Casey v. City of Federal Heights

FILED
United States Court of Appeals
Tenth Circuit

December 10, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD CASEY,

Plaintiff-Appellant,
v. No. 06-1426
CITY OF FEDERAL HEIGHTS,
LES ACKER, KEVIN SWEET, and
MALEE LOR,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 05-CV-01013-REB-PAC)

Michael J. Thomson, Purvis, Gray & Murphy, LLP, for Plaintiff-Appellant.

Thomas S. Rice (Gillian M. Fahlsing with him on the briefs), Senter Goldfarb &
Rice LLC , for Defendants-Appellees.

Before KELLY, ANDERSON , and MCCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Edward Casey went to the Federal Heights, Colorado, municipal courthouse

to contest a traffic ticket. After losing his case, he walked to the parking lot to

retrieve money from his truck to pay the fine, carrying with him the court file.
On his way back to the courthouse he was grabbed, tackled, Tasered, and beaten

by city police officers. The question presented is whether his claims for

excessive force under the Fourth Amendment and 42 U.S.C. § 1983 survive

summary judgment. We hold that they do.

I. FACTS 1

Mr. Casey unsuccessfully challenged a traffic ticket at the Federal Heights

courthouse on August 25, 2003. He told the judge that he wanted to appeal, and

the judge gave him his court file and told him to take it to the cashier’s window

along with his money. Because Mr. Casey had left his money in his truck, he sent

his daughter to the restroom and headed for the parking lot. A person later

identified as the court clerk—although Mr. Casey says that at the time he did not

know who she was—told him not to remove the file from the building. He replied

that his daughter (who was eight years old) was in the bathroom and he would be

right back. Mr. Casey left the building still holding his file, which may have been

a misdemeanor under Colorado law. 2

1
Because Mr. Casey’s claims were dismissed on defendants’ summary
judgment below, on appeal we resolve all factual disputes in his favor.
2
A person violates Colo. Rev. Stat. § 18-8-114(1)(b) if, “[k]nowing the
person lacks the authority to do so, the person knowingly destroys, mutilates,
conceals, removes, or impairs the availability of any public record.” It is not
clear to us that Mr. Casey satisfied the statute’s mens rea requirement, or that
briefly carrying a file through the court’s parking lot “removes” a record under
(continued...)

-2-
 Officer Kevin Sweet learned from the clerk that Mr. Casey had taken the

file into the parking lot and moved to intercept him as he returned. By this time

Mr. Casey had been to his truck, obtained his money to pay the fine, and was

returning to the courthouse. Officer Sweet accosted him and told him to return to

his truck. Mr. Casey explained that he needed to get back to the courthouse to

return the file and attend to his daughter. Officer Sweet then asked Mr. Casey for

the file, and Mr. Casey held out his briefcase with the file “clearly visible . . . in

an outside pocket.” App. 100. Officer Sweet did not take the file, so Mr. Casey

moved around him to take the file to the cashier. Without further explanation or

discussion, Officer Sweet then grabbed Mr. Casey’s arm and put it in a painful

arm-lock. Confused, Mr. Casey moved his arm without breaking the officer’s

grip and started to walk to the courthouse with the file. Officer Sweet then

jumped on Mr. Casey’s back. Mr. Casey’s shirt was ripped in the process. Mr.

Casey did not understand why Officer Sweet was tackling him and asked, “What

are you doing?” Id. Officer Sweet never told him that he was under arrest, and

never advised him to stop resisting.

At that point, Officer Malee Lor arrived in her patrol car. Concluding that

Mr. Casey “needed to be controlled,” she fired her M26 Taser at him. This Taser

2
(...continued)
Colorado law. Mr. Casey was never charged under the statute, and after Cortez v.
McCauley, 478 F.3d 1108, 1126–27 (10th Cir. 2007) (en banc), his excessive
force claim is independent from the lawfulness of his arrest, so we need not
puzzle through it further.

-3-
model shoots wire-attached hooks and can deliver a shock for up to five seconds.

Id. at 117. Both of these hooks attached to Mr. Casey. There is conflicting

testimony on how quickly Officer Lor fired. One independent eyewitness

testified that “[s]he wasn’t there longer than a couple seconds.” Id. at 176.

Another testified that Officer Lor was there for a minute at the most, and a third

that it was “no more than twenty seconds” before she fired. Id. at 199. Officer

Lor testified that she spent two or three minutes watching the conflict before

firing.

Mr. Casey disengaged the Taser wires, later testifying that “all [he] could

think of was making that electricity stop,” all the while asking the officers what

they were doing. Id. at 103. Shortly thereafter, several other officers arrived on

the scene. According to the witnesses, the officers brought Mr. Casey to the

ground, handcuffed him tightly, and repeatedly banged his face into the concrete.

After Mr. Casey was on the ground, one of the officers, Clint Losli, also Tasered

him by pressing the electrical barbs at the end of the Taser directly into him

without launching them. Officer Lor discharged her Taser again and shocked

another officer, Jim Wright; Officer Sweet then told her to “put the thing away.”

Id. at 216. Mr. Casey testified that during this time he “kept trying to get up,”

although the officers eventually overpowered him and forced him into a patrol

car. Id. at 103.

-4-
 The officers took Mr. Casey into custody and charged him with resisting

arrest and obstructing a peace officer, two Colorado misdemeanors. Colo. Rev.

Stat. §§ 18-8-103, -104. A year and a half later he was also charged with

“obstructing government operations,” to which he pleaded guilty and received a

deferred sentence. 3 Id.§ 18-8-102.

Mr. Casey then filed this suit for excessive force under the Fourth

Amendment and 42 U.S.C. § 1983. He sued Officer Sweet and Officer Lor under

§ 1983 for causing him to be subjected to excessive force, and sued the City of

Federal Heights and Police Chief Les Acker under § 1983 on theories of

municipal and supervisory liability, respectively. He did not sue any of the other

officers. The district court dismissed all of these claims on summary judgment.

Casey v. City of Fed. Heights, No. 05-cv-01013, 2006 WL 2711760 (D. Colo.

Sept. 21, 2006). It held that the force used by Officers Sweet and Lor was not

excessive, and that because the underlying excessive-force claims against the

individual officers failed, Chief Acker and the City were not liable either. Id. at

*4. This appeal followed.

3
The statute punishes anybody who “intentionally obstructs, impairs, or
hinders the performance of a governmental function by a public servant, by using
or threatening to use violence, force, or physical interference or obstacle.” Colo.
Rev. Stat. § 18-8-102(3). It is unclear whether Mr. Casey’s charge is based on his
conduct during his arrest or his taking the court file into the parking lot.

-5-
 II. ANALYSIS

The Fourth Amendment forbids unreasonable seizures, including the use of

excessive force in making an arrest. To determine whether the force used in a

particular case is excessive “requires a careful balancing of the nature and quality

of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham v. Connor, 490 U.S.

386, 396 (1989) (internal quotation marks omitted). The ultimate question “is

whether the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them.” Id. at 397 (internal quotations marks omitted).

This determination “requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

at 396. Before discussing the liability of Officers Sweet and Lor individually, we

consider how these factors frame the inquiry. In this case, all three factors

suggest that the officers used excessive force.

Mr. Casey’s conduct was not a severe crime—if it amounted to a crime at

all. First, removing a record is a Class One misdemeanor under Colorado law,

carrying a sentence of six to eighteen months and a fine of $500–$5000. Colo.

Rev. Stat. §§ 18-1.3-501(1)(a), -8-114(1)(b). Obstructing government operations,

the crime to which Mr. Casey pleaded guilty in state court, is even more minor—a

-6-
Class Three misdemeanor punishable by as little as a fifty dollar fine and six

months’ imprisonment at most. Id. §§ 18-1.3-501(1)(a), -8-102(3). Neither

offense was violent, and defendants conceded at oral argument that these offenses

were not severe. Further, Mr. Casey’s behavior falls toward the least culpable

side of the covered conduct. He removed the file from the hallway of a building

to its parking lot, and his conduct would not have impaired the operation of the

government in any way if he had been allowed to bring the file back, as he was

attempting to do. Officer Sweet was faced with somebody who had committed a

misdemeanor in a particularly harmless manner, which reduces the level of force

that was reasonable for him to use.

Nor did Officer Sweet have any reason to believe that Mr. Casey posed “an

immediate threat to the safety” of anybody present. Graham, 490 U.S. at 396.

Mr. Casey maintained in his testimony that Officer Sweet simply grabbed and

tackled him without provocation. Three independent eyewitnesses to the

confrontation all confirmed that Officer Sweet was the aggressor, and that Mr.

Casey was not violent during the encounter. At oral argument, the only evidence

the defendants cited to suggest that Mr. Casey seemed dangerous was the fact that

he had been argumentative during his hearing at the Federal Heights Courthouse

earlier. Witnesses, however, described his demeanor in court as “slightly upset”

but not disrespectful, and not out of the ordinary, App. 172—and we assume their

-7-
story to be accurate for purposes of summary judgment. On the facts before us,

Mr. Casey could not reasonably have been seen as dangerous.

Finally, when Officer Sweet initiated the use of force, Mr. Casey was

neither “actively resisting arrest” nor “attempting to evade arrest by flight.”

Graham, 490 U.S. at 396 (emphasis added). Although Officer Sweet was in

uniform, he never told Mr. Casey that he was under arrest. Even after Officer

Sweet grabbed him, Mr. Casey was not attempting to flee from the scene but

rather to return to the Federal Heights courthouse. The Fourth Amendment

permits increased force when a subject is attempting to run away and thereby

evade capture. If anything, by returning to the courthouse rather than to his truck

Mr. Casey would have made himself easier to capture, not harder.

In sum, we are faced with the use of force—an arm-lock, a tackling, a

Tasering, and a beating—against one suspected of innocuously committing a

misdemeanor, who was neither violent nor attempting to flee. In that context, we

examine the excessiveness of the force used against Mr. Casey, considering first

whether each officer’s conduct violated the Constitution; then, if so, whether it

also violated clearly established law.

-8-
A. Officer Sweet’s Liability

1. Constitutional Violation

Officer Sweet grabbed and then tackled Mr. Casey without ever telling him

that he was under arrest. Nor did he give Mr. Casey a chance to submit

peacefully to an arrest. While the reasonableness of his force must be judged

from the officer’s perspective, Mr. Casey also testified that he repeatedly asked,

“What are you doing?” as he was grabbed and tackled. App. 100. Given this, a

reasonable officer should, at a minimum, have ordered Mr. Casey to submit to an

arrest or used minimal force to grab him while informing him that he was under

arrest. Taking the facts in the light most favorable to Mr. Casey, Officer Sweet’s

treatment was not reasonable for a nonviolent misdemeanant who was neither

dangerous nor fleeing.

This conclusion is reinforced by comparison with our recent decision in

Mecham v. Frazier, ___ F.3d. ___, No. 05-4297, 2007 WL 2608624 (10th Cir.

Sept. 11, 2007). There, we held that officers had not violated the Fourth

Amendment in using pepper spray to arrest a woman who was uncooperative

during a traffic stop. Although we acknowledged that the “unfortunate” conduct

of the officers was possibly wrong in hindsight, we held that it was justified by

two of the three factors under Graham—safety concerns and Ms. Mecham’s

resistance to arrest. Id. at *3–*4. In particular, Ms. Mecham repeatedly ignored

the officers’ warnings that she would be arrested, thus turning “what should have

-9-
been a routine encounter . . . into a fifty-minute ordeal.” Id. at *3. Even when

given one last warning to get out of her car or face arrest, she refused. She also

remained in control of her car on a “narrow shoulder of a busy interstate

highway,” and thus may have been “a danger to herself or others.” Id. at *4.

In contrast, the confrontation with Mr. Casey did not give Officer Sweet

reason to fear for his safety. Nor did Officer Sweet give Mr. Casey any

indication that he was, or would soon be, under arrest. Furthermore, Mr. Casey’s

arrest was transformed from “a routine encounter” only by Officer Sweet’s use of

force. In light of Graham and Mecham, a reasonable jury could find Officer

Sweet’s use of force to be excessive and therefore unconstitutional.

Mr. Casey sued Officer Sweet not only for directly using excessive force

against him, but also “for his failure to intervene and prevent the use of excessive

force by his fellow officers.” Aplt’s Op’g Br. 25. Mr. Casey raised this claim

below, although the district court did not discuss it in dismissing his § 1983

claim. Casey, 2006 WL 2711760. Genuine issues of material fact remain on this

argument for § 1983 liability as well.

As we have held, “a law enforcement official who fails to intervene to

prevent another law enforcement official’s use of excessive force may be liable

under § 1983.” Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996). In Mick, a

police officer was accused of pulling the defendant out of her car, throwing her to

the pavement, stepping on her, and dragging her across the ground, in violation of

-10-
the Fourth Amendment. We held that a Secret Service agent who was present

could be constitutionally liable for his failure to intervene if he “watched the

incident and did nothing to prevent it.” Id. at 1137. We cited several cases from

our Circuit and others holding that there is an affirmative constitutional duty to

stop other officers from using unconstitutionally excessive force. Id. at 1136

(citing Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984),

vacated on other grounds sub nom. City of Lawton v. Lusby, 474 U.S. 805 (1985);

O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Fundiller v. City of Cooper

City, 777 F.2d 1436, 1441–42 (11th Cir. 1985)). 4

Here, Mr. Casey alleges that Officer Sweet did nothing to prevent Officer

Lor from Tasering him and other officers from beating him. Moreover, because

Officer Sweet initiated the confrontation as the first officer on the scene, his duty

to keep the arrest from getting out of hand is particularly clear. Also, Officer

Sweet had trained Officer Lor in Taser use, and told her to put her Taser away

after she used it a second time, which indicates that he had some authority over

her. 5 Officer Sweet should have known that the force used by the other officers

was excessive given that Mr. Casey had not tried to fight or to flee, and given the

4
Lusby, O’Neill, and Fundiller evaluated the use of excessive force as a
substantive due process claim; Mick was decided under the Fourth Amendment.
5
Because of all these factors, we need not decide whether there are limits to
Mick’s apparent rule that liability extends to any officer who watches and does
nothing to prevent an incident of excessive force.

-11-
triviality of his offense. Knowing that, he had some responsibility to keep his

initial use of force from turning into a mêlée.

2. Clearly Established Law

Because Officer Sweet asserts qualified immunity, we must decide not only

whether Mr. Casey has asserted a violation of his constitutional rights, but also

whether Officer Sweet’s actions violated “clearly established law.” Saucier v.

Katz, 533 U.S. 194, 207 (2001). “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

For reasons we will discuss, a reasonable officer must have known that he could

not behave as Mr. Casey alleges that Officer Sweet did.

The difficult part of this inquiry is identifying the level of generality at

which the constitutional right must be “clearly established.” Since 1989, Supreme

Court precedent has unambiguously held that excessive force claims are regulated

by the Fourth Amendment, and that uses of force that are not objectively

reasonable are unconstitutional. Graham, 490 U.S. at 395. In 1992, we held that

Graham itself was enough to constitute clearly established law in an excessive

force case. Mick, 76 F.3d at 1135. More recently, however, the Supreme Court

has held that Graham’s “general proposition . . . is not enough” to turn all uses

of excessive force into violations of clearly established law. Saucier, 533 U.S. at

-12-
201–02. In other words, the fact that it is clear that any unreasonable use of force

is unconstitutional does not mean that it is always clear which uses of force are

unreasonable.

“Ordinarily,” we say that for a rule to be clearly established “there must be

a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Medina v. City & County of Denver, 960 F.2d 1493, 1498

(10th Cir. 1992). However, because excessive force jurisprudence requires an all-

things-considered inquiry with “careful attention to the facts and circumstances of

each particular case,” Graham, 490 U.S. at 396, there will almost never be a

previously published opinion involving exactly the same circumstances. We

cannot find qualified immunity wherever we have a new fact pattern. See

Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (“[A] general

constitutional rule . . . can apply with obvious clarity to the specific conduct in

question, even though [such conduct] has not previously been held unlawful.”

(internal quotation marks and alteration omitted)). Indeed, the Supreme Court has

warned that “officials can still be on notice that their conduct violates established

law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741

(2002). The Hope decision “‘shifted the qualified immunity analysis from a

scavenger hunt for prior cases with precisely the same facts toward the more

relevant inquiry of whether the law put officials on fair notice that the described

-13-
conduct was unconstitutional.’” Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.

2006) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)).

We have therefore adopted a sliding scale to determine when law is clearly

established. “The more obviously egregious the conduct in light of prevailing

constitutional principles, the less specificity is required from prior case law to

clearly establish the violation.” Pierce, 359 F.3d at 1298. Thus, when an

officer’s violation of the Fourth Amendment is particularly clear from Graham

itself, we do not require a second decision with greater specificity to clearly

establish the law.

Holland ex. rel. Overdorff v. Harrington, 268 F.3d 1179, 1193 (10th Cir.

2001), illustrates the point. There, sheriffs who deployed a SWAT team that

“h[e]ld . . . children directly at gunpoint after the officers had gained complete

control of the situation,” were held liable under Garner and not entitled to

qualified immunity. Even though we had not ruled on a similar factual situation

before, we held that the officers were not entitled to immunity from an excessive

force claim because there were “no substantial grounds for a reasonable officer to

conclude that there was legitimate justification” for his conduct. Id. at 1197.

We have located no case in which a citizen peacefully attempting to return

to the courthouse with a file he should not have removed has had his shirt torn,

and then been tackled, Tasered, knocked to the ground by a bevy of police

officers, beaten, and Tasered again, all without warning or explanation. But we

-14-
need not have decided a case involving similar facts to say that no reasonable

officer could believe that he was entitled to behave as Officer Sweet allegedly

did. Graham establishes that force is least justified against nonviolent

misdemeanants who do not flee or actively resist arrest. 490 U.S. at 396. Mick

establishes that Officer Sweet is responsible not only for the force he used against

Mr. Casey but for failing to take some steps to mitigate the fracas that ensued. 76

F.3d at 1136. In light of those two rules, a reasonable officer could not have

found a “legitimate justification” for Officer Sweet’s conduct on the facts now

before us. Holland, 268 F.3d at 1197. Therefore, he is not entitled to immunity

from trial.

B. Officer Lor’s Liability

1. Constitutional Violation

A Taser like the M26 generates a charge of 50,000 volts, although the total

amount of electricity delivered, and hence the severity of the pain inflicted,

depends greatly on how long the Taser is applied. Taser International, Basic

Electric Principles, available at http://www.taser.com/research/Science/Pages/

BasicElectricPrinciples.aspx. Mr. Casey testified that after he was hit, “all [he]

could think of was making that electricity stop.” App. 103.

And what was the provocation? The scene must be viewed objectively,

from the perspective of a reasonable officer in Officer Lor’s shoes, taking the

-15-
facts in the light most favorable to the party opposing summary judgment.

Graham, 490 U.S. at 396. Mr. Casey had attempted to return to the courthouse,

unaware that the reason he was being grabbed was that he was under arrest.

There was a struggle. But as Mr. Casey and the eyewitnesses tell it, Mr. Casey

was not fighting back even though Officer Sweet had tackled him and ripped his

shirt. Officer Lor fired almost immediately upon arrival, and one witness testified

that she could not have known what was going on. Applying Graham’s test of

objective reasonableness, her conduct cannot be justified by “the severity of the

crime at issue,” by any “threat to the safety of the officers or others,” or by

“active[] resist[ance to] arrest or [an] attempt[] to evade arrest by flight.” Id. at

396. The crime was not severe, Mr. Casey was not threatening, and he was not

fleeing the scene.

According to Mr. Casey, when Officer Lor arrived on the scene she hit him

with her Taser “immediately and without warning.” Aplt’s Op’g Br. 21. The

absence of any warning—or of facts making clear that no warning was

necessary—makes the circumstances of this case especially troubling. Cf.

Mecham, 2007 WL 2608624 (concluding that the use of pepper spray after

repeated warnings was not excessive force). Officer Lor gave Mr. Casey no

opportunity to comply with her wishes before firing her Taser. While we do not

rule out the possibility that there might be circumstances in which the use of a

Taser against a nonviolent offender is appropriate, we think a reasonable jury

-16-
could decide that Officer Lor was not entitled under these circumstances to shoot

first and ask questions later.

Cases in our Circuit and others that have considered the reasonable use of

Tasers confirm this conclusion. In Hinton v. City of Elwood, 997 F.2d 774, 777

(10th Cir. 1993), we held that it was not excessive for officers to use an

“electrical stun gun” on a man after grabbing him and wrestling him to the

ground. But we noted that what justified this conduct was his active resistance to

arrest—Mr. Hinton was kicking and biting the officers and had shoved one of

them to start the fight. Id. at 776–77, 781. Moreover, the officers had warned

Mr. Hinton, before he shoved one of them, that they would arrest him for

disorderly conduct “if he engaged in one more outburst.” Id. at 776. Neither of

these factors—the warning or the violence of the victim—is present here to justify

the use of the Taser.

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

Eleventh Circuit held it reasonable to fire a Taser at a truck driver who refused to

provide his insurance information or a bill of lading and was yelling loudly at a

police officer who pulled him over. The officer had not advised Mr. Draper that

he was under arrest. Id. at 1276–77. However, the court found an electric shock

from the Taser “reasonably proportionate” to the situation because Mr. Draper

was belligerent and hostile, and because he had refused five commands to retrieve

his documents from the cab of his truck. Id. at 1278. We are not sure that we

-17-
would have come to the same conclusion on those facts, but even so, Officer

Lor’s use of the Taser was more egregious. Her conduct could not be justified by

Mr. Casey’s resistance to her commands because she did not give him any

commands to obey.

We have located no published decision in which an officer’s use of a Taser

has been upheld in circumstances this troubling. Officer Lor testified that the

policy of the Federal Heights police department is that a Taser can appropriately

be used to “control” a target. App. 117. However, it is excessive to use a Taser

to control a target without having any reason to believe that a lesser amount of

force—or a verbal command—could not exact compliance. Because a reasonable

jury could find that Officer Lor lacked any such reason, she is not entitled to

summary judgment on the constitutional violation.

2. Clearly Established Law

Like Officer Sweet, Officer Lor asserts qualified immunity, so we must

also decide whether her use of excessive force violated “clearly established law.”

Saucier, 533 U.S. at 207. We hold that it did.

As we discussed above, an officer’s violation of the Graham

reasonableness test is a violation of clearly established law if there are “no

substantial grounds for a reasonable officer to conclude that there was legitimate

justification” for acting as she did. Holland, 268 F.3d at 1197. Each factor in

-18-
Graham counseled against the use of a large amount of force. Officer Lor

concedes that even at the time she did not think that Mr. Casey “presented an

immediate threat of death or serious injury to himself or others.” App. 117. On

the summary judgment record—which of course may be disputed at trial—Officer

Lor’s use of the Taser was without any legitimate justification in light of Graham.

We do not know of any circuit that has upheld the use of a Taser immediately and

without warning against a misdemeanant like Mr. Casey. Therefore, Officer Lor

is not entitled to qualified immunity from this excessive force suit.

C. Municipal and Supervisory Liability

Mr. Casey also sued Police Chief Les Acker and the City of Federal

Heights, asserting supervisory and municipal liability, respectively, under 42

U.S.C. § 1983. After holding that Officer Sweet and Officer Lor had not used

excessive force the district court dismissed these claims because “claims of

supervisory and municipal liability under section 1983 presuppose the existence

of a constitutional violation.” Casey, 2006 WL 2711760, at *4. Because we

reverse the district court’s grant of summary judgment for Officers Sweet and

Lor, we also reverse its logically dependent grant of summary judgment for Chief

Acker and the City, without prejudice to any other legal or factual defenses they

may wish to present on remand.

-19-
 III. CONCLUSION

We REVERSE the district court’s grant of summary judgment for all of the

defendants and REMAND all of Mr. Casey’s claims for further proceedings.

-20-