     10-3060-cv
     Hodge v. City of Long Beach



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JAMES HODGE,
14
15                    Plaintiff-Appellee,
16
17                    -v.-                                               10-3060-cv
18
19       CITY OF LONG BEACH,
20
21                    Defendant,
22
23       POLICE OFFICER FALES, in his individual
24       and official capacity, POLICE OFFICER
25       WILLIAMS, in his individual and official
26       capacity,

                                                  1
 1            Defendants-Appellants,
 2   POLICE OFFICERS JOHN DOE 1-10, in their
 3   official and individual capacities,
 4   (those being the names of officers who
 5   were present and committed wrongful acts
 6   and whose names are known by the other
 7   Defendants),
 8
 9            Defendants.*
10   - - - - - - - - - - - - - - - - - - - -X
11
12   APPEARING FOR APPELLANTS:           RONALD J. ROSENBERG (John
13                                       S. Ciulla, on the brief),
14                                       Rosenberg Calica & Birney
15                                       LLP, Garden City, NY.
16
17   FOR APPELLEE (on submission):       FREDERICK K. BREWINGTON,
18                                       Hempstead, NY.
19
20        Appeal from a judgment of the United States District
21   Court for the Eastern District of New York (Platt, J.).
22
23        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
24   AND DECREED that the order of the district court is REVERSED
25   and the case REMANDED with instructions to enter judgment in
26   favor of Defendants-Appellants.
27
28        Officers Fales and Williams appeal from an order of the
29   United States District Court for the Eastern District of New
30   York (Platt, J.), which denied them qualified immunity in
31   Hodge’s 42 U.S.C. § 1983 claim of excessive force. (The
32   court granted summary judgment in favor of the officers on
33   all claims other than excessive force.) We assume the
34   parties’ familiarity with the underlying facts, the
35   procedural history, and the issues presented for review.
36
37        “Ordinarily, the denial of a motion for summary
38   judgment is not immediately appealable because such a
39   decision is not a final judgment.” Cowan ex rel. Estate of
40   Cooper v. Breen, 352 F.3d 756, 760 (2d Cir. 2003) (internal
41   quotation marks omitted). Jurisdiction nevertheless lies
42   where (as here) the appeal argues entitlement to qualified


         *
           The Clerk of the Court is directed to amend the
     official caption to conform to the names listed above.
                                     2
 1   immunity “even under plaintiff’s version of the facts.”
 2   Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002)
 3   (internal quotation marks omitted). Accordingly, all
 4   disputed facts are construed (and all reasonable factual
 5   inferences are drawn) in Hodge’s favor.
 6
 7        A police officer performing a discretionary function
 8   enjoys qualified immunity from an excessive force claim
 9   unless (1) she “violated a constitutional right” (2) that
10   was “clearly established” at the time of the alleged
11   violation. Saucier v. Katz, 533 U.S. 194, 201 (2001),
12   overruled on other grounds by Pearson v. Callahan, 129 S.
13   Ct. 808 (2009).
14
15        “Determining whether the force used to effect a
16   particular seizure is reasonable under the Fourth Amendment
17   requires a careful balancing of the nature and quality of
18   the intrusion on the individual’s Fourth Amendment interests
19   against the countervailing governmental interests at stake.”
20   Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
21   quotation marks omitted). The inquiry, which “judge[s] from
22   the perspective of a reasonable officer on the scene, rather
23   than with the 20/20 vision of hindsight,” id., must include
24   three specific considerations:
25
26        First, we consider “the severity of the crime at
27   issue.” Id. Domestic disputes tend to be “combustible,”
28   Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998), and
29   here the 911 call, the broken glass, and the plaintiff’s
30   torn and apparently blood-stained shirt reflected a
31   potential severe domestic crime.
32
33        Second, we consider “whether the suspect poses an
34   immediate threat to the safety of the officers or others.”
35   Graham, 490 U.S. at 396. A reasonable officer could have
36   viewed the plaintiff’s continued refusals to remove his
37   hands from his pockets as an immediate threat to the
38   officer’s safety. Even before speaking with the plaintiff,
39   the officers reasonably viewed the scene as so volatile and
40   dangerous that they radioed for backup. Plaintiff’s refusal
41   to cooperate and his steps toward his brothers (the three
42   Hodge brothers outnumbered the two officers) only increased
43   the threat.
44
45        Third, we consider “whether [the suspect] is actively
46   resisting arrest or attempting to evade arrest by flight.”
47   Id. Although the plaintiff was not attempting to flee the

                                  3
 1   scene, he displayed defiant resistance, abruptly turning and
 2   walking away from the officers. Id. (“Our Fourth Amendment
 3   jurisprudence has long recognized that the right to make an
 4   . . . investigatory stop necessarily carries with it the
 5   right to use some degree of physical coercion or threat
 6   thereof to effect it.” (citing Terry v. Ohio, 392 U.S. 1
 7   (1968))).
 8
 9        These factors must be weighed against the degree of
10   force used. Id. The plaintiff claims that the officers
11   spun him around with a forearm, grabbed his neck, put him in
12   a bear hug, and pulled his arms behind his back as they
13   attempted to handcuff him, causing “injuries and bruises to
14   his back, and abrasion on his arms and neck, and [rendering
15   him] unable to swallow.” Am. Compl. ¶¶ 26-34, 38. He
16   concedes that the incident “happened quickly” and that he
17   was never forced to the ground. Joint Appendix at 211-13.
18
19        It would be “an uncomfortable exercise” to determine
20   “the answer [to] whether there was a violation” of Hodge’s
21   Fourth Amendment rights, because the decision “depend[s] on
22   a kaleidoscope of facts not yet fully developed.” Pearson,
23   129 S. Ct. at 819 (internal quotation marks omitted). But
24   because of the plaintiff’s defiance and the indicia of a
25   potential incident of domestic violence, it would not be
26   “clear to a reasonable officer that his conduct was unlawful
27   in the situation he confronted.” Saucier, 533 U.S. at 202.
28   For this reason, we exercise our discretion to first
29   determine that Hodge’s Fourth Amendment right was not
30   “clearly established” under these circumstances, Pearson,
31   129 S. Ct. at 818; the officers therefore enjoy qualified
32   immunity whether or not the force violated Hodge’s Fourth
33   Amendment rights.
34
35        For the foregoing reasons, Defendants-Appellants are
36   entitled to summary judgment based on qualified immunity for
37   Plaintiff’s § 1983 claim alleging excessive force. We
38   therefore REVERSE the order of the district court and REMAND
39   the case to the district court with instructions to enter
40   judgment for Defendants-Appellants.
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44




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