Monday, April 28, 2008

Fourth Circuit affirms denial of qualified immunity to police officer using taser on unruly arrestee

A 280 pound sheriff's deputy who used his taser (twice) on a 100 pound female arrestee during her transport to jail was properly denied qualified immunity, the Fourth Circuit held today in Orem v. Rephann, No. 07-1696 (4th Cir. Apr. 28, 2008).

The Plaintiff, Sonja Orem, was arrested for disrupting and assaulting an officer. Three officers restrained Orem, placed her in handcuffs, a foot restraint device, and put her in a police car.

During her transport to the regional jail, she became disorderly, kicking and thrashing about in the back seat and cursing at the officer. The driver pulled over, as did Defendant Rephann who was driving in a separate car behind them. Rephann approached with his taser drawn. The transporting officer opened the front passenger side door and attempted to tighten Orem's foot restraint. Rephann opened the rear door. Orem cursed at him and Rephann shocked her twice with the taser, hitting her below the breast and inside one of her thighs. The incident was recorded by Rephann's dashboard camera. The taser left a sunburn-like scar on Orem's thigh.

The district court denied Rephann's motion for summary judgment asserting qualified immunity. The Fourth Circuit affirmed:
While we recognize that "not every push or shove, even if it may later seem unnecessary" is serious enough to entail a deprivation of a constitutional right, ... the facts, here, when viewed in a light most favorable to Orem, evidence that Deputy Rephann’s use of the taser gun was wanton, sadistic, and not a good faith effort to restore discipline. Orem’s behavior without question was reprehensible, but Deputy Rephann’s use of the taser was an "unnecessary and wanton infliction of pain."

The parties had briefed the case as a Fourth Amendment case rather than Fourteenth Amendment case. The court found that to be erroneous, and applied a Fourteenth Amendment analysis:
The point at which Fourth Amendment protections end and Fourteenth Amendment protections begin is often murky. But here, Orem’s excessive force claim arises during her transport to EJR, after she was arrested. While she had not been formally charged, her status as an arrestee requires application of the Fourteenth Amendment to her claim. The district court erred in applying the Fourth Amendment. We, nevertheless, affirm its denial of summary judgment on alternative grounds.

In his concurring opinion, Judge Shedd was a bit more pointed in his criticism:
Throughout this litigation, the parties have pled and argued this case as one involving a Fourth Amendment excessive force claim. Even after the district court noted the potential applicability of the Fourteenth Amendment in its summary judgment order, and after we requested supplemental briefing and specifically cited circuit precedent that indicates the applicability of the Fourteenth Amendment ... the parties continued to maintain that the Fourth Amendment applies. However, as the majority correctly holds, this is unquestionably a Fourteenth Amendment case because at the time Deputy Rephann used his taser on Ms. Orem, she had been placed under arrest; consequently, the act of seizing her was complete, ... and the Fourth Amendment was no longer applicable.... Despite the parties’ refusal to recognize this rather obvious conclusion, we are not bound by their erroneous characterization of the law ... and we may affirm on any ground appearing in the record, including theories not relied upon by the district court ....
Judge Shedd agreed that a sufficient jury question exists on the record concerning whether Deputy Rephann used his taser in a good-faith effort to maintain order, or "maliciously and sadistically" used it to inflict harm. Judge Shedd found the following facts persuasive:

(1) Ms. Orem, while unruly, was mostly restrained in the back of the patrol car;

(2) Deputy Rephann used the taser immediately in response to Ms. Orem’s use of profanity toward him;

(3) Deputy Rephann’s taser twice made contact with Ms. Orem, and both times the contact was in a sensitive body area (i.e., just below her breast and on her thigh); and

(4) Deputy Rephann told Ms. Orem that she needed to "respect" the officers immediately after he used his taser.

The majority opinion cited the following additional facts in support of its holding:
  • Deputy Rephann did not follow the Sheriff’s Department’s Taser policy, which requires use of open hand measures before application of the taser.
  • Orem was handcuffed, weighed about 100 pounds, was in the process of having her foot restraint tightened, and was locked in the back seat cage of police car at the time she was tasered;
  • The transporting deputy, who was bearing the brunt of Orem's rage, did not request assistance and saw fit to first try to secure her foot restraints — not use electric shock to restore order; and
  • Another officer standing directly behind Deputy Rephann, did not attempt to restrain Orem or assist the deputy tightening the restraints — let alone use a taser gun.
One last note--really a question. In the final footnote of the concurring opinion, Judge Shedd mentioned that "After the district court orally denied Deputy Rephann’s summary judgment motion, he unsuccessfully moved under Fed. R. Civ. P. 52(b) for the district court to make additional findings and change its ruling, and he apparently submitted for the first time several affidavits (including his own) with that motion. Rule 52(b) is a trial rule that is not applicable in a summary judgment proceeding; however, a motion erroneously filed under Rule 52(b) may be treated as a Rule 59(e) motion to alter or amend."

Your trivia question is, is Rule 59(e) the correct rule? My understanding was that Rule 59(e) only applied to final judgments. A denial of summary judgment is not a final judgment, although it is nevertheless an appealable order under Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). In the past, the Fourth Circuit has held that motions to revise such orders should not be treated under Rules 59 or 60 of the Federal Rules of Civil Procedure, both of which apply only to final orders. See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991). So what rule does it fall under?

My answer has always been Rule 54(b) ("any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.") But don't ask me what the standard is for a Rule 54(b) motion because I really don't have an answer for that. If you do, leave me a comment.