Hodge v. City of Long Beach

10-3060-cv
Hodge v. City of Long Beach

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of June, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOSEPH M. McLAUGHLIN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 JAMES HODGE,
14
15 Plaintiff-Appellee,
16
17 -v.- 10-3060-cv
18
19 CITY OF LONG BEACH,
20
21 Defendant,
22
23 POLICE OFFICER FALES, in his individual
24 and official capacity, POLICE OFFICER
25 WILLIAMS, in his individual and official
26 capacity,

1
1 Defendants-Appellants,
2 POLICE OFFICERS JOHN DOE 1-10, in their
3 official and individual capacities,
4 (those being the names of officers who
5 were present and committed wrongful acts
6 and whose names are known by the other
7 Defendants),
8
9 Defendants.*
10 - - - - - - - - - - - - - - - - - - - -X
11
12 APPEARING FOR APPELLANTS: RONALD J. ROSENBERG (John
13 S. Ciulla, on the brief),
14 Rosenberg Calica & Birney
15 LLP, Garden City, NY.
16
17 FOR APPELLEE (on submission): FREDERICK K. BREWINGTON,
18 Hempstead, NY.
19
20 Appeal from a judgment of the United States District
21 Court for the Eastern District of New York (Platt, J.).
22
23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
24 AND DECREED that the order of the district court is REVERSED
25 and the case REMANDED with instructions to enter judgment in
26 favor of Defendants-Appellants.
27
28 Officers Fales and Williams appeal from an order of the
29 United States District Court for the Eastern District of New
30 York (Platt, J.), which denied them qualified immunity in
31 Hodge’s 42 U.S.C. § 1983 claim of excessive force. (The
32 court granted summary judgment in favor of the officers on
33 all claims other than excessive force.) We assume the
34 parties’ familiarity with the underlying facts, the
35 procedural history, and the issues presented for review.
36
37 “Ordinarily, the denial of a motion for summary
38 judgment is not immediately appealable because such a
39 decision is not a final judgment.” Cowan ex rel. Estate of
40 Cooper v. Breen, 352 F.3d 756, 760 (2d Cir. 2003) (internal
41 quotation marks omitted). Jurisdiction nevertheless lies
42 where (as here) the appeal argues entitlement to qualified

*
The Clerk of the Court is directed to amend the
official caption to conform to the names listed above.
2
1 immunity “even under plaintiff’s version of the facts.”
2 Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002)
3 (internal quotation marks omitted). Accordingly, all
4 disputed facts are construed (and all reasonable factual
5 inferences are drawn) in Hodge’s favor.
6
7 A police officer performing a discretionary function
8 enjoys qualified immunity from an excessive force claim
9 unless (1) she “violated a constitutional right” (2) that
10 was “clearly established” at the time of the alleged
11 violation. Saucier v. Katz, 533 U.S. 194, 201 (2001),
12 overruled on other grounds by Pearson v. Callahan, 129 S.
13 Ct. 808 (2009).
14
15 “Determining whether the force used to effect a
16 particular seizure is reasonable under the Fourth Amendment
17 requires a careful balancing of the nature and quality of
18 the intrusion on the individual’s Fourth Amendment interests
19 against the countervailing governmental interests at stake.”
20 Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
21 quotation marks omitted). The inquiry, which “judge[s] from
22 the perspective of a reasonable officer on the scene, rather
23 than with the 20/20 vision of hindsight,” id., must include
24 three specific considerations:
25
26 First, we consider “the severity of the crime at
27 issue.” Id. Domestic disputes tend to be “combustible,”
28 Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998), and
29 here the 911 call, the broken glass, and the plaintiff’s
30 torn and apparently blood-stained shirt reflected a
31 potential severe domestic crime.
32
33 Second, we consider “whether the suspect poses an
34 immediate threat to the safety of the officers or others.”
35 Graham, 490 U.S. at 396. A reasonable officer could have
36 viewed the plaintiff’s continued refusals to remove his
37 hands from his pockets as an immediate threat to the
38 officer’s safety. Even before speaking with the plaintiff,
39 the officers reasonably viewed the scene as so volatile and
40 dangerous that they radioed for backup. Plaintiff’s refusal
41 to cooperate and his steps toward his brothers (the three
42 Hodge brothers outnumbered the two officers) only increased
43 the threat.
44
45 Third, we consider “whether [the suspect] is actively
46 resisting arrest or attempting to evade arrest by flight.”
47 Id. Although the plaintiff was not attempting to flee the

3
1 scene, he displayed defiant resistance, abruptly turning and
2 walking away from the officers. Id. (“Our Fourth Amendment
3 jurisprudence has long recognized that the right to make an
4 . . . investigatory stop necessarily carries with it the
5 right to use some degree of physical coercion or threat
6 thereof to effect it.” (citing Terry v. Ohio, 392 U.S. 1
7 (1968))).
8
9 These factors must be weighed against the degree of
10 force used. Id. The plaintiff claims that the officers
11 spun him around with a forearm, grabbed his neck, put him in
12 a bear hug, and pulled his arms behind his back as they
13 attempted to handcuff him, causing “injuries and bruises to
14 his back, and abrasion on his arms and neck, and [rendering
15 him] unable to swallow.” Am. Compl. ¶¶ 26-34, 38. He
16 concedes that the incident “happened quickly” and that he
17 was never forced to the ground. Joint Appendix at 211-13.
18
19 It would be “an uncomfortable exercise” to determine
20 “the answer [to] whether there was a violation” of Hodge’s
21 Fourth Amendment rights, because the decision “depend[s] on
22 a kaleidoscope of facts not yet fully developed.” Pearson,
23 129 S. Ct. at 819 (internal quotation marks omitted). But
24 because of the plaintiff’s defiance and the indicia of a
25 potential incident of domestic violence, it would not be
26 “clear to a reasonable officer that his conduct was unlawful
27 in the situation he confronted.” Saucier, 533 U.S. at 202.
28 For this reason, we exercise our discretion to first
29 determine that Hodge’s Fourth Amendment right was not
30 “clearly established” under these circumstances, Pearson,
31 129 S. Ct. at 818; the officers therefore enjoy qualified
32 immunity whether or not the force violated Hodge’s Fourth
33 Amendment rights.
34
35 For the foregoing reasons, Defendants-Appellants are
36 entitled to summary judgment based on qualified immunity for
37 Plaintiff’s § 1983 claim alleging excessive force. We
38 therefore REVERSE the order of the district court and REMAND
39 the case to the district court with instructions to enter
40 judgment for Defendants-Appellants.
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44