Wernert v. Washington

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1360

CHARLES EDWARD WERNERT, II,

Plaintiff - Appellee,

v.

JOSHUA GREEN, Deputy Sheriff, sued in his individual
capacity,

Defendant – Appellant,

and

RYANT L. WASHINGTON, Sheriff, sued in his official capacity,

Defendant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:09-cv-00031-nkm-bwc)

Argued: December 10, 2010 Decided: March 22, 2011

Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.

Affirmed by unpublished opinion. Justice O’Connor wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.

ARGUED: John Adrian Gibney, Jr., THOMPSON MCMULLAN, PC,
Richmond, Virginia, for Appellant. Jeffrey Edward Fogel,
Charlottesville, Virginia, for Appellee. ON BRIEF: Steven D.
Rosenfield, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
O’CONNOR, Associate Justice:

Charles Edward Wernert II, the Appellee, filed suit against

Fluvanna County Police Department Deputy Joshua Greene, 1 alleging

that Greene used excessive force against him. Appellant Greene

invoked a defense of qualified immunity and moved for summary

judgment. For the reasons explained herein, we affirm the

district court’s denial of summary judgment.

I

On the evening of May 4, 2007, Fluvanna County Police

Department Deputy Joshua Greene was on patrol with auxiliary

Deputy Francis Ferki. The deputies heard over their radio first

that an individual had jumped onto an ambulance on Kents Store

Road and then that a man had committed an assault at a residence

on the same road. The man who committed the assault was

described as being approximately six feet tall, wearing a white

tee shirt and blue jeans, and carrying one or two suitcases.

Near the location of the assault, the deputies saw Appellee

Wernert, who matched the description they had received.

When Wernert saw the deputies, he started walking away,

carrying a bag. The deputies stopped him and asked for

1
Deputy Greene’s name has been inconsistently spelled in
filings. We adopt the spelling employed in his brief to this
court.

3
identification, which Wernert provided. Wernert, who appeared to

be intoxicated, explained that he was on parole in Pennsylvania

and therefore was not supposed to leave that state. The radio

dispatcher confirmed that Wernert was a Pennsylvania parolee and

informed the deputies that Pennsylvania authorities wanted the

Fluvanna County authorities to detain Wernert. The deputies

then handcuffed Wernert behind his back.

The deputies spoke with individuals at the home where

Wernert allegedly committed the assault. A person at the home

explained that Wernert became angry and began to swing at

people; he also claimed that Wernert had head-butted someone who

attempted to calm him down. Wernert claims that there was only

a verbal argument.

The deputies then drove Wernert to the Sheriff’s

Department. Upon arrival, Deputy Greene instructed Wernert to

take off his belt and shoes. Wernert asked how he was supposed

to do that while still in handcuffs and was told to “figure it

out.” Wernert Dep. at 57 (J.A. 35). Wernert managed to remove

his belt. Deputy Greene then told Wernert to “kick your shoes

off.” Id. at 59 (J.A. 36). Wernert kicked off his right shoe,

but had difficulty removing his left shoe. When he managed to

kick off his left shoe “it flipped up on [him], and it

accidentally hit [Deputy Ferki] in the face.” Id. Wernert

quickly apologized. Id. at 60 (J.A. 115). Deputy Greene then

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slammed Wernert to the ground. Upon seeing a pool of blood

around Wernert’s face, the deputies sought medical assistance.

Wernert suffered multiple facial fractures and impacted and

displaced teeth. He received stitches, had his teeth

straightened, and had a wire splint placed in his mouth.

Wernert filed suit against Deputy Greene in the U.S.

District Court for the Western District of Virginia. 2 Wernert

brought a 42 U.S.C. § 1983 claim alleging that Greene subjected

him to excessive force in violation of the Fourteenth Amendment. 3

Construing the facts in the light most favorable to Wernert, the

district court concluded that Deputy Greene’s actions violated

Wernert’s Fourteenth Amendment rights, which were clearly

established at the time of the incident. The district court

therefore denied Greene’s motion for summary judgment on the

basis of qualified immunity. Wernert v. Washington, No. 3:09cv-

2
Wernert also filed state law assault, battery, and gross
negligence claims against both Greene and Fluvanna County
Sheriff Ryant L. Washington. The district court granted the
defendants’ summary judgment motion on the assault claim and
denied their motions for summary judgment on the other two
state-law claims. Wernert v. Washington, No. 3:09cv-00031, 2010
WL 924281, at *8-*9 (W.D. Va. Mar. 11, 2010). The state law
claims are not at issue in this appeal.
3
Wernert also cited the Eighth Amendment as a basis for his
excessive force claim, but the district court properly granted
summary judgment on the Eighth Amendment claim because excessive
force claims by pretrial detainees are the purview of the
Fourteenth Amendment. See Orem v. Rephann, 523 F.3d 442, 446
(4th Cir. 2008).

5
00031, 2010 WL 924281 (W.D. Va. Mar. 11, 2010). Deputy Greene

appeals the district court’s denial of his motion for summary

judgment on qualified immunity grounds.

II

Under 28 U.S.C. § 1291, this Court has jurisdiction over

all final district court orders. Qualified immunity is an

“immunity from suit rather than a mere defense to liability; and

. . . it is effectively lost if a case is erroneously permitted

to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Therefore, “[t]o the extent that an order of a district court

rejecting a governmental official’s qualified immunity defense

turns on a question of law, it is a final decision within the

meaning of § 1291 under the collateral order doctrine recognized

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),

and . . . is subject to immediate appeal.” Winfield v. Bass,

106 F.3d 525, 528–29 (4th Cir. 1997) (en banc) (citing, inter

alia, Behrens v. Pelletier, 516 U.S. 299 (1996), and Mitchell,

472 U.S. at 524–30).

However, a defendant invoking a qualified immunity defense

“may not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.” Johnson

v. Jones, 515 U.S. 304, 319–320 (1995). In other words, on an

6
interlocutory appeal “we possess no jurisdiction over a claim

that a plaintiff has not presented enough evidence to prove that

the plaintiff’s version of the events actually occurred, but we

have jurisdiction over a claim that there was no violation of

clearly established law accepting the facts as the district

court viewed them.” Winfield, 106 F.3d at 530; see also Witt v.

W. Va. State Police, 2011 WL 338792, No. 10-1008, at *2 (4th

Cir. Feb. 4, 2011); Iko v. Shreve, 535 F.3d 225, 235 (4th Cir.

2008).

Contrary to Appellee Wernert’s contention, we have

jurisdiction over this appeal. Wernert’s reliance on Culosi v.

Bullock, 596 F.3d 195 (4th Cir. 2010), is misplaced. Culosi

involved a § 1983 excessive force claim under the Fourth

Amendment. There we determined that we did not have jurisdiction

over an interlocutory appeal because the district court denied

summary judgment due to a genuine dispute of material fact over

what happened—whether the police officer discharged his weapon

intentionally or accidentally—not simply due to a dispute over

the legal effect of an agreed set of facts. Id. at 202. In

this case, by contrast, Deputy Greene does not dispute what

happened on the night of May 4; he disputes its legal effect:

whether the force he used violated Wernert’s clearly established

constitutional rights under the Fourteenth Amendment.

Therefore, this is a “claim that there was no violation of

7
clearly established law accepting the facts as the district

court viewed them,” Winfield, 106 F.3d at 530, over which we

have jurisdiction.

We now proceed to consider Greene’s arguments on the

merits.

III

Generally, “government officials performing discretionary

functions . . . are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity ensures that “[o]fficials are not

liable for bad guesses in gray areas; they are liable for

transgressing bright lines.” Iko, 535 F.3d at 238 (quoting

Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).

In evaluating a qualified immunity claim, we first

determine whether, construing the facts in the light most

favorable to the nonmoving party, the government official’s

actions violated a constitutional right. If so, we must

ascertain whether the right was clearly established at the time

of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001).

Although that order of decision is no longer mandatory, Pearson

v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009), we have

8
discretion to follow it in appropriate cases, id., and we do so

here.

We review a district court’s denial of summary judgment and

qualified immunity de novo, construing the facts in the light

most favorable to the non-moving party, here Wernert. Orem v.

Rephann, 523 F.3d 442, 445 (4th Cir. 2008).

A

The district court correctly understood that Wernert’s

excessive force claim falls under the Due Process Clause of the

Fourteenth Amendment. Wernert, 2010 WL 924281, at *5; see Orem,

523 F.3d at 446.

To prevail on his claim, Wernert must show that Deputy

Greene “‘inflicted unnecessary and wanton pain and suffering.’”

Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998) (quoting

Whitley v. Albers, 475 U.S. 312, 320 (1986)), abrogated on other

grounds by Wilkins v. Gaddy, 130 S. Ct. 1175, 1178–79 (2010)

(per curiam). In other words, he must show that “the officers’

actions amounted to punishment and were not merely ‘an incident

of some other legitimate governmental purpose.’” Robles v.

Prince George’s Cnty., Md., 302 F.3d 262, 269 (2002) (quoting

Bell v. Wolfish, 441 U.S. 520, 538 (1979)). “In determining

whether [this] constitutional line has been crossed, a court

must look to such factors as the need for the application of

force, the relationship between the need and the amount of force

9
used, the extent of the injury inflicted, and whether the force

was applied in a good faith effort to maintain and restore

discipline or maliciously and sadistically for the very purpose

of causing harm.” Orem, 523 F.3d at 446 (quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

Construing the facts in the light most favorable to

Wernert, a reasonable jury could conclude that Deputy Greene’s

“takedown” of Wernert was “wanton” and “unnecessary,” rather

than “a good faith effort to maintain and restore discipline,”

id., and that it therefore constitutes a constitutional

violation.

The injuries inflicted on Wernert were severe. Medical

records from the University of Virginia Health System, which

treated Wernert, show that he suffered multiple facial fractures

and impacted and displaced teeth. J.A. 162–63. He required

stitches for facial lacerations and a wire splint to treat the

affected teeth. Id.

Turning to the need for and amount of force employed, the

facts support the conclusion that the force used was excessive.

Neither Wernert’s actions nor his possible actions about which

Deputy Greene claims to have been concerned appear particularly

threatening. Wernert’s act of kicking off his shoe, an act he

avers that Deputy Greene told him to do, did not result in

injury to Deputy Ferki. In fact, Deputy Ferki explained that

10
when he felt an object strike his cheek and realized it was

Wernert’s shoe, he smiled and “was going to say good shot or

nice shot,” Ferki Dep. at 53 (J.A. 144), when Greene took

Wernert to the ground. Wernert, of course, alleges that it was

an accident that the shoe hit Deputy Ferki at all. Wernert Dep.

at 60 (J.A. 115).

Deputy Greene’s own statements support the proposition that

Wernert did not pose a threat. Deputy Greene stated that when

they arrived at the police station, Wernert “wasn’t being

disrespectful or aggressive,” and so he planned to remove

Wernert’s handcuffs. Greene Dep. at 81 (J.A. 61). Greene also

stated that prior to the shoe hitting Deputy Ferki, he did not

perceive Wernert to be a threat to either deputy. Id. at 90

(J.A. 65). When Wernert kicked off his shoe, however, Greene

explained that he used an “escort takedown” maneuver to take

Wernert to the floor because Wernert might “[k]ick me, at the

very least.” Id. He further explained, “at the time [Wernert]

was a threat to me, as well as still a threat to Ferki. I was,

you know, within a few inches, a foot of Mr. Wernert. He had

already been involved in one altercation . . . that night. He

appeared intoxicated at the time. Once you are on the ground,

it eliminates the whole threat.” Id. at 89–90 (J.A. 64–65).

In the district court, Wernert submitted an affidavit by

Timothy Lynch, an expert in police defensive tactics. Lynch

11
explained that, in his opinion, “[t]he need to stabilize a

restrained subject such as Mr. WERNERT, who offered no

resistance or signs of aggression, would not require the use of

an Escort Takedown.” Lynch Declaration at 3 (J.A. 170). He

concluded that “no reasonable law enforcement officer would have

felt threatened under these circumstances.” Id. at 2 (J.A.

169).

The particular manner in which Deputy Greene took Wernert

to the floor further suggests that the type of force used was

excessive. Greene claims that he used an “escort takedown”

because he believed it would be less harmful than the

alternative “leg sweep” maneuver, which could have caused

Wernert to break his arm or wrist. Greene Dep. at 108 (J.A.

72). Greene describes the “escort takedown” he performed as

“help[ing]” Wernert to the ground. Id. at 96 (J.A. 134).

Greene concedes that he then got on top of Wernert, putting his

knee on Wernert’s back.

Lynch’s declaration, however, explains that Deputy Greene’s

use of the escort takedown maneuver was “not consistent with the

purpose for which it was intended.” Lynch Declaration at 2

(J.A. 170). He explained that the proper technique “requires

the subject’s controlled arm to be extended at a right angle to

the body, with downward pressure directed to the triceps area of

the arm just above the elbow. The subject is in a position to

12
brace his fall with the ‘free’ hand as the officer can control

the angle and direction of the takedown to the prone position.

In this manner, the subject’s fall is directed to the chest and

abdomen.” Id. In this case, however, with Wernert handcuffed

and impaired by alcohol, Lynch explained that “it would be

extremely difficult, if not improbable, for [Wernert] to brace

his fall in a forward direction . . . [and] equally difficult

for Deputy GREENE to be able to control Mr. WERNERT’s body

weight during the takedown.” Id. Lynch concluded that

application of the escort takedown in the circumstances of the

restraints imposed on Wernert “would most likely cause a subject

to hit the floor face first, rather than chest first.” Id.

All of this evidence, again construed in the light most

favorable to Wernert, supports the conclusion that even if force

was justified at all, the force applied here was

disproportionate to any threat posed, especially since Wernert

was no longer wearing shoes and was still handcuffed.

The question remains whether the force “was applied in a

good faith effort to maintain and restore discipline or

maliciously and sadistically for the very purpose of causing

harm.” Orem, 523 F.3d at 446 (quoting Johnson, 481 F.2d at

1033). Given the minimal and allegedly accidental nature of the

breach of discipline Wernert committed, coupled with Deputy

Greene’s own perception that Wernert was not aggressive, the

13
fact and magnitude of force employed against Wernert suggests

that it was unnecessary to “restore discipline.” Lynch’s

declaration suggests the example of “[w]ristlock controls” as a

“less forceful and more effective” technique. Lynch Declaration

at 2 (J.A. 170). Deputy Ferki’s account of the incident also

suggests that Deputy Greene may have acted in a retaliatory

manner. Ferki recounts that Greene told Wernert to “[g]et on

the ground” and stated “don’t be kicking your shoes off at my

deputy. Don’t be trying to assault my deputy. That’s assault

on an officer.” Ferki Dep. at 59 (J.A. 83).

Although “‘[n]ot every push or shove, even if it may later

seem unnecessary,’” Graham v. Connor, 490 U.S. 386, 396 (1989)

(quoting Johnson, 481 F.3d at 1033), violates an individual’s

constitutional rights, the facts in this case, viewed in the

light most favorable to Wernert, demonstrate that the force

Deputy Greene employed was not a good faith effort to restore

discipline.

B

Having concluded that Deputy Greene’s conduct violated

Wernert’s Fourteenth Amendment right as an arrestee to be free

from punishment, we must determine whether the constitutional

right was clearly established at the time of the incident. We

have no difficulty in concluding that in May 2007, it was

“clearly established that an arrestee or pretrial detainee is

14
protected from the use of excessive force.” Orem, 523 F.3d, at

448 (citing Bell, 441 U.S. 520); Martin v. Gentile, 849 F.2d

863, 870 (1988) (“[T]he pretrial detainee, who has yet to be

adjudicated guilty of any crime, may not be subjected to any

form of ‘punishment.’”).

Greene nonetheless argues that “a reasonable officer would

not have known that the force used by Greene violated the

plaintiff’s due process rights.” Appellant’s Br. at 20. He is

entitled to qualified immunity if “a reasonable officer could

have believed [Greene’s actions] to be lawful, in light of

clearly established law and the information the . . . officers

possessed.” Anderson v. Creighton, 483 U.S. 635, 641 (1987);

Orem, 523 F.3d at 448 (citing Hunter v. Bryant, 502 U.S. 224,

227 (1991)).

The unreasonableness of Greene’s actions is put into sharp

relief by Deputy Ferki’s very different perception of the shoe

incident. Ferki stated that after the shoe hit him, he was

smiling and “was going to say good shot or nice shot.” Ferki

Dep. at 53 (J.A. 144). There is a world of difference between

the reaction of Deputy Ferki—the person who absorbed the blow

from the shoe—and that of Deputy Greene. In addition, Lynch’s

declaration supports the idea that a “reasonable law enforcement

officer” would not “have felt threatened under these

circumstances to take someone in custody to the ground so

15
violently.” Lynch Declaration at 2 (J.A. 169). In these

circumstances, a reasonable officer in Deputy Greene’s position

could not have believed that it would be lawful to slam an

already restrained detainee face first into a concrete floor.

This conclusion finds further support in this court’s

decision in Orem v. Rephann, 532 F.3d 442, which bears factual

similarities to this case. In Orem, we affirmed the district

court’s denial of summary judgment on qualified immunity grounds

to a police officer who twice tasered an unruly woman while she

was restrained in the back of a police car. We held that,

viewing the facts in the light most favorable to the tasered

woman, the officer’s use of the taser in such circumstances “was

wanton, sadistic, and not a good faith effort to restore

discipline.” Id. at 447. We recognized there, as we do here,

that the right of an arrestee to be free from the use of

excessive force was clearly established. Id. at 448 (citing

Bell, 441 U.S. 520). Considering the behavior of the officer

who used the taser in comparison to that of other officers

present at the scene who merely secured the woman’s restraints,

we concluded that the use of the taser was “not objectively

reasonable.” Id. at 449.

Similarly here, Deputy Greene’s use of force against

Wernert, who was already restrained and posed little possibility

of harm to the officers, was not objectively reasonable and

16
contravened clearly established law. Therefore, Deputy Greene

is not entitled to qualified immunity.

IV

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

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