Valladares v. Cordero

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES VALLADARES, 

Plaintiff-Appellee,

v.  No. 07-1995

VICTOR CORDERO,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(1:06-cv-01378)

Argued: October 30, 2008

Decided: January 12, 2009

Before GREGORY and DUNCAN, Circuit Judges,

and Richard D. BENNETT, United States District Judge for

the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge Duncan and Judge Bennett joined.

COUNSEL

Mary Alice Rowan, COUNTY ATTORNEY’S OFFICE,

Prince William, Virginia, for Appellant. James Arthur

2 VALLADARES v. CORDERO

DeVita, BUTLER LEGAL GROUP, P.L.L.P., Washington,

D.C., for Appellee.

OPINION

GREGORY, Circuit Judge:

In this case, Officer Victor Cordero, Appellant, challenges

the district court’s denial of his motion for summary judgment

in which he asserted the affirmative defense of qualified

immunity. For the reasons stated herein, the district court’s

decision is affirmed.

I.

At approximately 8:00 p.m. on December 8, 2005, Officers

Cordero and Anthony Notarantonio arrived at the home of

Josefina Valladares in response to a domestic disturbance

reported to the Prince William County Police Department.

The officers discovered that Ms. Valladares called the police

because she was having a dispute with her elder son, Boris

Valladares ("Boris"), age twenty-five, who had come home

intoxicated. Officer Cordero, a native Spanish speaker,

attempted to mediate the dispute. According to Officer

Cordero, he told Boris to respect his mother but, despite Ms.

Valladares’ insistence, refused to arrest Boris.

Before the officers arrived, James Valladares ("James"),

Ms. Valladares’ fifteen-year-old son, became so frustrated by

the fight between his mother and brother that he ran outside

to his driveway and sat by his mother’s car text messaging his

girlfriend. When Officer Cordero left the Valladares’ home he

approached James, shined a flashlight in James’ eyes, asked

him where he lived, and asked him to put his cell phone away.

James answered the officer’s question and complied with the

request to put his phone away.

VALLADARES v. CORDERO 3

While the officers were talking to James, Boris came out of

the house to smoke a cigarette. When he saw the officers talk-

ing to his younger brother he yelled, "Why are you talking to

him? He didn’t do anything wrong." (J.A. 38-39.)1 According

to James, Officer Notarantonio responded, "You’re 25-years-

old. You’re living with your mom. She needs to kick your ass

out." (J.A. 39.) Boris responded by yelling, "Get off my prop-

erty white boy." (Id.) Officer Notarantonio immediately

placed Boris under arrest, in response to which Boris repeat-

edly asked what he had done wrong and refused to put his

arms behind his back.

Officer Cordero attempted to assist his partner in Boris’

apprehension by grabbing the resisting man’s legs, which

resulted in Boris falling to the ground and hitting his face on

the concrete driveway. At some point, Officer Notarantonio

sprayed Boris with pepper spray. James saw his brother bleed-

ing and the two officers "still on top of him," so he jumped

into the middle of the dispute and tried to push Officer

Cordero off of Boris. (J.A. 39.) Officer Cordero claims that

James was enraged and punched him repeatedly in the back

of the head. Nonetheless, James testifies that he did not hit the

officer.

At this point in the altercation, the facts that the Valladares

family asserts and the facts that the officers assert differ

greatly. Officer Cordero’s version of the facts are as follows:

After James "attacked him," he grabbed and held James with

his arms behind his back as the boy kicked rearward at the

officer. The kicks made James lose his balance and caused

them both to fall facedown on the driveway. On the way

down they both hit James’ stepfather’s truck. Officer Cordero

speculates that James broke his jaw when they fell to the

ground. Once they were on the ground, the officer could not

handcuff James because his body armor was in the way, so he

1

"J.A." refers to the contents of the Joint Appendix filed by the parties

in this appeal.

4 VALLADARES v. CORDERO

lifted James up off the ground and handcuffed him against the

car.

Conversely, James testifies that the officer grabbed him and

swung him headfirst into his mother’s car several times.

Eventually, James fell to the ground; Officer Cordero stood

him up and had him under full control. The officer then

slammed the teenager’s face into the car, at which point

James heard his jaw snap.

At the time of the incident, James was fifteen years old,

five-feet-three-inches tall, and weighed 130 pounds. Officer

Cordero was six-feet-two-inches tall and weighed approxi-

mately 250 pounds.

After the altercation, an ambulance transported James to

Prince William County Hospital, where an x-ray confirmed

that his jaw was broken. The following day, a doctor wired

his jaw shut and it remained shut for the next six weeks. Dur-

ing those six weeks, James could consume only liquid meals;

as a result, he lost eighteen pounds. Further, during this period

he vomited, which caused his jaw to crack open again. Ulti-

mately, James missed two months of school, experienced

great pain, and incurred significant medical expenses.

On December 7, 2006, Ms. Valladares filed her complaint,

pursuant to 42 U.S.C. § 1983 (2000), alleging that her son had

been battered, negligently injured, and subjected to excessive

force in violation of his Fourth Amendment rights. On Janu-

ary 5, 2007, Officer Cordero moved to dismiss the complaint

or, in the alternative, for summary judgment, claiming he was

entitled to qualified immunity. On February 5, 2007, the dis-

trict court denied the motion on the grounds that the facts in

the case are heavily disputed. On February 5, 2007, Officer

Cordero submitted a supplement to his motion for summary

judgment. On March 8, 2007, the district court granted the

supplemental motion as to the claims of negligence and

VALLADARES v. CORDERO 5

denied the motion as to the claims of battery and gross negli-

gence.

On July 19, 2007, Officer Cordero filed a motion for leave

to renew his motion to dismiss or for summary judgment. The

district court denied this motion on August 27, 2007, finding

that Ms. Valladares alleged sufficient facts to demonstrate the

existence of excessive force. On September 4, 2007, Officer

Cordero filed a notice of appeal and a motion for reconsidera-

tion, again on the basis of qualified immunity. On September

24, 2007, the district court denied this motion and on October

4, 2007, Officer Cordero filed an amended notice of appeal.

II.

Under 28 U.S.C. § 1291 (2000), this Court possesses juris-

diction over final orders of district courts. To the extent that

a district court’s rejection of a government official’s qualified

immunity defense turns on a question of law, it is a final deci-

sion under the collateral order doctrine and is subject to

immediate appeal; but if the appeal seeks to argue the insuffi-

ciency of the evidence to raise a genuine issue of material

fact, this Court does not possess jurisdiction under § 1291 to

consider the claim. Bailey v. Kennedy, 349 F.3d 731, 738 (4th

Cir. 2003). Thus, this Court has appellate jurisdiction to con-

sider appeals from denials of qualified immunity only "to the

extent that the official maintains that the official’s conduct did

not violate clearly established law." Winfield v. Bass, 106

F.3d 525, 529 (4th Cir. 1997) (en banc).

The inquiry into whether a defendant is entitled to qualified

immunity includes a two-part analysis. First, we must deter-

mine whether the underlying allegations of a claim substanti-

ate a violation of a constitutional right. See Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006).

In order to determine whether the facts demonstrate that the

officer’s conduct violated a constitutional right, we evaluate

the facts in the light most favorable to the plaintiff. Saucier

6 VALLADARES v. CORDERO

v. Katz, 533 U.S. 194, 121 (2001). Second, if there is an

alleged violation of a constitutional right, the court must

determine whether the violation was of a "clearly established"

right. Ridpath, 447 F.3d at 306. In order for the right to be

clearly established it must be:

"sufficiently clear that a reasonable official would

understand that what he is doing violated that right.

This is not to say that an official action is protected

by qualified immunity unless the very action in ques-

tion has previously been held unlawful; but it is to

say that in the light of pre-existing law the unlawful-

ness must be apparent."

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal

citation omitted); see also Ridpath, 447 F.3d at 306 (citing

Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir. 2006) (noting

that if there is an alleged violation of a constitutional right, the

court must determine whether the "violation was of a ‘clearly

established’ right ‘of which a reasonable person would have

known.’")); Saucier, 533 U.S. at 201.

It is clearly established that citizens have a Fourth Amend-

ment right to be free from unreasonable seizures accom-

plished by excessive force. Waterman v. Batton, 393 F.3d

471, 476 (4th Cir. 2005). In this case, the district court found

that Ms. Valladares alleged sufficient facts to establish a vio-

lation of a constitutional right. Here, Officer Cordero appeals

the court’s conclusion that he knew or should have known

that his actions were excessive. See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

The test for whether an officer knew or should have known

whether a particular seizure under the Fourth Amendment was

excessive is a "reasonableness" test. See Rowland v. Perry, 41

F.3d 167, 172 (4th Cir. 1994); see also Graham v. Connor,

490 U.S. 386, 396 (1989); Jones v. Buchanan, 325 F.3d 520,

527 (4th Cir. 2003) (providing that a court determines

VALLADARES v. CORDERO 7

"whether an officer has used excessive force to effect a sei-

zure based on a standard of ‘objective reasonableness.’")

(quoting Graham, 490 U.S. at 399). The Supreme Court

found that the test for "reasonableness" under the Fourth

Amendment is not "capable of precise definition." Jones, 325

F.3d at 527 (quoting Bell v. Wolfish, 441 U.S. 520, 559

(1979)). Nonetheless, the Court stated that proper application

requires "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 officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight." Id.

"We review de novo the district court’s denial of qualified

immunity, employing our full knowledge of our own and

other relevant precedents." Wilson v. Kittoe, 337 F.3d 392,

397 (4th Cir. 2003).

III.

Appellant’s appeal is limited to the second prong of the

qualified immunity analysis: whether a reasonable officer

would have known that his actions violated a clearly estab-

lished right. Harlow, 457 U.S. at 818. This Court must take

the facts in the light most favorable to James, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), and view them

from the perspective of a reasonable officer.2 The relevant

2

Officer Cordero argues that James "filed no statement of genuine issue

in opposition to . . . Officer Cordero’s Statement of Undisputed Facts."

(Appellant’s Br. 26.) Officer Cordero asserts that James’ reliance on his

affidavit in his pleadings was improper because "James’ Affidavit is

directly contradictory to James’ deposition in certain respects that are

vitally important to the qualified immunity issue." (Appellant’s Br. 27.)

Officer Cordero’s effort to persuade this Court to value his testimony over

James’ testimony is futile. See Anderson, 477 U.S. at 249. Furthermore,

to the extent that Officer Cordero asks this Court to evaluate the district

court’s stated genuine issues of material fact, his argument must fail pro-

cedurally. This Court does not have jurisdiction to decide whether the dis-

8 VALLADARES v. CORDERO

facts viewed in the light most favorable to James dictate that

James shoved Officer Cordero; Officer Cordero responded by

trict court was presented with sufficient evidence to determine that there

was a genuine issue of material fact. Bailey, 349 F.3d at 738.

Additionally, Officer Cordero invites this Court to disregard James’

affidavit because of its "inconsistencies"; specifically, James’ affidavit tes-

timony that he went "limp" early in the fight and his deposition testimony

that he "went loose" at a "significantly later point in the fight, immediately

after he admitted to lying on the ground ‘kicking again’ at Officer

Cordero." (Appellant Br. 29.) Nonetheless, this "inconsistency" does not

invalidate James’ argument. Both the testimony in James’ affidavit and in

his deposition claim that Officer Cordero broke his jaw after James

stopped struggling. James makes this point consistently. Whether James

contradicted himself to the point of discrediting his testimony is a question

for a trier of fact to decide. The district court considered the record as a

whole, including James’ separate testimonies, and determined that there

are several genuine issues of material fact. Again, this Court does not have

jurisdiction to evaluate the sufficiency of the evidence presented to the

district court to raise a genuine issue of material fact.

Finally, Officer Cordero argues that the district court must have agreed

with the logic of his inconsistency argument because "the September 24,

2007 Order corrects the August 27, 2007 Opinion by substituting language

from James’ deposition instead of the language taken from James’ Affida-

vit." (Appellant’s Br. 27.) Officer Cordero asserts that the order’s substitu-

tion of the language from the deposition for the language in the affidavit

supports his argument that James’ testimonies directly contradict each

other and, therefore, there is no genuine issue of material fact. (Id.)

This incredible leap in logic could not be consistent with the logic of

the district court or else the court would not have repeatedly denied Offi-

cer Cordero’s motion for summary judgment. Moreover, it is unclear why

the district court entered its "corrected" order. The one-page order claimed

to grant in part and deny in part the defendant’s motion for reconsideration

of the court’s denial of the defendant’s motion for summary judgment. To

this end, the order bulleted its amendments to the previous opinion, grant-

ing Officer Cordero’s motion to stay and inserting corrected language, yet

it never explicitly stated which parts of the motion would remain denied.

Therefore, this Court must assume that apart from the corrected language

and the newly granted motion to stay, the court wished to maintain its

denial of Officer Cordero’s motion. Thus, this part of the officer’s argu-

ment also fails.

VALLADARES v. CORDERO 9

swinging James into a car, resulting in James falling to the

ground; Officer Cordero then picked James up off the ground,

had James under full control, stood him on his feet, and

slammed James’ head into a car twice, eventually breaking

James’ jaw.

Officer Cordero argues that when viewing the facts in the

light most favorable to James, a reasonable officer would not

have known that he was violating a clearly established right

because a reasonable officer would not have known that

James had surrendered. Yet, in both James’ affidavit and his

deposition, James claims that Officer Cordero broke his jaw

after slamming him into the car and after he either went

"limp" or "loose." Even if this Court disregarded James’ testi-

mony about going "limp" or "loose" because he later testifies

that he was kicking while on the ground, James and Officer

Cordero both testify that, after that point, the officer picked

James up off the ground and neither party testifies that James

resisted being lifted up. This signifies a point of surrender. Of

course, Officer Cordero claims that he then placed James

against his mother’s car and handcuffed him. Nonetheless,

James testifies that after Officer Cordero had him under full

control he then forcefully shoved his face into his mother’s

car and broke his jaw. Again, this Court must accept James’

version of the facts.

In Officer Cordero’s brief and during oral argument, coun-

sel for the officer seemed to indicate that James should have

verbally communicated his intent to surrender to the officer.

This Court knows of no case, and Appellant does not cite a

case, that requires a person to verbally communicate his or

her wish to surrender before a reasonable officer is put on

notice that further force is unnecessary. Such a requirement

would create an unduly steep burden. A trial court must have

the freedom to distinguish between the circumstances sur-

rounding a person who says he is surrendering while continu-

ing to fight and those surrounding a person who does not

articulate that he is surrendering but clearly has ceased fight-

10 VALLADARES v. CORDERO

ing. In this case, the district court properly determined that

James surrendered before Officer Cordero broke his jaw.

Moreover, the district court correctly determined that a rea-

sonable officer would not have exerted the level of force that

Officer Cordero used in the situation with which Officer

Cordero was confronted. See Saucier, 533 U.S. at 202.

Despite Officer Cordero’s argument to the contrary, this

Court agrees with the district court’s evaluation of the exces-

sive force issue in this case. The district court did a full Gra-

ham analysis of the facts from the perspective of a reasonable

officer, finding that the first Graham factor (severity of the

underlying offense) weighed against Ms. Valladares because

James should never have shoved Officer Cordero. Nonethe-

less, the district court found that the second Graham factor

(whether the suspect poses an immediate threat to the safety

of the officer or others) weighed against Officer Cordero

because James did not pose a threat. This is a fair assessment

because when viewing the facts in the light most favorable to

James, this Court finds that the officer was able to control

James before he broke the young man’s jaw. Additionally,

according to James’ testimony, his brother Boris was not an

immediate threat because he was on the ground bleeding and

restrained. Finally, the court determined that James stopped

resisting the arrest before the alleged excessive force

occurred, which satisfies the last prong of the Graham analy-

sis (whether he was actively resisting arrest).

Thus, as a legal matter, the district court correctly deter-

mined that James proffered evidence of a violation of a con-

stitutional right and that, as alleged, Officer Cordero

knowingly violated James’ clearly established right. See Gra-

ham, 490 U.S. at 396. Furthermore, the district court correctly

characterized the officer’s actions as "unnecessary, gratuitous,

and disproportionate" (J.A. 298) and properly concluded that

he was not entitled to qualified immunity. This Court agrees

with the district court’s analysis and finds that it is supported

VALLADARES v. CORDERO 11

by relevant law.3 See Schultz v. Braga, 455 F.3d 470, 478 (4th

Cir. 2006); Young v. Prince George’s County, Maryland, 355

F.3d 751, 756 (4th Cir. 2004).

IV.

Based on the standard for summary judgment, the district

court correctly determined that the facts viewed in the light

most favorable to James indicate that Officer Cordero’s

actions were not objectively reasonable and violated James’

clearly established Fourth Amendment right to be free from

excessive force. Thus, the officer was precluded from protec-

tion under the doctrine of qualified immunity.

AFFIRMED

3

At the end of Officer Cordero’s brief, he argues, "Although the state

law battery claim is not in issue on appeal, if this Court disposes of James’

federal claims, James’ state law claims should also be dismissed on

remand to District Court." (Appellant’s Br. 49) (citation omitted). This

issue is moot because this Court finds that the district court properly deter-

mined that "taking the facts in the light most favorable to the Plaintiff, the

Court cannot find Officer Cordero acted reasonably as a matter of law."

(J.A. 297.)