Statchen v. Palmer

             United States Court of Appeals
                        For the First Circuit

No. 09-2418

                            CARL STATCHEN,

                         Plaintiff, Appellant,

                                  v.

                         JASON PALMER, ET AL.,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                                Before

                     Boudin, Gajarsa* and Thompson,

                            Circuit Judges.


     Michael J. Sheehan for appellant.
     Jeanne P. Herrick with whom Charles P. Bauer and Gallagher,
Callahan & Gartrell, P.C. were on brief for appellees Jason M.
Palmer, Dick A. Scott, and City of Concord.


                           October 15, 2010




     *
         Of the Federal Circuit, sitting by designation.
          BOUDIN, Circuit Judge.         In June 2007, Carl Statchen

struggled with two police officers over their attempt to take him

into protective custody for public intoxication; he also fought the

subsequent efforts of several officers to transport him from the

station house to jail.      Statchen later brought this civil rights

action, 42 U.S.C. § 1983 (2006), alleging that the officers used

excessive force in both episodes.         The district court granted

summary judgment against him, and he now appeals.

          We recount the facts in the light most favorable to

Statchen as the party opposing summary judgment.          Dwan v. City of

Boston, 329 F.3d 275, 277 (1st Cir. 2003).              On June 21, 2007,

Statchen drove from his home in Connecticut to Concord Hospital in

New Hampshire, where his daughter was scheduled to have surgery the

next morning.   Statchen, a recovering alcoholic, was anxious about

the surgery and bought a six-pack of beer to cope.

          He drank five of the 16-ounce cans, slept in his car and

drank the sixth in the morning before entering the hospital. There

he quarreled with his ex-wife, left to acquire more beer--he drank

several more cans--and returned to the hospital only to be asked to

leave.   Concord   police    officer    Dick    Scott   responded   to   the

hospital's report of a verbally abusive and intoxicated male and

met Statchen at the hospital exit; concerned that Statchen might

drive, Scott administered a breathalyzer test, which led him to

confiscate the keys to Statchen's car.         Scott also asked about the


                                  -2-
large bruise adorning Statchen's left eye; Statchen explained to

the officer that he had been in a fight the day prior and bragged

that "the other guy" looked worse.

            Statchen then walked to a convenience store where he

bought food and coffee, as he told Scott he would, but also beer;

he quaffed four more cans behind the store. Concord police officer

Jason Palmer responded to a call about Statchen, followed shortly

by Scott.   After an exchange--Scott had earlier warned Statchen to

stop drinking--Scott announced that he was taking Statchen into

protective custody, N.H. Rev. Stat. Ann. § 172-B:3(I)(c) (2002);

the officer ordered Statchen to put his hands behind his back to be

cuffed.

            Although accounts now diverge, it is clear that Statchen

resisted in some fashion.   Statchen himself says that he assumed a

posture akin to "a line backer position" to brace himself as the

officers moved to pinion him.    The officers grabbed his arms, and

Statchen--5'10" tall and weighing approximately 250 pounds at the

time--tumbled to the ground.      A brief melee ensued, with the

officers kneeing and hitting Statchen until finally he stopped

struggling and verbally acquiesced.

            During the ride to the police station, Statchen boasted

that it took two officers to restrain him.      When at the station

Scott sought to cuff him again--to transport him to a jail located

away from the station--Statchen again resisted; several officers


                                 -3-
rushed him; and a fight ensued.               Statchen was eventually subdued

and transported to the jail, which admitted him only after a

hospital check.        He was later found to have fractured two ribs.

            Statchen        was   afterwards        charged    in     three    criminal

complaints, comprising two counts of resisting arrest or detention,

N.H. Rev. Stat. Ann. § 642:2 (2007), and one count of simple

assault,    id.    §   631:2-a(I)(a).          On    January    14,    2008,     he    was

convicted    upon      a   plea   of   nolo    contendere      on   both      counts    of

resisting arrest or detention; the simple assault complaint was

"placed on file" (that is, prosecution was deferred) on condition

of good behavior for six months.

            Statchen then filed this section 1983 action in federal

district court in New Hampshire against Palmer, Scott and the City

of Concord.        The complaint charged that Palmer and Scott had

violated Statchen's fourth amendment rights by using excessive

force to handcuff him at the convenience store and that Scott did

so again at the police station; Statchen also asserted common law

assault claims for the same conduct.

            The district court granted summary judgment for the

defendants,       relying    on   affidavits        from   both     officers     and     a

deposition of Statchen.            The court found that the suit was not

barred by Heck v. Humphrey, 512 U.S. 477 (1994), but that the

officers' conduct was reasonable and also protected by qualified




                                         -4-
immunity.1         The court dismissed the state law claims on analogous

state grounds, and--as Statchen did not address the state claims in

his appellate brief--reliance on them at oral argument came too

late.       Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134, 137 n.1 (1st

Cir. 2006).

                  The qualified immunity defense accepted by the district

court disposes of this appeal, and the legal framework for it is

straightforward.           An arrest is a form of fourth amendment seizure

and the use of force to effect it must be reasonable under all the

circumstances, Graham v. Connor, 490 U.S. 386, 396 (1989); but

under the doctrine of qualified immunity, police officers are

themselves entitled to reasonable latitude in making judgments

about       how     much   force   is   necessary   to   overcome   resistance.

Qualified immunity is often resolved before trial, one of its aims

being to avoid the burden of trial as well as liability itself.

Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004).

                  While qualified immunity is often invoked in cases where

legal principles were unclear at the time of the disputed conduct,

it also protects reasonable assessments of fact, Maldonado v.



        1
      A damages claim that would necessarily imply the invalidity
of the claimant's prior criminal conviction, sentence or detention
is not cognizable under section 1983 unless and until the plaintiff
has first obtained a favorable termination of the conviction. See
Heck, 512 U.S. at 486-87; Thore v. Howe, 466 F.3d 173, 179 (1st
Cir. 2006). In our case, the district court held that Statchen
could succeed on his excessive force claims without implying that
his convictions for resisting arrest were invalid.

                                          -5-
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009), even if matters might

have   been    handled    differently    in   the   calm     of   retrospective

appraisal, Roy v. Inhabitants of Lewiston, 42 F.3d 691, 695 (1st

Cir. 1994).     The aim of the doctrine in both cases is to avoid the

chilling effect of second-guessing where the officers, acting in

the heat of events, made a defensible (albeit imperfect) judgment.

See id.

              On summary judgment, the non-moving party (as we have

noted) is entitled to have the court credit his version of events,

but with qualifications: incredible assertions by that party need

not be accepted, Scott v. Harris, 550 U.S. 372, 380 (2007), nor

must conclusory allegations, Martínez-Rodríguez v. Guevara, 597

F.3d 414, 419 (1st Cir. 2010).           And the evidence from the moving

party as to specific facts can be accepted by the court where no

contrary   evidence      is   tendered   by   the   party    opposing   summary

judgment. LaFrenier v. Kinirey, 550 F.3d 166, 167 (1st Cir. 2008).

It is only where a material issue of fact remains in genuine

dispute that the case must be put to trial.

              Here, Statchen's section 1983 complaint claimed that he

"spoke with the officers, offered no resistance, and was jumped by

the police near the convenience store for no apparent reason" and

that he "made no visible attempt to resist."                Yet Statchen's own

deposition fails to dispute that he refused police orders to allow

himself to be cuffed.         Nor does Statchen claim that at the police


                                      -6-
station he obeyed the instruction to allow the police to cuff him

again.

          Statchen's case comes down then to the proposition that

although he resisted arrest in both incidents--and pled nolo

contendere to those charges--the police officers struck him too

hard or continued to strike him after he had stopped resisting.

Cf. Thore, 466 F.3d at 180.     The difficulty for Statchen is not

that the police officers' affidavits offer no support for such a

story; it is that his own deposition also fails to do so and there

is no indication that he filed any affidavit at all.

          On their side, the police officers' affidavits gave a

largely consistent description of a melee in which two officers

tried to seize a heavy and intoxicated man who was refusing to

submit and who fell to the ground and continued to grab and

struggle with the officers.2     They admit to using considerable

force, but only to the extent that Statchen refused to submit to

handcuffs.    The   officers   shouted   at   him   to   stop   resisting

throughout the encounter, and they ceased to use force when he

finally agreed to stop.

          As against this detailed account, Statchen's deposition

gives a much hazier description, hardly surprising given his


     2
      The officers claim that Statchen grabbed Palmer's leg and may
have tried to bite it, which Statchen disputes; but whether or not
this occurred, his deposition makes perfectly clear that he did not
obey their initial verbal commands and did not lie still once he
had landed on the ground.

                                 -7-
intoxication.        And while he is vivid in describing knees and

punches thrown at him in the struggle, nothing in his account

suggests    more     force   than   necessary   to    muscle    a   large   and

uncooperative man into handcuffs--or, at least, it was reasonable

to think such force necessary, given Statchen's intransigence,

intoxication and description of his fight the day before.

            At the police station, Statchen's own complaint indicated

that Scott entered the cell with other officers only after Statchen

did   not   comply    with   a   verbal   command    to   be   handcuffed   for

transport. His deposition account of events at the station is even

sketchier than his account of his arrest and in no way contradicts

Scott's claim that the officers used only the force needed to

handcuff him.      And his resistance at the station came after a car

ride in which he crowed about fighting the officers again.

            Statchen suffered two fractured ribs over the course of

the day--no trivial matter but also not surprising when a heavy and

drunken man is fighting with police officers who had done nothing

to provoke him.       The district court had no basis for sending the

case to a jury because Statchen's own deposition provided no

evidence to indicate that the force exerted (however considerable)

was unnecessary, or that a reasonable police officer would have

thought otherwise.

            Affirmed.




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