UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10937
Summary Calendar
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THOMAS CYR; KEVIN CAPPER,
Plaintiffs-Appellants,
versus
CITY OF DALLAS, TEXAS; DALLAS POLICE DEPT.;
ROBERT JACKSON, Interim Dallas Police; GRANVER
TOLLIVER, Deputy Chief, Commander of the Dallas
Police Department Special Operations Bureau,
Tactical Division; RICHARD GARCIA, Sergeant,
individually and in his official capacity as a
Dallas Police Officer; HERBERT W. PARKER,
Senior Corporal, individually and in his official
capacity as a Dallas Police Officer; JOSEPH
R. MAINES, individually and in his official
capacity as a Dallas Police Officer; DOUG
KOWALSKI, Captain, individually and in his
official capacity as a Dallas Police Officer,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-774-P)
_________________________________________________________________
April 3, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Thomas Cyr and Kevin Capper appeal the adverse summary
judgment in in their 42 U.S.C. § 1983 excessive force action. We
AFFIRM.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
I.
On 27 February 1993, Cyr and Capper, with approximately 40
others, were involved in a demonstration at the North Dallas
Women’s Clinic. The clinic director contacted the Dallas police
because the protestors were blocking the doorway to the clinic,
were walking around inside the clinic, shouting at patients and
staff, and were stealing and destroying surgical equipment and
endangering patients. Officers Maines and Parker arrested Cyr and
Capper for criminal trespass after they refused to leave the
clinic.
After being arrested, both Cyr and Capper dropped to the floor
and refused to stand and walk out of the clinic. Officers Parker
and Maines handcuffed Cyr and Capper, but both refused to stand and
walk. When pain compliance techniques were unsuccessful, the
Officers warned Cyr and Capper that peppermace would be used. Cyr
and Capper failed to heed those warnings. Officer Parker
administered a short burst of mace to Capper’s head; when he still
did not comply, the Officers carried him outside. Officer Maines
administered a burst of mace that struck Cyr on the top of his
head, and a second burst to Cyr’s face. When the mace proved
ineffective, three Officers carried Cyr outside.
Cyr and Capper filed complaints with the Dallas Police
Department (DPD), which initiated an internal investigation. The
Internal Affairs division found that Parker and Maines’ use of mace
on the handcuffed abortion protestors was unnecessary and issued
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written reprimands. After the incident, the DPD instructed its
Officers not to use mace when dealing with passive resisters.
Prior to the incident, DPD had trained its Officers on the use
of peppermace, but not concerning passive resistance. Peppermace
had been authorized as a technique used after pain-compliance
techniques but before the baton when dealing with resistance to
arrest.
Cyr and Capper filed suit against the City, the Chief and
Deputy Chief of the DPD, and the arresting Officers, claiming,
inter alia, that the use of mace constituted excessive force, and
that the Officers were not adequately trained and supervised. The
district court granted summary judgment for the defendants, holding
that the arresting Officers were entitled to qualified immunity.
The district court granted summary judgment on the claims against
the City and the Officers in their individual capacities because,
absent a constitutional violation, the plaintiffs were precluded
from establishing that the City had adopted a policy which resulted
in the deprivation of their civil rights.
II.
The appellants contend that the district court applied
incorrect legal standards; that the individual appellants are not
entitled to qualified immunity because their actions were
objectively unreasonable; and that the district court erred by
granting summary judgment on their failure to train/supervise
claims because the appellees admitted that the Officers were not
trained on the use of peppermace in a passive resistance situation.
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A.
The district court did not apply an incorrect summary judgment
standard by drawing inferences from undisputed facts. Contrary to
the appellants’ assertions, whether the appellees’ conduct was
objectively unreasonable in light of the clearly established law at
the time the conduct occurred is a legal, not factual, issue. See
Harlow v. Fitzgerald, 457 U.S. 800, 818-19(1982). And, the
contention that the court erroneously relied on the “significant
injury” requirement for excessive force claims is without merit,
because the district court did not apply that standard.
B.
We apply the well-known two-part analysis in addressing
qualified immunity claims: (1) whether the plaintiffs alleged the
violation of a clearly established constitutional right; and (2)
whether the defendants’ conduct was objectively reasonable when
examined by reference to clearly established law. E.g., Siegert v.
Gilley, 500 U.S. 226, 231(1991); Duckett v. City of Cedar Park,
Tex., 950 F.2d 272, 279-80 (5th Cir. 1992).
1.
The appellants satisfied the first part of this analysis. A
claim that law enforcement officers used excessive force during an
arrest is sufficient to allege a violation of the Fourth
Amendment’s prohibition against unreasonable seizures. Graham v.
Connor, 490 U.S. 386, 394(1989).
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2.
We agree with the district court, however, that the Officers’
actions were objectively reasonable in light of the facts and
circumstances surrounding them. It was not clearly established in
February 1993 that the use of mace on handcuffed passive abortion
protestors constituted excessive force. As the district court
noted, although the appellants were not aggressively resisting
arrest, they were intentionally making the arrest procedure
extremely difficult by refusing to leave the clinic. The
atmosphere at the clinic was one of chaos and disorder; the
protestors, who outnumbered the Officers, were dispersed throughout
the clinic, frightening patients and staff. Capper had tried to
crawl through a receptionist’s window into the clinic’s business
office; when prevented from doing so, he confronted some patients
in the waiting room about unborn babies. He tried to grab a female
patient’s hand, and a shoving match ensued when her male companion
tried to stop him. Cyr was in the main hallway of the clinic,
blocking the entrance to a surgical room and shouting at a patient
in need of medical attention, who had locked herself inside the
room and was screaming for help. Moreover, having been told that
some of the protestors had stolen surgical equipment, the Officers
reasonably could have feared that Cyr and Capper might have armed
themselves with such equipment.
Needless to say, the reprimands given Parker and Maines do not
establish that they acted unreasonably. The reprimands were issued
after an investigation conducted with the benefit of hindsight.
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“The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
“The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second
judgments--in circumstances that are tense, uncertain, and rapidly
evolving--about the amount of force that is necessary in a
particular situation.” Id. at 396-97.
C.
Finally, we affirm the summary judgment on the failure to
train and lack of adequate supervision claims essentially for the
reasons stated by the district court. Cyr v. City of Dallas, No.
3:95-CV-0774-P (N.D. Tex. July 2, 1996) (unpublished).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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