FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
September 11, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
LEM ANDA LILLIAN M ECHAM ,
Plaintiff-Appellee,
v. No. 05-4297
SEAN D. FRAZIER, and DA VID L.
JO H N SO N ,
Defendants-Appellants.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D.C. NO . 1:04-CV-33-BSJ)
J. Clifford Peterson, Assistant Utah Attorney General (M ark L. Shurtleff, Utah
Attorney General with him on the briefs), U tah Attorney General’s O ffice, Salt
Lake C ity, Utah, for Defendants-Appellants.
Cory B M attson, Cory B M attson, L.C., Sandy, Utah, for Plaintiff-Appellee.
Before T YM KOV IC H and B ALDOCK , Circuit Judges, and FIG A, District
Judge. *
T YM K O VIC H, Circuit Judge.
*
The Honorable Phillip S. Figa, United States District Court Judge,
District of Colorado, sitting by designation.
This is an interlocutory appeal of the district court’s denial of federal
qualified immunity to two Utah police officers. Lemanda M echam brought a 42
U.S.C. § 1983 claim against state troopers Sean Frazier and David Johnson,
alleging they used excessive force in effectuating her 2003 roadside arrest. 1 The
officers moved for summary judgment on grounds of qualified immunity. The
district court denied the motion and this appeal followed.
Having jurisdiction to consider the denial of federal qualified immunity
under 28 U .S.C. § 1291, we REVERSE the district court’s denial of the officers’
motion for summary judgment.
I. Background
The facts of this case are essentially undisputed. 2 Just after noon on
February 23, 2003, Frazier pulled M echam over as she was driving on Interstate
Highway I-15 in southeast Utah. Frazier approached M echam’s car and told her
she was being pulled over for driving five miles over the speed limit and for
failing to wear her seat belt.
1
M echam also filed seven causes of action under state law, which are the
subject of a separate appeal, M echam v. Frazier, 04-4262. In defense of those
claims, the officers asserted immunity under the Utah Governmental Immunity
Act. W e certified on our own motion two questions involving the application of
the Act to the Utah Supreme Court.
2
The facts are in little doubt since Frazier’s squad car was equipped with a
dashboard camera which recorded the incident. See Scott v. Harris, 127 S. Ct.
1769, 1775 (2007) (appending link to videotape to opinion, stating “W e are happy
to allow the videotape to speak for itself.”).
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Returning to his car to check M echam’s license and registration, Frazier
learned the Arizona license she had given him was suspended. Dispatch informed
him, however, that M echam had a valid Utah license. W hen Frazier inquired
about the Utah license, M echam, for reasons not in the record, said she did not
have a Utah license. Frazier accordingly told M echam she could not drive
without a license and that the car would be impounded unless she could arrange
for someone to pick it up.
At that point, M echam’s mother called on her cell phone and M echam took
the call. Frazier told M echam to put down the phone while he explained the
citation, but M echam ignored him and continued talking to her mother. Frazier
told M echam he would arrest her unless she cooperated. W hen she refused to end
her phone conversation, Frazier called dispatch to order a tow truck. 3
The tow truck arrived fifteen minutes later, at w hich point Frazier told
M echam the car was being impounded and to get out of the car. M echam said she
was going to sit in her car until her mother arrived. Frazier called for backup and
Officer Johnson arrived a few minutes later. Frazier told Johnson that he was
going to arrest M echam because she had been uncooperative and refused to get
out of her car.
3
In her pleadings, M echam explains she was reluctant to cooperate
because “she knew of no basis for her license to be suspended and feared Trooper
Frazier may have been using it as a pretext to get her out of the car.” R. at 34.
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Frazier approached M echam’s car from the driver’s side while Johnson
approached from the passenger’s side. Frazier told M echam to get out of the car
or he would have to physically remove her, but she again refused. Frazier then
sprayed M echam in the face with pepper spray, opened the driver’s side door, and
physically removed her from the car. Johnson and Frazier pulled M echam to the
rear of the car, put her on the ground, and handcuffed her. Frazier then called for
medical assistance.
M echam was taken to the hospital where she was treated for pepper spray
inhalation. Afterwards, Frazier took her to the Davis County jail where she was
booked. All charges against M echam arising from the incident were later
dropped.
II. Discussion
Public officials facing civil liability for alleged constitutional violations
may assert qualified immunity. The doctrine, which provides “immunity from
suit rather than a mere defense to liability,” M itchell v. Forsyth, 472 U.S. 511,
526 (1985), prevents undue interference with public affairs by cutting short
baseless litigation against government actors. Because qualified immunity is
effectively lost if a case is permitted to go to trial, “it should be resolved as early
as possible.” Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir. 2000) (internal
citation omitted).
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M echam alleges defendant officers used excessive force in violation of her
Fourth Amendment rights. In excessive force claims, a suspect’s constitutional
rights are not violated if the amount of force used by police was “objectively
reasonable.” Graham v. Connor, 490 U .S. 386 (1989). The officers say their use
of pepper spray was objectively reasonable in light of M echam’s resistance
throughout the fifty-minute traffic stop. The district court concluded the issue
was not ripe on summary judgment, finding that “although there is no dispute as
to the underlying events in this case, the ultimate question – the objective
reasonableness of Defendants’ actions under the circumstances – remains.” Aplt.
Br., A dd. A at 2.
“[A] district court's denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”
M itchell v. Forsyth, 472 U .S. 511, 530 (1985). As with other legal questions, we
review the denial of qualified immunity de novo. Holland v. Harrington, 268
F.3d 1179, 1185 (10th Cir. 2001).
The district court held “the question of objective reasonableness is one for
the jury to decide.” A plt. Br., Add. A at 2. W hile this proposition might hold
where there are disputed issues of material fact, the question of objective
reasonableness is not for the jury to decide where the facts are uncontroverted.
W e have analyzed this question before:
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[T]he district court found the material facts were not in dispute.
Despite this finding, however, the court apparently determined that
issues of material fact remain regarding the objective reasonableness of
the officers’ actions. Whether the officers acted reasonably, however,
is a legal determination in the absence of disputed material facts.
Although the reasonableness standard is inevitably fact dependent, it
should not be reserved for the jury in the absence of disputed material
facts. Because qualified imm unity is a question of law to be resolved
at the earliest possible stage of litigation, courts often engage in
determinations of reasonableness under the Fourth Amendment,
necessarily applying the undisputed material facts to the legal
standards.
M edina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) (emphasis added). Here,
although the district court recognized “there is no dispute as to the underlying
events,” it nevertheless found the reasonableness determination was for the jury.
In light of M edina, the district court should have decided qualified immunity as a
matter of law. See also Scott v. Harris, 127 S. Ct. 1769 (2007) (deciding
qualified immunity on undisputed facts).
In our view, the police officers were entitled to qualified immunity.
A.
Under our case law, a plaintiff seeking to avoid summary judgment on
qualified immunity grounds must satisfy a “heavy” two-part burden by showing:
(1) the defendant violated a constitutional or statutory right, and (2) the right was
clearly established at the time of the defendant’s unlawful conduct. Serna v.
Colorado D ep’t of Corr., 455 F.3d 1146, 1150 (10th Cir. 2006) (internal
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quotation omitted). Because M echam fails to meet both prongs, we conclude
defendants are entitled to qualified immunity as a matter of law.
“Our threshold inquiry in the qualified immunity analysis is whether, taking
[M echam’s] allegations as true, [defendants] violated [her] Fourth Amendment
right to be free from unreasonable seizures.” Jones v. Hunt, 410 F.3d 1221, 1225
(10th Cir. 2005). W e analyze claims of excessive force under the objective
reasonableness standard of the Fourth Amendment. Graham, 490 U.S. at 395.
“In determining the reasonableness of the manner in which a seizure is effected,
we must balance the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental interests alleged
to justify the intrusion.” Scott, 127 S. Ct. at 1778 (internal quotation and citation
omitted).
The reasonableness of an officer’s conduct must be assessed “from the
perspective of a reasonable officer on the scene,” recognizing the fact
that the officer may be “forced to make split-second judgments” under
stressful and dangerous conditions. The Fourth Amendment standard
requires inquiry into the factual circumstances of every case; relevant
factors include the crime’s severity, the potential threat posed by the
suspect to the officer’s and others’ safety, and the suspect’s attempts to
resist or evade arrest.
Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir. 2001) (quoting Graham at
396–97) (internal citations omitted).
Viewed in light of the last two Graham factors quoted above— the suspect’s
resistance to arrest and safety concerns— the officers conduct in this case was
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reasonable. As an initial matter, the traffic stop was justified at its inception
because M echam was speeding and also not wearing her seat belt in violation of
Utah law.
Nevertheless, what should have been a routine encounter turned into a fifty-
minute ordeal requiring arrest. Before the officers used force to remove M echam
from her car, the following events occurred. (1) M echam balked at Frazier’s
report that her Arizona license was suspended— insisting it was valid— and then
contributed to the unresolved mystery about her Utah license on file by denying
its existence. (2) She then persisted in using a cell phone during the encounter
despite Frazier’s instructions to put it down. (3) She ignored his repeated
warnings to get out of the car under penalty of arrest, and forced Frazier to call a
tow truck and backup support. 4 (4) During this encounter, she remained in the
driver’s seat with the keys to the car, exercising control of the car at all tim es.
(5) W hen backup officer Johnson arrived on the scene, she nonetheless ignored
his additional entreaties to exit the car. (6) Then, she w as given a last
opportunity to cooperate when the officers told her point blank that further
resistance would be met with arrest. (7) M echam, again, refused and the officers
4
M echam’s claim that she doubted Frazier’s identity and feared he was
using it as a pretense to get her out of the car is implausible. She had ample time
and evidence, including the arrival of the tow truck, Johnson’s arrival on the
scene, two marked squad cars with flashing lights, to conclude Frazier was in fact
an officer of the law.
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follow ed through with their promised response. In these circumstances, it was a
foregone conclusion that the officers w ould have to use force to make the arrest.
The objective reasonableness of the use of force was further reinforced by
safety concerns. The encounter played out on the narrow shoulder of a busy
interstate highway. The arrest videotape depicts the busy, high speed traffic on
Interstate Highway I-15. Parked on the shoulder, M echam’s car was just a few
feet from the highway’s edge. An officer could reasonably be concerned that
M echam might create a danger to herself or others if not first subdued. W hile
Frazier did not believe she was a flight risk, the fact of the matter was that she
had her keys and control of the car while refusing to cooperate. In sum,
M echam’s disregard for the officers’ instructions, the length of the encounter, and
the implausibility of M echam’s rationale for not cooperating, lead us to conclude
that the officers’ use of force was justified in these circumstances.
W ith the benefit of hindsight, one might have hoped for a different
resolution. But “[n]ot every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham,
490 U.S. at 396. In making an arrest, officers may inevitably “use some degree of
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physical coercion or threat thereof to effect it.” Id. 5 The force used here, while
unfortunate, was not excessive.
B.
Even if the officers’ use of pepper spray was not objectively reasonable,
M echam has failed to meet the other requirement necessary to defeat qualified
immunity— that the law was clearly established at the time of the violation.
To assess whether the right was clearly established, we must ask if “the
right [was] sufficiently clear that a reasonable officer would understand that what
he is doing violates that right.” M edina, 252 F.3d at 1128. This inquiry “must be
undertaken in light of the specific context of the case, not as a broad general
proposition. The relevant, dispositive inquiry in determining whether a right is
clearly established is w hether it would be clear to a reasonable officer that his
conduct was unlawful in the situation.” Cortez v. M cCauley, 478 F.3d 1108, 1114
(10th Cir. 2007) (citations and quotations omitted).
5
The officers argue that even if their use of force is deemed excessive,
they are nevertheless entitled to qualified immunity because they reasonably
relied on Utah state laws and policies that sanctioned the amount of force used.
The Utah state patrol had policies and procedures governing the use of pepper
spray, and it appears the officers complied with this policy. Because we conclude
M echam ’s Fourth A mendment rights were not violated in the first instance, w e
need not reach this issue. “If a person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the departmental regulations
might have authorized the use of constitutionally excessive force is quite beside
the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (emphasis in
original).
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To survive a motion for summary judgment, the plaintiff must show the
right was clearly established in a particularized sense. . . . This court
has held that for a right to be particularized, there must ordinarily be a
Supreme Court or Tenth Circuit decision on point, or clearly established
weight of authority from other courts.
Wilson v. M eeks, 52 F.3d 1547, 1552 (10th Cir. 1995) (citations and quotations
omitted). W hile the facts of the cases compared need not be identical, Pierce v.
Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004), they must be sufficiently
analogous to satisfy the particularized context necessary to support liability.
M echam cites to an unpublished opinion from this circuit, M artinez v. New
M exico Dep’t of Public Safety, 47 F. App’x 513 (10th Cir. 2002), to support her
position that, at the time of her arrest, the law was clear that the force used in her
case was excessive. In M artinez, officers used mace on a suspect who had
already been removed from her car and handcuffed. Under these specific
circumstances, the court found the use of mace was not reasonable as a matter of
law since the suspect was already out of the car, handcuffed, and no longer a
danger to herself or others. The circumstances facing the officers in M echam’s
case were quite different. The pepper spray here was used to subdue and remove
an uncooperative and unresponsive, belligerent traffic violator from the car she
still controlled, not to further incapacitate an already subdued suspect. An
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unpublished opinion, moreover, even if the facts w ere closer, provides little
support for the notion that the law is clearly established on this point. 6
In sum, the officers w ere entitled to qualified immunity because no clearly
established law foreclosed the use of force in the circumstances here.
IV. Conclusion
The officers’ use of force was objectively reasonable in this case. W e
REVERSE the district court’s denial of summary judgment on qualified immunity
and REM AND for further proceedings consistent w ith this opinion.
6
M echam cites to several cases from other jurisdictions. See, e.g., Park v.
Shiflett, 250 F.3d 843 (4th Cir. 2001); LaLonde v. County of Riverside, 204 F.3d
947 (9th Cir. 2000). None of these cases is persuasive. Each involved force in
excess of that used here, or is otherwise factually distinguishable. The
reasonableness of the use of pepper spray will vary with the encounter. Here, as
we discussed above, it was appropriate.
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