Ryan Lash v. Jennifer Lemke

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2014 Decided May 15, 2015

No. 13-5308

RYAN BARTON LASH,

APPELLANT

v.

JENNIFER LEMKE, OFFICER, IN HER INDIVIDUAL CAPACITY AND

TODD REID, SERGEANT, IN HIS INDIVIDUAL CAPACITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00822)

Jeffrey L. Light argued the cause and filed the briefs for

appellant. Edward J. Elder entered an appearance.

Marina U. Braswell, Assistant U.S. Attorney, argued the

cause for appellees. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: GARLAND, Chief Judge, and GRIFFITH and

KAVANAUGH, Circuit Judges.

Opinion for the court filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge:

Police officers tried to arrest Ryan Lash after he

confronted them within the Occupy D.C. encampment at

McPherson Square in downtown Washington, D.C. Lash

actively resisted arrest, and one officer used a Taser to subdue

him. Lash sued the officers alleging violations of his First and

Fourth Amendment rights. The district court granted summary

judgment to the officers, concluding they were protected by

qualified immunity against Lash’s claims because the

officer’s use of the Taser did not violate the Constitution. We

also conclude that qualified immunity shields the officers

from Lash’s Fourth Amendment claim, but on a different

basis that does not require us to take up the constitutional

issue the district court reached: A person actively resisting

arrest does not have a clearly established right against a single

use of a Taser to subdue him. We also grant summary

judgment to the officers on Lash’s First Amendment claim

because he failed to meaningfully advance the argument on

appeal.

I

During the winter of 2011 to 2012, participants in the

Occupy D.C. movement took up residence in McPherson

Square, living in tents and other shelters. On January 29,

2012, United States Park Police (USPP) officers entered the

square to post notices advising the protestors that USPP

would begin enforcing anti-camping regulations the following

day. The USPP officers were under the supervision of

Sergeant Todd Reid, a defendant here. As the officers

distributed notices through the park, they were followed by a

crowd of protestors shouting objections and profanities.

Several members of the crowd videorecorded this

3

confrontation. Those recordings are part of the record on

appeal, and we rely on them as we describe what followed.

Lash, the plaintiff here, emerged from his tent in the

encampment into this tense situation. He confronted the

police officers, challenged their presence and purpose in the

park, shouted profanities, and tore down some of the notices

they had posted. The officers ordered Lash to stop removing

the notices, and he complied. But as he walked away, Lash

again shouted profanities at the police.

A number of USPP officers followed him. Among their

number were Officer Jennifer Lemke, also a defendant here,

and Officers Frank Hilsher and Tiffany Reed. Lash, observing

the officers walking after him, began to retreat through a

group of tents, insisting with increasing agitation that he had

“done nothing wrong” and demanding to know why they were

“coming at” him. Some officers followed Lash’s route among

the tents. Other officers surrounded the area of the park

through which Lash was walking. Lash continued to retreat

across the encampment and to protest his innocence.

Officer Tiffany Reed, who had been following Lash as he

hurried through the tents, stepped up behind Lash and seized

his arms from the rear. Lash pulled his arms away and held

them in front of his body, continuing to walk away as he

insisted that he was innocent. Reed again sought to restrain

Lash from behind and Lash again pulled his arms away from

her. Reed then took hold of Lash’s left arm while Hilsher

approached and seized his right arm. Lemke approached at the

same time and drew her Taser from its holster, holding it

ready.

Though Lash’s arms were now held by two different

officers, he continued to struggle to keep his feet while Reed

4

and Hilsher worked for several moments to gain control of

him. Lemke, standing nearby and behind the trio, fired her

Taser into Lash’s lower back. He fell to the ground, and the

officers handcuffed him.

The officers carried Lash, now handcuffed, to a nearby

police car. Lash refused to enter the police car, so the officers

called for a police van. When the van arrived, the officers left

the scene with Lash, who was charged with disorderly

conduct. Lash contends that he has suffered a variety of

painful and debilitating effects from being tased.

Lash filed the complaint in this action against Officer

Lemke and Sergeant Reid in their individual capacities

pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The complaint

alleged that Lemke’s use of the Taser constituted excessive

force in violation of Lash’s Fourth Amendment rights and

was motivated by retaliatory animus against his protected

expression in violation of his First Amendment rights as well.

Reid, he alleged, was liable for failing either to supervise the

situation adequately or to intervene to prevent Lemke’s use of

excessive force. 1

1

Lash also alleged that his arrest, as distinct from the force

used in effecting his arrest, constituted a separate First Amendment

violation because it too was motivated by retaliatory animus. After

Lash filed his complaint but before the district court ruled below,

the Supreme Court held in Reichle v. Howards that “it was not

clearly established that an arrest supported by probable cause could

give rise to a First Amendment violation” even if also motivated by

retaliatory animus. 132 S. Ct. 2088, 2097 (2012). Lash conceded

below that probable cause existed for his arrest and so Reichle

precludes any First Amendment claim arising on that score. He

does not argue otherwise here.

5

The officers moved to dismiss or, in the alternative, for

summary judgment, arguing that qualified immunity should

shield them from liability. The district court agreed and

granted summary judgment, concluding that neither of Lash’s

claims could survive because, under the circumstances, the

use of the Taser was not excessive force. Lash v. Lemke, 971

F. Supp. 2d 85, 93-98 (D.D.C. 2013). Lash appealed. We have

jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth,

472 U.S. 511, 524-30 (1985).

II

We review the grant of summary judgment on the basis

of qualified immunity de novo. Johnson v. District of

Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008).

A

Because the officers’ conduct here did not violate any

clearly established law, they have qualified immunity against

Lash’s Fourth Amendment claim. 2 Qualified immunity exists

to protect officers “from undue interference with their duties

and from potentially disabling threats of liability,” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982), and applies in Bivens

actions as it does elsewhere, Atherton v. District of Columbia,

567 F.3d 672, 689 (D.C. Cir. 2009). An official who asserts a

qualified immunity defense can only be held liable if the

plaintiff suing him establishes that the official “violated a

constitutional right” that “was clearly established” at the time.

Saucier v. Katz, 533 U.S. 194, 201 (2001).

2

There is no question that Lash may pursue an excessive

force claim under Bivens. 403 U.S. at 395-96.

6

We have “discretion to decide which of the two prongs of

qualified-immunity analysis to tackle first.” Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2080 (2011). Determining that a

constitutional right exists and has been abridged by official

conduct is not only difficult at times, but asks much of a court

that should resolve matters on constitutional grounds only

when there is no other way to do so. See Pearson v. Callahan,

555 U.S. 223, 241 (2009). In some cases, it is easier for a

court to see that the claimed right, whether it exists or not, is

by no means “clearly established.” Id. at 237. This is such a

case and we will accept the invitation of the Court in Pearson

to dispose of this suit by holding that the conduct of the

officers in arresting Lash did not violate any clearly

established law. Thus we need not consider whether the

district court was right to conclude that the use of a Taser

against Lash in these circumstances was constitutionally

permissible.

1

Qualified immunity applies because the defendants’

conduct did not violate clearly established law.

For a right to be clearly established, its “contours [must

be] sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

(2014). “This is not to say that an official action is protected

by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.”

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

citation omitted). In addition, the Court “‘ha[s] repeatedly told

courts . . . not to define clearly established law at a high level

of generality,’ . . . since doing so avoids the crucial question

7

whether the official acted reasonably in the particular

circumstances that he or she faced.” Plumhoff, 134 S. Ct. at

2023 (quoting al-Kidd, 131 S. Ct. at 2084). Thus the “clearly

established” prong of qualified immunity analysis requires us

to determine the right at issue “in light of the specific context

of the case,” not simply as a statement of general legal

principles. Saucier, 533 U.S. at 201.

Because this case was decided at summary judgment, we

must draw reasonable factual inferences in the light most

favorable to Lash, the nonmovant. Scott v. Harris, 550 U.S.

372, 378 (2007). The Court has cautioned us that we “must

take care not to define a case’s context in a manner that

imports genuinely disputed factual propositions.” Tolan v.

Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation

marks omitted). Nonetheless, our obligation to view the facts

“in the light most favorable to the nonmoving party” only

attaches “if there is a ‘genuine’ dispute as to those facts.”

Scott, 550 U.S. at 380 (quoting Fed. R. Civ. P. 56(c)). “When

opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary

judgment.” Id. And when a nonmovant’s account of the facts

is “utterly discredited” by the clear evidence provided by a

videorecording, the Court has instructed us not to rely on a

“visible fiction” but rather “view[] the facts in the light

depicted by” the video record. Id. at 380-81.

The question of “context” here turns principally on

whether Lash was resisting arrest at the time he was tased.

Lash has averred by affidavit that he did not resist arrest.

Because this case comes to us at summary judgment, we have

a duty to draw all inferences “in favor of the nonmovant” and

may not resolve disputed fact issues. Tolan, 134 S. Ct. at

8

1866. Thus Lash insists, relying on Tolan, that we cannot

define the “context” for this case by concluding as a matter of

law that he was resisting arrest. Doing so, he argues, would

“import[] genuinely disputed factual propositions” into the

qualified immunity analysis, exactly as Tolan forbids us to do.

Id. We disagree: Here, there is no genuine dispute regarding

Lash’s conduct. Multiple videorecordings of the episode make

perfectly clear that Lash resisted the officers’ efforts to arrest

him. He pulled his arms free from the officers’ efforts to

restrain them twice in succession. The first of these, Lash

argues in his affidavit, was no more than a natural reaction to

being seized when he did not know who had seized him. But

Lash does not even acknowledge, much less attempt to

justify, the second occasion on which he pulled away. Much

worse, Lash further claims that as soon as he realized that

officers were trying to arrest him he immediately acquiesced

and allowed them to put his arms behind his back. And in his

brief he insists that the officers “began to place [his arms]

behind his back” while he “continued to insist he had done

nothing wrong.” But it is plain from multiple videorecordings

that each of these claims is a “visible fiction.” Scott, 550 U.S.

at 381. Even when each of Lash’s arms was firmly held by a

uniformed USPP officer, Lash continued to resist, straining to

remain upright despite the officers’ efforts to destabilize him

and force him to the ground. Nor did Lash allow the officers

to move his arms behind his back before handcuffing him. His

arms remained extended even as the officers attempted to

restrain him and were never pinned until after Lemke used her

Taser. Just as in Scott, the video record here makes the normal

factual solicitude for the nonmovant at summary judgment

both unnecessary and inappropriate. No matter what Lash

claims now, we know to a certainty that he resisted arrest

because we can see him doing so.

9

Lash argues that we may not rely on the videorecordings

in this way because they “cannot fully convey everything that

people at the scene felt” such as “how much force one person

is exerting” or “the level of detail a person will experience in

the moment.” This is no argument at all. The Supreme Court

has explained that we determine whether a right is clearly

established based on the “objective legal reasonableness of an

official’s acts,” Harlow, 457 U.S. at 819, protecting officers

from liability unless “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted,”

Saucier, 533 U.S. at 202. Subjective factors like those Lash

identifies here cannot shed any light on whether a reasonable

officer in these circumstances would have believed her

actions violated Lash’s clearly established rights. It is that

objective test, not Lash’s knowledge or Lemke’s thoughts,

that determines the scope of qualified immunity. The

videorecordings in the record provide us all we need to

determine what a reasonable officer would have known at the

scene. And we do not hesitate to conclude from the

videorecording that there is “no genuine issue of material

fact” regarding Lash’s active resistance. Scott, 550 U.S. at

380 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)) (emphasis omitted).

2

In light of the foregoing, we must determine whether it

was clearly established that the single use of a Taser by

arresting officers violated the Fourth Amendment rights of a

person actively resisting arrest. A right is clearly established

when “‘existing precedent [has] placed the statutory or

constitutional question beyond debate.’” Taylor v. Reilly, 685

F.3d 1110, 1114 (D.C. Cir. 2012) (quoting al-Kidd, 131 S. Ct.

at 2083). We find clearly established rights by looking “‘to

cases from the Supreme Court and this court, as well as to

10

cases from other courts exhibiting a consensus view,’ . . . if

there is one.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir.

2011), as amended (Mar. 29, 2011) (quoting Johnson, 528

F.3d at 976). “The facts of such cases need not be materially

similar . . . but have only to show that the state of the law [at

the time of the incident] gave [the officer] fair warning that

[his alleged misconduct] . . . was unconstitutional.” Id.

(alterations in Bame) (internal quotation marks omitted).

No such clearly established right existed. The officers

could not have been on notice that using a Taser in these

circumstances would violate Lash’s Fourth Amendment

rights. Though there is no case from the Supreme Court or our

court that is on point, consulting the decisions of our sister

circuits reveals a telling pattern. The use of a Taser against a

person who is not resisting arrest or merely passively resisting

may violate that person’s rights. See, e.g., Brown v. City of

Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009). The use of

a Taser may also violate an individual’s rights even in the

face of resistance if the officer uses the Taser to excess, such

as firing multiple times after the officers have gained control

of the scene. See, e.g., Meyers v. Baltimore Cnty., Md., 713

F.3d 723, 735 (4th Cir. 2013). But “[t]here is no clearly

established right for a suspect who actively resists and refuses

to be handcuffed to be free from a Taser application.”

Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir.

2015) (internal quotation marks omitted). The Seventh

Circuit, surveying the state of the law, found that “[c]ourts

generally hold that the use of a [T]aser against an actively

resisting suspect either does not violate clearly established

law or is constitutionally reasonable.” Abbott v. Sangamon

Cnty., Ill., 705 F.3d 706, 727 (7th Cir. 2013). The Sixth

Circuit reached the same result. See Hagans v. Franklin Cnty.

Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir. 2012)

(observing that courts generally find that “[i]f a suspect

11

actively resists arrest and refuses to be handcuffed, officers do

not violate the Fourth Amendment by using a [T]aser to

subdue him”). See also Aldaba v. Pickens, 777 F.3d 1148,

1158 (10th Cir. 2015) (finding that “where the subject

actively resisted a seizure, whether by physically struggling

with an officer or by disobeying direct orders, courts have

held either that no constitutional violation occurred or that the

right not to be tased in these circumstances was not clearly

established”). And our own examination of the cases similarly

has found that officers who tased individuals actively resisting

arrest had qualified immunity against excessive force claims.

See, e.g., De Boise v. Taser Int’l, Inc., 760 F.3d 892, 897 (8th

Cir. 2014); Buchanan v. Gulfport Police Dep’t, 530 F. App’x

307, 314 (5th Cir. 2013); Meyers, 713 F.3d at 733; Hoyt v.

Cooks, 672 F.3d 972, 979-80 (11th Cir. 2012). Because this

right is still not clearly established today, a reasonable officer

in January 2012 would certainly have been justified in

believing that she could use a Taser a single time against a

resisting suspect.

Lash makes only one argument, raised for the first time in

his reply brief, that the officers’ conduct violated clearly

established law. He relies on a negative inference from a 2004

decision of the Eleventh Circuit in which that court held that a

single Taser discharge against a “hostile, belligerent, and

uncooperative” suspect did not constitute excessive force.

Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004).

Draper examined a traffic stop in which the driver,

increasingly frustrated at an officer’s questions, became

“belligerent, gestured animatedly, continuously paced,

appeared very excited, and spoke loudly.” Id. at 1272-73.

After the driver had disobeyed an order multiple times and

ignored a warning that he was risking arrest, the officer tased

him. Id. at 1273-74. The court found that the use of the Taser

did not violate the Constitution because “the amount of

12

force . . . was reasonably proportionate to the need for force.”

Id. at 1278. Lash seems to suggest that because he was less

obstreperous than the arrestee in Draper and did not ignore a

warning or refuse to comply with orders, Draper should have

made it clear that Lash’s behavior did not warrant the use of a

Taser. We think Draper counsels for our conclusion, not

against it. Though Lash’s confrontation with the USPP

officers was shorter than the standoff with police in Draper,

Lash actively resisted arrest even after officers actually had

their hands on him. Draper, in contrast, involved only

aggressive conduct, agitation, and refusal to comply with

police orders. There, police did not even attempt to subdue

and handcuff the arrestee before discharging a Taser against

him. The USPP officers here had already made multiple

successive attempts to restrain Lash and were still struggling

with his physical resistance when Lemke tased him. If

anything, reading Draper could have led a reasonable officer

to feel confident that the force used in this case was

reasonable, not the opposite. At a minimum, Draper certainly

did not establish beyond doubt that using a Taser a single time

on someone behaving as Lash did would violate his rights.

The strongest, though ultimately futile, argument we have

found for the proposition that the officers’ conduct violated

clearly established law comes from Mattos v. Agarano, 661

F.3d 433 (9th Cir. 2011) (en banc). There the Ninth Circuit

considered two consolidated cases regarding the use of a

Taser during arrests. In the first case, a pregnant woman,

pulled over as part of a traffic stop, refused to sign a citation

and to get out of her car; officers tased her three times before

handcuffing her. This arrestee, the Ninth Circuit concluded,

“engaged in some resistance to arrest” when she “stiffened

her body and clutched her steering wheel to frustrate the

officers’ efforts to remove her from her car.” Id. at 445. In the

second case, an officer trying to arrest an individual suspected

13

of domestic violence tased the suspect’s wife when she did

not move out of the officer’s way. Id. at 449. This individual

“minimally resisted . . . arrest” when she “extended [her]

arm . . . to protect her own body” from contact with the

advancing officer; the Ninth Circuit noted that this

“minimal[]” resistance was more akin to “failure to facilitate

an arrest,” not “active resistance to arrest,” because the

advancing officer was seeking to arrest her husband, not the

woman herself. Id. at 449-50. In both cases the Ninth Circuit

held that using a Taser violated the arrestee’s rights, though it

also concluded that at the time of the episodes (November

2004 and August 2006, respectively) no clearly established

law put officers on notice that using a Taser in those

circumstances would violate the Constitution. Id. at 444-52.

Even if Mattos were manifestly contrary to the many

cases we discussed above, such an outlier would not

invalidate broad agreement among other circuits. The

“‘consensus view’” we have found necessary to create a

clearly established right for qualified immunity purposes

requires more than a single decision departing from an

otherwise consistent pattern. Bame, 637 F.3d at 384 (quoting

Johnson, 528 F.3d at 976). But more to the point, Mattos does

not actually contradict the other cases on which we rely. In

Mattos the Ninth Circuit carefully noted that the level of

resistance offered by both arrestees was quite limited: “some

resistance” in one case and “minimal resistance,” ultimately

more akin to “failure to facilitate an arrest” than “active

resistance to arrest,” in the other. Lash’s case offers a

different context. Lash twice evaded the officer’s efforts to

seize him and, even after two officers held his arms,

continued struggling between them and fighting against their

efforts to force him to the ground. This was not “some” or

“minimal” resistance, much less a failure to facilitate the

arrest of another. As the video record makes clear, Lash was

14

actively resisting arrest in the face of increasing police efforts

to control him without resorting to more substantial force.

Mattos was a different case and in consequence the Ninth

Circuit’s holding could not have put these officers on notice

that using a Taser in this “specific context,” Saucier, 533 U.S.

at 201, would violate Lash’s rights. And even if Mattos had

dealt with closely analogous facts, that decision alone would

be outweighed by the consensus position: No clearly

established right is violated when an officer uses a Taser a

single time against an individual actively resisting arrest.

Thus the force used here violated no clearly established

law, regardless of whether it may have violated the Fourth

Amendment. For that reason Lemke and Reid have qualified

immunity as to Lash’s Fourth Amendment claim.

B

Lash’s First Amendment retaliatory force claim fares no

better, though for the different reason that he simply did not

argue it on appeal. Because the officers have not argued on

appeal that Bivens does not apply here, we will “assume,

without deciding,” that Lash’s First Amendment retaliatory

force claim “is actionable under Bivens.” Ashcroft v. Iqbal,

556 U.S. 662, 675 (2009). Compare Wood v. Moss, 134 S. Ct.

2056, 2066 (2014), with Hartman v. Moore, 547 U.S. 250,

256 (2006). Even so, Lash’s First Amendment claim is

doomed by his failure to provide any meaningful argument on

appeal in support of it. His opening brief offers a single

paragraph regarding the First Amendment with only two

sentences devoted to legal argument. He insists that because

the force used against him was, in his judgment, excessive,

his First Amendment claim in connection with that force

should survive. He did not refer to the First Amendment at all

on reply. As a general matter, we decline to consider

15

arguments made in such a perfunctory fashion. See, e.g.,

Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.

2005) (“It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do

counsel’s work.” (citation omitted)).

Admittedly, Lash framed his First Amendment argument

in the context of the district court’s decision dismissing that

claim on the basis that the force used against him was not

excessive. But even had we decided that the use of the Taser

did constitute excessive force under the Fourth Amendment,

Lash’s argument would have remained inadequate. A plaintiff

pressing a First Amendment retaliatory force claim must

show, among other things, that the officer who used force

against him had “‘retaliatory animus.’” Trudeau v. Fed. Trade

Comm’n, 456 F.3d 178, 191 n.23 (D.C. Cir. 2006) (quoting

Hartman, 547 U.S. at 260). But Lash did not argue that a jury

could reasonably find in his favor on the presence of a

retaliatory motive. He drew our attention to nothing in the

record, and we have found nothing ourselves, that suggests

Lemke’s use of force was retaliatory. It is not this court’s

obligation to resolve issues when the party concerned argues

them so cursorily. Wash. Legal Clinic for the Homeless v.

Barry, 107 F.3d 32, 39 (D.C. Cir. 1997) (“Because the

District raises this issue in such a cursory fashion, we decline

to resolve it.” (internal quotation marks omitted)). For this

reason we grant summary judgment to the officers on Lash’s

First Amendment claim as well. 3

3

Lash also argues that Sergeant Reid’s affidavit submitted

in support of the officers’ motion for summary judgment suffered

from various flaws. As we do not rely on that affidavit in our

decision here, however, we need not consider whether, as Lash

contends, Reid failed to provide support for his testimony or

included inappropriate legal conclusions.

16

III

For the foregoing reasons, we affirm the district court’s

grant of summary judgment for the defendants.