Higginbotham v. Brauer

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

STUART HIGGINBOTHAM

:

v. : Civil Action No. DKC 18-1067

:

CORPORAL J. BRAUER1

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights case is the motion for summary judgment filed by Corporal

J. Bauer (“Defendant”). (ECF No. 18). The issues have been fully

briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons, the

motion will be denied.

I. Background2

This action arises out of a citizen’s observation of a police

officer effectuating an arrest on a third party.

On May 14, 2015, Stuart Higginbotham (“Plaintiff”) was

walking through a shopping mall. As he walked, he noticed “a bunch

of people and a crowd . . . forming” and saw a “security guard

1 The caption of the complaint identifies the defendant as

“Brauer” while elsewhere he is identified as “Bauer.” The clerk

will be instructed to amend the docket to reflect the correct

spelling of Defendant’s last name.

2 The facts outlined here are presented in the light most

favorable to Plaintiff, the nonmoving party.

yelling at a young lady, pointing at her.” (ECF No. 18-2, at 6).

The young lady was Morgan Branch, a Black teenager. Corporal

Jeffrey Bauer (“Defendant”), an Anne Arundel County police

officer, and the security guard spoke, and Defendant also pointed

to Ms. Branch. (Id.). Plaintiff observed Defendant “[run] up

behind [Ms. Branch] and then jerk[] her arm[.]” (Id.). Defendant

“proceeded to put [Ms. Branch] in a chokehold, pick her up[,] and

body slam her face, hitting the left side of the face into the

tile floor.” (Id.). Defendant then “put his knee in [Ms.

Branch’s] back and put handcuffs on her.” (Id.).

Plaintiff interjected: “[T]hat’s excessive. That’s

somebody’s daughter. That’s not necessary.” (ECF No. 18-2, at

6). Other people in the crowd, including Ms. Branch’s boyfriend,

also objected to Defendant’s actions. (Id., at 7). Defendant

looked directly at Plaintiff and responded: “shut the fuck up.”

(Id.). Plaintiff countered: “don’t cuss at me, what you did to

her is not right.” (Id.). Defendant replied: “shut the fuck up,

get out of the mall.” (Id.). The security guard then also ordered

Plaintiff to leave the mall and stated that he was banned (from

that point forward). (Id., at 9). The crowd had not dispersed,

and a white woman commented that Plaintiff should have seen what

[Ms. Branch had done].” (Id.). Plaintiff commented to Defendant

that if Ms. Branch “was white [Defendant] wouldn’t have done that.”

(Id.). Defendant again told Plaintiff to “get out, leave the

mall.” (Id.). Plaintiff replied that he would wait for Ms.

Branch’s mother. Defendant then arrested or handcuffed Ms. Branch

while Plaintiff continued to observe.

A female officer, Corporal Katherine Beall, then approached

Plaintiff. Defendant instructed Officer Beall to “detain”

Plaintiff and Officer Beall asked Plaintiff to follow her. (ECF

No. 18-2, at 9). They walked a few paces back together and began

a conversation. Officer Beall did not order Plaintiff to leave

the mall, advise him that he was under arrest, or order him to put

his hands behind his back.3

After Officer Beall and Plaintiff spoke for a few moments,

Defendant “walked behind [Plaintiff] and said . . . you’re under

arrest.”4 (ECF No. 18-2, at 10). Plaintiff turned around and

asked: “for what?” (Id.). Defendant struck Plaintiff in the head

with his forearm, put his forearm around Plaintiff’s neck, and

choked Plaintiff. (Id.). Plaintiff said that he could not breathe

3 Officer Beall’s deposition testimony suggests that she did

tell Plaintiff to leave, tried to usher him out of the mall, and

that Plaintiff would stop every few steps, turn around, and shout.

(ECF No. 18-3, at 10). Officer Beall was unsure of what he shouted

or to whom he was speaking. (Id.).

4 Plaintiff and Officer Beall described Defendant as

effectuating the arrest from behind immediately upon joining them.

(ECF No. 18-2, at 10; ECF No. 18-3, at 13-14). Defendant described

having a face-to-face conversation about force and race with

Plaintiff before initiating the arrest. (ECF No. 19, at 14-16).

Officer Beall testified that Plaintiff did not actively or

passively resist arrest (ECF No. 18-3, at 20-21; Defendant

testified that Plaintiff did resist arrest (ECF No. 19, at 16).

and remained standing. Defendant “put more pressure on

[Plaintiff’s] neck and . . . kept squeezing.” (Id.). Plaintiff

asked, “what’s going on” and Officer Beall instructed him to “go

down.” (Id.). Plaintiff went to the ground. As Plaintiff went

to the ground, Defendant grabbed Plaintiff’s right arm, threw it

back, and forcefully put his knee in Plaintiff’s back. Defendant

handcuffed Plaintiff and pulled Plaintiff to a standing position.

Plaintiff expressed that he had shoulder pain. Defendant did

not reply, but Officer Beall arranged for a second set of

handcuffs. Defendant declined to handcuff Plaintiff with his arms

in front of his body. They continued to speak, and Plaintiff

described the conversation:

Officer Bauer came back over and he said to me, he

said you incited a riot. I said no, you did that on

your own. I said I didn’t do anything. I just said

what you did to her was not right. And then he said –

he tried to justify, and I’m like, no, that’s not right,

what you did to that young lady was not right, and he

said you’re ignorant and I said ignorant, and then he

said you people need to learn how to keep your mouth

shut and I said us black people and he said yes, and

walked back over to where the girl was.

(ECF No. 18-2, at 12). Defendant and another officer drove

Plaintiff to the police station. During the drive, Defendant

indicated that Plaintiff would “pay because [Plaintiff] made

[Defendant] late to go pickup his kids.” Plaintiff refused medical

treatment during the booking process. The State of Maryland

ultimately dismissed the disorderly conduct charge against

Plaintiff.

On April 12, 2018, Plaintiff filed the instant complaint and

asserted four claims: (1) violation of 42 U.S.C. § 1983 (“Count

I”); (2) battery (“Count II”); (3) false arrest (“Count III”); and

(4) false imprisonment (“Count IV”). After full briefing, the

court granted Defendant’s motion to dismiss Counts II through IV

because Plaintiff failed to provide timely notice under the

Maryland Local Government Tort Claims Act (“LGTCA”). (ECF No. 9,

at 7-15). Only Count I remains.

On September 10, 2019, Defendant filed the presently pending

motion for summary judgment. (ECF Nos. 18; 19).5 Plaintiff

responded (ECF No. 22), and Defendant replied (ECF No. 23).6

II. Standard of Review

Summary judgment is appropriate only if “there is no genuine

issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is

5 Defendant filed ECF No. 19 to correct ECF No. 18-4.

Defendant identified ECF No. 19 as correspondence correcting an

earlier submission but the document does not contain any

correspondence. ECF No. 18-4 provides, in numerical and sequential

order, the first 41 pages of Defendant’s deposition. ECF No. 19

omits some of the pages contained in ECF No. 18-4 and provides

additional pages of the deposition. The court must refer to both

to reference the complete deposition transcript.

6 Three of Plaintiff’s exhibits are duplicative of Defendant’s

exhibits. Compare ECF No. 22-1 with ECF No. 18-2; compare ECF No.

22-2 with ECF Nos. 18-4; 19; compare ECF No. 22-4 with ECF No. 18-

3. These are the transcripts of Defendant’s, Plaintiff’s, and

Officer Beall’s depositions. The opinion will reference

Defendant’s exhibits when referencing the deposition transcripts.

inappropriate if any material factual issue “may reasonably be

resolved in favor of either party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (2001). The existence of only

a “scintilla of evidence” is not enough to defeat a motion for

summary judgment. Anderson, 477 U.S. at 251-22. Instead, the

evidentiary materials must show facts from which the finder of

fact reasonably could find for the party opposing summary judgment.

Id. The facts are to be taken in the light most favorable to the

party opposing summary judgment, the non-moving party

III. Analysis

Plaintiff’s § 1983 claim alleges violation of the Fourth and

Fourteenth Amendments to the United States Constitution. There

are two aspects to Count I. First, Plaintiff contends that

Defendant arrested him without probable cause violating his right

to be from an unreasonable search and seizure of his person. (ECF

No. 1, ¶ 27). Second, Plaintiff contends that Defendant used

excessive force. (Id.). Defendant contends that he “had probable

cause to arrest [Plaintiff] for disorderly conduct” and that he

“has qualified immunity from the [excessive force claim] because

it is not clearly established that the method he used was

unconstitutional.” (ECF No. 18-1, at 5).

A. False Arrest

Plaintiff alleges that he was arrested without a warrant and

without probable cause in violation of the Fourth Amendment, which

protects “[t]he right of the people to be secure in their persons

. . . against unreasonable searches and seizures[.]” U.S. Const.

amend. IV. Defendant contends that he had probable cause to arrest

Plaintiff for disorderly conduct (ECF No. 18-1, at 5-8), and argues

that probable cause defeats a retaliatory arrest claim (ECF No.

23, at 2-5). Although Plaintiff did not raise a retaliatory arrest

claim or allege a First Amendment violation in Count I, he

maintains that he “had an absolute right [to criticize verbally]”

Defendant’s conduct and argues that Defendant’s “claimed

justification for the arrest . . . is a matter of disputed fact.”

(ECF No. 22, at 15-18).

“Under the Fourth Amendment, a warrantless arrest is an

unreasonable seizure unless there is probable cause to believe

that a criminal offense has been or is being committed.” United

States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010). The standard

is objective; probable cause “exists when, ‘at the time the arrest

occurs, the facts and circumstances within the officer’s knowledge

would warrant the belief of a prudent person that the arrestee had

committed or was committing an offense.’” Id. (quoting United

States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)). “Probable

cause is determined by a ‘totality-of-the-circumstances’

approach.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017)

(citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). The probable

cause inquiry “turns on two factors: ‘the suspect’s conduct as

known to the officer, and the contours of the offense thought to

be committed by that conduct.’” Id. (quoting Graham v. Gagnon,

831 F.3d 176, 184 (4th Cir. 2016)). For the first factor, courts

“look to the information available to the officer on the scene at

the time,” but “apply an objective test to determine whether a

reasonably prudent officer with that information would have

thought that probable cause existed for the arrest.” Hupp v. Cook,

931 F.3d 307, 318 (4th Cir. 2019). For the second factor, courts

look to the applicable criminal statute. Id.

Disorderly conduct is a misdemeanor under Maryland criminal

law. Md. Code. Ann., Crim.Law § 10-201(d). Section 10-201(c)

outlines the prohibitions and provides, as relevant here:

(1) A person may not willfully and without lawful

purpose obstruct or hinder the free passage of

another in a public place or on a public

conveyance.

(2) A person may not willfully act in a disorderly

manner that disturbs the public peace.

(3) A person may not willfully fail to obey a

reasonable and lawful order that a law

enforcement officer makes to prevent a

disturbance to the public peace.

The United States Court of Appeals for the Fourth Circuit

outlined the “contours” of Section 10-201(c)(3) in Ross v. Early,

746 F.3d 546, 561 (4th Cir. 2014):

[Section 10-201(c)(3)] applies to offenders who

“willfully fail to obey a reasonable and lawful order of

a law enforcement officer, made to prevent a disturbance

of the public peace.” Att’y Grievance Comm’n of Maryland

v. Mahone, 435 Md. 84, 76 A.3d 1198, 1210 (2013). Under

this subsection, the “‘failure to obey a policeman’s

command to move on when not to do so may endanger the

public peace, amounts to disorderly conduct’” in

violation of Maryland law. Id. (citation omitted). This

crime “is predicated on the law enforcement officer

issuing a reasonable and lawful order,” Polk v. State,

378 Md. 1, 835 A.2d 575, 580 n.3 (2003) (internal

quotation marks omitted), and as such, the command

“cannot be purely arbitrary and . . . not calculated in

any way to promote the public order.” Mahone, 76 A.3d

at 1211 (internal quotation marks omitted).

Defendant argues that he had probable cause to arrest

Plaintiff because he observed Plaintiff “in a public place, yelling

at the police for arresting someone, and refusing multiple times

to follow lawful orders to leave the mall.” (ECF No. 18-1, at 6).

Defendant ties his probable cause argument to subsection (2),

disturbing the public peace, and subsection (3), failing to obey

a reasonable and lawful order, of Section 10-201(c). (Id., at 6-

7). In response, Plaintiff emphasizes Defendant’s deposition

testimony that Plaintiff’s “conduct up to, and including, the

period of time when [Plaintiff] was speaking with Officer Beall

was lawful.” (ECF No. 22, at 17). Plaintiff also underscores

Defendant’s position “that the allegedly disorderly conduct

manifested when [Defendant] subsequently approached [Plaintiff]

and sought to engage him in some conversation.” (Id.). Plaintiff

notes that there is a dispute of fact regarding that conversation.

(Id., at 17-18). In reply, Defendant questions Plaintiff’s

reliance on Defendant’s initial intention not to arrest Plaintiff

and focuses on Plaintiff’s failure to obey his orders. (ECF No.

23, at 2-5).

There is a dispute of material fact that precludes granting

summary judgment on this claim. Construing the facts in

Plaintiff’s favor, Defendant would lack probable cause to arrest

Plaintiff for disorderly conduct under either subsection (2) or

subsection (3). First, according to Plaintiff’s account,

Plaintiff did not act in a disorderly manner. Plaintiff testified

at his deposition that he objected loudly to Defendant’s actions

“to convey what [he] had to say[,]” but that he “[was not]

screaming at the top of [his] lungs.” (ECF No. 18-2, at 8). He

also testified that a crowd already existed, and his actions did

not draw the crowd. At Defendant’s deposition, Defendant agreed

that Plaintiff “[had not] done anything contrary to Maryland state

law[]” “when [Defendant] asked Officer Beall to go over and talk

to him[.]”7 (ECF No. 19, at 13). Once Officer Beall and Plaintiff

began their conversation, further genuine disputes of material

7 This testimony seems to suggest that Plaintiff had not

willfully acted in a disorderly manner when Defendant asked Officer

Beall to speak with him. Defendant’s reply, and focus on his

initial intention not to arrest Plaintiff, seems to highlight that

Plaintiff failed to obey orders both before and after speaking

with Officer Beall. That is a matter of disputed fact.

Plaintiff’s deposition testimony indicated that Officer Beall did

not order him to leave the mall and that Defendant arrested him

immediately upon joining the conversation – foreclosing the

opportunity to order him to leave the mall again.

fact exist regarding Plaintiff’s conduct; Officer Beall and

Plaintiff testified that the arrest occurred immediately whereas

Defendant testified that a conversation occurred, Plaintiff

yelled, and Defendant saw “people deviate from their normal

activity” and saw “[a] crowd was forming[.]” (ECF No. 18-2, at

10; ECF No. 18-3, at 13-14; ECF No. 19, at 14-16). Viewing the

facts in Plaintiff’s favor, Defendant lacked probable cause to

arrest him for disorderly conduct both before and after his

conversation with Officer Beall.

Second, the evidence would support a finding that Plaintiff

did not willfully fail to obey a reasonable and lawful order that

a law enforcement officer made to prevent a disturbance to the

public peace. According to Plaintiff, only Defendant and the

security guard ordered him to leave the mall and they only did so

prior to his conversation with Officer Beall. The above conclusion

that Plaintiff did not engage in disorderly conduct compels the

conclusion that Plaintiff did not fail to obey a lawful order

because Section 10-201(c)(3) “requires a public disturbance.” In

re Micah M., 2016 WL 1733272, at *5 (Md.App. Apr. 29, 2016); see

also Spry v. State, 396 Md. 682, 691-92 (2007) (“The gist of the

crime of disorderly conduct . . . is the doing or saying, or both,

of that which offends, disturbs, incites, or tends to incite, a

number of people gathered in the same area.”); Okwa v. Harper, 360

Md. 161, 185 (2000) (“When a citizen disobeys a reasonable and

lawful request by a police officer ‘fairly made to prevent a

disturbance to the public peace’ that citizen has engaged in

disorderly conduct. The police officer’s request, however, must

be intended to prevent someone from inciting or offending others.

It may not be an arbitrary directive.”) (citations omitted); United

States v. Lee, No. 08-0485-DKC, 2009 WL 774424, at *1 (D.Md. Mar.

20, 2009) (“[I]t depends very much on the circumstances as to

whether any order is – or is not – arbitrary, and whether the order

is designed to prevent the disturbance of the public peace.”).

Defendant’s discussion of retaliatory arrest claims warrants

brief mention, even though Plaintiff did not assert a First

Amendment violation or a retaliatory arrest claim. “Official

reprisal for protected speech offends the Constitution because it

threatens to inhibit exercise of the protected right and the law

is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory

actions, including criminal prosecutions, for speaking out[.]”

Hartman v. Moore, 547 U.S. 250, 256 (2006) (alterations, citations,

and quotation marks omitted).

The Supreme Court of the United States recently considered

“whether probable cause to make an arrest defeats a claim that the

arrest was in retaliation for speech protected by the First

Amendment.” Nieves v. Bartlett, 139 S.Ct. 1715, 1721 (2019). The

Court explained the “complex” causal inquiry necessary for

retaliatory arrest claims, analogizing to retaliatory prosecution

claims and its earlier decision in Hartman v. Moore. Id. at 1722-

25. “Hartman adopted the requirement that plaintiffs plead and

prove the absence of probable cause for the underlying criminal

charge[]” when advancing a retaliatory prosecution claim. Id. at

1723. Nieves applied Hartman’s rule to retaliatory arrest claims

with a “narrow qualification” explained:

Although probable cause should generally defeat a

retaliatory arrest claim, a narrow qualification is

warranted for circumstances where officers have probable

cause to make arrests, but typically exercise their

discretion not to do so. In such cases, an unyielding

requirement to show the absence of probable cause could

pose “a risk that some police officers may exploit the

arrest power as a means of suppressing speech.” Lozman

[v. Riviera Beach, 585 U.S., at ----, 138 S.Ct. 1945,

1953-1954 (2018)].

When § 1983 was adopted, officers were generally

privileged to make warrantless arrests for misdemeanors

only in limited circumstances. See Restatement of Torts

§ 121, Comments e, h, at 262-263. Today, however,

“statutes in all 50 states and the District of Columbia

permit warrantless misdemeanor arrests” in a much wider

range of situations – often whenever officers have

probable cause for “even a very minor criminal offense.”

Atwater [v. Lago Vista, 532 U.S. 318, 344-45, 354, 121

S.Ct. 1536 (2001)]; see id., at 255-360, 121 S.Ct. 1536

(listing state statutes).

For example, at many intersections, jaywalking is

endemic but rarely results in arrest. If an individual

who has been vocally complaining about police conduct is

arrested for jaywalking at such an intersection, it

would seem insufficiently protective of First Amendment

rights to dismiss the individual’s retaliatory arrest

claim on the ground that were was undoubted probable

cause for the arrest. In such a case, because probable

cause does little to prove or disprove the causal

connection between animus and injury, applying Hartman’s

rule would come at the expense of Hartman’s logic.

For those reasons, we conclude that the no-probable

cause requirement should not apply when a plaintiff

presents objective evidence that he was arrested when

otherwise similarly situated individuals not engaged in

same sort of protected speech had not been. Cf. United

States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480,

132 L.Ed.2d 687 (1996). That showing addresses

Hartman’s causal concern by helping to establish that

“non-retaliatory grounds [we]re in fact insufficient to

provoke the adverse consequences.” 547 U.S. at 256, 126

S.Ct. 1695. And like a probable cause analysis, it

provides an objective inquiry that avoids the

significant problems that would arise from reviewing

police conduct under a purely subjective standard.

Because this inquiry is objective, the statements and

motivations of the particular arresting officer are

“irrelevant” at this stage. Devenpeck [v. Alford, 543

U.S. 146, 153, 125 S.Ct. 588 (2004)]. After making the

required showing, the plaintiff’s claim may proceed in

the same manner as claims where the plaintiff has met

the threshold showing of the absence of probable cause.

See Lozman, 585 U.S., at ----, 138 S.Ct., at 1952-1953.

Id. at 1727.

Assuming arguendo that probable cause existed for Defendant

to arrest Plaintiff for disorderly conduct, this case nonetheless

falls squarely within Nieves’s “narrow qualification.” Construing

the facts in the light most favorable to Plaintiff, a crowd already

existed when Plaintiff approached the scene and others in the crowd

also criticized Defendant’s arrest of Ms. Branch. (ECF No. 18-2,

at 6-7). Plaintiff recalled that other people, including Ms.

Branch’s boyfriend, commented, “that’s not right” and asked, “why

did [Defendant] do that.” (Id., at 7). Notably, however,

Plaintiff does not identify any other crowd member that commented

on Ms. Branch’s race. Only Plaintiff did so, distinguishing his

speech from the speech of the others criticizing Defendant.

Defendant contends that Plaintiff “has presented no evidence

. . . that he was arrested when other similarly situated

individuals were not[,]” elaborating that instead, “the evidence

is that [Plaintiff] willfully ignored a lawful order from a

uniformed police officer to leave the area and spoke in a manner

. . . that caused public patrons of the mall to stop and observe.”

(ECF No. 23, at 5). The facts, construed in Plaintiff’s favor, do

not support Defendant’s contentions. Defendant’s deposition

testimony (ECF No. 19, at 21-22), and the Anne Arundel County

Police computer aided dispatch report (“CAD report”) (ECF No. 22-

3, at 6), indicate that only “one adult male” was arrested and

transported to the station. Summary judgment will be denied on

the arrest claim.

B. Excessive Force

Plaintiff also alleges that Defendant violated the Fourth

Amendment by using excessive force when arresting him. Defendant

contends that even if the force employed was unreasonable, summary

judgment is nevertheless appropriate because he is entitled to

qualified immunity.

“Qualified immunity shields police officers who commit

constitutional violations from liability when, based on ‘clearly

established law,’ they ‘could reasonably believe that their

actions were lawful.’” Estate of Jones v. City of Martinsburg,

961 F.3d 661, 667 (4th Cir. 2020) (quoting Booker v. S.C. Dep’t of

Corr., 855 F.3d 533, 537-38 (4th Cir. 2017)). The qualified

immunity analysis requires courts to conduct a two-step inquiry,

asking, in either order: “(1) whether a constitutional violation

occurred; and (2) whether the right was clearly established at the

time of the violation[.]” Id. Defendant’s motion for summary

judgment focuses on the second inquiry only, conceding that the

forced used was unreasonable for purposes of the motion. (ECF No.

18-1, at 8-12; ECF No. 23, at 6 (“[Defendant] has not moved for

summary judgment on the grounds that the force he used was

objectively reasonable. Instead, [Defendant] argues that even if

the force he used was unreasonable (and happened just as

[Plaintiff] suggests), he is entitled to qualified immunity for

the use because the law is not clearly established.”)).

“To determine whether [the] right was clearly established,

[courts] must first define the right at the ‘appropriate level of

specificity.’” Estate of Jones, 961 F.3d at 667 (quoting Booker,

855 F.3d at 539)). Construing the facts in the light most

favorable to Plaintiff, Defendant approached Plaintiff from

behind, stated Plaintiff was under arrest, immediately struck

Plaintiff in the head with his forearm, put his forearm around

Plaintiff’s neck, and choked Plaintiff. (ECF No. 18-2, at 10).

Defendant then continued to choke Plaintiff to get Plaintiff to

the ground, pulled Plaintiff’s right arm behind Plaintiff’s back,

and shoved his knee into Plaintiff’s back. (Id.). Plaintiff did

not actively or passively resist the arrest. (ECF No. 18-3, at

20-21).

At the time of Defendant’s conduct, it was clearly established

that a police officer’s tackling to the ground a non-threatening,

nonresisting, misdemeanor suspect violates the Fourth Amendment.

See Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir. 1993) (per curiam)

(holding that “[i]t would have been apparent to a reasonable

officer” that “it was unreasonable to push [an arrestee’s face

into the pavement with such force that her teeth cracked[]” even

if the arrestee was unrestrained and initially resisted arrest

when the arrestee “did not pose a threat”); Rowland v. Perry, 41

F.3d 167, 174 (4th Cir. 1994); Jones v. Buchanan, 325 F.3d 520, 532

(4th Cir. 2003) (“[O]fficers using unnecessary, gratuitous, and

disproportionate force to seize a secured, unarmed citizen, do not

act in an objectively reasonable manner and, thus, are not entitled

to qualified immunity.”); Barfield v. Kershaw Cty. Sheriff’s

Office, 638 F.App’x 196, 203 (4th Cir. 2016) (“[A] police officer’s

unprovoked tackling of a nonthreatening, nonresisting misdemeanor

suspect violates the Fourth Amendment.”); Moore v. Peitzmeier, No.

18-2151-TDC, 2020 QWL 94467, at *11 (D.Md. Jan. 7, 2020) (“[T]here

is controlling precedent holding that assaulting an unarmed,

subdued suspect or arrestee violates the Fourth Amendment.”).

Although Plaintiff was not secured when Defendant initiated the

take down, Plaintiff did not resist arrest. Defendant contends

that he “had no way to know if [Plaintiff] was armed until they

had secured and patted him down.” (ECF No. 18-1, at 12; see also

ECF No. 23, at 6). This contention is unpersuasive given that

there has been no suggestion that Plaintiff was armed or that

Defendant suspected he might be. See Rowland, 41 F.3d at 174

(“[Plaintiff] posed no threat to the office or anyone else. There

never has been any suggestion that [Plaintiff] was armed or that

[Defendant] suspected he might be.”).

Defendant argues “that taking down a subject from behind with

an arm across the neck” is not clearly established as

unconstitutional. (ECF No. 18-1, at 8-12). Defendant relies

primarily on three cases to support his position: (1) Carter v.

Jess, 179 F.Supp.2d 534 (D.Md. 2001); (2) Post v. City of Ft.

Lauderdale, 7 F.3d 1552 (11th Cir. 1993); and (3) Wesson v. Oglesby,

910 F.2d 278 (5th Cir. 1990). Each is distinguishable.

Carter is distinguishable because the plaintiff there

“attempt[ed] to pull away, twisting and turning his body to avoid

the handcuffs.” 179 F.Supp.2d at 547. In response to the Carter

plaintiff’s struggle, an officer “put[] an arm around [the

plaintiff’s] chest and neck[]” and two other officers “attempt[ed]

to bring [the plaintiff] to his knees.” Id. The Carter plaintiff

“continue[d] to twist his body, apparently resisting the efforts

to bring him to the ground.” Id.

Post and Wesson are similarly unavailing. The Post plaintiff

also resisted arrest, raising his hands to one of the arresting

police officers without having been told to do so. 7 F.3d at 1559-

1560. Moreover, “[b]efore the night of the arrests, another

officer told [the arresting police officer] that he had recently

arrested [the Post plaintiff] for resisting arrest and that [the

Post plaintiff’s] resistance had been violent.” Id. at 1559.

Finally, the Wesson court accepted for purposes of review the

plaintiff’s contention that a chokehold was excessive,

unreasonable, and malicious but rejected the plaintiff’s argument

that “the intentional application of any force beyond de minimis

is unconstitutional.” 910 F.2d. at 283.

The flaw with Defendant’s various arguments lies with his

characterization of Plaintiff as “non-compliant.” (ECF No. 18-1,

at 12; ECF No. 23, at 6). Defendant attempts to distinguish

Barfield v. Kershaw County Sheriff’s Office, 638 F.App’x 196 (4th

Cir. 2016) by arguing that the Barfield plaintiff voluntarily

complied whereas Plaintiff here did not. (ECF No. 23, at 6-7).

Defendant fails to construe the facts in Plaintiff’s favor, and

doing so reveals that Plaintiff did not actively or passively

resist arrest or otherwise disregard Defendant’s orders during the

arrest. Summary judgment will be denied on the excessive force

claim.

IV. Conclusion

For the foregoing reasons, the motion for summary judgment

filed by Defendant will be denied. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge