Shaylene Montoya v. City of Flandreau

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1787

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Shaylene Montoya, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

City of Flandreau; Ken James; *

Justin Hooper; Scott Gaalswyk, *

*

Defendants - Appellees. *

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Submitted: October 18, 2011

Filed: February 23, 2012

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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BYE, Circuit Judge.

Shaylene Montoya brought an action under 42 U.S.C. § 1983 against two

Flandreau police officers, the chief of police, and the City of Flandreau, alleging,

among other claims, the officers used excessive force against her in violation of the

Fourth and Fourteenth Amendments. The district court granted summary judgment

in favor of the defendants on all claims, holding the officers did not violate

Montoya’s constitutional right and were therefore entitled to qualified immunity. On

appeal, Montoya only challenges the district court’s grant of summary judgment in

favor of Officer Justin Hooper. We reverse.

I

At 3:11 p.m. on November 8, 2006, Robert Cournoyer called the Flandreau

police department for assistance because of an argument he was having with his

ex-girlfriend, Shaylene Montoya. The two had recently ended their relationship and,

after moving to Utah, Montoya came back to take their son with her and to retrieve

her belongings from Cournoyer’s residence. In her deposition, Montoya testified the

argument arose because Cournoyer threatened to take their son to the Yankton Sioux

Reservation where she would be unable to contact him.

Officers Hooper and Gaalswyk responded to the call at 3:17 p.m. Upon their

arrival, Cournoyer told them he wanted Montoya out of his house by 4:00 p.m.

Montoya was “loud and clearly upset” about the situation, but calmed down after

speaking with the officers. The officers remained at the residence for about fifteen

minutes and as they were leaving, the officers told Montoya someone would be

arrested if they had to come back.

About an hour later, Cournoyer again called the police. Officers Hooper and

Gaalswyk responded to the call at 4:28 p.m. When the officers arrived, Montoya and

Cournoyer were outside the residence, arguing. As expected, the parties have

different accounts of what happened next. According to Montoya, she and

Cournoyer, along with her mother, a friend of hers, and the two officers, were all

standing in a circle. Cournoyer was standing between the two officers while she was

standing opposite of them, at a distance of about ten to fifteen feet. Montoya explains

the events as follows:

[Cournoyer] and me were having words. I was looking over to my left

and I’m thinking we were in a circle. [The officers] said, they stated that

I took a step forward and raised my fist. I would like to say that when

I do talk, I use my hands in motion to express myself.

...

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[Officer Hooper] came and took my left arm. Put it behind my back

[and handcuffed my left wrist]. At that time [Officer] Gaalswyk came

over to my right side and attempted to get my right arm behind. Stated

quit or stop resisting. Then [Officer] Hooper came around with his right

leg. Kicked my left leg. In turn, I fell straight to the ground

forward. . . . Face first. [Officer Hooper] fell on top of me. Then I

immediately screamed . . . [a]nd said my leg is broke[n].

Montoya started crying due to the pain, at which point Officer Gaalswyk asked

her if she needed an ambulance. She responded she could not afford it. Nevertheless,

Officer Gaalswyk helped Montoya off the ground and assisted her to the patrol car,

which was to take her to a hospital. En route to the hospital, the officers informed

Montoya she was under arrest and advised her of her rights. Then, after dropping

Officer Hooper off at another patrol car, Officer Gaalswyk took Montoya to the

hospital.

At the hospital, medical personnel took x-rays of Montoya’s leg, the results of

which revealed a tibial plateau fracture on the left knee. She was subsequently

transferred to a different hospital for further orthopedic evaluation. Ultimately,

Montoya had to undergo surgery for the injuries she sustained during her arrest. For

four to five months following the surgery, Montoya could only walk with the help of

crutches, after which she also had to undergo weeks of physical therapy.

According to Officer Hooper’s account of the incident, as Montoya and

Cournoyer were arguing, Montoya raised her right hand in a fist and took a step

forward toward Cournoyer. Concerned about Cournoyer’s safety, Officer Hooper

grabbed Montoya’s left arm, put it behind her back, and placed a handcuff on her left

wrist. Montoya resisted and tucked her right arm under her stomach. Officer

Gaalswyk grabbed her right arm and tried to place it behind her back. When she

continued to resist, Officer Hooper performed the so-called “leg sweep,” sweeping

her left leg with his right leg, and causing her to fall to the ground. Officer Hooper

then placed the other handcuff on her right wrist.

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Montoya was charged with one count of simple assault or, in the alternative,

disorderly conduct, and one count of resisting arrest. Following a bench trial, the

court found Montoya not guilty on the simple assault and resisting arrest charges.

The court reasoned the distance between Montoya and Cournoyer indicated she did

not have the actual ability to cause any injury to him. The court further explained

even if Montoya was in fact resisting arrest, she lacked the intent to create a

substantial risk of causing physical injury, as required by statute. However,

concluding Montoya’s overall actions amounted to serious public inconvenience and

annoyance to Cournoyer, the court found Montoya guilty of disorderly conduct.

In October 2009, Montoya filed suit against Officers Hooper and Gaalswyk,

as well as the chief of police of the Flandreau Police Department and the City of

Flandreau. All defendants moved jointly for summary judgment on all claims,

asserting qualified immunity on Montoya’s § 1983 constitutional claim. As relevant

for purposes of this appeal, the district court concluded the force used by Officer

Hooper was objectively reasonable as a matter of law, entitling him to qualified

immunity. Montoya appeals.

II

We review de novo the district court’s grant of summary judgment, “viewing

the record in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor.” Chambers v. Pennycook, 641 F.3d 898,

904 (8th Cir. 2011). Summary judgment is proper if no genuine issues of material

fact exist and the movant is entitled to judgment as a matter of law. Johnson v.

Carroll, 658 F.3d 819, 825 (8th Cir. 2011); Fed. R. Civ. P. 56(a).

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A

Montoya asserts the district court erred in finding no genuine issues of material

fact existed as to whether Officer Hooper violated her constitutional right to be free

from excessive force.

We evaluate Montoya’s claim of excessive force under the reasonableness

standard of the Fourth Amendment. McKenney v. Harrison, 635 F.3d 354, 359 (8th

Cir. 2011). The test for establishing a constitutional violation under the Fourth

Amendment’s right to be free from excessive force is “whether the amount of force

used was objectively reasonable under the particular circumstances.” Brown v. City

of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). “We determine whether a use

of force was reasonable by balancing the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental

interests at stake.” McKenney, 635 F.3d at 359 (internal quotation marks and citation

omitted). Further, in reviewing whether the use of force was reasonable, we consider

“the totality of the circumstances, including the severity of the crime, the danger the

suspect poses to the officer or others, and whether the suspect is actively resisting

arrest or attempting to flee.” Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th Cir.

2009). The degree of injury suffered, to the extent “it tends to show the amount and

type of force used,” is also relevant to our excessive force inquiry. Chambers, 641

F.3d at 906. And while “[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers violates the Fourth Amendment,”

Cook, 582 F.3d at 849, we have repeatedly acknowledged “force is least justified

against nonviolent misdemeanants who do not flee or actively resist arrest and pose

little or no threat to the security of the officers or the public,” Brown, 574 F.3d at 499.

The district court appears to have credited Officer Hooper’s account of the

incident in concluding the force used against Montoya was objectively reasonable

under the circumstances. Finding Montoya was violating a disorderly conduct statute

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at the time Officer Hooper began the arrest and further noting she attempted to resist

the arrest by “moving her right arm away,” the district court determined Officer

Hooper was justified in performing the “leg sweep.” D. Ct. Order of March 15, 2011,

at 11. To be sure, the district court did state “Montoya’s gesture of the hands raised

above the head may have been in frustration” and acknowledged she was at a distance

“where she would have had to take some steps in order to strike Cournoyer.” Id. Yet,

it concluded the force used by Officer Hooper was objectively reasonable under the

circumstances because “a rapidly evolving domestic dispute was ongoing and the

conduct of Montoya had resulted in Cournoyer making two separate calls to the

police.” Id. at 10-11. We disagree.

Viewing the record and drawing all reasonable inferences in the light most

favorable to Montoya, while simultaneously viewing the facts from the perspective

of "a reasonable officer on the scene[,]" we cannot say Officer Hooper’s use of force

was objectively reasonable as a matter of law. Shannon v. Koehler, 616 F.3d 855,

863 (8th Cir. 2010). The evidence shows Montoya was standing ten to fifteen feet

away from Cournoyer when she raised her hands above her head in frustration. She

asserts she did not intend to hit Cournoyer, and Cournoyer testified he did not feel

threatened by her actions. Additionally, nothing in the record indicates Montoya

threatened or posed any threat to the safety of the officers. See Nance v. Sammis, 586

F.3d 604, 610 (8th Cir. 2009) (stating objective reasonableness depends on the

totality of the circumstances, including whether plaintiff posed an “immediate threat

to the safety of the officers or others”). Thus, at the time Officer Hooper performed

the “leg sweep,” Montoya was not threatening anyone, was not actively resisting

arrest, and was not attempting to flee. At most, her actions amounted to a violation

of a law restricting disorderly conduct, a misdemeanor punishable by no more than

thirty days’ imprisonment, a fine of five hundred dollars, or both. See S.D. Codified

Laws §§ 22-18-35 (defining disorderly conduct as a Class 2 misdemeanor) and 22-6-

2(2) (providing the penalties for a Class 2 misdemeanors); see also Brown, 574 F.3d

at 496 (explaining circumstances relevant to whether the use of force was objectively

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reasonable include the severity of the crime at issue and holding force is least justified

against nonviolent misdemeanants). Moreover, although not dispositive, the severity

of the injuries she sustained is a relevant factor in determining the reasonableness of

the force used, see Rohrbough v. Hall, 586 F.3d 582, 586 (8th Cir. 2009), and we

cannot agree with the district court the fact Montoya sustained a broken leg is simply

an “unfortunate” and “unintended” consequence of what the court described as

objectively reasonable use of force by Officer Hooper. See, e.g., Shannon, 616 F.3d

at 863 (“Assuming, then, that [Appellant’s] story is true—i.e., assuming he was not

threatening anyone, not resisting arrest, and so on—it was not reasonable for [the]

[o]fficer [] to use more than de minimus force[.]”).

Based on the physical distance between Montoya and Cournoyer at the time of

the incident (ten to fifteen feet), the nature of the crime at issue (disorderly conduct),

and the degree of the injury suffered (a broken leg), we cannot say the force used by

Officer Hooper was objectively reasonable as a matter of law. Accepting Montoya’s

version of events as true, as we must under the present procedural posture, we

conclude genuine issues of material fact exists as to whether Officer Hooper used

excessive force against Montoya. While a jury may credit Officer Hooper’s

characterization of the incident and disbelieve Montoya at trial, “it is not our function

to remove the credibility assessment from the jury.” Henderson v. Munn, 439 F.3d

497, 504 (8th Cir. 2006).

B

Montoya further asserts the district court erred in concluding Officer Hooper

was entitled to qualified immunity. “Qualified immunity shields government officials

from liability in a § 1983 action unless the official’s conduct violates a clearly

established constitutional or statutory right of which a reasonable person would have

known.” Brown, 574 F.3d at 495. To defeat a claim of qualified immunity, a plaintiff

alleging excessive use of force must present sufficient facts which, when construed

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in the light most favorable to her, show (1) the officer violated a constitutional right

and (2) the right was clearly established at the time of the violation. McKenney, 635

F.3d at 358.

Finding Officer Hooper’s use of force was objectively reasonable as a matter

of law, the district court concluded Montoya failed to establish a violation of a

constitutional right, entitling Officer Hooper to qualified immunity on her § 1983

claim. For the reasons stated above, however, the district court erred in concluding,

as a matter of law, Officer Hooper did not violate Montoya’s constitutional right to

be free from excessive force. Viewing the record in the light most favorable to

Montoya, as we must at this stage, we conclude she alleged sufficient facts to show

a constitutional violation of her rights.

We further conclude the constitutional right Officer Hooper allegedly violated

was clearly established at the time of the misconduct, as required by the second prong

of the qualified immunity analysis. We have consistently held “[t]he right to be free

from excessive force is a clearly established right under the Fourth Amendment’s

prohibition against unreasonable seizures of the person.” Copeland v. Locke, 613

F.3d 875, 881 (8th Cir. 2010) (internal quotation marks and citation omitted).

However, we have also explained “‘the right the official is alleged to have violated

must have been ‘clearly established’ in a more particularized, and hence more

relevant, sense: The contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.’” Shannon, 616

F.3d at 864 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Assuming

once again Montoya’s story is true, the contours of the right at issue were sufficiently

clear to inform a reasonable officer in Officer Hooper’s position it was unlawful for

him to perform a “leg sweep” and throw to the ground a nonviolent, suspected

misdemeanant who was not threatening anyone, was not actively resisting arrest, and

was not attempting to flee. See Brown, 574 F.3d at 499 (“[I]t is clearly established

that force is least justified against nonviolent misdemeanants who do not flee or

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actively resist arrest and pose little or no threat to the security of the officers or the

public.”).

Therefore, we also reverse the district court’s grant of summary judgment on

qualified immunity grounds.

III

Accordingly, we reverse the district court’s grant of summary judgment in

favor of Officer Hooper and remand for further proceedings consistent with this

opinion.

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