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Ninth Circuit:
Reasonable Jury Could Find Officer Liable for Breaking Woman’s Arm During Arrest
By a MetNews Staff Writer
A District Court judge erred in granting summary judgment to a police officer who was sued by a woman on whom he applied such force in arresting her for trespassing as to break her arm, the Ninth U.S. Circuit Court of Appeals held yesterday.
The memorandum opinion reverses a Feb. 21, 2019 order by Judge William B. Shubb of the Eastern District of California awarding summary judgment to Vacaville Police Officer Stuart K. Tan on an “excessive force” claim brought by Lisa Marie Close pursuant to 42 U.S.C. §1983. It affirms summary judgment, however, on a claim by Close of false arrest.
A panel—comprised of Chief Judge Sidney Thomas and Judges Ryan D. Nelson and Paul J. Watford—said Tan had qualified immunity as to the false arrest claim because it is reasonably arguable that he had probable cause to arrest Close based on reports that she refused to leave an examination room. However, the panel said, a reasonable jury could find that excessive force was indeed exerted in taking her into custody given that she was only passively or minimally resisting.
Allegations of Complaint
The incident took place on June 2, 2016 at Sutter Regional Medical Center. According to the complaint, Close and her doctor had a discussion during which they disagreed on her treatment; she did not threaten him or use foul language; the doctor left the room and Close went out and engaged in a conversation with hospital personnel; when she returned to the room, a security guard told her she would have to leave and that a police officer was on his way; she telephoned the hospital to speak with a supervisor and ascertain what was going on, and was put on hold.
The complaint recites:
“At some point Defendant STUART K. TAN arrived while plaintiff was still on hold. Defendant STUART K. TAN told plaintiff that she is trespassing and she is wasting his time by having a police respond to something as trivial as trespassing. Plaintiff informs Defendant STUART K. TAN that she is trying to speaking with a hospital supervisor regarding this incident. Defendant STUART K. TAN became upset and grabs plaintiffs arm and attempts to drag plaintiff. As defendant STUART K. TAN attempts to drag plaintiff, he grabs the phone and wrenches the phone from plaintiff’s hand. The phone ends up on the opposite side of the room. Plaintiff informs defendant STUART K. TAN that she suffers from Asperger’s syndrome. Defendant STUART K. TAN did not respond to plaintiffs statement; instead, he yells at her that she needs to leave the room. Defendant STUART K. TAN bear hugs plaintiff and plaintiff temporarily loses consciousness and falls to the floor After plaintiff regains her consciousness and gets up from the floor, defendant STUART K. TAN grabs plaintiff again and knocks her to the ground face first. Defendant STUART K. TAN twists plaintiffs arm which causes plaintiff to feel excruciating pain. Plaintiff feels something tear in her arm. At no point did plaintiff attempt to resist. Defendant STUART K. TAN handcuffs plaintiff. Plaintiff is in a tremendous amount of pain.”
The pleading continues:
“At some point, defendant STUART K. TAN transports plaintiff to a jail facility. While at the jail, plaintiff experiences severe arm pain. At some point, plaintiff is taken from the jail, by defendant STUART K. TAN to a medical facility. Defendant STUART K. TAN forcefully handcuffs plaintiff and grabs her injured arm. Plaintiff cries out in pain. At some point, hospital personnel informed plaintiff that she has a broken arm.”
District Court Ruling
Shubb noted that Tan had activated his body camera. He said that having viewed the tape, he thought the officer had exhibited “extreme patience in attempting to reason with plaintiff and persuade her to leave voluntarily before finally exerting any force whatsoever.”
The judge said in his order:
“Plaintiff did not have a clearly established right to be free of some minimal amount of force incident to her arrest. Given the relevant caselaw at the time of the incident, a reasonable officer in the position of defendant Tan reasonably could have believed that the force used, including ‘bear hugging’ plaintiff, pushing her to the ground, and twisting her arm, during the course of her arrest, as plaintiff alleges, was not an excessive use of force. For this reason, defendant Tan is entitled to qualified immunity on plaintiff’s § 1983 excessive force claim.”
In yesterday’s opinion, the panel declared that summary judgment was improperly granted on the excessive force claim because a reasonable jury could find that Tan’s conduct contravened Close’s right under the Fourth Amendment and was violative of law that was clearly established at the time of the arrest, precluding application of qualified immunity.
The opinion says:
“[C]learly established law prior to Close’s 2016 arrest held that non-trivial force was unconstitutionally excessive when used against an individual who was passively resisting arrest….Thus, there are genuine issues of material fact sufficient to survive summary judgment, regardless of whether Close was passively resisting or minimally resisting.
“A reasonable jury could find that exerting enough force on Close’s arm to fracture it, partially dislocate her elbow, and tear the soft tissue, rose to the level of non-trivial force.”
The case is Close v. City of Vacaville, 19-15702.
Close, 64, was not criminally charged in connection with the alleged trespass.
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