“Of course, failure to brief and argue an issue constitutes waiver.”
How later courts described this case
- “Of course, failure to brief and argue an issue constitutes waiver.”
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-50232
____________________
BETTY SUE CASPER, individually and as next friend of Jared and
Clinton Casper,
Plaintiff-Appellee,
versus
CITY OF LAGO VISTA; BART TUREK; FRANK W. MILLER; et al.,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-97-CV-716)
_________________________________________________________________
March 17, 1999
Before REYNALDO G. GARZA, POLITZ and BARKSDALE, Circuit Judges.
PER CURIAM:*
The City of Lago Vista, its police chief, Frank Miller, and
one of its police officers, Bart Turek, contest the denial of
qualified immunity in an action arising out of Officer Turek’s
response to Betty Sue Casper’s interference with the arrest of her
husband. No material fact issues exist for whether the Officer’s
response, or his hiring, training, retention and supervision by
Chief Miller and the City, were objectively unreasonable in light
of clearly established federal law, or not within the scope of the
authority of Chief Miller and Officer Turek and in good faith in
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
light of state law. We REVERSE the denial of summary judgment on
all claims except the federal law claim against the City and
REMAND.
I.
The following facts are taken from the police reports of
Officer Turek and his partner, Officer Scott Orrison, and the
affidavit of Betty Sue Casper. For the facts concerning the
incident, these three accounts constitute the entire summary
judgment record. None of what follows is in dispute.
In August 1997, pursuant to a warrant, Officers Turek and
Orrison proceeded to the house where the Caspers resided in Lago
Vista, Texas, to arrest Edward Casper for criminal failure to pay
child support. Officer Turek began to read Mr. Casper his Miranda
warnings while Officer Orrison handcuffed him. Mrs. Casper then
emerged from the house and demanded to see the warrant. Told by
the Officers to return inside, Mrs. Casper instead stepped between
Officer Turek and her husband, asking again to see a warrant.
Unsatisfied with Officer Turek’s response, Mrs. Casper raised
her hand toward him to get his attention. In response, Officer
Turek grabbed her arm and attempted to restrain her; as Mrs. Casper
and the Officer struggled, she was thrown through a flower bed
against a parked vehicle.
During this incident, Mr. Casper asked his wife several times
to stop. When Mrs. Casper was out of the way, Officer Turek
maintained his distance from her.
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Chief Miller, by affidavit, opined that the Officers’ actions
were reasonable, noting that arrests are historically volatile
circumstances during which police officers are in particularly
acute danger. In that affidavit, Chief Miller also reviewed
Officer Turek’s work history.
Officer Turek graduated from the City’s Police Academy in May
1994, and was hired the next month by the City as a reserve
officer. In this position, he worked at least 16 hours each month,
usually riding with a more experienced officer. From March 1995 to
September 1997, the Officer worked for the City as a certified
police officer. Police officers for the City are required to be
fully certified peace officers as set out in the Texas Commission
on Law Enforcement Officers Standards and Education.
Keith Campbell, who has worked in police recruiting for the
Austin Police Department, filed an affidavit on Mrs. Casper’s
behalf, stating that he would not have hired Officer Turek because
the Officer had: changed jobs frequently; failed two of three
psychological tests at the Austin Police Department; applied
unsuccessfully to several other police departments; and omitted
information on his employment form.
Finally, Mrs. Casper filed the City’s Police Department
Regulations, Policy and Procedure (the Manual) in the summary
judgment record. The Manual requires that officers “shall not use
more force than is necessary for the safe custody of a prisoner or
for overcoming any resistance that may be encountered”, and places
the Chief of Police in charge of the policies.
3
Mrs. Casper filed this action in Texas state court within a
week of the incident, presenting claims under 42 U.S.C. § 1983 and
state law on her own behalf and on behalf of her two children, who
may have seen the incident. The action was removed to federal
court.
The City, Chief Miller, and Officer Turek moved for summary
judgment, claiming qualified immunity for the federal and state
claims. Mrs. Casper did not move, pursuant to FED. R. CIV. P.
56(f), to suspend a ruling on summary judgment pending discovery.
The district court denied summary judgment.
II.
Denials of summary judgment on qualified-immunity grounds are
appealable 28 U.S.C. § 1291 “final orders” when based on an issue
of law. E.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
While some types of fact issues pertinent to summary judgment, such
as the sufficiency of evidence identifying officers, are not
subject to interlocutory appeal in this context, see Johnson v.
Jones, 515 U.S. 304, 313 (1995), the issue “whether the conduct as
alleged violated a clearly established statutory or constitutional
right of which a reasonable person would have known” may be
appealed. Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996).
Likewise, a federal district court’s denial of state law qualified
immunity is also immediately appealable when based on an issue of
law. Id.
For such an interlocutory appeal, we will not, however, review
issues not related to the denial of qualified immunity. As in
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Cantu, we decline to exercise “pendent appellate jurisdiction” over
issues not “inextricably intertwined or necessary to resolution of
the qualified immunity issue”. Id. at 805. Because municipalities
are not entitled to qualified immunity against claims under federal
law, e.g., Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 166 (1993), we have no
jurisdiction over the City's appeal on the § 1983 claim.
A.
Qualified immunity analysis asks first, whether the plaintiff
alleges a violation of clearly established law; if the plaintiff
has, an officer has qualified immunity if it is objectively
reasonable that the officer’s conduct did not violate clearly
established law as of the time of the incident. E.g., Stefanoff v.
Hays County, Tex., 154 F.3d 523, 525 (5th Cir. 1998).
Of course, we review the denial of summary judgment de novo.
E.g., Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). Such
judgment is proper if the items in the summary judgment record
“show that there is no genuine issue of material fact and that the
moving party is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c).
Mrs. Casper claims that: Officer Turek used excessive force,
intentionally inflicted emotional distress upon her and her
children, and assaulted and battered her; Chief Miller and the City
inadequately trained and supervised, and negligently hired and
retained, Officer Turek, and developed and maintained facially
unconstitutional regulations, as contained in the Manual.
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1.
“[A]ll claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989). Mrs. Casper was not
being arrested; however, a Fourth Amendment seizure occurs “when
government actors have, ‘by means of physical force or show of
authority, ... in some way restrained the liberty of a citizen’”,
id. at 386 & n.10 (quoting Terry v. Ohio, 392 U.S. 1, 19 & n.16
(1968)). Because such a restraint occurred here, we apply the
Fourth Amendment standard. See also Ikerd v. Blair, 101 F.3d 430,
433 & n.6 (5th Cir. 1996) (girl whose arm was grabbed by a police
officer during her father’s arrest was “seized” for Fourth
Amendment purposes).
A Fourth Amendment excessive force claim exists if a plaintiff
shows she (1) suffered some injury which (2) resulted from force
that was clearly excessive to the need for force; (3) the
excessiveness of which was objectively unreasonable. Heitschmidt
v. City of Houston, 161 F.3d 834, 839 (5th Cir. 1998).
Mrs. Casper claims, first, that no force was required; and
second, that even if some force was needed, Officer Turek’s use of
force was excessive. We disagree.
a.
6
Taking Mrs. Casper’s affidavit as true, as we must for our
summary judgment analysis, Officer Turek was reasonably
apprehensive upon being physically confronted by an arrestee’s
current wife during his arrest for domestic matters concerning his
prior marriage. Mrs. Casper freely admits disobeying the Officers,
standing between Officer Turek and her husband, and raising her
hand toward the Officer. She claims no intent to strike or harm
him; yet, there is no material fact issue that his immediate
defensive response was not reasonable. “[N]o right is guaranteed
by federal law that one will be free from circumstances where he
will be endangered by the misinterpretation of his acts.” Young v.
City of Killeen, Tex., 775 F.2d 1349, 1353 (5th Cir. 1985).
Judicial notice can be taken of the fact that domestic
situations are fraught with danger for a police officer. Moreover,
Mrs. Casper presents no evidence to counter Chief Miller’s
assessment of the danger inherent in arrest situations.
Accordingly, there is no material fact issue whether Officer
Turek’s decision to use force was objectively reasonable in light
of established law.
b.
Regarding the excessiveness of force, Mrs. Casper does not
present a material fact issue whether Officer Turek’s force was
disproportionate to the need. The Officer was reasonably
apprehensive upon being physically confronted in the course of an
arrest. Because even a small person’s physical aggression can
divert attention while, for instance, another person draws a gun,
7
it was reasonable for the Officer to quickly remove Mrs. Casper
from the immediate proximity of the arrest.
No summary judgment evidence suggests that the Officer’s
conduct was clearly excessive relative to this need. He neither
struck Mrs. Casper a second time nor drew a weapon; instead, he
established distance as soon as possible. Uncontradicted evidence
indicates that Mrs. Casper’s husband and Officer Orrison viewed her
as resisting Officer Turek during the struggle. No evidence exists
of Officer Turek using force beyond that necessary to remove Mrs.
Casper from her posture of interference with the arrest.
Mrs. Casper lays stress upon the allegations in her pleadings
that Officer Turek’s force was “great” and “unreasonable”, and
particularly on his action being done “violently” and “brutally”.
She contends that this language establishes a material fact issue
for trial. Of course, summary judgment evidence must go beyond the
pleadings. FED. R. CIV. P. 56 (e); e.g., Stults v. Conoco, Inc., 76
F.3d 651, 656 (5th Cir. 1996). Moreover, even had such
descriptions appeared in Mrs. Casper’s affidavit, such conclusory
assertions would raise no material fact issue. E.g., Lechuga v.
Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992).
c.
Finally, no summary judgment evidence exists of any injury to
Mrs. Casper. This circuit’s prior “serious injury” requirement for
a Fourth Amendment excessive force claim has been modified in the
light of the Supreme Court’s Eighth Amendment holding in Hudson v.
McMillian, 503 U.S. 1, 4 (1992). See Spann v. Rainey, 987 F.2d
8
1110, 1115 & n.7 (5th Cir. 1993); Ikerd, 101 F.3d at 434 & n.7.
However, our court still requires “at least some injury” to support
a Fourth Amendment excessive force claim. Id. at 434.
In sum, Mrs. Casper fails to create a material fact issue for
each of the three prongs for showing excessive force. Accordingly,
summary judgment is required on that claim.
2.
Mrs. Casper conceded at oral argument that, if Officer Turek
has qualified immunity on the excessive force claim, then claims
against Chief Miller and the City for improper hiring, training,
retention, and supervision of Officer Turek and for the policy in
the Manual would be meritless. A waiver at oral argument is
binding. E.g., U.S. v. Amaya, 111 F.3d 386, 388 & n.3 (5th Cir.
1997). Therefore, we need not discuss these issues.
B.
Concerning Mrs. Casper’s state law claims against Officer
Turek, Chief Miller and the City for intentional infliction of
emotional distress, assault and battery, and negligent hiring,
Texas’ qualified immunity law is substantially the same as the
federal standard. Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir.
1997). Accordingly, there is immunity from suit for state
government officials for matters arising from the performance of
their discretionary duties, as long as they are acting in good
faith and within the scope of their authority. City of Lancaster
v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
1.
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Mrs. Casper conceded at oral argument that the intentional
infliction of emotional distress claims for her and her children
were meritless.
2.
The predicate state law for assault and battery and for
negligent hiring, regarding which officers must act in good faith
and within their authority to be afforded qualified immunity under
Texas law, differs from the Fourth Amendment predicate regarding
which they must be objectively reasonable to be afforded such
immunity under § 1983. However, Mrs. Casper’s brief articulates no
distinct standard for these state tort claims. Of course, failure
to brief and argue an issue constitutes waiver. E.g., Applewhite
v. Reichhold Chemicals, 67 F.3d 571, 573 (5th Cir. 1995). Given
our disposition of the federal claims, summary judgment is proper
on the remaining state claims as well.
C.
As noted, the City has no qualified immunity under federal
law. But, under the Texas Tort Claims Act, it is entitled to
immunity under Texas law if, as they are here, its officers are
immune. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.
1993).
III.
Accordingly, the denial of summary judgment for Officer Turek
and Chief Miller on all claims, and for the City of Lago Vista on
the state law claims, is REVERSED; and this case is REMANDED for
entry of appropriate summary judgments in this regard, and for
10
further proceedings, consistent with this opinion, on the remaining
federal law claim against the City.
REVERSED and REMANDED
11