Harris v. City of Circleville

CLAY, Circuit Judge,

concurring.

Although I concur in the judgment, and concur with most aspects of the majority’s opinion, I write separately to clarify an important issue regarding the nature of the inquiry required in cases such as this.

As the majority explains, Defendants appeal from the district court’s denial of their qualified immunity defenses. Because the qualified immunity privilege, if it applies, entitles the Defendants to “immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), Defendants raised their immunity claims as a basis for summary judgment. Guided by our decision in Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002), which in turn relied on Graham v. Connor, 490 U.S. 386, 394 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), the district court assumed that it was required to determine whether Harris’ *371 excessive force claims should be analyzed under the Fourth or the Fourteenth Amendment. On appeal, Defendants challenge the district court’s determination that the Fourth Amendment applies, as well as the court’s conclusion that the application of the Fourth Amendment in this context was clearly established. In rejecting the Defendants’ claims, the majority correctly notes that it need not delve into whether the Fourth or Fourteenth Amendment applies in this context.

In my opinion, the district court’s approach gave too much credence to Defendants’ fundamentally flawed claims. Essentially, Defendants argue that any lingering ambiguity regarding whether the Fourth or Fourteenth Amendment applies in this context implies that they are entitled to summary judgment because the rights implicated by Harris’ claims could not have been “clearly established.” That entire premise is mistaken. As the majority properly concludes in rejecting this argument, “even if there were some lingering ambiguity as to whether the Fourth or the Four-' teenth Amendment applies in this precise context, the ‘legal norms’ underlying Harris’ claims nevertheless were clearly established.” Indeed, the Supreme Court has made absolutely clear that the courts need not “have agreed upon the precise formulation of the [applicable] standard” for a right to be “clearly established” for qualified immunity purposes:

Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.

Saucier v. Katz, 533 U.S. 194 , 202-03, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). Accordingly, even if it is unclear whether the Fourth or Fourteenth Amendment governs Harris’ excessive force claims, Defendants are not necessarily entitled to qualified immunity.

The majority concludes, and I agree, that there “undoubtedly is a clearly established legal norm precluding the use of violent physical force against a criminal suspect who already has been subdued and does not present a danger to himself or others.” In my opinion, that is all that is necessary to reject Defendants’ qualified immunity claims. Because it is clearly established that officers may not use gratuitous physical force against a criminal suspect who already has been subdued and who does not present a danger to himself or others, Defendants are not entitled to qualified immunity. That is true regardless of whether Harris’ claims should be analyzed under the Fourth or the Fourteenth Amendment, and regardless of whether Harris remained in the joint custody of the arresting officers and the booking officers. The district court nevertheless tackled these questions. Although the district court will need to determine the applicable standard before instructing the jury on Harris’ excessive force claims or before determining whether Harris is entitled to summary judgment on these claims, resolving that issue simply was not necessary to determine whether Defendants are entitled to summary judgment on the basis of qualified immunity.

Perhaps much of the confusion derives from our decision in Phelps where we explained that “[t]o decide whether [a plaintiff] presented evidence that [a police officer defendant] violated his constitutional right not to be subjected to unnecessary beating, we must first ascertain the source *372 of that right.” 286 F.3d at 299 . In making that pronouncement, we relied on the Supreme Court’s decision in Graham , where the Court held that, “[i]n addressing an excessive force claim brought under § 1983, [our] analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” 490 U.S. at 394 , 109 S.Ct. 1865 . The problem is that although Graham and Phelps both involved § 1983 excessive force claims, Graham , unlike Phelps , was concerned with determining the applicable standard for resolving an excessive force claim on the merits, not determining whether the Defendants are entitled to summary judgment on the basis of qualified immunity.

Although subtle, the distinction is critical. In the qualified immunity context, the courts need not determine the “specific constitutional right” at issue to resolve whether a defendant officer was sufficiently “on notice that his conduct would be clearly unlawful.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 ; see Mitchell, 472 U.S. at 528 , 105 S.Ct. 2806 (“An appellate court reviewing the denial of the defendant’s claim of immunity need not ... determine whether the plaintiffs allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions .... ” (emphasis added)). Consequently, because our case law unequivocally establishes that it is unconstitutional for police officers to gratuitously strike a restrained suspect who does not even remotely present a danger to the officers, see Grawey v. Drury, 567 F.3d 302, 314 (6th Cir.2009) (“The general consensus among our cases is that officers cannot use force ... on a detainee who has been subdued ... [and] is not resisting arrest.”), the Defendants were sufficiently on notice that their conduct was unconstitutional, even if the courts “had not agreed on one verbal formulation of the controlling standard.” Saucier, 533 U.S. at 203, 121 S.Ct. 2151 (emphasis added).

Clarifying the appropriate inquiry is particularly important in this case. As our sister circuits have recognized, Graham expressly “left open the question of how to analyze a claim concerning the use of excessive force by law enforcement ‘beyond the point at which arrest ends and pretrial detention begins.’ ” Wilson v. Spain, 209 F.3d 713, 715 (8th Cir.2000) (quoting Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865 ). While this Court’s more recent case law leaves no question that the Fourth Amendment applies throughout the booking process, see Drogosch v. Metcalf, 557 F.3d 372, 378 (6th Cir.2009), Defendants nevertheless assert that there was some question in 2004 about the application of the Fourth Amendment in this context. In confronting this question in Lawler v. City of Taylor, 268 Fed.Appx. 384 (6th Cir. 2008), we held that the Fourth Amendment “applies to an officer’s use of force during a booking procedure,” id. at 386 , in addressing claims arising out of events that took place in February of 2004, two months before the events at issue in this case occurred. Our decision in Lawler , however, relied entirely on Phelps for that proposition, despite the fact that Phelps acknowledged that it was unclear whether the Fourth Amendment applies to claims concerning conduct that takes place before completion of the booking process that do not involve the arresting officers. See Phelps, 286 F.3d at 302 (distinguishing our decision in Holmes v. City of Massillon, 78 F.8d 1041, 1049 n. 6 (6th Cir.1996), which observed that “the law of this Circuit is unclear as to whether a pretrial detainee can bring a Fourth Amendment excessive force claim or even as to when an arrestee clearly becomes a pretrial detainee”). And *373 while Drogosch dictates that the Fourth Amendment applies to a suspect’s excessive force claims throughout and even beyond the booking process regardless of whether the suspect remains in the custody of the arresting officers, see 557 F.3d at 378 (applying Fourth Amendment at least up until a detained criminal suspect who is booked into jail is given “an initial determination of probable cause”), Drogosch was decided in 2009 and involved events that took place in October 2004, several months after the relevant conduct here. Although this argument is without merit, Defendants have at least a plausible claim that the application of the Fourth Amendment was not fully settled as of April 2004.

Nevertheless, on my reading of the required inquiry, Defendants would not be entitled to summary judgment regardless of whether the application of the Fourth Amendment was unclear at the time, and regardless of whether Harris remained in the joint custody of the arresting officers and the booking officers. By addressing those issues, the district court wrongly implied that Defendants’ premise that they would be entitled to qualified immunity if the application of the Fourth Amendment was not fully settled at the time has some credence. It does not. The district court’s decision to address this issue also perpetuates the notion that the application of the Fourth Amendment turns on whether the suspect remains in the continuing custody of the arresting officers, a premise that our decision in Drogosch unequivocally put to rest.

Simply put, because our case law makes clear that Defendants’ conduct was unconstitutional under any standard, it is irrelevant for qualified immunity purposes whether Harris’ claims are controlled by the Fourth or Fourteenth Amendment, and thus it is irrelevant whether Harris remained in the joint custody of the arresting officers and the booking officers. And, despite what we unintentionally may have suggested in Phelps , it is not always necessary to determine the governing legal standard to resolve a qualified immunity claim. That is especially true in this context because this circuit’s case law gave the officers more than sufficient notice that criminal suspects who already have been subdued and who present no possible threat to the officers or themselves have a clearly established constitutional right not to be gratuitously struck by a police officer.

Although it may be helpful to the district court for us to clarify what standard it must apply when addressing the merits of Harris’ claims, because we need not reach that constitutional question to resolve Defendants’ present appeal, well-established principles counsel us to abstain from addressing the issue. See Nw. Austin Mun. Util. Dist. No. One v. Holder, — U.S. -, 129 S.Ct. 2504, 2513 , 174 L.Ed.2d 140 (2009) (“It is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ”) (quoting Escambia County v. McMillan, 466 U.S. 48, 51 , 104 S.Ct. 1577 , 80 L.Ed.2d 36 (1984) (per curiam)); Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 821 , 172 L.Ed.2d 565 (2009) (citing “the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable” (quotation and editorial marks omitted)); United States v. Elkins, 300 F.3d 638, 647 (6th Cir.2002) (“Courts should avoid unnecessary constitutional questions.”); Bowman v. Tenn. Valley Auth., 744 F.2d 1207, 1211 (6th Cir.1984) (“[W]e follow the longstanding practice of the Supreme Court ... [in declining] to decide questions of a constitutional nature *374 unless absolutely necessary to a decision of the case.” (quotation marks and citation omitted)); Tower Realty v. City of East Detroit, 196 F.2d 710, 724 (6th Cir. 1952) (“It is the duty of federal courts to avoid the unnecessary decision of the constitutional questions.”).