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Estate of Booker v. Gomez

United States Court of Appeals, Tenth Circuit

March 11, 2014

ESTATE OF MARVIN L. BOOKER; ROXEY A. WALTON, as Personal Representative, Plaintiffs - Appellees,
FAUN GOMEZ, individually and in her official capacity; JAMES GRIMES, individually and in his official capacity; KYLE SHARP, individually and in his official capacity; KENNETH ROBINETTE, individually and in his official capacity; CARRIE RODRIGUEZ, individually and in her official capacity, Defendants - Appellants, and CITY AND COUNTY OF DENVER; DENVER HEALTH AND HOSPITAL AUTHORITY, d/b/a Denver Health Medical Center; GAIL GEORGE, R.N., individually and in her official capacity; SUSAN CRYER, R.N., individually and in her official capacity, Defendants

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Thomas S. Rice (Eric M. Ziporin, with him on the briefs), Senter Goldfarb & Rice, L.L.C., Denver, Colorado, appearing for Appellants.

Darold W. Killmer (Mari Newman and Lauren L. Fontana, with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, appearing for Appellees.

Before KELLY, LUCERO, and MATHESON, Circuit Judges.


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MATHESON, Circuit Judge.

Denver police arrested Marvin Booker on a warrant for failure to appear at a hearing regarding a drug charge. During booking, Mr. Booker died while in custody after officers restrained him in response to his alleged insubordination. Several officers pinned Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased him. After the officers sought medical help for Mr. Booker, he could not be revived.

Mr. Booker's estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp, Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively " Defendants" ) under 42 U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to provide him with immediate medical care, which resulted in Mr. Booker's untimely death. The Defendants moved for summary judgment on qualified immunity grounds. The district court denied their motion because disputed facts precluded summary judgment. The Defendants now appeal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


We begin bye defining the scope of our jurisdiction over the Defendants' interlocutory appeal of the district court's denial of qualified immunity. We then summarize the legal framework for evaluating the Defendants' assertion of qualified immunity at the summary judgment stage.

A. Jurisdiction

This court has jurisdiction under § 1291 to review " all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Ordinarily, " [o]rders denying summary judgment are... not appealable final orders for purposes of 28 U.S.C. § 1291." Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). " The denial of qualified immunity to a public official, however, is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law." Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); see also Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008) (we have interlocutory jurisdiction " over denials of qualified immunity at the summary judgment stage to the extent they 'turn[] on an issue of law.'" (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985))).

Under this limited jurisdiction, we may review: " '(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.'" Roosevelt-Hennix, 717 F.3d at 753 (quoting Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013)). Under the Supreme Court's direction in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), however, this court has no interlocutory jurisdiction to review " whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Id. at 320 (quotations omitted). Thus, " if a district court concludes that a reasonable jury could find certain specified facts in

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favor of the plaintiff, the Supreme Court has indicated we usually must take them as true--and do so even if our own de novo review of the record might suggest otherwise as a matter of law." Roosevelt-Hennix, 717 F.3d at 753 (quoting Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010)).

A key exception to Johnson 's jurisdictional rule arises if a district court fails to specify which factual disputes precluded a grant of summary judgment for qualified immunity. When faced with this circumstance, we are unable " to separate an appealed order's reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is 'genuine')." Id. (quoting Johnson, 515 U.S. at 319). Accordingly, before we can review abstract legal questions, we " may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, 515 U.S. at 319; see also Roosevelt-Hennix, 717 F.3d at 754, 756 n.8.

This is one such " cumbersome review" case. Although the district court denied summary judgment on four claims because they " turn[ed] on issues of fact," it did not explicitly identify which material facts were in dispute. See Appx. at 1064. We must therefore comb " the record to determine what facts the district court, in the light most favorable to [the Plaintiffs], likely assumed." Roosevelt-Hennix, 717 F.3d at 754. Making our review less cumbersome is the district court's observation that the " Plaintiffs' Statement of Disputed Facts" (ECF No. 133) outlined the primary factual disputes that formed, at least in part, the basis of its decision. See Appx. at 1064 (observing that the " fact disputes" are " set forth in some summary at CM-ECF docket no. 133, but they're everywhere in this case" ). That document lays out Plaintiffs' alleged fact disputes, and we therefore assume the district court agreed they were material and disputed.[1]

Also helpful are the various video clips of the encounter. Because the district court failed to " identify the particular charged conduct that it deemed adequately supported by the record," we must " look behind the order denying summary judgment and review the entire record," including the video evidence submitted by the Defendants in support of their motion for summary judgment. Roosevelt-Hennix, 717 F.3d at 756 n.8 (quotations omitted) (emphasis added).[2]

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B. Section 1983 and Qualified Immunity

Title " 42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law." Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013). " Individual defendants named in a § 1983 action may raise a defense of qualified immunity," id., which " shields public officials... from damages actions unless their conduct was unreasonable in light of clearly established law," Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quotations omitted). Generally, " when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Cillo, 739 F.3d at 460; see also Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

To determine whether the right was clearly established, we ask whether " the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al- Kidd, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (quotations omitted). " Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (quotations omitted). " The plaintiff is not required to show, however, that the very act in question previously was held unlawful... to establish an absence of qualified immunity." Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted).

C. Summary Judgment Standard

Basic principles guide our review of the denial of summary judgment in this factually contentious case. " We review de novo the district court's denial of a summary judgment motion asserting qualified immunity." McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 963 (10th Cir. 2009)). A district " court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " In applying this standard, we construe the evidence in the light most favorable to [the Plaintiffs] as the nonmoving party." McBeth, 598 F.3d at 715.

When the defendant has moved for summary judgment based on qualified immunity, we still view the facts in the light most favorable to the non-moving party and resolve all factual disputes and reasonable inferences in its favor. See id. Unlike most affirmative defenses, however, the plaintiff would bear the ultimate burden of persuasion at trial to overcome qualified immunity by showing a violation of clearly established federal law. Thus, at summary judgment, we must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct. See Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (asking whether " a violation could be made out on a favorable view of the parties' submissions" ), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Riggins v. Goodman, 572 F.3d 1101, 1107

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(10th Cir. 2009) (" [T]he Supreme Court has held that qualified immunity is proper when the record plainly demonstrates no constitutional right has been violated, or that the allegations do not offend clearly established law." ).

" We may, at our discretion, consider the two parts of this test in the sequence we deem best 'in light of the circumstances in the particular case at hand.'" Bowling, 584 F.3d at 964 (quoting Pearson, 555 U.S. at 223). If a " plaintiff successfully carries his two-part burden," the " defendant bears the burden, as an ordinary movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity." Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996); see also Pueblo Neighborhood Health Cntrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988) (same).


A. Factual Background

We recite the facts the district court " likely assumed" in the light most favorable to the Plaintiffs, drawing all reasonable inferences in their favor. The following is based on the parties' statements of undisputed facts, the video evidence, and the Plaintiffs' Statement of Disputed Facts (ECF No. 133), which the district court relied upon in denying summary judgment.

1. Initial encounter with Mr. Booker

On the evening of July 8, 2010, Mr. Booker was arrested on a warrant for failure to appear at a court hearing related to a drug charge. Police transported him to the Downtown Detention Center (" DDC" ) to be booked. The DDC has an intake area called a " cooperative seating area" where arrestees wait to complete the booking process. According to the Defendants, uncooperative arrestees are moved into nearby intake/isolation cells until they calm down.

Around 3:30 a.m. on July 9, Deputy Faun Gomez called for Mr. Booker to approach the booking desk. Mr. Booker did so. Mr. Booker's precise behavior at this point is disputed,[3] but Deputy Gomez determined that Mr. Booker should be moved from the cooperative seating area to cell I-8, an intake/isolation cell. Deputy Gomez approached cell I-8 and ordered Mr. Booker to enter it. He walked toward her, but then turned away and walked toward a short set of stairs that returned to the cooperative seating area.[4]

Deputy Gomez approached from behind Mr. Booker to stop him from returning to the cooperative seating area. She reached toward his upper left arm, but he pulled away from her grasp. When she tried again to grab Mr. Booker's arm, he swung his left arm up and away from her. He then turned toward Deputy Gomez and swung his left elbow, nearly striking her head.[5]

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2. Restraining Mr. Booker

Deputies James Grimes, Kenneth Robinette, Kyle Sharp, and Sergeant Carrie Rodriguez witnessed Mr. Booker swing his elbow at Officer Gomez. According to their affidavits, they viewed Mr. Booker's action as aggressive. They each hurried to help Deputy Gomez, who was trying to restrain Mr. Booker. Within a few seconds, they took Mr. Booker to the ground, where he lay in the " prone" position on his stomach.

Deputy Grimes put Mr. Booker in a " carotid restraint." Appx. at 293, 443-44. According to the Denver Sheriff Department's training materials, " [t]his technique compresses the carotid arteries and the supply of oxygenated blood to the brain is diminished while concurrently sealing the jugular vein which returns the deoxygenated blood." Appx. at 802.[6] The hold is capable of rendering a person unconscious within " 10-20 seconds." Id. at 803; see Aplt. Br. at 9 (Defendants acknowledging " [a]n effective carotid restraint typically results in the subject going unconscious within five to twenty seconds" ). The Sheriff's training materials warn that " [b]rain damage or death could occur if the technique is applied for more than one minute," and " [t]herefore the application of the technique should not be applied for more than one minute." Appx. at 809 (emphasis in original).

Meanwhile, Deputies Robinette and Gomez tried to handcuff Mr. Booker's hands behind his back. Deputy Robinette applied a " gooseneck hold," a pain compliance technique, by bringing Mr. Booker's right hand behind him. Leaning over Mr. Booker, Deputy Robinette swept Mr. Booker's right wrist behind his back for handcuffing. Eventually, Deputies Gomez and Robinette secured Mr. Booker's left wrist for handcuffing. After Mr. Booker was handcuffed, Deputy Robinette put his knee on Mr. Booker's back, applying 50 to 75 percent of his total body weight of approximately 190 pounds.[7] See Appx. at 376-77, 448; see also Aplt. Br. at 4.

Deputy Sharp used Orcutt Police Nunchakus (" OPN" ) on Mr. Booker.[8] The OPN is a pain compliance device used to apply pressure on a subject. After Mr. Booker was taken to the ground, Deputy Sharp secured the OPN to his left ankle and applied pressure. After Mr. Booker was handcuffed, Deputy Sharp removed the OPN. Deputy Sharp asserts Mr. Booker

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then kicked his feet in his direction, but the Plaintiffs deny this allegation. Deputy Sharp reapplied the OPN to Mr. Booker's left ankle and told other deputies Mr. Booker had tried to kick him.

When Mr. Booker was handcuffed and other deputies had control of his limbs, Deputy Grimes requested that a taser be used on Mr. Booker.[9] Sergeant Rodriguez, the on-duty supervisor, was handed a taser and applied the taser in " drive stun mode" [10] to Mr. Booker's leg for eight seconds.[11] See Appx. at 296, 449. The standard cycle is five seconds. Aplee. Br. at 4; Appx. at 449.

After Sergeant Rodriguez used the taser on Mr. Booker, Deputy Grimes ended his carotid hold and Deputy Sharp removed the OPN from Mr. Booker's ankle. Two minutes and 55 seconds expired between the time Deputy Gomez tried to grab Mr. Booker's arm and when Deputy Grimes released the carotid hold.[12] See Appx. at 361 (" 2nd angle video" ), 3:35:07-3:38:02.

3. Mr. Booker's Resistance

The district court did not explicitly state whether there was a genuine issue of material fact as to the level of Mr. Booker's resistance during the use of force. In their affidavits, the officers asserted Mr. Booker resisted efforts to restrain him during virtually the entire use of force. Only after the taser's use, they claim, did Mr. Booker stop resisting.[13] In light of these submissions, the Defendants urge us to rely on the " undisputed testimony of the deputies... to augment that which cannot be seen on video." Aplt. Br. at 29. This we cannot do.

Because our record review indicates the primary factual dispute in the district court was Mr. Booker's resistance, we must resolve this dispute in the Plaintiffs' favor on interlocutory review. Our analysis therefore accepts Mr. Booker did not resist during the vast majority of the encounter. The Defendants argue the video

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evidence belies this conclusion, but they are mistaken.[14] In fact, the video, which shows Mr. Booker motionless on the floor while the deputies subdue him, contradicts the Defendants' assertion that Mr. Booker consistently resisted them.

4. Medical attention[15]

After restraining Mr. Booker, four deputies lifted him by his limbs and carried him to cell I-8. Mr. Booker's condition at this time is disputed. The officers did not check Mr. Booker's vitals or attempt to determine whether he needed immediate medical attention. They placed him face down on the cell floor. The deputies removed Mr. Booker's handcuffs from behind his back and left him alone in the cell. Approximately a minute and a half passed between the time the deputies placed Mr. Booker in the cell and then left the cell. See Appx. at 361 (" I-8 video" ), at 3:39:39-3:41:08.

After leaving the cell, Sergeant Rodriguez secured the taser in its designated storage location and then went to the nurses' office to request that Mr. Booker be evaluated. The parties dispute whether Sergeant Rodriguez conveyed that Mr. Booker's condition was an emergency or merely that he was " acting like he's unresponsive." Appx. at 453, 761, 971.

In the meantime, Deputy Sharp returned to the cell about 21 seconds after the other deputies left. See Appx. at 361 (" I-8 video" ), at 3:41:08-3:41:29. He yelled to Deputy Grimes that Mr. Booker did not appear to be breathing and needed medical attention. Deputy Grimes looked through the cell window and confirmed this observation. Deputy Grimes yelled for others to " step it up." Appx. at 454. Deputy Sharp went to the nurses' station and told a nurse to hurry.

One minute and 31 seconds passed between the time Deputy Sharp returned to cell I-8 and when a nurse arrived at the cell. When the nurse arrived, approximately 4 minutes and 48 seconds had passed since the use of force incident ended.[16] See Appx. at 361 (" I-8 video" ), at 3:38:02-3:43:00.

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Attempts to resuscitate Mr. Booker were unsuccessful. He was transported to a nearby hospital, where he was pronounced dead.

The medical examiner opined in the autopsy report that the cause of Mr. Booker's death was " cardiorespiratory arrest during physical restraint." Appx. at 736. The report states,

The restraints consisted of weight applied to the decedent's body while held prone on the floor, application of a carotid " sleeper" hold..., application of a Taser to a lower extremity in the " stun drive" mode for 8 seconds, restriction of arm movement by cuffing his hands behind his back, and restriction of leg movement by use of an " OPN" (nunchuk).

Id. Mr. Booker's death was listed as a homicide. Plaintiffs' experts opined that Mr. Booker died of asphyxia caused by the deputies' efforts to restrain him. See Appx. at 724-25, 825.

B. Procedural Background

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