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Jonathan Crowell and Samantha Kilmurray v. Robert Kirkpatrick

November 15, 2010

JONATHAN CROWELL AND SAMANTHA KILMURRAY, PLAINTIFFS-APPELLANTS,
v.
ROBERT KIRKPATRICK, MICHAEL GORMAN, CHUCK ALECK, PETER DIMARINO, DEFENDANTS-APPELLEES.
JEREMY EVANS, DEFENDANT.



Crowell v. Kirkpatrick

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 for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 15th day of November, two thousand ten.

5 PRESENT: DEBRA ANN LIVINGSTON, 6 DENNY CHIN, 7 Circuit Judges, 8 DAVID G. LARIMER, 9 District Judge.*fn1

1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED 2 that the judgment of the district court be AFFIRMED.

3 Plaintiffs-Appellants Jonathan Crowell and Samantha Kilmurray appeal from a September 4 14, 2009, order of the District Court of Vermont (Conroy, Mag. J.)*fn2 granting summary judgment 5 to Defendants-Appellees, members of the Brattleboro Police Department (BPD), on the Plaintiffs' 6 action brought under 42 U.S.C. § 1983. See Crowell v. Kirkpatrick, 667 F. Supp. 2d 391 (2009).

7 Plaintiffs, alleging that Defendants' use of force in effecting their arrest was excessive, challenge 8 the District Court's conclusion both that the use of force was not unreasonable under the Fourth 9 Amendment and that, even if it were unreasonable, Defendants were entitled to qualified immunity.

10 We assume the parties' familiarity with the facts and procedural history of the case and the issues 11 on appeal.

12 This Court "review[s] a grant of summary judgment de novo, construing the record in the 13 light most favorable to the non-moving party." Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).

14 "[C]laims of excessive force are to be judged under the Fourth Amendment's 'objective 15 reasonableness' standard." Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting Graham v. 16 Connor, 490 U.S. 386, 388 (1989)). Assessing whether the use of force to make an arrest is 17 "reasonable" under the Fourth Amendment "requires a careful balancing of 'the nature and quality 18 of the intrusion on the individual's Fourth Amendment interests' against the countervailing 19 governmental interests at stake." Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 20 1, 8 (1985)). The reasonableness inquiry, an objective one, is "judged from the perspective of a 1 reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. "[T]he fact 2 finder must determine whether, in light of the totality of the circumstances faced by the arresting 3 officer, the amount of force used was objectively reasonable at the time." Amnesty America v. Town 4 of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004). The balancing must be done with sensitivity 5 to the factual circumstances of each case, "including the severity of the crime at issue, whether the 6 suspect poses an immediate threat to the safety of the officers or others, and whether he is actively 7 resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.

8 Qualified immunity is evaluated on the basis of a two-part test. First, we must inquire 9 whether "[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged 10 show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 11 (2001). Second, assuming we find that the facts alleged do establish a violation of a constitutional 12 right, we must then "ask whether the right was clearly established." Id. The Saucier Court 13 emphasized that this second inquiry must be undertaken "in light of the specific context of the case, 14 not as a broad general proposition." Id. Further, "[o]nly Supreme Court and Second Circuit 15 precedent existing at the time of the alleged violation is relevant in deciding whether a right is 16 clearly established." Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004). Moreover, "[e]ven if the 17 right at issue was clearly established in certain respects, . . . an officer is still entitled to qualified 18 immunity if 'officers of reasonable competence could disagree' on the legality of the action at issue 19 in its particular factual context." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007). With respect 20 to the appropriate sequence for this inquiry, the Supreme Court has clarified that "while the 21 sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." 22 Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

1 The District Court found both that Defendants' use of force in this case was reasonable and 2 that, assuming arguendo it was not, Plaintiffs' rights in this situation were not clearly established. 3 We find that the use of force in these particular circumstances was objectively reasonable and 4 affirm.

5 In this case, Plaintiffs were arrested for relatively minor crimes of trespass and resisting 6 arrest and were not threatening the safety of any other person with their behavior. However, they 7 were actively resisting their arrest at the time they were tased by the officers in this case, having 8 chained themselves to a several hundred pound barrel drum and having refused to free themselves, 9 even though they admitted they were able to release themselves from the barrel at any time 10 throughout the encounter. Plaintiff Kilmurray admits that prior to the officers' use of their tasers, 11 she had asked an acquaintance at the scene to call other members of their group to return to the 12 property. Moreover, both Plaintiffs admitted that the officers at the scene considered and attempted 13 several alternate means of removing them from the property before resorting to use of their tasers, 14 that the officers expressly warned them that they would be tased and that it would be painful, and 15 that the officers gave them another opportunity to release themselves from the barrel after this 16 warning. Finally, both Plaintiffs were given opportunities again to release themselves from the 17 barrel prior to the subsequent uses of the tasers.

18 While we do not suggest that the use of a taser to effect an arrest is always, or even often, 19 objectively reasonable, under the circumstances here, even construing the facts in the light most 20 favorable to Plaintiffs, we conclude that it was. Because they had chained themselves to the drum, 21 Plaintiffs could not have been arrested and removed from the scene by more conventional means, 22 and the apparently imminent arrival of some number of their compatriots added a degree of urgency 1 to the need to remove Plaintiffs quickly, before the presence of other protestors made that more 2 difficult to accomplish. The officers attempted to use other means to effectuate the arrest, none of 3 which proved ...


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