19-1675
Lennox v. Miller


                               In the
                   United States Court of Appeals
                      For the Second Circuit

                              August Term, 2019

                             Argued: March 6, 2020
                             Decided: July 29, 2020

                              Docket No. 19-1675



              JESSICA A. LENNOX, INDIVIDUALLY AND AS MOTHER AND
              NATURAL GUARDIAN OF A.L., AN INFANT,


                                    Plaintiff-Appellee,

                                       V.


              THOMAS MILLER, BRANDON CLARKE, INDIVIDUALLY AND
              AS A POLICE OFFICER OF THE CITY OF NORWICH, NEW
              YORK,

                                    Defendants-Appellants,

              RODNEY V. MARSH, INDIVIDUALLY AND AS CHIEF OF
              POLICE OF THE CITY OF NORWICH, CITY OF NORWICH, NEW
              YORK,

                                    Defendants.


                                       1
                  Appeal from the United States District Court
                    for the Northern District of New York
                   No. 17-cv-786 – Mae A. D’Agostino, Judge.



Before:     HALL, LOHIER, and PARK, Circuit Judges.

      Appellants Thomas Miller and Brandon Clarke appeal from a judgment of
the United States District Court for the Northern District of New York
(D’Agostino, J.) denying them qualified immunity for an excessive force claim (as
to Clarke) and a failure to intervene claim (as to Miller). Because we agree that
there are disputed issues of material fact that preclude, at this stage of the
proceedings, a determination that Officer Clarke was entitled to qualified
immunity as a matter of law, we affirm so much of the district court’s order
denying summary judgment to Officer Clarke. We hold that Officer Miller,
however, is entitled to qualified immunity and reverse the judgment of the district
court as to him.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



                               GREGG T. JOHNSON, Johnson & Laws, LLC, Clifton
                               Park, NY, for Appellants.

                               Stephen L. Lockwood, Stephen L. Lockwood, P.C.,
                               Utica, NY, for Appellee.




HALL, Circuit Judge:

      Plaintiff-Appellee Jessica Lennox sued Officers Thomas Miller and Brandon

Clarke of the City of Norwich Police Department for, inter alia, using excessive


                                        2
force and failing to intervene during her arrest. Officers Miller and Clarke moved

for summary judgment on the basis that they were protected from suit by the

doctrine of qualified immunity, which the United States District Court for the

Northern District of New York (D’Agostino, J.) denied. This is an interlocutory

appeal from the district court’s denial of qualified immunity.

                                         I.

      The relevant record facts, read in the light most favorable to Lennox as the

non-movant, see Lederman v. N.Y.C Dep’t of Parks & Recreation, 731 F.3d 199, 202 (2d

Cir. 2013), are as follows: On July 22, 2016, Lennox was driving past Cobbler

Square Park when she saw her ex-boyfriend, Domenick Lepera, with a group of

teenagers. She parked her car, got out (leaving the car door open and her four-

year-old son A.L. in a car seat), and confronted Lepera, telling him to turn himself

into the police because he had an outstanding arrest warrant. Lennox asked

someone to call the police, and Lepera ran. Lennox then turned her attention to

the group of teens, saying that Lepera was a heroin addict and drug dealer and

asking them what they were doing and why they were hanging out with him.

Lennox also said something similar to B.C., a teenage female who knew Lepera

and to whom Lennox had spoken about Lepera earlier that day. As a result of this



                                         3
incident, Lennox was charged with, among other things, endangering the welfare

of a child pursuant to an information that alleged Lennox punched B.C. in the face.

Though she was later convicted of this offense, Lennox denies ever having

physical contact with B.C., but she admits that she may have raised her voice and

cursed at the group of teenagers.

      According to Lennox, at some point during this confrontation, A.L. took off

his seatbelt, jumped out of the car, and came to Lennox. Lennox then walked back

to her car with A.L. At that time Officer Miller arrived and told Lennox he had

gotten a message from her and that he had tried calling her. Officer Clarke arrived

shortly thereafter and approached Lennox. Lennox knew Officer Clarke from

previous encounters with him, and she told him she did not “want to fight with”

him. App. at 377, 813. Lennox asked Officer Clarke to arrest Lepera, and Officer

Clarke cursed at Lennox. Lennox then put up her hands and said “You can stick

up for a heroin addict. I’m done.” 1 App. at 379. She picked up A.L., and Officer

Clarke came up behind Lennox and grabbed her arms behind her back, causing

A.L. to fall out of her arms and hit the ground. Officer Clarke handcuffed Lennox

while she was standing and had no trouble doing so. Lennox testified that she


1Elsewhere, Lennox quotes herself slightly differently, as saying “keep standing up for a
heroin addict, I’m done!” App. at 813.
                                           4
“wanted to pull away from” Officer Clarke. App. at 381. When asked if she had

tried to, she replied “I feel like I did but I feel like I couldn’t. He was very strong.

. . . he was just way too strong to even attempt anything.” Id.

      After handcuffing her, Officer Clarke threw Lennox face down on the grass.

Lennox testified that she lifted her head up, made eye contact with Officer Miller,

who testified that he was controlling the crowd of teenagers, and said “[h]elp me,”

but Officer Miller did nothing to intervene. App. at 382. Lennox testified further

that, when she was on the ground, Officer Clarke put his body weight on her and

“crushed [her] so hard that [she] urinated everywhere.” App. at 387. Lennox later

asked eyewitnesses what Officer Clarke was doing to crush her, and they

explained that Officer Clarke had put both knees into her back. Lennox told

Officer Clarke that she couldn’t breathe, she had asthma, he was hurting her, and

she was urinating on herself, to which Officer Clarke replied “[o]h you can breathe

little bitch.” App. at 814. Officer Clarke then took Lennox’s head and “bashed” it

on the ground, swung her up on her feet, and “pulled and pushed” her over to his

police car. Id. He put her in the car and left her there with the windows rolled up

and the engine off for about twenty minutes, during which Lennox was

experiencing anxiety and asthma attacks.



                                           5
      The officers transported Lennox to the police station, where the record

shows she was crying and screaming, repeatedly complaining that her handcuffs

were too tight, and yelling about how Officer Clarke crushed her until she could

not breathe, “pounded [her] head in,” and made her bleed. See Special App. at 4.

While at the station, Lennox yelled that she was in pain because her earring was

stuck in her ear. The police brought Lennox to a hospital, where she received a

CAT scan (which showed no abnormalities) and underwent a psychiatric

evaluation. Lennox also testified that when she arrived at the hospital, she had

bruises all over her, her ears were swollen and bleeding, her earrings were stuck

in her ear, and there was blood in her ear drum. Her injuries from the incident—

including arm bruises, a shoulder scrape, and injuries to her ears—took weeks to

heal fully.

                                        II.

      Lennox filed a personnel complaint with the Norwich Police Department

for use of excessive force in connection with her arrest. She then filed a civil

complaint on behalf of herself and her minor son, A.L., against Officers Miller and

Clarke, Chief of Police Rodney Marsh, and the City of Norwich. In her complaint,

Lennox alleged violations of her constitutional rights resulting from the use of



                                        6
excessive force during her arrest and from various defendants’ failure to intervene.

She also asserted state-law claims for negligence and assault and battery, and a

claim for municipal liability pursuant to Monell v. Department of Social Services, 436

U.S. 658 (1976). Following discovery, defendants moved for summary judgment.

The district court granted summary judgment in defendants’ favor as to A.L.’s

claims, the claims against the City of Norwich and Chief Marsh, and the claim for

negligence. The district court denied the motion for summary judgment on

Lennox’s assault and battery and excessive force claims against Officer Clarke, her

failure to intervene claim against Officer Miller, and her punitive damages claims

against Officers Miller and Clarke. In so doing, the district court explained that

“[t]he record contains issues of fact as to whether the force used by Officer Clarke

was reasonably related to the nature of Lennox’s resistance,” Special App. at 11,

and pointed out the divergent accounts of Lennox’s supposed attempt to flee and

the force used by Officer Clarke to maintain control of Lennox. The district court

thus held that Officer Clarke was not entitled to qualified immunity at this stage

of the proceedings. The district court also explained that because “issues of fact

exist as to whether Officer Miller had actual knowledge of Officer Clarke’s use of

force against Lennox and disregarded a reasonable opportunity to intervene on



                                          7
her behalf,” Special App. at 14, Officer Miller was similarly not entitled to qualified

immunity.

                                            III.

       We ordinarily do not have jurisdiction to hear an appeal of a denial of

summary judgment.         Nonetheless, we have appellate jurisdiction to hear an

interlocutory appeal from a district court’s denial of qualified immunity “to the

extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges

are true, or on the facts favorable to the plaintiff that the trial judge concluded the

jury might find.” Terebesi v. Torreso, 764 F.3d 217, 222 (2d Cir. 2014) (internal

quotation marks omitted). That is, “even where the district court rules that

material disputes of fact preclude summary judgment on qualified immunity, we

may still exercise interlocutory jurisdiction if the defendant . . . contends that he is

entitled to qualified immunity even under plaintiff’s version of the facts.” Cowan

ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003) (internal quotation

marks omitted). 2 We review a district court’s decision to deny summary judgment



2Appellants argue that they are entitled to qualified immunity as a matter of law because
the “undisputed facts, supplemented by Plaintiff’s version of the disputed facts, leads
inescapably to the conclusion that neither the force used by Officer Clarke, nor the
response by Officer Miller, violated the ‘clearly established law’ of this Circuit as of July
22, 2016.” Appellants’ Br. at 9. Notwithstanding this purported reliance on undisputed
facts and disputed facts viewed in the light most favorable to Lennox, Appellants’ brief
                                             8
on the basis that an officer is not entitled to qualified immunity de novo, viewing

the facts in the light most favorable to the plaintiff. See Francis v. Fiacco, 942 F.3d

126, 139 (2d Cir. 2019).

       Officers Miller and Clarke contend that because their actions did not violate

“clearly established law,” the district court erred in denying them qualified

immunity at this juncture. They argue that because “reasonableness is judged

against the backdrop of the law at the time of the conduct,” Brosseau v. Haugen, 543

U.S. 194, 198 (2004), and because the undisputed facts do not support a violation

of law that was clearly established at the time of Lennox’s arrest, Appellants are

entitled to qualified immunity. For the reasons explained below, we hold that,

viewing the facts in the light most favorable to Lennox, Officer Clarke could have

violated law that was clearly established on July 22, 2016, and we therefore cannot

say he is entitled to qualified immunity at this juncture. Officer Miller, on the other

hand, is entitled to qualified immunity because there is no evidence that he had a



repeatedly glosses over relevant disputed facts, such as whether Officer Clarke put his
body weight on Lennox, or treats disputed facts, such as the existence and extent of
Lennox’s physical resistance, as undisputed. We base our analysis not on the assertions
made in Appellants’ brief but on an independent review of the record, including the
district court’s explanation of facts in dispute. See Cowan, 352 F.3d at 761 (“We . . . have
jurisdiction over the appeal to the extent it is based on either the undisputed facts or the
version of the facts presented by [the non-movant], and we will disregard any disputed
facts or facts that contradict [the non-movant’s] version of events.”).
                                             9
reasonable opportunity to intervene or that his failure to do so contravened clearly

established law.

                                         IV.

      An officer may take advantage of qualified immunity, and thereby avoid

liability for civil damages and the burdens of a lawsuit, if he demonstrates that his

conduct “does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (internal quotation marks omitted); cf. Vincent v. Yelich,

718 F.3d 157, 166 (2d Cir. 2013) (“Qualified immunity [is] an affirmative defense

on which the defendant officials bear the burden of proof”). “There are therefore

two steps to the qualified immunity analysis: first, whether the plaintiff

established that his constitutional rights were violated, and second, whether the

right at issue was ‘clearly established’ at the time of the alleged violation.” Bacon

v. Phelps, 961 F.3d 533, 542 (2d Cir. 2020) (citing Pearson v. Callahan, 555 U.S. 223,

232 (2009)).

      A. Officer Clarke

      A police officer violates the Fourth Amendment if the amount of force he

uses in effectuating an arrest is “‘objectively [un]reasonable’ in light of the facts



                                         10
and circumstances confronting” the officer. Graham v. Connor, 490 U.S. 386, 397

(1989). A determination of whether the force used was reasonable “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.” Id. at 396. “[I]n light of the fact-specific

nature of the inquiry on an excessive force claim, granting summary judgment

against a plaintiff on such a claim is not appropriate unless no reasonable

factfinder could conclude that the officers’ conduct was objectively unreasonable.”

Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015) (internal quotation marks

and alteration omitted).

      In denying qualified immunity to Officer Clarke, the district court explained

that it “cannot say as a matter of law that the amount of force used by Officer

Clarke was objectively reasonable,” Special App. at 11. This conclusion rests on

the existence of factual disputes—over Lennox’s attempt to flee and the extent of

any physical resistance, as well as the force used by Officer Clarke in effectuating

the arrest—that bear on “whether the force used by Officer Clarke was reasonably

related to the nature of Lennox’s resistance.” Id. We pause here to review briefly



                                          11
the record facts (both undisputed and, where disputed, in the light most favorable

to plaintiff) relevant to each issue.

      As to the nature and extent of Lennox’s resistance, it is undisputed that in

the moments before Officer Clarke brought Lennox to the ground, Officer Clarke

had already handcuffed Lennox. Officer Clarke asserts that Lennox tried to pull

away from him after he handcuffed her. It is true that Lennox testified that she

felt like she tried to pull away from Officer Clarke while she was handcuffed, but

she also said that she felt as though she could not do so because Officer Clarke was

too strong and that he had no problem controlling her. Testimony that someone

felt like she tried to do something but also felt as though she could not does not

equate to testimony that she, in fact, did that thing. At this stage in the proceedings

we must read Lennox’s testimony as contradicting Officer Clarke’s assertion. This

is particularly so because Lennox also testified that “[w]hen [Officer Clarke]

grabbed me, there was no movement, I couldn’t move my arms and I had bruises

from that,” App. at 199, and she expressly denied that she attempted to flee from

Officer Clarke. On the record before us, a reasonable jury could find that Lennox

was not physically resisting arrest before she was brought to the ground.




                                          12
      There also exist disputes of fact over how much force Officer Clarke used to

maintain control over Lennox once she was handcuffed and secured on the

ground. See Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) (“The fact that

a person whom a police officer attempts to arrest resists, threatens, or assaults the

officer no doubt justifies the officer’s use of some degree of force, but it does not

give the officer license to use force without limit.”). Officer Clarke denied that he

put his body weight on Lennox once she was on the ground, testifying that Lennox

“wasn’t being that physically difficult to deal with” at that point. App. at 137.

According to Lennox’s version of events, however, Officer Clarke put his full body

weight on her, kneeling on her back, and slammed her head into the ground,

notwithstanding the fact that she had already been handcuffed and positioned face

down. There is also no evidence compelling a conclusion that Lennox physically

resisted Officer Clarke once she was handcuffed and on the ground. On this

record, a jury could find that Officer Clarke used unreasonable force on an

individual who was not resisting arrest and who was secured in such a manner

that she posed no threat to public safety.

      Officer Clarke asserts he is entitled to qualified immunity because his

actions, even viewed in the light most favorable to Lennox, did not violate “clearly



                                         13
established” law. The operative question thus becomes whether it was clearly

impermissible on July 22, 2016 under the circumstances presented for a police

officer to use the force that a jury could find Officer Clarke used—that is, when the

handcuffed arrestee was not actively resisting arrest—to take down that arrestee,

kneel on top of her with his full body weight, and slam her head into the ground.

      Courts are cautioned not to define clearly established law at “a high level of

generality,” and “police officers are entitled to qualified immunity unless existing

precedent squarely governs the specific facts at issue.” Kisela, 138 S. Ct. at 1152,

1153 (internal quotation marks omitted). That is not to say that there must be “a

case directly on point for a right to be clearly established,” but “existing precedent

must have placed the statutory or constitutional question beyond debate.” Id. at

1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).

      Years before the incident at issue here, we took note of the “well

established” principle “that the use of entirely gratuitous force is unreasonable

and therefore excessive.” Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010). In

Tracy, we presumed that “no reasonable officer could have believed that he was

entitled to use pepper spray gratuitously against a restrained and unresisting

arrestee,” id., an act we held could constitute excessive force. We have noted that,



                                         14
under Tracy, “[i]t is clearly established that officers may not use a taser against a

compliant or non-threatening suspect,” Muschette ex rel. A.M. v. Gionfriddo, 910

F.3d 65, 69 (2d Cir. 2018), even though the precise method of excessive force used

in Muschette had not been explicitly proscribed. Id. at 69 n.1 (explaining that

“[a]lthough in 2013 there were relatively few excessive force cases involving a

taser, novel technology, without more, does not entitle an officer to qualified

immunity” (internal quotation marks omitted)).           And we have not limited

potential findings of excessive force to situations where officers were using

equipment like pepper spray or tasers. See, e.g., Maxwell v. City of New York, 380

F.3d 106, 108 (2d Cir. 2004) (refusing to grant summary judgment in favor of a

police officer who allegedly shoved a handcuffed arrestee headfirst into a police

car, causing her to strike her head on a part of the car); cf. Muschette, 910 F.3d at

69–70 (citing with approval Garcia v. Dutchess County, 43 F. Supp. 3d 281, 297

(S.D.N.Y. 2014), for the proposition that using “‘significant’ force against arrestees

who no longer actively resisted arrest or posed a threat to officer safety” is a clearly

established Fourth Amendment violation in the Second Circuit).

      On July 22, 2016, it was therefore clearly established by our Circuit caselaw

that it is impermissible to use significant force against a restrained arrestee who is



                                          15
not actively resisting. Jones v. Treubig, 963 F. 3d 214, 225 (2d Cir. 2020) (“Before the

incident at issue here in April 2015, it was clearly established in this Circuit that it

is a Fourth Amendment violation for a police officer to use significant force against

an arrestee who is no longer resisting and poses no threat to the safety of officers

or others.”); cf. Brown v. City of New York, 862 F.3d 182, 191 (2d Cir. 2017)

(upholding grant of qualified immunity to officers who used force against an

actively resisting, non-handcuffed arrestee and distinguishing cases where force

was found impermissible because police were either not attempting to overcome

resistance to arrest or the arrestee was already secured). As Muschette suggests,

and as we have recently explained in great detail in Jones v. Treubig, this is true

despite differences in the precise method by which that force was conveyed.

Because a reasonable jury could find that the force used by Officer Clarke was

significant and that Lennox was not resisting when such force was used, we cannot

say, as a matter of law, that Officer Clarke did not violate clearly established law.

The district court thus properly denied Officer Clarke qualified immunity at this

stage of the proceedings, and we affirm this denial without expressing a view as

to Officer Clarke’s ultimate entitlement to judgment in his favor after factual

disputes are resolved.



                                          16
      B. Officer Miller

      The district court denied qualified immunity to Officer Miller on the basis

that the record left open the possibility that Officer Miller witnessed Officer

Clarke’s takedown of Lennox. The district court reasoned, “issues of fact exist as

to whether Officer Miller had actual knowledge of Officer Clarke’s use of force

against Lennox and disregarded a reasonable opportunity to intervene on her

behalf,” Special App. at 14, and on that basis ruled that Officer Miller was not

entitled to qualified immunity. While we recognize the existence of disputed facts

as to Officer Miller’s knowledge of Officer Clarke’s actions, we disagree with the

district court’s ultimate holding.

      “A police officer is under a duty to intercede and prevent fellow officers

from subjecting a citizen to excessive force, and may be held liable for his failure

to do so if he observes the use of force and has sufficient time to act to prevent it.”

Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016). “In order for liability to attach,

there must have been a realistic opportunity to intervene to prevent the harm from

occurring.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). There is no dispute

that at the time Officer Clarke used force against Lennox, Officer Miller was

engaged in crowd control. Even assuming that Officer Miller observed Officer



                                          17
Clarke’s use of force, there is no evidence in the record that would suggest he had

a realistic opportunity to intervene that he then disregarded. Nor do we know of

any clearly established law that would require him to abandon his crowd control

duties and intervene to stop Officer Clarke’s use of force. Thus, Officer Miller was

entitled to summary judgment on the basis of qualified immunity, and we reverse

the judgment as to him.

                                   *     *      *

      For the foregoing reasons, we AFFIRM the district court’s denial of

summary judgment as to Officer Clarke and REVERSE the district court’s denial

of summary judgment as to Officer Miller. We REMAND the case for further

proceedings consistent with this opinion.




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