Johnson v. Daniel Scott Peay & Morgan Cnty.

KRISTINE BIGGS JOHNSON, Plaintiff - Appellant, v. DANIEL SCOTT PEAY and MORGAN COUNTY, Defendants - Appellees.

No. 16-4160

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 1, 2017

(D.C. No. 1:14-CV-00147-TC)

(D. Utah)

ORDER AND JUDGMENT^*

Before TYMKOVICH, Chief Judge, LUCERO, and MORITZ, Circuit Judges.

Kristine Biggs Johnson suffered a non-fatal gunshot at the conclusion of a lengthy, high-speed chase she initiated in Morgan County, Utah. Johnson then sued the officer who fired the shot, Sergeant Daniel Scott Peay of the Morgan County Sheriff's Department. She claims Sergeant Peay violated her Fourth Amendment right to be free from excessive force. The district court entered summary judgment in favor of Sergeant Peay, finding that he acted reasonably inthe situation and the contours of Johnson's Fourth Amendment right were not clearly established at the time of the incident. The court therefore found that Sergeant Peay was entitled to qualified immunity and dismissed Johnson's 42 U.S.C. § 1983 claim against him.

To succeed on appeal, Johnson must prove that the constitutional right at issue was "clearly established" at the time of Sergeant Peay's alleged misconduct. We conclude the contours of Johnson's Fourth Amendment right to be free from excessive force at the conclusion of the confrontation were not sufficiently definite to place Sergeant Peay's conduct "beyond debate" at the time of the incident.

We therefore conclude that Sergeant Peay is entitled to qualified immunity and affirm the district court's grant of summary judgment.

I. Background

Johnson initiated the underlying car chase when Deputy Christian Peay of the Morgan County Sheriff's Department, Sergeant Peay's brother, attempted to initiate a traffic stop due to the fact that Johnson was driving late at night without her headlights on. Johnson failed to yield to Deputy Peay, even after he activated his overhead emergency lights and siren, and led Deputy Peay on a high-speed chase lasting over half an hour. Law enforcement deployed spike strips, which flattened three of Johnson's tires. Nevertheless, she persisted in her attempt to evade arrest. Johnson did not stop even after several tires came off her truck'swheel rims altogether. Instead, Johnson continued to flee and drive erratically; she drove off the right shoulder of the interstate, went back across both lanes, and struck the cement barrier in the middle of the divided highway. Johnson eventually exited the interstate and turned onto a rural road, but still refused to yield to Deputy Peay or any of the other law enforcement vehicles that had joined the pursuit by that time.

After she exited the interstate, Johnson stopped and began to turn her truck around to face the officers. Several law enforcement vehicles, including both Sergeant Peay's and Deputy Peay's vehicles, lined up across the road to block Johnson's westbound path. Cameras located on the dashboards of these law enforcement vehicles recorded the rest of the encounter. Sergeant Peay exited his vehicle and verbally ordered Johnson to stop and get out of her truck. Instead of stopping, Johnson began to pull forward toward Sergeant Peay's vehicle and bumped into it with her truck. She then backed up and began to pull forward again, turning and bumping into Deputy Peay's stationary vehicle with even greater force than the first collision and breaking the grill guard at the front of the vehicle. By then, Deputy Peay had also exited his vehicle but dropped out of Sergeant Peay's view. Sergeant Peay therefore did not know whether Deputy Peay was under Johnson's truck, had been struck by Johnson's truck, or if he had been pinned between the two vehicles. As Johnson's truck collided with Deputy Peay's vehicle, Sergeant Peay fired a single shot at Johnson's truck. The bulletpassed through Johnson's windshield and struck her in the head. After securing the scene, officers called for and provided immediate medical attention for Johnson. Johnson survived the gunshot but suffered serious injuries and lost the vision in her left eye.

Officers recovered a half-empty bottle of vodka at the scene, which Johnson indicated she purchased from a gas station a few hours before the incident. It was later determined that Johnson had a blood alcohol level of 0.358 at the time of the incident, more than four times the legal limit in Utah. And Johnson stated that she "had every intention of trying to kill [herself]," "want[ed] to die," and was attempting "death by cop." Supp. App. at 98, 110. In the aftermath of the incident, Johnson was cited for a variety of violations and eventually pleaded guilty to failure to respond to an officer's signal to stop (a third degree felony) and driving under the influence of alcohol or drugs (a class B misdemeanor).

Meanwhile, the Davis County Attorney's Office investigated Sergeant Peay's use of force under state law governing a "peace officer's use of deadly force." See Utah Code. Ann. § 76-2-404. The office determined that Sergeant Peay's "use of potentially lethal force . . . was not necessitated by the facts" and the shooting did "not squarely fit with the letter, scope and intent of" state and related federal law, but ultimately declined to prosecute Sergeant Peay because "aunanimous jury would not convict Sergeant Peay of a crime when presented with all of the evidence." App. at 63-64.

Following the conclusion of the office's investigation, Johnson filed suit against Sergeant Peay in federal district court. As relevant to this appeal, Johnson claims Sergeant Peay's use of deadly force violated her clearly established Fourth Amendment right to be free from excessive force.

II. Analysis

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The plaintiff opposing a defendant's assertion of qualified immunity must prove both that: (1) a constitutional violation occurred; and (2) the violated right was clearly established at the time of the violation. See id. We have discretion to decide which of the two prongs of the qualified immunity analysis should be addressed first. Id. Because we conclude that Sergeant Peay did not violate a clearly established constitutional right, we "take the advice of Pearson and address that issue first." Id.

"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conductwas unlawful in the situation." Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). In other words, "[a] right is clearly established when it is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). "An officer 'cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it,' meaning that 'existing precedent placed the statutory or constitutional question beyond debate.'" City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (alterations incorporated). This standard is relatively deferential to government officials and, in any gray area, the officer prevails: "[Q]ualified immunity protects actions in the 'hazy border between excessive and acceptable force.'" Mullenix v. Luna, 136 S. Ct. 305, 312 (2015) (per curiam) (citations omitted; alterations incorporated).

Moreover, the Supreme Court has repeatedly emphasized that "'clearly established law' should not be defined 'at a high level of generality'" and "must be 'particularized' to the facts of the case." White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citations omitted). "Such specificity is especially important in the Fourth Amendment context," where the Supreme Court has recognized itmay be "difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 136 S. Ct. at 308 (quoting Saucier, 533 U.S. at 205). When a case "presents a unique set of facts and circumstances," this quality "alone [is] an important indication . . . that [the officer's] conduct did not violate a 'clearly established' right." See Pauly, 137 S. Ct. at 552 (citations omitted). That is, when there is no case "where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment," it is unlikely that the officer's conduct violated "clearly established" law. See id.

In general, it is not "constitutionally unreasonable" for an officer to prevent a suspect's escape by using deadly force when the officer "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004) (per curiam) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Within this broad framework, however, a series of excessive force cases involving car chases reveals the "hazy legal backdrop," Mullenix, 136 S. Ct. at 309, against which Sergeant Peay acted. In Brosseau, for example, the Supreme Court reversed the Ninth Circuit's decision to withhold qualified immunity from officer Brosseau, who shot Haugen in the back as he "attempted to flee from law enforcement authorities in his vehicle." Id. at 194. Brosseau explained that "she shot Haugen because she was 'fearful for the other officers on foot who she believed were inthe immediate area, and for the...