Henry v. Storey

FILED
United States Court of Appeals
Tenth Circuit

October 3, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD HENRY,

Plaintiff - Appellant,

v. No. 10-2211

OFFICER JACOB STOREY;
OFFICER AMY FANGIO,
individually and in their official
capacities as Officers of the
Albuquerque Police Department,

Defendants - Appellees,

CITY OF ALBUQUERQUE,
Albuquerque Police Department, a
municipal entity organized under the
laws of the State of New Mexico and
its law enforcement agency; MARTIN
J. CHAVEZ, individually and in his
official capacity as Mayor of the City
of Albuquerque; RAY SCHULTZ,
individually and in his official
capacity as Chief of Police of the City
of Albuquerque,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:08-CV-00483-JCH-ACT)
Submitted on the briefs: *

Dennis W. Montoya of Montoya Law, Inc., Rio Rancho, New Mexico, for
Plaintiff - Appellant.

Kathryn Levy, Deputy City Attorney for the City of Albuquerque, Albuquerque,
New Mexico, for Defendants - Appellees.

Before KELLY, SILER **, and MATHESON, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Ed Henry appeals from the district court’s final

judgment in favor of Defendants-Appellees Jacob Storey and Amy Fangio after a

jury trial. He contends that the district court erred in (1) granting judgment as a

matter of law (JMOL) to these Defendants on two of his claims and (2) rejecting a

proposed jury instruction. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Background

In 2008, Mr. Henry filed a civil-rights complaint against several

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
**
The Honorable Eugene E. Siler, Jr., U.S. Circuit Court Judge, Sixth
Circuit, sitting by designation.

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Defendants pursuant to 42 U.S.C. § 1983. 1 The complaint arose from a night-time

police stop. Aplt. App. 6-7, 216. Mr. Henry, who is African-American, was

pulled over in a rental vehicle. Id. at 2, 5-7. He was ordered out, handcuffed, and

placed in the back of a marked police vehicle. See id. at 175-84, 191-92. After

an investigation, officers realized that the rental vehicle driven by Mr. Henry had

been erroneously reported as stolen. Id. at 204-05. Mr. Henry was then released.

Id.

In his complaint, Mr. Henry alleged that he was singled out because of his

race, in violation of the Fourteenth Amendment. Id. at 19. He also alleged that

the officers used excessive force in violation of the Fourth Amendment, including

handcuffs that were too tight, rude language, and weapons aimed at him. Id. at

20-22.

The case proceeded to trial. At the close of Mr. Henry’s case in chief,

Officers Storey and Fangio moved for JMOL, Fed. R. Civ. P. 50(a)(1). Id. at 322.

The district court granted the motion in part, stating that Mr. Henry presented no

evidence that (1) Officer Storey used excessive force or (2) Officer Fangio

engaged in racial profiling. Id. at 339-40. The case went to the jury on the racial

profiling claim against Officer Storey and the excessive force claim against

Officer Fangio.

1
At trial, the only remaining Defendants were Officers Storey and Fangio. This
appeal deals exclusively with the counts against them.

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 Defendants put on no evidence. Id. at 345. Mr. Henry proposed a jury

instruction to the effect that the officers’ compliance with standard operating

procedures could not be considered in determining whether they used excessive

force. Id. at 342-43; see id. at 29. The court did not so instruct the jury.

The jury returned a verdict in favor of Officers Storey and Fangio on the

remaining claims. Id. at 404-05. Specifically, the jury found that Officer Storey

had not engaged in racial profiling and that Officer Fangio had not used excessive

force. Id. at 405. On appeal, Mr. Henry challenges the district court’s grant of

JMOL and refusal to submit his proposed instruction to the jury.

Discussion

A. Judgment as a Matter of Law.

We review de novo the district court’s disposition of a motion for JMOL.

Manzanares v. Higdon, 575 F.3d 1135, 1142 (10th Cir. 2009). JMOL is

appropriate if, after a party has presented its evidence, the court “finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for

the party on that issue.” Fed. R. Civ. P. 50(a)(1). We draw all inferences from

the evidence in favor of the non-moving party, and do not weigh the evidence or

judge witness credibility. Higdon, 575 F.3d at 1142.

As noted, the district court granted JMOL to Officer Storey on Mr. Henry’s

excessive-force claim and to Officer Fangio on Mr. Henry’s racial-profiling

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claim. Aplt. App. 339-40. The court found evidence lacking to show (1) that

Officer Storey used any force against Mr. Henry and (2) that Officer Fangio

engaged in racial profiling. Id. After reviewing the record, we agree.

1. Officer Storey.

Testimony at trial established the following. While on patrol in central

Albuquerque around midnight, Officer Storey entered the license plate of Mr.

Henry’s vehicle into his dashboard computer. Id. at 169, 198. The computer,

which was connected to the National Crime Information Center (“NCIC”),

returned a “hit,” meaning that the license plate number had been reported as

stolen. Id. at 169, 199. Upon returning a hit, other officers were automatically

dispatched to the scene. Id. at 171. When a second patrol car arrived, Officer

Storey turned on his emergency lights, and Mr. Henry pulled to the side of the

road. Id. at 173.

Officer Storey remained in his vehicle and, using the PA system, ordered

Mr. Henry to show his hands, turn the vehicle off, get out of the vehicle, and

stand with his back to the officers. Id. at 175-78. At this point, six officers were

at the scene. Id. at 178. Mr. Henry testified that he saw six guns aimed at him,

although he did not know whether Officer Storey had his weapon drawn. Id. at

272. Officer Storey testified that his weapon was holstered because he was using

the PA. Id. at 178.

Over the PA, Officer Storey ordered Mr. Henry to pull up his shirt to reveal

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the waistband of his pants and turn in a circle. Id. at 179-80. Satisfied that Mr.

Henry did not have a weapon tucked into his pants, Officer Storey ordered him to

walk slowly backwards towards the officers’ vehicles. Id. at 180. When Mr.

Henry was close to the vehicles, Officer Storey ordered him to kneel or lie down.

See id.; id. at 279. Officer Fangio handcuffed Mr. Henry, performed a pat-down,

and placed him in the back seat of Officer Storey’s police vehicle. Id. at 181,

224-25, 280-81. After Mr. Henry was placed in the police vehicle, officers

approached the rental vehicle he was driving to make sure no one else was inside.

Id. at 192.

Mr. Henry promptly complied with all orders. Id. at 177-78, 202. He did

not violate any traffic laws. Id. at 173. Mr. Henry testified that he was told to

“shut up” over the PA system, presumably by Officer Storey. Id. at 275. He also

testified that Officer Fangio knelt on his back and that the handcuffs were too

tight, causing bruising and discomfort. See id. at 280, 284, 296.

Mr. Henry argues that Officer Storey used excessive force against him by

“aiming a deadly weapon at [Mr. Henry’s] head from mere feet away.” Aplt. Br.

at 10. According to Mr. Henry, Officer Storey had no reason to believe that he

stole the vehicle by violence. Moreover, he argues, he did not in fact pose a

threat to officers and did not attempt to flee; thus, Officer Storey was not justified

in aiming his weapon. Id. at 10-12. We are not persuaded. First, we doubt

whether the record contains sufficient evidence for a reasonable jury to conclude

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that Officer Storey aimed a weapon at Mr. Henry. Second, even if it does, Officer

Storey’s use of force was not excessive under the facts known to him at the time.

Mr. Henry’s argument that Officer Storey used excessive force relies on a

single factual premise: that Officer Storey aimed a firearm at him. See Aplt. Br.

10, 13-14. Officer Storey specifically testified that he “had [his] gun holstered at

the time while [he] was on [the] PA,” although “[t]he other officers had their

firearms drawn, and they were pointed down towards Mr. Henry in the vehicle.”

Id. at 178. Mr. Henry testified that when he initially exited the vehicle, he saw

six guns pointed at him. Id. at 272. However, he later specifically testified that

he “[didn’t] know exactly who was pointing guns,” and that he did not know

whether Officer Storey was pointing a gun at him. Id. at 304-05. Even if the jury

disregarded Officer Storey’s testimony as not credible, Mr. Henry’s testimony

itself established only that he saw six guns aimed at him; it did not establish that

Officer Storey was wielding one of them. Thus, we doubt whether Mr. Henry’s

testimony provided a reasonable jury with “legally sufficient basis” to find, by a

preponderance of the evidence, that Officer Storey pointed a weapon at him. Fed.

R. Civ. P. 50(a)(1).

In any event, even if Mr. Henry produced sufficient evidence to establish

that Officer Storey pointed a weapon at him, Officer Storey’s actions did not

constitute excessive force. “In determining whether a use of force is reasonable

under the Fourth Amendment, we balance the nature and quality of the

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encroachment on the individual’s Fourth Amendment interests against the

government’s countervailing interests.” Lundstrom v. Romero, 616 F.3d 1108,

1126 (10th Cir. 2010) (citation omitted). When conducting this inquiry, “the

‘reasonableness of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.’” Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). We consult three non-exclusive

factors to determine whether an officer’s use of force is reasonable: (1) the

severity of the crime, (2) whether the suspect poses an immediate threat to the

safety of officers or others, and (3) whether the suspect is actively resisting arrest

or evading arrest by flight. See Lundstrom, 616 F.3d at 1126.

Viewing the facts from a reasonable officer’s point of view, Officer Storey

did not use excessive force by pointing his weapon at Mr. Henry. Officer Storey

had probable cause to believe Mr. Henry had stolen a vehicle, a felony. Officer

Storey could reasonably conclude that the driver posed an immediate threat to the

safety of the officers and the public—a driver caught with a stolen vehicle has

strong incentive to evade arrest, given the seriousness of the crime. Further, the

means of evading arrest were close at hand: the driver was in the vehicle with the

engine running. See Aplt. App. 217, 302-304. The incident took place late at

night, within Albuquerque city limits. Id. at 214-15. Any resulting chase could

place the officers and the public at risk. Although Mr. Henry was not actively

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resisting or evading arrest by flight, under the circumstances the amount of force

used by Officer Storey was reasonable. To conclude otherwise would merely

second-guess an officer’s on-the-ground decision using the benefit of 20/20

hindsight. See Sturdivan, 511 F.3d at 1259.

We reject Mr. Henry’s implicit contention that only vehicles stolen by

force pose a threat to officers and the public. See Aplt. Br. 9-11. A person who

steals a vehicle non-violently still has the incentive and capability to evade arrest

by fleeing in the vehicle. Mr. Henry’s proposed bright-line rule—that officers

may aim weapons at the occupants of a reportedly stolen vehicle only when they

have reason to believe the vehicle was stolen by force or violence—has no basis

in Tenth Circuit precedent, and we see no reason to adopt it now.

Mr. Henry also argues that it “appears that [Officer] Storey deliberately

ignored additional information that would have told him that the car was alleged

to have been stolen without the use of violence, although that information was

readily available to him” and that “[i]f [Officer] Storey had bothered to read the

remarks, he would have known that there was no allegation that the vehicle in

question had been taken through force or the use of violence.” Aplt. Br. at 9. As

we note above, the mere fact that a vehicle was stolen by non-violent means does

not obviate officers’ need to proceed with caution. Regardless, the factual basis

for Mr. Henry’s argument is not in the record. Officer Storey repeatedly testified

that he did not have information regarding how the vehicle was stolen. Aplt.

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App. 171-72, 222. The record contains no information as to the contents of the

NCIC “hit” in this case, much less evidence that Officer Storey deliberately

ignored information that the car had been stolen by non-violent means.

Officer Fangio testified that, generally, an NCIC “hit” should contain a remark if

a vehicle was stolen by force. Id. at 259-60. But that does nothing to prove

whether, in this case, the NCIC “hit” indicated any of the circumstances

surrounding the vehicle’s theft or, if so, what that information was. With the

benefit of hindsight, we know that Mr. Henry did not steal the vehicle by force.

However, there is absolutely no evidence as to the circumstances under which the

vehicle was erroneously reported as stolen. Accordingly, there was no basis for a

reasonable jury to conclude that Officer Storey deliberately ignored information

that the vehicle was not stolen by means of violence or force. The district court

correctly granted JMOL to Officer Storey on the excessive-force claim.

Mr. Henry cites no case holding that pointing a firearm at a suspect,

without more, constitutes excessive force. The cases he does cite—Cortez v.

McCauley, 478 F.3d 1108 (10th Cir. 2007), United States v. Neff, 300 F.3d 1217

(10th Cir. 2002), and Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 201),

see Aplt. Br. 13—are not on point. In McCauley, the plaintiffs did not allege that

the officers’ use of firearms constituted excessive force. See 478 F.3d at 1126,

1130. We noted that “prior cases finding excessive force have involved the

pointing of guns,” but only in the context of holding that officers were on notice

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that the force used on Ms. Cortez was excessive despite the absence of any

allegations that the officers pointed weapons. Id. at 1131-32. In other words, our

discussion of officers’ use of weapons in McCauley established only that the

officers’ aiming of weapons in prior cases did not distinguish those cases for

qualified immunity purposes. Accordingly, McCauley does not support Mr.

Henry’s contention that, under the circumstances of this case, Officer Storey’s use

of force was excessive.

United States v. Neff did not involve an excessive-force claim. In that

case, the plaintiff alleged that the officers’ use of handcuffs and display of

weapons exceeded the permissible scope of a Terry stop. 300 F.3d at 1220. We

held that it did not. Id. at 1221. Our analysis focused mainly on the use of

handcuffs. We noted, in passing, that the officers’ use of guns did not exceed the

scope of a Terry stop because it was based on the officers’ reasonable belief that

weapons were necessary for their protection. See id. at 1220-1222. Accordingly,

Neff does nothing to establish that aiming a weapon under the circumstances

before us constitutes excessive force.

In Lundstrom v. Romero, Mr. Lundstrom’s excessive-force claim was

predicated on officers pressing him against a vehicle, shoving him to the ground,

placing an elbow or knee against his head, and twisting his arm behind his back.

616 F.3d at 1127. The officers’ display of weapons was not part of the excessive-

force analysis. See id. The language quoted by Mr. Henry—that “the pointing of

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firearms should be predicated on at least a perceived risk of injury or danger to

the officers or others,” see Aplt. Br. 13—appeared in the context of plaintiffs’

claims that they were unlawfully seized when the officer aimed a weapon at them

at the front door of their home. Lundstrom, 616 F.3d at 1121. Because the

analysis in Lundstrom did not take place in the context of an excessive-force

claim, we fail to see how it is applicable here.

Our independent research reveals only one case in which we held that

officers’ aiming of firearms, without more, constituted excessive force. See

Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001). But Holland involved a

SWAT team detaining, at gunpoint, several bystanders’ children who were not

suspected of a crime, all in the course of executing a misdemeanor warrant. Id. at

1183, 1192-93. Accordingly, Holland has little, if any, bearing on the outcome of

this case, where Officer Storey aimed his weapon at an adult who was suspected

of a serious crime.

2. Officer Fangio.

The district court granted JMOL to Officer Fangio on Mr. Henry’s racial-

profiling claim. Aplt. App. 339-40. In that claim, Mr. Henry alleged that Officer

Storey “ran” his license plates—which eventually led to Mr. Henry being pulled

over—solely because of his race. See Aplt. Br. 15 (“[Mr. Henry’s] claims under

the Fourteenth Amendment and 42 U.S.C. § 1983 . . . allege that Defendants

racially profiled him because he is Black by deciding to ‘run’ the license plate of

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his rental car . . . .”).

Mr. Henry’s argument rests on a premise the evidence does not support:

that Officer Fangio was somehow involved in Officer Storey’s decision to run Mr.

Henry’s license plates. To the contrary, the record supports only the conclusion

that Officer Storey made the decision to run Mr. Henry’s plates. See Aplt. App.

169-70. Accordingly, no reasonable jury could conclude that Officer Fangio

racially profiled Mr. Henry by deciding to run his license plates based on his race.

Mr. Henry argues that Officer Fangio could have been liable for racial

profiling because she eventually participated in Mr. Henry’s detention. Aplt. Br.

19. But § 1983 imposes liability for a defendant’s own actions—personal

participation in the specific constitutional violation complained of is essential.

See, e.g., Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997) (“Individual

liability under § 1983 must be based on personal involvement in the alleged

constitutional violation.” (citation omitted)); Trujillo v. Williams, 465 F.3d 1210,

1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s

direct personal responsibility for the claimed deprivation . . . must be

established.” (emphasis added) (citation omitted)). Thus, Officer Storey’s

allegedly discriminatory decision to check the license plate on Mr. Henry’s rental

vehicle cannot result in liability for Officer Fangio, where there is no evidence

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that Officer Fangio herself engaged in discriminatory conduct. 2

B. Jury Instructions.

Mr. Henry proffered the following jury instruction:

Evidence has been presented during the course of this trial
regarding the defendant officers’ compliance with Standard
Operating Procedure of their police department. Compliance with
Standard Operating Procedure is not to be considered by you in
determining whether the degree of force used against the plaintiff
violated his rights under the Constitution. Instead, you are to
consider only whether the degree of force used against the Plaintiff
was reasonable under the totality of the circumstances and from the
point of view of reasonable police officers at the time and place of
the occurrences.
Aplt. App. 29.

The district court did not give the instruction. Defendants do not contend

that the proffered instruction misstates the law. Rather, they contend that the

instruction was not necessary because instructions numbers 6 and 11 properly

instructed the jury on the elements of an excessive-force claim. See Aplee. Br. at

13.

Jury instruction number 11 provided, in relevant part,

You must determine whether the force used in making the
detention or arrest of Plaintiff was unnecessary, unreasonable, or
excessively violent. The force used in making a detention or arrest is
unnecessary, unreasonable, or excessively violent if the detaining or
arresting officer exceeded that degree of force which a reasonable
and prudent law enforcement officer would have applied in making

2
The jury found that Officer Storey did not, in fact, engage in racial
profiling. See Aplt. App. 405.

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 the detention or arrest under the same circumstances.
Whether the force used by an officer is reasonable depends on
the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of the officers or others, and whether
he was actively resisting arrest or attempting to evade arrest by
flight.

Aplt. App. 41.

“We review for abuse of discretion a district court’s decision not to

give a tendered jury instruction.” Sherouse v. Ratchner, 573 F.3d 1055,

1060 (10th Cir. 2009) (citation omitted). Even when a proffered jury

instruction properly states the law, a district court does not abuse its

discretion by rejecting the instruction so long as “the material issues in the

case have been comprehensively and correctly covered in the general

instructions.” Id. at 1060-61 (internal quotation marks and citations

omitted).

We agree with Defendants that the submitted jury instructions

“comprehensively and correctly” covered the elements of the excessive-

force claim. Id. at 1060-61. Instruction number 11 makes clear that the

relevant inquiry is whether, under all the circumstances, the officer’s use of

force was reasonable. See Aplt. App. 41. The instructions are not

confusing—nothing suggests that the officers’ adherence to their standard

operating procedures automatically renders their actions reasonable under

the Fourth Amendment. Accordingly, while Mr. Henry’s proffered

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instruction may have been correct, we cannot say the district court abused

its discretion in refusing to submit it to the jury. See Sherouse, 573 F.3d at

1061.

AFFIRMED.

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