     12-5113-cv
     MACLEOD V. TOWN OF BRATTLEBORO

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of November, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                DENNY CHIN,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DANA MACLEOD,
13                Plaintiff-Appellant,
14
15                    -v.-                                               12-5113-cv
16
17       TOWN OF BRATTLEBORO and CHAD EMERY,
18                Defendants-Appellees.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        THOMAS W. COSTELLO and James A.
22                                             Valente, Costello Valente &
23                                             Gentry, PC, Brattleboro,
24                                             Vermont.
25
26       FOR APPELLEES:                        James F. Carroll, English
27                                             Carroll & Boe, PC, Middlebury,
28                                             Vermont.

                                                  1
 1
 2                              Nancy G. Sheahan and KEVIN J.
 3                              COYLE, McNeil Leddy & Sheahan,
 4                              PC, Burlington, Vermont.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the District of Vermont (Reiss, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Appellant Dana MacLeod appeals from the judgment of the
14   United States District Court for the District of Vermont
15   (Reiss, C.J.), granting summary judgment in favor of
16   appellees Officer Chad Emery and the Town of Brattleboro
17   (the “Town”) (collectively, “Appellees”) on MacLeod’s claim,
18   brought under 42 U.S.C. § 1983, that Officer Chad Emery used
19   excessive force against MacLeod in violation of the Fourth
20   Amendment to the United States Constitution.1 We assume the
21   parties’ familiarity with the underlying facts, the
22   procedural history, and the issues presented for review.
23
24        “‘We review a grant of summary judgment de novo,
25   construing the record in the light most favorable to the
26   non-moving party.’” Gilles v. Repicky, 511 F.3d 239, 243
27   (2d Cir. 2007) (internal quotation marks omitted).
28   “[C]laims of excessive force are to be judged under the
29   Fourth Amendment’s ‘objective reasonableness’ standard.”
30   Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting Graham
31   v. Connor, 490 U.S. 386, 388 (1989)). Assessing whether the
32   use of force to make an arrest is “reasonable” under the
33   Fourth Amendment “requires a careful balancing of ‘the
34   nature and quality of the intrusion on the individual’s
35   Fourth Amendment interests’ against the countervailing
36   governmental interests at stake.” Graham, 490 U.S. at 396
37   (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “[T]he
38   factfinder must determine whether, in light of the totality
39   of the circumstances faced by the arresting officer, the
40   amount of force used was objectively reasonable at the


         1
              In addition, MacLeod lodged claims against Officer
     Emery under Vermont law, and against the Town under § 1983
     for “unconstitutional policy and practice / inadequate
     training.” MacLeod does not appeal the district court’s
     grant of summary judgment to Appellees on these claims.
                                  2
 1   time.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
 2   123 (2d Cir. 2004). The balancing must be done with
 3   sensitivity to the factual circumstances of each case,
 4   “including the severity of the crime at issue, whether the
 5   suspect poses an immediate threat to the safety of the
 6   officers or others, and whether he is actively resisting
 7   arrest or attempting to evade arrest by flight.” Graham,
 8   490 U.S. at 396.
 9
10        Once the court has determined the relevant undisputed
11   facts and drawn all inferences in favor of the nonmoving
12   party, the court’s determination of reasonableness at the
13   summary judgment stage is a pure question of law, and must
14   be made from the “perspective of a reasonable officer on the
15   scene, rather than with the 20/20 vision of hindsight.”
16   Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1,
17   20-22 (1968)). The “calculus of reasonableness must embody
18   allowance for the fact that police officers are often forced
19   to make split-second judgments--in circumstances that are
20   tense, uncertain, and rapidly evolving--about the amount of
21   force that is necessary in a particular situation.” Graham,
22   490 U.S. at 396-97.
23
24        Here, the relevant facts are undisputed. MacLeod was
25   tased by Officer Emery after leading another police officer,
26   Officer Adam Belville, on a high-speed chase through the
27   rainy, “slick” streets of Brattleboro in the pre-dawn hours
28   of September 28, 2009. MacLeod Dep. 62:12. MacLeod was
29   originally pulled for speeding. When Officer Belville
30   approached the vehicle to speak with the driver, MacLeod
31   sped off without warning–-nearly sideswiping Officer
32   Belville–-and a chase ensued that placed the officers, the
33   passenger, and other motorists and any pedestrians in
34   substantial, immediate danger.
35
36        MacLeod concedes that “the seriousness of his crimes
37   prior to the use of force was not trivial[,]” but he
38   nonetheless claims that the use of force was unreasonable
39   because he had “voluntarily ceased his criminal conduct and
40   was attempting to surrender at the time he was tased[.]”
41   Appellant’s Br. 15. Whatever MacLeod’s subjective intent,
42   the undisputed facts demonstrate that after suddenly
43   speeding away from an investigating officer on “slick,” dark
44   roads at “a rate of speed higher than the speed limit” to
45   evade arrest, MacLeod Dep. 61:20-21, he entered into a
46   deserted a parking lot, exited the vehicle, kneeled on the
47   ground, and then–-contravening clear, repeated instructions

                                  3
 1   that he acknowledges he understood2–-rose to his feet,
 2   turned to face the officers with his hands free and
 3   outstretched, and refused to return to the ground. Rising
 4   from the ground rather than submitting to arrest exacerbated
 5   a “tense, uncertain, and rapidly evolving” situation that
 6   threatened the lives of officers, bystanders, and MacLeod
 7   himself. Graham, 490 U.S. at 397.
 8
 9        Viewed objectively, MacLeod’s actions immediately prior
10   to being tased do not evince “passive resistance” merely
11   because MacLeod was not actually in the act of fleeing. Cf.
12   Crowell v. Kirkpatrick, 400 F. App’x 592, 595 (2d Cir. 2010)
13   (finding use of taser reasonable in part because
14   “[protesters] were actively resisting their arrest at the
15   time they were tased by the officers in this case, having
16   chained themselves to a several hundred pound barrel drum
17   and having refused to free themselves”); Davis v. Callaway,
18   2007 U.S. Dist. LEXIS 29468, at *14 (D. Conn. Apr. 9, 2007)
19   (noting that “[officer] could reasonably have interpreted
20   [arrestee’s] previous noncompliance, i.e., standing up, as
21   indicative of the possibility of further resistance”).
22
23        Officer Emery used a Taser, once, to subdue an actively
24   non-compliant suspect reasonably believed to be engaged in
25   dangerous criminal activity and who posed a real and
26   imminent threat to the safety of the officers and any
27   bystanders.3 In that situation, it was reasonable for
28   Officer Emery--after repeated, clear commands that MacLeod
29   return to the ground--to decided that using the Taser was
30   required to effect the arrest. This avoided a “hands-on”
31   situation with an unrestrained, dangerous individual. Tracy
32   v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010) (“From [the
33   officer’s] perspective, a suspect he strongly--and


         2
              MacLeod’s briefing argues that he could not hear
     the officers’ instructions to remain on or return to the
     ground. In his deposition, however, MacLeod stated that he
     could in fact hear “clearly” the officers’ instructions.
     MacLeod Dep. 91:22-24. Moreover, the passenger evidently
     overheard the officers’ instructions, as he complied fully.
         3
              Indeed, because MacLeod was unsubdued and had made
     one clear attempt to evade arrest, “the scope of crime in
     question was not simply [speeding], but was unknown and
     potentially far more serious.” Tracy v. Freshwater, 623
     F.3d 90, 97 (2d Cir. 2010).
                                  4
 1   correctly--presumed to be a fugitive from the law, made a
 2   quick and sudden movement as [the officer] attempted to
 3   effect an arrest without the assistance of other officers.
 4   His decision to use his flashlight to protect himself and
 5   subdue an arrestee he perceived to be actively resisting was
 6   therefore a reasonable response.”). Given the totality of
 7   these circumstances, no rational factfinder could conclude
 8   that the officer’s course of action was unreasonable.
 9   Accordingly, Officer Emery’s actions did not violate the
10   Fourth Amendment.
11
12        For the foregoing reasons, and finding no merit in
13   MacLeod’s other arguments, we hereby AFFIRM the judgment of
14   the district court.
15
16                              FOR THE COURT:
17                              CATHERINE O’HAGAN WOLFE, CLERK
18




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