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Wernert v. Washington, 4th Cir. (2011)
Wernert v. Washington, 4th Cir. (2011)
No. 10-1360
Deputy
Sheriff,
sued
in
his
individual
Defendant Appellant,
and
RYANT L. WASHINGTON, Sheriff, sued in his official capacity,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.
Norman K. Moon,
District Judge. (3:09-cv-00031-nkm-bwc)
Argued:
Decided:
THOMPSON
Jeffrey
MCMULLAN, PC,
Edward Fogel,
Appellant Greene
For
the
reasons
explained
herein,
we
affirm
the
I
On
the
evening
of
May
4,
2007,
Fluvanna
County
Police
the
same
road.
The
man
who
committed
the
assault
was
the
location
of
the
assault,
the
deputies
saw
Appellee
bag.
The
deputies
stopped
him
and
asked
for
The radio
The deputies
deputies
spoke
with
individuals
that
Wernert
became
angry
at
the
home
where
and
began
to
swing
at
a verbal argument.
The
deputies
Department.
then
drove
Wernert
to
the
Sheriffs
his belt. Deputy Greene then told Wernert to kick your shoes
off.
When he managed to
kick
on
off
his
left
shoe
it
flipped
up
[him],
Id.
and
it
Wernert
suffered
displaced
multiple
teeth.
He
facial
fractures
received
and
stitches,
impacted
had
his
and
teeth
filed
suit
against
Deputy
Greene
in
the
U.S.
Wernert
Fourteenth
Amendment
rights,
which
were
clearly
Deputy Greene
II
Under 28 U.S.C. 1291, this Court has jurisdiction over
all
final
district
court
orders.
Qualified
immunity
is
an
Winfield v. Bass,
106 F.3d 525, 52829 (4th Cir. 1997) (en banc) (citing, inter
alia, Behrens v. Pelletier, 516 U.S. 299 (1996), and Mitchell,
472 U.S. at 52430).
However, a defendant invoking a qualified immunity defense
may
not
appeal
district
courts
summary
judgment
order
Johnson
In other words, on an
established
law
accepting
the
facts
as
the
district
to
Appellee
Wernerts
contention,
we
have
Culosi
involved
Fourth
1983
excessive
force
claim
under
the
case,
by
contrast,
Deputy
Greene
does
Id. at 202.
not
dispute
In
what
rights
Therefore,
is
this
under
claim
the
that
7
Fourteenth
there
was
no
Amendment.
violation
of
clearly
established
law
accepting
the
facts
as
the
district
now
proceed
to
consider
Greenes
arguments
on
the
merits.
III
Generally,
government
officials
performing
discretionary
bad
transgressing
guesses
bright
in
gray
lines.
areas;
Iko,
535
they
F.3d
are
at
liable
238
for
(quoting
evaluating
determine
whether,
favorable
to
actions
the
violated
qualified
construing
nonmoving
a
the
party,
constitutional
immunity
facts
the
in
claim,
we
first
the
light
most
government
right.
If
officials
so,
we
must
Orem v.
district
court
correctly
understood
that
Wernerts
excessive force claim falls under the Due Process Clause of the
Fourteenth Amendment.
prevail
on
his
claim,
Wernert
must
show
that
Deputy
some
other
legitimate
governmental
purpose.
Robles
v.
Prince Georges Cnty., Md., 302 F.3d 262, 269 (2002) (quoting
Bell v. Wolfish, 441 U.S. 520, 538 (1979)).
In determining
used, the extent of the injury inflicted, and whether the force
was
applied
in
good
faith
effort
to
maintain
and
restore
the
facts
in
the
light
most
favorable
to
of
Wernert
was
wanton
and
unnecessary,
rather
and
that
it
therefore
constitutes
constitutional
violation.
The injuries inflicted on Wernert were severe.
Medical
J.A. 16263.
He required
Id.
avers that Deputy Greene told him to do, did not result in
injury to Deputy Ferki.
shot,
Ferki
Dep.
at
53
(J.A.
144),
when
Greene
took
Wernert Dep.
at 60 (J.A. 115).
Deputy Greenes own statements support the proposition that
Wernert did not pose a threat.
they
arrived
at
the
disrespectful
or
aggressive,
Wernerts handcuffs.
police
station,
and
so
Wernert
he
wasnt
planned
to
being
remove
Greene also
stated that prior to the shoe hitting Deputy Ferki, he did not
perceive Wernert to be a threat to either deputy.
(J.A. 65).
Id. at 90
Id.
I was,
He had
He
Lynch
explained
that,
restrained
in
his
subject
opinion,
such
as
[t]he
Mr.
need
WERNERT,
to
stabilize
who
offered
a
no
He
threatened
under
these
circumstances.
Id.
at
(J.A.
169).
The particular manner in which Deputy Greene took Wernert
to the floor further suggests that the type of force used was
excessive.
Greene
because
believed
he
alternative
leg
claims
it
sweep
that
would
he
be
used
maneuver,
an
less
which
escort
harmful
could
takedown
than
have
the
caused
help[ing]
Wernert
to
the
ground.
Id.
at
96
(J.A.
134).
Lynch Declaration at 2
brace his fall with the free hand as the officer can control
the angle and direction of the takedown to the prone position.
In this manner, the subjects fall is directed to the chest and
abdomen.
and
Id.
impaired
by
Lynch
explained
that
it
would
be
Deputy
weight
GREENE
during
to
the
be
able
to
takedown.
control
Id.
Mr.
Lynch
WERNERTs
concluded
body
that
Id.
justified
at
all,
the
force
applied
here
was
faith
effort
to
maintain
and
restore
discipline
or
1033).
breach
of
discipline
Wernert
committed,
coupled
with
Deputy
it
was
unnecessary
to
restore
discipline.
Lynchs
Lynch Declaration
suggests
that
Deputy
Greene
may
have
acted
in
retaliatory
manner.
on an officer.
Thats assault
most
favorable
to
Wernert,
demonstrate
that
the
force
concluded
that
Deputy
Greenes
conduct
violated
no
difficulty
in
concluding
that
in
May
2007,
it
We
was
448 (citing Bell, 441 U.S. 520); Martin v. Gentile, 849 F.2d
863, 870 (1988) ([T]he pretrial detainee, who has yet to be
adjudicated guilty of any crime, may not be subjected to any
form of punishment.).
Greene nonetheless argues that a reasonable officer would
not
have
known
that
the
force
used
by
Greene
violated
the
He is
believed
[Greenes
actions]
to
be
lawful,
in
light
of
Orem, 523 F.3d at 448 (citing Hunter v. Bryant, 502 U.S. 224,
227 (1991)).
The unreasonableness of Greenes actions is put into sharp
relief by Deputy Ferkis very different perception of the shoe
incident.
Ferki
In addition, Lynchs
would
circumstances
to
not
have
felt
take
someone
15
in
threatened
custody
to
under
the
these
ground
so
violently.
Lynch
Declaration
at
(J.A.
169).
In
these
conclusion
finds
further
support
in
this
courts
We held that,
sadistic,
discipline.
that
the
and
not
Id. at 447.
right
of
an
good
faith
to
be
free
who
used
the
taser
to
restore
arrestee
effort
from
the
use
of
comparison
to
that
of
other
officers
Id. at 449.
Similarly
here,
Deputy
Greenes
use
of
force
against
harm
to
the
officers,
was
not
16
objectively
reasonable
and
IV
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
17