Tenth Circuit Morris v. Noe 11-5066

Decision here.

   In this case, Officer Noe was responding to a call of a domestic (a chaotic one, with burning clothes, a tire iron through a windshield, and all sorts of nonsense).  The suspect in the DV case was gone when he got there, but the three people who remained were still yelling and arguing.  Officer Noe tried to calm them down and take their statements.  About twenty minutes later (after the situation was finally under control), William Morris showed up.  He asked his wife (one of the people already on scene) if she was okay, and asked Bell (one of the other involved parties) "Why was you talking to mama that way?"  Bell approached Morris, who put his hands up and backed away from Bell.

   At this point, Officers grabbed Morris from behind, threw him to the ground (into some bushes), and handcuffed him.  After they stood him up, they noticed that he smelled like alcohol and he admitted to having a couple of drinks earlier.  He was issued a summons for public intoxication, and then he was hospitalized for 30 days for hip injuries incurred during the takedown.  While he was in the hospital, his wife went to court for him on his public intoxication charge and paid the fine.  Three years later, Morris died and his wife brought a 1983 suit against Noe alleging unlawful arrest and excessive force.  Noe was denied qualified immunity by the district court, and appealed.

   Noe argued that there was PC to arrest Morris for public intoxication, and that he was not under arrest until that summons was issued.  He also argued that the takedown was part of a detention based on reasonable suspicion that Morris was committing an assault, and that the force used was reasonable.  The 10th circuit held that 1- Since Morris was backing away from Bell, had not threatened him, and wasn't doing anything aggressive, and generally posed no threat to anyone, the force used was unreasonable.  2- The force used during the takedown converted the detention to an arrest. 3- Although Noe eventually developed PC to charge Miller with public intoxication, that happened after he was already in custody.  At the time he was actually arrested (the takedown), Noe didn't even have RS to detain him.

   Finding that Miller's rights to be free from unlawful arrest and excessive force under these circumstances was clearly established, the Tenth upheld the lower court's denial of qualified immunity.  The decision also addresses whether or not the law can be clearly established (for qualified immunity purposes) by unpublished opinions (the court admitted that unpublished opinions do not carry the same weight that published opinions do, but specified that it had never actually held that they carry no weight.  The court found it unnecessary to resolve this issue at this time).