, presumably in the light most favorable to West, the District Court held that the conduct of Davis did not shock the conscience as a matter of law and that he was entitled to qualified immunity. See generally Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). As noted above, the court granted summary judgment in favor of Davis.
The Supreme Court in Graham v. Connor explained that when a specific provision of the Constitution is allegedly infringed, a court must decide the claim in accordance with the terms of that provision rather than under the more general rubric of substantive due process. Graham, 490 U.S. at 394. Thus, we must first determine, based on the record before us and in the light most favorable to West, whether Davis subjected her to a Fourth Amendment seizure.
The meaning of what constitutes a seizure under the Fourth Amendment was well established at the time of the encounter at issue through a long line of Supreme Court precedents. We begin with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which a police officer observed several men repeatedly casing a store window. Based on his years of law enforcement experience, the officer patted down the individuals and located a gun on defendant Terry. The Supreme Court
ruled that a " stop" and " frisk" is within the purview of a Fourth Amendment seizure:
It is quite plain that the Fourth Amendment governs " seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime -- " arrests" in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has " seized" that person.
Id. at 16.
In Tennessee v. Garner, a case under 42 U.S.C. § 1983 in which the police used deadly force to prevent an escape, the Supreme Court agreed that a Fourth Amendment seizure had taken place. 471 U.S. at 7, 9. As the Court reiterated, " [w]henever an officer restrains the freedom of a person to walk away, he has seized that person." Id. at 7.
Several years later, the Supreme Court decided Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). There, a fugitive was killed when he crashed into a police roadblock while fleeing the police in a stolen vehicle. Id. at 594. The heirs of the fugitive sued the police under 42 U.S.C. § 1983 for violation of the Fourth Amendment. Id. The Supreme Court reversed the Court of Appeals, which had upheld the trial court's dismissal of the complaint. Id. at 599-600. Taking the allegations of the complaint as true, the Court held that a seizure had occurred. Id. The Court distinguished the situation at hand from that of a fugitive fleeing who crashes into an obstacle not deliberately set up by the police to stop him. Id. at 595-96. The Court explained:
It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. That is the reason there was no seizure in the hypothetical situation that concerned the Court of Appeals. The pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means--his loss of control of his vehicle and the subsequent crash. If, instead of that, the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect's freedom of movement would have been a seizure.
Id. at 596-97.
The Supreme Court also faced the question whether a seizure had occurred in Graham v. Connor, an action under 42 U.S.C. § 1983 involving an allegation of excessive force in making an investigatory stop. 490 U.S. at 388. At the trial the District Court granted a directed verdict in favor of the defendant, and the Court of Appeals affirmed. Id. The Supreme Court reversed. Id. at 392. It concluded that the lower courts had erred in failing to apply the objective reasonableness test under the Fourth Amendment:
[W]e ... hold that all claims that law enforcement officers have used excessive force--deadly or not--in the ...