United States Court of Appeals
For the First Circuit
No. 09-2418
CARL STATCHEN,
Plaintiff, Appellant,
v.
JASON PALMER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Gajarsa* and Thompson,
Circuit Judges.
Michael J. Sheehan for appellant.
Jeanne P. Herrick with whom Charles P. Bauer and Gallagher,
Callahan & Gartrell, P.C. were on brief for appellees Jason M.
Palmer, Dick A. Scott, and City of Concord.
October 15, 2010
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. In June 2007, Carl Statchen
struggled with two police officers over their attempt to take him
into protective custody for public intoxication; he also fought the
subsequent efforts of several officers to transport him from the
station house to jail. Statchen later brought this civil rights
action, 42 U.S.C. § 1983 (2006), alleging that the officers used
excessive force in both episodes. The district court granted
summary judgment against him, and he now appeals.
We recount the facts in the light most favorable to
Statchen as the party opposing summary judgment. Dwan v. City of
Boston, 329 F.3d 275, 277 (1st Cir. 2003). On June 21, 2007,
Statchen drove from his home in Connecticut to Concord Hospital in
New Hampshire, where his daughter was scheduled to have surgery the
next morning. Statchen, a recovering alcoholic, was anxious about
the surgery and bought a six-pack of beer to cope.
He drank five of the 16-ounce cans, slept in his car and
drank the sixth in the morning before entering the hospital. There
he quarreled with his ex-wife, left to acquire more beer--he drank
several more cans--and returned to the hospital only to be asked to
leave. Concord police officer Dick Scott responded to the
hospital's report of a verbally abusive and intoxicated male and
met Statchen at the hospital exit; concerned that Statchen might
drive, Scott administered a breathalyzer test, which led him to
confiscate the keys to Statchen's car. Scott also asked about the
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large bruise adorning Statchen's left eye; Statchen explained to
the officer that he had been in a fight the day prior and bragged
that "the other guy" looked worse.
Statchen then walked to a convenience store where he
bought food and coffee, as he told Scott he would, but also beer;
he quaffed four more cans behind the store. Concord police officer
Jason Palmer responded to a call about Statchen, followed shortly
by Scott. After an exchange--Scott had earlier warned Statchen to
stop drinking--Scott announced that he was taking Statchen into
protective custody, N.H. Rev. Stat. Ann. § 172-B:3(I)(c) (2002);
the officer ordered Statchen to put his hands behind his back to be
cuffed.
Although accounts now diverge, it is clear that Statchen
resisted in some fashion. Statchen himself says that he assumed a
posture akin to "a line backer position" to brace himself as the
officers moved to pinion him. The officers grabbed his arms, and
Statchen--5'10" tall and weighing approximately 250 pounds at the
time--tumbled to the ground. A brief melee ensued, with the
officers kneeing and hitting Statchen until finally he stopped
struggling and verbally acquiesced.
During the ride to the police station, Statchen boasted
that it took two officers to restrain him. When at the station
Scott sought to cuff him again--to transport him to a jail located
away from the station--Statchen again resisted; several officers
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rushed him; and a fight ensued. Statchen was eventually subdued
and transported to the jail, which admitted him only after a
hospital check. He was later found to have fractured two ribs.
Statchen was afterwards charged in three criminal
complaints, comprising two counts of resisting arrest or detention,
N.H. Rev. Stat. Ann. § 642:2 (2007), and one count of simple
assault, id. § 631:2-a(I)(a). On January 14, 2008, he was
convicted upon a plea of nolo contendere on both counts of
resisting arrest or detention; the simple assault complaint was
"placed on file" (that is, prosecution was deferred) on condition
of good behavior for six months.
Statchen then filed this section 1983 action in federal
district court in New Hampshire against Palmer, Scott and the City
of Concord. The complaint charged that Palmer and Scott had
violated Statchen's fourth amendment rights by using excessive
force to handcuff him at the convenience store and that Scott did
so again at the police station; Statchen also asserted common law
assault claims for the same conduct.
The district court granted summary judgment for the
defendants, relying on affidavits from both officers and a
deposition of Statchen. The court found that the suit was not
barred by Heck v. Humphrey, 512 U.S. 477 (1994), but that the
officers' conduct was reasonable and also protected by qualified
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immunity.1 The court dismissed the state law claims on analogous
state grounds, and--as Statchen did not address the state claims in
his appellate brief--reliance on them at oral argument came too
late. Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134, 137 n.1 (1st
Cir. 2006).
The qualified immunity defense accepted by the district
court disposes of this appeal, and the legal framework for it is
straightforward. An arrest is a form of fourth amendment seizure
and the use of force to effect it must be reasonable under all the
circumstances, Graham v. Connor, 490 U.S. 386, 396 (1989); but
under the doctrine of qualified immunity, police officers are
themselves entitled to reasonable latitude in making judgments
about how much force is necessary to overcome resistance.
Qualified immunity is often resolved before trial, one of its aims
being to avoid the burden of trial as well as liability itself.
Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004).
While qualified immunity is often invoked in cases where
legal principles were unclear at the time of the disputed conduct,
it also protects reasonable assessments of fact, Maldonado v.
1
A damages claim that would necessarily imply the invalidity
of the claimant's prior criminal conviction, sentence or detention
is not cognizable under section 1983 unless and until the plaintiff
has first obtained a favorable termination of the conviction. See
Heck, 512 U.S. at 486-87; Thore v. Howe, 466 F.3d 173, 179 (1st
Cir. 2006). In our case, the district court held that Statchen
could succeed on his excessive force claims without implying that
his convictions for resisting arrest were invalid.
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Fontanes, 568 F.3d 263, 269 (1st Cir. 2009), even if matters might
have been handled differently in the calm of retrospective
appraisal, Roy v. Inhabitants of Lewiston, 42 F.3d 691, 695 (1st
Cir. 1994). The aim of the doctrine in both cases is to avoid the
chilling effect of second-guessing where the officers, acting in
the heat of events, made a defensible (albeit imperfect) judgment.
See id.
On summary judgment, the non-moving party (as we have
noted) is entitled to have the court credit his version of events,
but with qualifications: incredible assertions by that party need
not be accepted, Scott v. Harris, 550 U.S. 372, 380 (2007), nor
must conclusory allegations, Martínez-Rodríguez v. Guevara, 597
F.3d 414, 419 (1st Cir. 2010). And the evidence from the moving
party as to specific facts can be accepted by the court where no
contrary evidence is tendered by the party opposing summary
judgment. LaFrenier v. Kinirey, 550 F.3d 166, 167 (1st Cir. 2008).
It is only where a material issue of fact remains in genuine
dispute that the case must be put to trial.
Here, Statchen's section 1983 complaint claimed that he
"spoke with the officers, offered no resistance, and was jumped by
the police near the convenience store for no apparent reason" and
that he "made no visible attempt to resist." Yet Statchen's own
deposition fails to dispute that he refused police orders to allow
himself to be cuffed. Nor does Statchen claim that at the police
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station he obeyed the instruction to allow the police to cuff him
again.
Statchen's case comes down then to the proposition that
although he resisted arrest in both incidents--and pled nolo
contendere to those charges--the police officers struck him too
hard or continued to strike him after he had stopped resisting.
Cf. Thore, 466 F.3d at 180. The difficulty for Statchen is not
that the police officers' affidavits offer no support for such a
story; it is that his own deposition also fails to do so and there
is no indication that he filed any affidavit at all.
On their side, the police officers' affidavits gave a
largely consistent description of a melee in which two officers
tried to seize a heavy and intoxicated man who was refusing to
submit and who fell to the ground and continued to grab and
struggle with the officers.2 They admit to using considerable
force, but only to the extent that Statchen refused to submit to
handcuffs. The officers shouted at him to stop resisting
throughout the encounter, and they ceased to use force when he
finally agreed to stop.
As against this detailed account, Statchen's deposition
gives a much hazier description, hardly surprising given his
2
The officers claim that Statchen grabbed Palmer's leg and may
have tried to bite it, which Statchen disputes; but whether or not
this occurred, his deposition makes perfectly clear that he did not
obey their initial verbal commands and did not lie still once he
had landed on the ground.
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intoxication. And while he is vivid in describing knees and
punches thrown at him in the struggle, nothing in his account
suggests more force than necessary to muscle a large and
uncooperative man into handcuffs--or, at least, it was reasonable
to think such force necessary, given Statchen's intransigence,
intoxication and description of his fight the day before.
At the police station, Statchen's own complaint indicated
that Scott entered the cell with other officers only after Statchen
did not comply with a verbal command to be handcuffed for
transport. His deposition account of events at the station is even
sketchier than his account of his arrest and in no way contradicts
Scott's claim that the officers used only the force needed to
handcuff him. And his resistance at the station came after a car
ride in which he crowed about fighting the officers again.
Statchen suffered two fractured ribs over the course of
the day--no trivial matter but also not surprising when a heavy and
drunken man is fighting with police officers who had done nothing
to provoke him. The district court had no basis for sending the
case to a jury because Statchen's own deposition provided no
evidence to indicate that the force exerted (however considerable)
was unnecessary, or that a reasonable police officer would have
thought otherwise.
Affirmed.
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