Facts
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On March 21, 2021, Evan Norman went to Bombshells Restaurant and Bar, consumed “at least seven alcoholic beverages within a two-hour time span,” and fell asleep. Deputy Ingle removed Norman from Bombshells at its request and instructed Norman to go home. Norman replied: “right, so you got a little short man complex?” Deputy Ingle offered Norman the choice of going home or being arrested for public intoxication. Norman responded with a request for Deputy Ingle’s and Deputy Sutton’s names and badge numbers. Deputy Ingle provided his and Deputy Sutton did not. As Deputy Ingle began to walk back into Bombshells, Norman asked if he was “running away.”
Deputy Ingle responded “you are going to go home now.” Deputy Sutton encouraged Deputy Ingle to return to the bar and put his arm between them. When Norman reached over Deputy Sutton’s arm and pointed his finger at Deputy Ingle, Deputy Sutton shoved Norman while telling him to “get back.” As the Deputies returned to Bombshells, Norman followed them, again asking for Deputy Sutton’s name and badge number. As the Deputies turned toward Norman, Deputy Sutton put his finger in Norman’s face saying “if you walk up on me again, I’m gon’ get—” and shoved Norman with both hands while shouting “get back!”
As the Deputies continued the walk toward Bombshells, Norman followed. Then, in a matter of seconds, Deputy Ingle shoved Norman away from the entrance and, as Norman stumbled, walked toward him yelling “get the f— back!” Norman regained his footing and swung his closed fist at Deputy Ingle, narrowly missing his head, but with his arm behind Deputy Ingle’s head, Norman had him in a headlock. With Deputy Ingle’s arm around Norman and tussling on foot, Deputy Sutton punched Norman in the head. As Norman fell to the ground, Deputy Ingle punched him in the head three times. As they hit the ground, a third officer grabbed Norman’s right arm while Deputy Ingle kneeled on Norman’s left arm and punched him in the head at least six times in quick succession. Video evidence does not show that Norman resisted arrest while on the ground.
While still kneeling on Norman’s left arm, Deputy Ingle asked “you done?” three times. Four seconds after his last punch, Deputy Ingle punched him in the head again. The Deputies then placed Norman under arrest. At this point, the Deputies addressed concerned bystanders and then Deputy Sutton immediately requested medical help for Norman. The Deputies left Norman facedown for around ten minutes awaiting medical assistance. Norman suffered a fractured orbital rim and orbital roof, a broken nose, hemorrhaging in his sinus cavity, and subcutaneous emphysema.
The district court noted claims against the Deputies for assault, excessive force, false arrest, failure to give medical attention, malicious prosecution, wrongful prosecution, and failure to intervene. The Deputies filed motions for summary judgment, asserting qualified immunity among other defenses. The district court denied the motions, finding genuine disputes of fact as to whether Norman posed an immediate threat to the safety of the officers or others, resisted arrest, and was denied immediate medical attention. The 5th reversed and granted qualified immunity to the officers.
Analysis
When a plaintiff asserts claims against multiple officers stemming from a single event, a reviewing court of course must analyze the officers’ actions separately. Here, video evidence provides sufficient clarity that no reasonable jury could find that either deputy violated Norman’s constitutional rights— clearly established or not.
A. Excessive Force
The crux of the matter is that Norman attempted to punch a sheriff’s deputy and placed him in a headlock. Each individual deputy’s response to that act occurred within seconds of battling with Norman. Given Norman’s effort to strike an officer with a closed fist, subsequent headlock, and the speed with which this event progressed, a total of mere seconds, we cannot now find that the responsive actions of the Deputies were clearly unreasonable. We are not persuaded that the force used by each deputy in the exchange was excessive.
B. Denial or Delay of Medical Care
Norman’s argument as to medical care is brief—two sentences. He asserts, without any legal citation, that “Deputy Ingle admits, and the videos show, that Evan was left face down for 11 minutes before he was adjusted upright. This positional asphyxiation was against policy and was deliberately indifferent to his medical need to breathe.”
Deputy Sutton used his radio to call for medical assistance as soon as Norman was secure and any potential conflict between the Deputies and Bombshells’ patrons was extinguished. There can be no genuine dispute of material fact on this point, and Norman’s two-sentence argument is insufficient to satisfy his burden of proving a constitutional violation due to denial or delay of medical care rising to a denial of constitutional rights.
C. Failure to Intervene
Norman contends that Deputy Sutton failed to intervene to stop Deputy Ingle’s use of excessive force, encouraged Officer Ingle to hit Norman, and held Norman during the use of excessive force. Deputy Sutton responds that there is no genuine dispute of fact that he had only five or six seconds to intervene. Deputy Ingle’s application of force lasted for only a few seconds, during which Deputy Sutton both encouraged the use of force and its end.
An officer may be liable under § 1983 under a theory of bystander liability where the officer (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act. We also consider whether an officer acquiesced in the alleged constitutional violation. Finally, because the Deputies have asserted qualified immunity, Norman must also identify clearly established law requiring an officer to intervene under similar circumstances.
Norman points to no case for failure to intervene specifically, but argues generally that with respect to qualified immunity, the Graham factors themselves and the Joseph case are both instructive. In Joseph, the plaintiff brought failure to intervene claims against a group of police officers. The officers held the plaintiff down, provided the baton, offered a taser, and assisted in dragging the plaintiff toward a more open area. The court found a genuine dispute of fact that should be resolved by the jury, but ultimately granted qualified immunity to the bystander officers on the clearly established prong.
Here, Deputy Sutton did not actively participate in the challenged conduct, offering only a few words in the few seconds of the challenged conduct. Norman offers no analogous case law that a reasonable officer would know of his duty to intervene under these circumstances. And as in Joseph, the district court did not assess the clearly established law applicable to the bystanding officer. Norman has not met his burden of demonstrating that this claim of bystander liability is not barred by qualified immunity.
D. Wrongful Arrest, Malicious Prosecution, and First Amendment
The Deputies argue that Norman abandoned his false arrest, malicious prosecution, and First Amendment claims and to the extent Norman is pursuing these claims, they fail. Norman’s response to the motions for summary judgment provides the following: “Although Plaintiff refers to false arrest, malicious prosecution, and First Amendment claims in his complaint, upon review of the evidence provided, he does not pursue them here.” These claims are abandoned and fail.
Conclusion
Given the video evidence, we find no question of material fact and that no constitutional right was violated and REVERSE.
https://www.ca5.uscourts.gov/opinions/pub/24/24-20431-CV0.pdf