Jonathan Hedgpeth v. Ammar Rahim

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2017 Decided June 26, 2018

No. 16-7146

JONATHAN HEDGPETH,
APPELLANT

v.

AMMAR RAHIM, DISTRICT OF COLUMBIA POLICE OFFICER,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AND MATTHEW
RIDER, DISTRICT OF COLUMBIA POLICE OFFICER,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01228)

Joseph A. Scrofano argued the cause and filed the briefs
for appellant.

Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General.

Before: KAVANAUGH, SRINIVASAN, and PILLARD, Circuit
Judges.
 2
Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Jonathan Hedgpeth brought a
civil suit against two police officers, alleging that they violated
his Fourth Amendment rights by arresting him without
probable cause and using excessive force to subdue him. The
officers moved for summary judgment, arguing that they were
protected by qualified immunity from Hedgpeth’s claims. The
district court granted summary judgment in favor of the
officers, and we affirm.

I.

For purposes of reviewing the court’s grant of summary
judgment against Hedgpeth, we view the facts giving rise to his
arrest in the light most favorable to him. Johnson v. District of
Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008). As we explain
below, however, we resolve one factual dispute against
Hedgpeth (concerning whether one of the officers intended to
injure Hedgpeth) based on the absence of evidentiary support
for Hedgpeth’s account. Hedgpeth does not himself recall the
events surrounding his arrest, but introduced the testimony of
Marcus Lee, a witness to the arrest.

On the evening of March 2, 2015, two officers of the
Washington, D.C. Metropolitan Police Department, Ammar
Rahim and Matthew Rider, were coordinating medical
assistance for a homeless man when a disturbance down the
street caught their attention. The officers observed Hedgpeth
push a tall, African-American man, who returned the push, as
the pair walked towards the officers. According to the officers,
the man pushed by Hedgpeth approached them and said he did
not know Hedgpeth and asked whether they had seen Hedgpeth
push him.
 3
Some time later, the officers approached Hedgpeth outside
a bar. At the time, Hedgpeth was conversing with a former
colleague, the aforementioned Marcus Lee. The officers
explained that they had received reports of someone going up
and down the street hitting others. Initially, Lee attempted to
explain that he and Hedgpeth had greeted each other with a
benign “buddy punch,” but Lee quickly realized the officers
were investigating something that had happened before his
arrival. (Although there is a dispute between the parties on
whether Lee was the tall, African-American man whom the
officers had previously seen Hedgpeth push—Hedgpeth says
yes, the officers say no—we have no need to resolve that
dispute, as explained below.)

The officers began to question Hedgpeth, with little
success. Officer Rider asked Hedgpeth for his name and
inquired whether he had been drinking, but Hedgpeth did not
respond. When Hedgpeth did speak, he slurred his words and
avoided answering any questions. Officer Rider then asked
Hedgpeth for identification, which he reluctantly surrendered.
When Officer Rider attempted to photograph the identification
card, Hedgpeth continued to speak incoherently and swore at
the officers. At some point, the officers asked Lee if he would
be willing to take Hedgpeth home. Lee responded that
Hedgpeth was “hard to handle.” J.A. 69-70.

After warning Hedgpeth several times to calm down,
Officer Rahim told him he was under arrest. Hedgpeth began
to scream, shouting that he had done nothing wrong and
demanding to be let go. Officer Rahim ordered Hedgpeth to
put his arms behind his back, but Hedgpeth did not comply.
After Officer Rahim repeated his order multiple times, he
reached for Hedgpeth’s left arm. Officer Rahim also used his
knee to push the back of Hedgpeth’s leg and take him down to
 4
the ground. As Hedgpeth fell, his head struck the grid of the
paned window of the bar.

With Hedgpeth on the ground, Officer Rider grabbed his
arm and the officers handcuffed him. As a result of his head
hitting the window, Hedgpeth suffered a concussion,
headaches, vertigo, and other post-concussive symptoms. No
criminal charges were brought against Hedgpeth.

Several months later, Hedgpeth sued the two officers in
their individual capacities in the district court. See 42 U.S.C.
§ 1983. Hedgpeth alleged that his arrest was unlawful and that
Officer Rahim had used excessive force against him, both in
violation of the Fourth Amendment. The officers moved for
summary judgment, contending that they had acted lawfully
and that, in any event, they were entitled to qualified immunity
against Hedgpeth’s suit.

The district court granted the officers’ motion for
summary judgment. The court concluded that the officers had
probable cause to arrest Hedgpeth for a number of offenses,
including public intoxication. The court also held that Officer
Rahim was entitled to qualified immunity on the excessive-
force claim because no clearly established law prohibited the
takedown maneuver he allegedly used to effect the arrest.
Hedgpeth now appeals.

II.

On appeal, Hedgpeth renews his contentions that the
officers unlawfully arrested him without probable cause and
that Officer Rahim used excessive force against him. In order
to prevail on his claims, Hedgpeth needs to surmount the
officers’ claim of qualified immunity.
 5
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S.
223, 231 (2009)). The purpose of the doctrine is to protect
officials “from undue interference with their duties and from
potentially disabling threats of liability” in civil damages
actions. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). We
review de novo the district court’s grant of summary judgment
on the basis of qualified immunity. See Lash v. Lemke, 786
F.3d 1, 5 (D.C. Cir. 2015).

To prevail against the officers’ claim of qualified
immunity, Hedgpeth must show that: (i) the officers violated
his Fourth Amendment rights; and (ii) his Fourth Amendment
rights were “clearly established . . . in light of the specific
context of the case.” Scott v. Harris, 550 U.S. 372, 377 (2007).
We can take up those questions in either order. E.g., Mullenix,
136 S. Ct. at 308. We thus have discretion to forgo assessing
whether the officers infringed Hedgpeth’s Fourth Amendment
rights and to resolve the claims on the ground that, regardless
of whether a Fourth Amendment violation occurred, the
officers “did not violate clearly established law.” White v.
Pauly, 137 S. Ct. 548, 551 (2017) (per curiam). We follow that
course here.

Although the Supreme Court’s decisions do “not require a
case directly on point for a right to be clearly established” for
purposes of qualified immunity, “existing precedent must have
placed the statutory or constitutional question beyond debate.”
Id. (internal quotation marks omitted). And the “clearly
established law should not be defined at a high level of
generality,” but “must be particularized to the facts of the
case.” Id. at 552 (internal quotation marks omitted). The Court
 6
has observed that immunity thus “protects all but the plainly
incompetent or those who knowingly violate the law.” Id. at
551 (internal quotation marks omitted).

A.

We first address Hedgpeth’s claim that the officers
violated his rights under the Fourth Amendment by arresting
him without probable cause. To demonstrate that their
warrantless arrest of Hedgpeth was lawful, the officers would
need to show they had probable cause to arrest him. See
Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993). And
regardless of whether they in fact had probable cause, they are
entitled to qualified immunity if they “had an objectively
reasonable basis for believing that the facts and circumstances
surrounding the arrest were sufficient to establish probable
cause.” Id.; see Malley v. Briggs, 475 U.S. 335, 341 (1986).

The officers argue that they had probable cause to arrest
Hedgpeth for a number of offenses. They contend that they
had probable cause to arrest Hedgpeth for public intoxication
based on his belligerent behavior. They alternatively submit
that they had probable cause to arrest him for disorderly
conduct, simple assault, and affray, all based on their belief that
he had pushed a stranger on the street. The district court
accepted the officers’ assertion that Hedgpeth had pushed a
stranger, finding that the record foreclosed Hedgpeth’s position
that the person the officers saw him push in fact was Lee, not a
third person. Hedgpeth v. Rahim, 213 F. Supp. 3d 211, 223
(D.D.C. 2016). Although Hedgpeth contests the district court’s
finding on that score, we need not resolve his objection. The
officers had a reasonable basis for believing they had probable
cause to arrest Hedgpeth for public intoxication, which alone
entitles them to qualified immunity on the claim of an unlawful
arrest.
 7
Under D.C. law, it is a misdemeanor for a person to “be
intoxicated and endanger the safety of himself, herself, or any
other person or property.” D.C. Code § 25-1001(c). For
purposes of qualified immunity, then, Officers Rahim and
Rider must have reasonably believed that Hedgpeth was both
intoxicated and dangerous.

The record shows that the officers could have reasonably
believed Hedgpeth to be intoxicated. When they attempted to
question him, he appeared incapable of answering. Hedgpeth’s
key witness, Lee, testified that Hedgpeth acted drunk, slurring
his words and speaking incoherently to the officers. Hedgpeth
also was nonresponsive to the officers’ questions and
noncompliant with their orders. In those circumstances, a
reasonable officer could have believed that Hedgpeth was
intoxicated.

To prevail, the officers also must have had reasonable
grounds to believe that Hedgpeth presented a danger to himself
or others. Hedgpeth contends that he posed no danger to
himself or anyone else because he did not stagger or fall.
Rather, he argues, he was merely “verbally and passively
belligerent.” Appellant’s Br. 32.

Even if Hedgpeth remained able to stand without
staggering, the officers could have reasonably believed he
presented a danger to himself, the officers, or someone else he
might have encountered that night. Hedgpeth was visibly
intoxicated and uncooperative, and there is no genuine dispute
that the officers were at least under the impression that he had
just been hitting people on a busy sidewalk. And Lee demurred
at the officer’s suggestion that he take Hedgpeth home,
responding that Hedgpeth was “hard to handle.” J.A. 70. As
Hedgpeth’s behavior began to attract a crowd, the officers had
 8
reasonable grounds to conclude that Hedgpeth presented a risk
to himself and others.

Although there is a dearth of decisions interpreting D.C.’s
public intoxication law in relevant respects, decisions from
other courts applying comparable public-intoxication laws in
similar circumstances support the reasonableness of the
officers’ belief of probable cause. See Garcia v. Killingsworth,
425 F. App’x 831, 832 (11th Cir. 2011); O’Dwyer v. Nelson,
310 F. App’x 741, 746 (5th Cir. 2009); State v. Trane, 57 P.3d
1052, 1062 (Utah 2002). See generally Johnson, 528 F.3d at
976 (explaining that “cases from other courts exhibiting
consensus view” can inform “whether officers strayed beyond
clearly established bounds of lawfulness”). We therefore
conclude that the officers could have reasonably believed
Hedgpeth was intoxicated and posed a danger to himself or
others. As a result, the officers are entitled to qualified
immunity on Hedgpeth’s claim of an unlawful arrest.

B.

We now consider Hedgpeth’s claim that Officer Rahim
used excessive force when subduing Hedgpeth in connection
with his arrest. Hedgpeth presents two variations of an
argument that Officer Rahim used excessive force: first,
Hedgpeth asserts that the takedown maneuver involved a
gratuitous use of force intended to injure him; and second, he
submits that, regardless of any intent to injure him, the use of a
takedown maneuver was excessive in the circumstances.

Hedgpeth’s first argument is grounded in a contention that
Officer Rahim intended to slam Hedgpeth’s head into the bar
window when executing the takedown. That contention,
however, finds no support in the record. With regard to
Hedgpeth’s claim that the takedown maneuver amounted to
excessive force regardless of any intent to injure him, we
 9
conclude that Officer Rahim’s conduct did not violate clearly
established law. He is therefore entitled to qualified immunity.

1.

Hedgpeth contends that Officer Rahim, in performing a
takedown maneuver, intended to slam Hedgpeth’s head into the
window of the bar. Ordinarily, when reviewing the district
court’s grant of summary judgment, we would accept as true
Hedgpeth’s version of the facts. See Scott, 550 U.S. at 378.
We do so, however, only if the record gives rise to a genuine
issue of material fact. We “should not adopt [a] version of the
facts” that “is blatantly contradicted by the record, so that no
reasonable jury could believe it.” Id. at 380.

Here, nothing in the record supports Hedgpeth’s allegation
that Officer Rahim intentionally slammed Hedgpeth’s head
into the window. To the contrary, the sole evidence Hedgpeth
cites in support of his account of the events is Lee’s testimony,
which affirmatively undercuts Hedgpeth’s claim. Lee testified
that, while he saw Officer Rahim use a type of takedown
maneuver, he did not believe the officer intended to slam
Hedgpeth’s head into the window. Lee explained: “I don’t
think [Officer Rahim] meant for Jonathan [Hedgpeth] to slam
his head [into] the side of the building. I think that’s just what
happened as [Hedgpeth] was falling to his left side.” Lee
Deposition, J.A. 76. The officers, for their part, deny that
Officer Rahim performed a takedown maneuver, and contend
that any impact to Hedgpeth’s head was incidental to
Hedgpeth’s attempting to step away.

That leaves Hedgpeth’s bare assertion (in his appellate
brief) that Officer Rahim intended to slam Hedgpeth’s head,
which is not enough to create a genuine dispute about the
officer’s intentions, particularly in view of the contrary
testimony of Hedgpeth’s sole witness. We therefore proceed
 10
to consider whether Officer Rahim’s takedown maneuver
amounted to excessive force without attributing to him any
intention to cause Hedgpeth’s head to strike the window.

2.

The Fourth Amendment’s prohibition on unreasonable
seizures extends to an officer’s use of excessive force to
conduct an arrest. See Tolan v. Cotton, 134 S. Ct. 1861, 1865
(2014). As the Supreme Court has explained, “the question
whether an officer has used excessive force ‘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.’” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). An officer may “use some degree of physical
coercion” or threat to arrest a suspect. Oberwetter v. Hilliard,
639 F.3d 545, 555 (D.C. Cir. 2011) (quoting Graham, 490 U.S.
at 396). And “[n]ot every push or shove, even if it may later
seem unnecessary,” violates the Fourth Amendment. Id.
(internal quotation marks omitted).

Here, the district court considered the reasonableness of
Officer Rahim’s use of a forcible takedown maneuver under
the assumed facts to be a close question, in light of, among
other things, the misdemeanor nature of the suspected offenses.
The court, though, did not decide that underlying Fourth
Amendment question, instead concluding that Officer Rahim is
entitled to qualified immunity. We agree.

Even if there is a genuine dispute about the reasonableness
of an officer’s use of force, he is protected by qualified
immunity unless his force violated clearly established law. See
Kisela, 138 S. Ct. at 1152; Wardlaw, 1 F.3d at 1303. As the
 11
Supreme Court has recently emphasized, “[u]se of excessive
force is an area of the law ‘in which the result depends very
much on the facts of each case,’ and thus police officers are
entitled to qualified immunity unless existing precedent
‘squarely governs’ the specific facts at issue.” Kisela, 138 S.
Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 309). In that regard,
“[p]recedent involving similar facts can help move a case
beyond the otherwise ‘hazy border between excessive and
acceptable force.’” Id. (quoting Mullenix, 136 S. Ct. at 312).

The pertinent question here is whether “any competent
officer,” in light of “[p]recedent involving similar facts,” id.,
would consider it unlawful to use a takedown maneuver against
a suspect who was shouting repeatedly and belligerently at the
officers, who refused their orders to put his hands behind his
back, and who had been described by a person with him as
“hard to handle.” We conclude that this is not “an obvious case
in which any competent officer would have known that” the
use of a takedown maneuver in those circumstances “would
violate the Fourth Amendment.” Id.

In Wardlaw v. Pickett, for instance, Wardlaw rushed down
the stairs in a courthouse stairwell towards officers and a friend
who had been arrested by them, shouting to the officers:
“Don’t hurt him please. He is totally nonviolent.” 1 F.3d at
1300. One of the officers punched Wardlaw once in the jaw
and multiple times in the chest, and then arrested him.
Wardlaw, contending that he experienced significant pain in
his chest and jaw for months, brought suit alleging that the
officer had used excessive force in arresting him. We granted
the officer qualified immunity, noting that he was in a
vulnerable position facing an individual shouting at him as the
individual approached. Id. at 1304. We held that “no
reasonable jury could find that [the officer’s] use of force was
 12
so excessive that no reasonable officer could have believed it
to be lawful.” Id.

In Scott v. District of Columbia, 101 F.3d 748 (D.C. Cir.
1996), a person who had been pulled over on suspicion that he
was driving under the influence had acted belligerently and
erratically at the scene. He attempted to exit a police car while
it was at an intersection en route to the station, and an officer
grabbed him in an effort to prevent his escape. Upon seeing
other officers arrive, Scott offered to get back into the car. Id.
at 752. Officers refused to let him back into the car, one officer
struck him and knocked him off balance, and multiple officers
then slammed him to the ground before handcuffing him and
dragging him to a police transport vehicle. Id. at 759. We held
that the “degree of forced used to arrest [the suspect] was not
so excessive that no reasonable officer could have believed in
the lawfulness of his actions.” Id.

In Oberwetter v. Hilliard, a woman dancing at the
Jefferson Memorial ignored officers’ demands that she leave
the premises and questioned their authority to force her to do
so. 639 F.3d at 555-56. The arresting officer then forcefully
pulled her arm behind her back and shoved her against a stone
column, ripping apart the earbud on her headphones. Id. at 548.
We held that it was “not clearly unreasonable for [the officer]
to take decisive action to subdue [the suspect] quickly and
forcefully.” Id. at 555. In another case, we rejected an
excessive-force claim against an officer who “brutally
grabbed” a driver around the waist as he got out of the car while
attempting to produce his license and registration, threw the
driver back into his car, and then slammed the door on his leg.
Martin v. Malhoyt, 830 F.2d 237, 240, 262 (D.C. Cir. 1987);
see Scott, 101 F.3d at 760 (discussing Martin). See also Rogala
v. District of Columbia, 161 F.3d 44, 45, 54-55 (D.C. Cir.
1998) (summarily affirming grant of qualified immunity to
 13
officer who slammed person to the ground after person touched
officer on shoulder).

Against the backdrop of those decisions, we are unable to
conclude that Officer Rahim violated clearly established law in
using a takedown maneuver to subdue Hedgpeth in the
circumstances present here. It is true that this case differs from
our prior decisions in certain respects in that it does not involve
a person rushing in the direction of officers, albeit while
pleading for non-violence (compare Wardlaw), or a person
who exited a police car, although he then offered to reenter it
(compare Scott). But this case is comparable to our prior
decisions in that it involves a person who exhibited belligerent
and erratic behavior (and had been described as hard to handle),
who shouted at officers in an increasingly agitated fashion, and
who repeatedly refused the officers’ orders (here, to put his
hands behind his back). In that context, “existing precedent”
cannot be said to “have placed the statutory or constitutional
question beyond debate.” Mullenix, 136 S. Ct. at 308 (internal
quotation marks omitted).

This does not mean an officer invariably has authority to
forcibly take down a suspect in the course of a routine arrest.
But here, in light of the circumstances of this case and the
applicable precedent, this case is not one in which “the right’s
contours were sufficiently definite that any reasonable official
in the defendant’s shoes would have understood that he was
violating it.” Kisela, 138 S. Ct. at 1153 (internal quotation
marks omitted). That conclusion is fortified by decisions from
other courts sustaining an arresting officer’s use of an
analogous level of force against a noncomplying suspect. See
Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir.
2017); Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 2016).
 14
In response, Hedgpeth relies on decisions barring the
gratuitous use of physical force when conducting an arrest. For
example, we have held that an officer acted unreasonably when
he kicked a suspect in the groin while the suspect lay on the
ground and posed no risk of flight. Johnson, 528 F.3d at 974-
77. Similarly, we denied qualify immunity to an officer who
punched, pistol-whipped, and beat a suspect who had already
been disarmed and placed in handcuffs. Arrington v. United
States, 473 F.3d 329, 331-33 (D.C. Cir. 2006).

There is no comparable use of gratuitous force in this case.
As we have explained, the record contradicts Hedgpeth’s
theory that Officer Rahim intentionally (and gratuitously)
slammed Hedgpeth’s head into the bar window. Without that
assertion, we are left with Officer Rahim’s use of a takedown
maneuver. The law in this court (and other courts) does not
clearly establish that the takedown amounted to excessive force
in the circumstances. We thus uphold the grant of qualified
immunity on Hedgpeth’s excessive-force claim.

* * * * * *

For the foregoing reasons, we affirm the district court’s
judgment.

So ordered.