Opinion
Case No. 2:02-CV-161TC
September 8, 2003
ORDER
Plaintiff Tyler Tweed has a history of seizures. He alleges that on July 8, 2000, in the aftermath of one such seizure, he was subjected to excessive force — in violation of his constitutional rights — by law enforcement officers investigating a car accident involving him. Mr. Tweed brings this action under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights in: (1) the use of excessive force by Defendant Sergeant Chris Bertram ("Sergeant Bertram") and Defendants Shauna Mackey and Michelle McLaughlin (collectively, "the troopers"), (2) the failure of the troopers to intervene to protect Mr. Tweed from Sergeant Bertram's use of excessive force; and (3) all Defendants' (including Trooper Provost, a desk trooper) participation in malicious prosecution. All four Defendants have filed motions for summary judgment.
When relevant, the three officers attending to the car accident, Defendants Bertram, Mackey, and McLaughlin, are referred to collectively as "the officers."
Also before the court are four related motions to strike: (1) Defendant Bertram's Motion (joined by the other Defendants) to Strike the Testimony of Greg Cooper; (2) Defendant Bertram's Motion (joined by the other Defendants) to Strike the Testimony of Dr. Mark Spitz; (3) Defendant Bertram's Motion (joined by the other Defendants) to Strike Portions [related to evidence of Sergeant Bertram's "other acts"] of Plaintiff s Memorandum in Opposition to Summary Judgment; and (4) Defendant Bertram's Motion (joined by the other Defendants) to Strike Plaintiffs Additional Material Facts Regarding Seizures.
On the first two motions to strike, the court rules in accordance with its July 29, 2003 Order on Defendants' corresponding motions in limine regarding Mr. Cooper and Dr. Spitz. Specifically, (1) the Motion to Strike the Testimony of Greg Cooper is DENIED to the extent that the court will consider evidence provided by Mr. Cooper on the reasonableness of the officers' decision to remove Mr. Tweed from his truck; and (2) the Motion to Strike the Testimony of Dr. Mark Spitz is GRANTED. The other two motions to strike (regarding evidence of Sergeant Bertram's "other acts" and material facts regarding seizures) are GRANTED. The court finds that the evidence challenged by these two motions goes to matters of credibility, which are not to be assessed on a motion for summary judgment. Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000).
As for the Motions for Summary Judgment themselves, the court holds (for the reasons that follow) that although Mr. Tweed's excessive force claim survives to a limited extent, his malicious prosecution claim does not.
BACKGROUND
The facts included in this background section are either undisputed or, where disputed, are read in the light most favorable to Mr. Tweed.See McCarty v. City of Bartlesville, 8 Fed. Appx. 867, available at 2001 WL 246196, at **1 (10th Cir. Mar. 13, 2001). Material disputed facts are discussed in relevant portions of the analysis that follows.
On July 8, 2000, Mr. Tweed drove his pickup truck into the rear of another vehicle, driven by Jarremy Morgan, in the #2 center lane of eastbound Interstate 215 near 1100 West in Salt Lake County. It is undisputed that Mr. Tweed has no actual memory of the events that followed the collision, up until the time (discussed more thoroughly below) when he regained consciousness and found himself face-down on the ground, handcuffed. Because of this, the court relies primarily on the affidavits and declarations of Defendants Bertram, Mackey, and McLaughlin in providing the factual background of this case.
A. Mr. Tweed's Claims of Excessive Force
Following the collision, two Utah Highway Patrol Troopers, Shauna Mackey and Michelle McLaughlin, arrived on the scene, followed by Sergeant Bertram of the Salt Lake County Sheriffs Office. Sergeant Bertram assisted Jarremy Morgan, and the troopers approached Mr. Tweed's truck. There they found him rolling and peeling the steering wheel cover off and on while looking forward at the steering wheel with a blank stare, responding to the troopers' questions about injuries with the response, "No, he won't go fish with me, he won't fish with me." When the troopers explained to Mr. Tweed that his truck was blocking traffic and that they needed to move it to the shoulder, he responded by spreading his hands to show the inside of the truck and saying, "You can see I'm here." The parties dispute whether the troopers suspected the influence of some sort of chemical substance, or whether they simply suspected that he was in a state of mental impairment, suffering from some unknown medical condition. Mr. Tweed maintains that he had suffered a seizure and was in what is called a "postictal state," during which seizure victims experience impaired consciousness, disorientation, and confusion, among other things. In any event, Trooper Mackey radioed police dispatch for a medical response to a "possible unknown medical condition" following her first contact with Mr. Tweed.
Mr. Tweed points out in his additional facts that the toxicology report regarding his blood sample was negative except for the presence of his seizure medications (dilantin and phenobarbital) at therapeutic levels.
Sergeant Bertram then approached Mr. Tweed's truck and (along with Trooper McLaughlin) asked Mr. Tweed to step out of the truck so they could move it out of traffic. When Mr. Tweed would not leave the truck, Sergeant Bertram leaned over to unfasten Mr. Tweed's seatbelt. At this point, Mr. Tweed became combative, and Trooper Mackey radioed dispatch for backup. Sergeant Bertram, seemingly with the help of the Troopers, successfully removed Mr. Tweed from his truck.
There is some question whether, as part of this combativeness, Mr. Tweed attempted to grab Sergeant Bertram's gun, which had become entangled in his seatbelt, while Sergeant Bertram was leaning over him. (Affidavit of Chris Bertram ("Bertram Aff.") ¶¶ 14-15; Declaration of Shauna Mackey ("Mackey Decl." ¶ 19.)
Once out of the truck, Mr. Tweed became even more aggressive. He attacked, swore at, punched, and kicked all three officers, In the resulting struggle, Sergeant Bertram used Oleoresin Capsicum (OC) pepper spray and his ASP (a retractable baton) to subdue Mr. Tweed. Sergeant Bertram struck Mr. Bertram in the arms and legs with the asp and struck Mr. Tweed's torso with his knee. All three officers were involved, to some extent, in subduing Mr. Tweed once he was out of the truck.
As mentioned above, Mr. Tweed was, for most of the incident. According to his deposition testimony, when he regained consciousness, he found himself lying face down on the ground with a person kneeling on his back. He further testified that this person beat him while he was handcuffed, and later in the deposition identified the person as Sergeant Chris Bertram. Despite this one concrete identification, Mr. Tweed's deposition recollections of the time following his postictal state are vague, tentative, and, to some degree, contradictory, as explained more fully below.
Mr. Tweed was eventually handcuffed and taken to the Cottonwood Hospital Emergency Room. There, a medical examination revealed contusions, abrasions, associated soft tissue swelling, and a laceration on the face (the result of his thrashing around on the ground and being cut by a rock, according to Defendants), but no evidence of a closed head injury.
B. Mr. Tweed's Claim of Malicious Prosecution
Several months later, Mr. Tweed was charged with three counts of Assault on a Police Officer and one count of Driving Under the Influence of drugs in September of 2000. Deputy District Attorney Brendan McCullagh was the screening prosecutor. These charges were later dismissed in April of 2001 on the motion of another prosecutor, Laura Kirwan. Mr. Tweed alleges that the three Defendants involved directly in the incident conspired with one another and prepared fabricated incident reports to initiate his prosecution. Specifically, he alleges that the reports were "fabricated" because (1) the officers did not disclose Mr. Tweed's seizure condition in their reports, although they allegedly knew about his condition; (2) the officers had conversations about the incident with other officers and with each other following the incident; (3) there are factual discrepancies between Sergeant Bertram's and the Troopers' characterizations of Mr. Tweed's "refusals" to comply with Sergeant Bertram's commands; and (4) Trooper McLaughlin received a reprimand (unrelated to this case) regarding an ethical violation involving her personal dealings with a pawn shop. (See Pl.'s Mem. Opp. Officers' Mot.'s Summ. J. at xxi-xxiii, xxv-xxvi.) As explained more fully below, Trooper Mackey did learn in the ambulance on the way to the hospital with Mr. Tweed that he had a history of seizures and had taken seizure medications that day. But Trooper Mackey included this information in her incident report, which Mr. McCullagh considered in his decision to bring the four charges against Mr. Tweed.
Mr. Tweed further argues that Trooper Bruce Provost participated in the malicious prosecution. Trooper Provost, a desk trooper for the Utah Highway Patrol, was involved in this case to the limited extent that he (1) delivered the screening packets (including the officers' reports) to the District Attorney's Office; (2) collected the Criminal Information (along with a number of other Informations) from the District Attorney's Office; and (3) presented and attested to those Informations before a magistrate. Mr. Tweed asserts that when Trooper Provost swore to the Information, thereby initiating criminal proceedings against Mr. Tweed, he had read the officers' reports, Mr. Morgan's eyewitness statement, and the Final Toxicology Report, all of which contained information that was omitted from the probable cause statement of the affidavit. Had the magistrate been in possession of this omitted information, argues Mr. Tweed, prosecution would never have been initiated against him.
ANALYSIS
Legal Standard: Summary Judgment/Qualified Immunity
In this case, all four Defendants — Defendants Bertram, McLaughlin, Mackey, and Provost — have raised the defense of qualified immunity. The United States Supreme Court has held that government officials "are shielded 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."Harlow v. Fitzgerald, 457 U.S. 800. 818 (1982V The defense of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001) (citation omitted). This protection gives officials "a right, not merely to avoid `standing trial,' but also to avoid the burdens of `such pretrial matters as discovery.'" Id. (citation omitted). Qualified immunity is "`an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (emphasis in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Immunity questions should be addressed "at the earliest possible stage in litigation." Id. (citing Hunter v. Bryant 502 U.S. 224, 221 (1991) (per curiam)).
Because of these purposes underlying the defense, "special rules apply when a public official raises a defense of qualified immunity on summary judgment." Hinton v. City of Elwood, Kan.. 997 F.2d 774, 779 (10th Cir. 1993). After a § 1983 defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, who must meet a "heavy two-part burden." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citations omitted). First, taken in the light most favorable to the plaintiff, the facts must show that the official's conduct violated a constitutional right. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001). If a "favorable view" of the facts alleged shows the violation of a constitutional right, "the next, sequential step is to ask whether the right was clearly established."Id. at 1185-86. Importantly, "[t]his [`clearly established'] inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Saucier, 533 U.S. at 201. "If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity." Holland ex rel. Overdorff, 268 F,3d at 1186 (citation omitted). If the plaintiff meets his or her burden under the qualified immunity analysis, "the public official then bears the usual summary judgment movant's burden" of demonstrating that there is an absence of evidence to support the non-moving party's case. Hinton, 997 F.2d at 779; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense." Olsen v. Layton Hills Mall. 312 F.3d 1304, 1312 (10th Cir. 2002). A movant "may make [his or her] prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998). In applying this standard, the court views the factual record and must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adler, 144 F.3d at 670;Aramburu v. Boeing Co.. 112 F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, the nonmovant must "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co.. 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice.Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 248 (1986).
A. Mr. Tweed's Excessive Force Claim Against Sergeant Bertram and the Troopers
Mr. Tweed alleges that Sergeant Bertram and the Troopers violated his Fourth Amendment right to be free of excessive force during an arrest. Such a violation occurs where law enforcement officers' conduct is not "`objectively reasonable' in light of the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397 (1989) (citations omitted). In the Tenth Circuit, reasonableness is assessed "`from the perspective of a reasonable officer on the scene,' acknowledging that the officer may be `forced to make split-second judgments' in certain difficult circumstances." Olsen, 312 F.3d at 1314 (citing Medina, 252 F.3d at 1131 (internal citations omitted)). "Such an assessment `requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Stuart v. Jackson, 24 Fed. Appx. 943, available at 2001 WL 1600722, at **8 (10th Cir., Dec. 17, 2001) (citing Graham, 490 U.S. at 396).
More particularly, "circumstances that are tense, uncertain, and rapidly evolving." Graham. 490 U.S. at 97.
In Graham, the Supreme Court set forth a list of "factors relevant to the merits of the constitutional excessive force claim, `requir[ing] careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Saucier, 533 U.S. at 205 (citing Graham, 490 U.S. at 396). Moreover, as the Supreme Court has more recently noted, "[i]f an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Id. at 205.
For purposes of the excessive force analysis, the July 8, 2000 incident can be divided into three stages reflecting Mr. Tweed's various arguments: (1) when Sergeant Bertram and the Troopers removed Mr. Tweed from the truck, with Sergeant Bertram using the OC spray; (2) when Sergeant Bertram and the Troopers struggled to subdue Mr. Tweed outside the truck; and (3) when, according to Mr. Tweed's deposition testimony, Sergeant Bertram struck Mr. Tweed with an object after handcuffing him.
The evidence shows that at this stage, Sergeant Bertram struck Mr. Tweed multiple times with his ASP and with his knee. Trooper McLaughlin aided in securing Mr. Tweed's arms and in handcuffing him. And Trooper Mackey placed her foot in the small of Mr. Tweed's back to restrain him once he was down on the ground.
Whether the officers used excessive force during the second stage is not seriously disputed. It is clear that there is no question but that the officers acted reasonably at the second stage in their attempts to restrain and subdue Mr. Tweed once he became physically combative and resisted arrest. See Saucier, 533 U.S. at 205. Even Mr. Tweed's own expert witness, Greg Cooper, testified in his deposition that it was reasonable for the officers to use the level of force they did once Mr. Tweed became assaultive. (Deposition of Greg Cooper ("Cooper Dep.") at 99:18-21.) Accordingly, there was clearly no constitutional violation at the second stage.
Mr. Tweed argues that Sergeant Bertram and the other defendants themselves created the need to apply force by pulling him out of the truck unnecessarily. It is true that the Tenth Circuit considers as part of the "objective reasonableness" analysis "whether [the officers'] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." Medina, 252 F.3d 1124, 1132 (10th Cir. 2001) (citing Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997)). But theMedina court was careful to emphasize that "in order to constitute excessive force, the conduct arguably creating the need for force must be immediately connected with the seizure and must rise to the level of recklessness, rather than negligence. The primary focus of our inquiry, therefore, remains on whether the officer was in danger at the exact moment of the threat of force." Id (citing Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir. 1994)).
1. Removal of Mr. Tweed from the Truck
a. Was there a constitutional violation?
Mr. Tweed first argues that Defendants Bertram, Mackey, and McLaughlin violated his constitutional right by forcibly removing him from his truck. Mr. Tweed's arguments go to two separate questions: (1) Did the officers use excessive force by requiring Mr. Tweed to exit his truck, despite their suspicions that he was suffering from an "unknown medical condition" or a seizure condition? and (2) Did the officers use excessive force in the course of removing him from the truck?
On the second of these questions, Mr. Tweed argues that the officers used excessive force in the course of removing him from his truck. Once Mr. Tweed refused to come out of his truck voluntarily, the officers made efforts to physically restrain him, then to remove him. Sergeant Bertram reached into the truck and unfastened Mr. Tweed's seatbelt, placed his left hand on Mr. Tweed's right side and began to slide him slowly, urging him to get out of the truck. (Bertram Aff. ¶ 12.) At that point, according to Sergeant Bertram, Mr. Tweed began screaming profanities and kicking his feet, and he locked Sergeant Bertram's left hand with his right hand, saying he would not get out of the truck or move it. (Id.) Then Sergeant Bertram, fearing for his own safety, and because Mr. Tweed had his hand pinned, deployed a one-second burst of OC spray into Mr. Tweed's face. (Id. at ¶ 13.) Mr. Tweed began to get out of the truck, striking Sergeant Bertram's chest and kicking his feet. (Id.) Sergeant Bertram and Trooper Mackey believed, perhaps mistakenly, that Mr. Tweed was attempting to grab Sergeant Bertram's pistol. (Id. at ¶¶ 14-15; Mackey Decl. ¶ 19.) See Saucier, 533 U.S. at 205 (allowing a mistaken assessment of the actual level of force required by particular factual circumstances). When Mr. Tweed was still in the truck, Trooper McLaughlin tried to maintain control of Mr. Tweed's left hand. (Declaration of Michelle McLaughlin ("McLaughlin Decl.") ¶ 21.) Finally, all three officers participated in actually pulling Mr. Tweed out of the truck. (Id at 1 23; Mackey Decl. ¶ 22.)
Although Sergeant Bertram comments that Mr. Tweed "came out of his vehicle" (Bertram Aff. ¶ 16), suggesting that Mr. Tweed "came out" on his own volition, the language used in the troopers' affidavits (i.e., "[a]fter removing Tweed from the vehicle") (McLaughlin Decl. ¶ 23; Mackey Decl. ¶ 22), read in the light most favorable to Mr. Tweed, supports his argument that the officers physically removed him from the truck.
In assessing the reasonableness of Sergeant Bertram's use of force (including his use of the OC spray and his forcible removal of Mr. Tweed from the truck), the court must consider such force in light of theGraham factors: (1) severity of the crime at issue, (2) immediate threat to the safety of the officers or of others, and (3) resisting or evading arrest. Saucier, 533 U.S. at 205 (citing Graham, 490 U.S. at 396). Mr. Tweed is correct that the "severity of the crime" factor weighs against reasonableness, where an accident (and not a crime) had occurred. The other two factors strongly favor reasonableness, in light of the fact that Mr. Tweed began actively thrashing, striking at, and struggling against Sergeant Bertram as soon as Sergeant Bertram attempted (without the use of force) to unfasten Mr. Tweed's seatbelt and slide him slowly out of the truck. Mr. Tweed has not shown that Sergeant Bertram, in using the force that he did, violated Mr. Tweed's constitutional right to be free of excessive force. The same conclusion applies to the Troopers, whose participation in controlling and removing Mr. Tweed was significantly more constrained than Sergeant Bertram's.
Furthermore, the officers did not violate Mr. Tweed's constitutional rights by demanding that he come out of his truck in the first place. There is no dispute that the officers asked Mr. Tweed to get out of his truck so it could be moved to the shoulder, because the officers were rightly concerned about Mr. Tweed's and the other drivers' safety. Mr. Tweed's truck was disabled in a center lane of the interstate, and the officers needed to clear the way so that traffic could proceed safely. Already, there had been two accidents due to the congestion. Sergeant Bertram asked Mr. Tweed three times to get out of the truck so that it could be moved out of traffic. The third time, he touched Mr. Tweed on the shoulder, and Mr. Tweed refused to comply. (Bertram Aff ¶ 10-11.) Trooper McLaughlin explained to Mr. Tweed that his truck was blocking traffic and that they needed to move it to the shoulder, to which Mr. Tweed responded, "You can see I'm here." The Troopers then repeatedly asked Mr. Tweed to step out of the truck so they could move it. (McLaughlin Decl. ¶ 17, 19; Mackey Decl. ¶ 21.) As Defendants have pointed out, cases in the Fourth Amendment search and seizure context have held that officers "may order the driver and passengers out of the vehicle in the interest of officer safety, even in the absence of any particularized suspicion of personal danger." United States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (citing Maryland v. Wilson, 519 U.S. 408, 415 (1997); Pennsylvania v. Minims, 434 U.S. 106, 111 (1977)). Nonetheless, Mr. Tweed argues that the officers, knowing what they knew about his medical condition, forced him to get out of his truck in violation of his Fourth Amendment right to be free of the use of excessive force. But viewing the reasonableness of the officers' beliefs from their "on-scene perspective," as the court must, Mr. Tweed's arguments cannot prevail.Saucier, 533 U.S. at 205.
Mr. Tweed argues that the truck did not need to be moved, based on testimony of Jarremy Morgan that traffic was "basically like a parking lot," "barely moving," or "barely crawling," and that it had been for a half hour or more following the accident (Deposition of Jarremy Morgan ("Morgan Dep.") at 14:18-23, 20:9-13, 45:14-17.) But traffic congestion itself raises concerns about safety that would reasonably require the officers to remove the vehicles causing the congestion.
Although admittedly, the safety concerns are different — in the criminal cases, the officers are concerned for their own safety. Here, the Defendants were concerned for the safety of the motorists and Mr. Tweed.
In support of his contention, Mr. Tweed cites two cases from other circuits, Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996) (holding officers' use of force unconstitutional where they had been informed of the plaintiffs seizure condition), abrogated on other grounds by Saucier, 533 U.S. 194 (2001), and Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993) (holding officers' use of force unreasonable where plaintiff was in a diabetic coma at the time of the incident, where the extent of the force used was objectively unnecessary, and where the only charge ultimately brought against plaintiff was "resisting arrest"). These cases are distinguishable. First, neither Frazell nor Spann involved challenges by the plaintiff to the requirement that he or she come out of a vehicle for safety reasons. Spann, the more factually similar case on the question of "removal," involved police officers' attempts to remove the plaintiff, who was suffering from a diabetic coma, from a reception area of a doctor's office, following a "disturbance call." 987 F.2d at 1112. The Spann court found the officers' use of force unconstitutional, but not simply on the grounds of the plaintiffs diabetic condition, and not simply because he was removed from the waiting room. Id., at 1116. Rather, the court found that it "[could not] conclude that a reasonable police officer would think the extent of force allegedly used was necessary under the circumstances" where there was evidence that the officers struck the plaintiff in the head (causing bleeding), kicked him, stomped him, beat him, handcuffed him, and dragged him down stairs before placing him in a police car and taking him to the hospital. Id at 1112, 1116. Neither Frazell nor Spann stands for the proposition that it is a constitutional violation to remove a person suffering from a medical condition from dangerous circumstances, such as were present on the congested highway in this case.
Even if these cases were to stand for such a proposition, at least one of the cases suggests that the medical condition must be known to the officers. In Frazell, the plaintiff suffered an epileptic seizure midway through a traffic stop, failed to remember any of the latter part of the stop, apparently responded to the officers with resistance, and suffered injuries as a result of the force that the officers applied, including force that was applied after he had been restrained. 102 F.3d at 879-82. The officers in Frazell continued to use force after the plaintiffs friend informed them that the plaintiff "ha[d] seizures." Id. at 880. The Frazell court rejected one defendant's argument that "the force applied throughout the encounter was merely a measured response to Frazell's violent behavior." Id. at 883. Ultimately, the court held that a jury could have concluded that the officer's conduct, in the face of knowledge that the plaintiff was suffering from a medical condition and was prone to seizures, was objectively unreasonable. Id. at 885.
In this sense, the Frazell case is factually distinct from Mr. Tweed's case, where in the latter, the officers did not have the opportunity to observe him before he entered a seizure episode. See Videotape: Take Another Look: Police Response to Seizures and Epilepsy (Police Executive Research Forum Epilepsy Foundation of America 1992) Moreover, in Frazell, the plaintiffs friend informed the officers that the plaintiff suffered from a seizure condition.
In Frazell, there was evidence that the officers had been definitively informed of the plaintiffs seizure condition. Furthermore, the seizure inFrazell took place in the midst of the police encounter. In this case, by contrast, the officers simply did not have knowledge that Mr. Tweed was in a postictal state following a seizure, or that he was likely to react combatively if disturbed in such a state. Trooper Mackey suspected at most a generalized medical condition causing Mr. Tweed's symptoms and conduct. Similarly, there is no evidence that Sergeant Bertram knew anything of Mr. Tweed's medical condition until the next day, when he called the hospital to check on Mr. Tweed; at most, the evidence shows that Sergeant Bertram knew at the time when Mr. Tweed was handcuffed that "medical help" was to arrive. (Bertram Aff. ¶¶ 22, 20.) The only officer who might possibly have recognized Mr. Tweed's postictal symptoms was Trooper McLaughlin, whose EMT training and over eight years of nursing experience might have familiarized her with seizure activity and characteristics of the postictal state, according to Mr. Tweed. Nonetheless, Trooper McLaughlin's Declaration indicates that in actuality she (1) was concerned that Mr. Tweed appeared to be in a state of mental impairment (McLaughlin Decl. ¶ 12); (2) observed that he had no apparent physical injuries (Id.): (3) was concerned that Mr. Tweed, as an impaired driver, would attempt to operate his truck into traffic (Id. at ¶ 18); (4) noticed that his speech was very slurred, that he was lethargic, that his responses to questions were slow, and that his eyes rolled around as he attempted to turn and look at her (McLaughlin Decl. at ¶ 16); (5) was concerned that he was driving under the influence of recreational drugs or prescription medications (Id. at ¶ 18); and (6) had asked Mr. Tweed if he was on any medications, to which he responded, "Yes," but did not specify which medications (Id. at ¶ 15). Although Mr. Tweed speculates on what Trooper McLaughlin should have recognized on the basis of her training and experience, she herself has testified to what she (along with the other officers) did recognize at the time: that Mr. Tweed was an "impaired" driver (regardless of the cause of the impairment), incapable of safely moving his truck out of the center lane of traffic. Mr. Tweed's expert, Greg Cooper, testified in his deposition that the manner in which the officers removed Mr. Tweed was not unreasonable. (Cooper Dep. at 70:4-5.) But Mr. Cooper also testified that "[i]n terms of stating that it was not unreasonable to make the decision [to remove Mr. Tweed from his truck], it would have been more reasonable to wait for medical response. (Cooper Dep. at 70:6-9 (emphasis added).) Ultimately, in its amended form, Mr. Cooper's deposition testimony was that "it was neither reasonable or [sic] constitutional" to remove Mr. Tweed, and that, although the decision to remove him was "in general" a matter of officer discretion, "the circumstances in this case did not warrant his removal from the car." (Id. at 70:12-16, 72:11-16.) Reading Mr. Cooper's testimony in the light most favorable to Mr. Tweed, there remains a triable issue of fact on the question of whether removing Mr. Tweed from his truck constituted a Fourth Amendment violation.
Trooper Mackey's declaration indicates that she (1) was concerned that Mr. Tweed could be impaired, intoxicated, under influence of some kind of drug, or possibly had a medical condition causing a major decrease in his mental status; (2) suspected a diabetic problem, but could not smell a fruity odor on his breath; and (3) radioed dispatch for a medical response to a "possible unknown medical condition" (Mackey Decl. at ¶¶ 14-15).
Pointing to admissions made by Trooper McLaughlin, Mr. Tweed emphasizes her years of nursing experience, medical training or education and medical experience she had received in recognizing and treating seizure type activity, her attendance at an EMT-Basic course in March 2000, and her knowledge from her EMT training that typical symptoms of a postictal state (following a seizure) include unconsciousness, inappropriate response, loss of memory, confusion, disorientation, lethargy and combative behavior. (McLaughlin's September 2002 Admis., No. 7, 8, 11-19, 16, Ex. A and Ex. B.) In reply, Trooper McLaughlin observes correctly that the description of the postictal state in the EMT training manual attached to her admissions as Ex. B makes no mention of memory loss or combative behavior.
With this statement, Mr. Cooper appears to urge the imposition of the "20/20 vision of hindsight" which Graham specifically counsels courts to avoid." 490 U.S. at 396.
b. Was Mr. Tweed's right clearly established?
Even having made this showing, Mr. Tweed still must prove the second prong of the qualified immunity analysis, that is, whether the right was clearly established at the time of the incident. Saucier, 533 U.S. at 201. In deciding whether a right is "clearly established," a court "assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff, 268 F.3d at 1186 (citing Medina, 252 F.3d at 1128 (internal quotations omitted)). This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201.
Specifically, within the context of excessive force, the law must be more particularized than the general Graham reasonableness standard. Rather, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."Saucier, 533 U.S. at 202 (citing Wilson v. Layne. 526 U.S. 603, 615 (1999)).
The Tenth Circuit has traditionally held that "`[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.'" Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996) (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In recent cases, the Tenth Circuit has broadened the "clearly established" standard somewhat, requiring only a "substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited" or a "reasonable application of existing law" to the circumstances rather than "the exact fact situation at hand."SH.A. v. Tucumcari Municipal Schools, 321 F.3d 1285, 1287-88 (10th Cir. 2003) (citations omitted). Mr. Tweed has not satisfied the "clearly established" prong under any of these formulations. He has produced no cases — Supreme Court, Tenth Circuit, or cases outside this jurisdiction — that would have put the officers on notice that they would violate Mr. Tweed's constitutional rights by requiring him to get out of his truck. Accordingly, the court concludes that Mr. Tweed's right not to be removed from the truck was not clearly established, and the officers are entitled to qualified immunity on that issue.
2. Striking Mr. Tweed After He Was Handcuffed
a. Was there a constitutional violation?
Sergeant Bertram claims he did not strike Mr. Tweed after he was handcuffed. (Bertram Aff. ¶ 24.) Mr. Tweed, however, points to portions of his own deposition that suggest otherwise. Specifically, Mr. Tweed testified that when he "woke up," he realized he was "face down on the ground with somebody kneeling on my back with me handcuffed, holding my face down, and I'm lifting my head up trying to spit gravel and asking if I can please turn over so I can breathe." (Deposition of Tyler Tweed ("Tweed Dep.") at 95:16-20.) He testified that then he was "being yelled at, being told, `No, there's an ambulance on its way,' and I'm being held there. And I looked over my right shoulder and there's a gentleman on my back, and next thing I know he starts beating me up, and then I'm sprayed or something in my face too." (Id. at 95:21-96:2.) Mr. Tweed later identified the "gentleman on his back" as Sergeant [Lieutenant, at the time of the deposition] Bertram, and reiterated that he saw the person on his back when he looked over his right shoulder (Id at 98:5-18, 111:17-20)
This comports with Sergeant Bertram's affidavit testimony that he told Mr. Tweed "to relax until medical help arrived." (Bertram Aff. at ¶ 4.)
Mr. Tweed testified when further questioned by defense counsel that he did not know with any certainty how and where he had been beaten, and with what instrument, at what precise times his injuries were incurred, or who sprayed him with OC spray. (See id. at 102:22-103:6, 105:23-107:9, 113:5-114:25, 116:14-25, 125:12-128:5, 130:1-4, 131:3-18.) Also, seemingly in conflict with his earlier testimony that it was Sergeant Bertram who struck him, he responded to defense counsel's question that he "[did not] know for sure right now, right at this moment" who was beating him after he was handcuffed. (Id. at 107:10-13.)
Even given this inconsistency, the court finds that Mr. Tweed's testimony that the "gentleman on his back" (identified at one point as Sergeant Bertram) was "beating him up," with all relevant inferences read in the light most favorable to Mr. Tweed, creates a genuine issue of material fact whether Sergeant Bertram in fact struck Mr. Tweed after he was handcuffed.
b. Was Mr. Tweed's right clearly established?
If, in fact, Sergeant Bertram did strike and beat Mr. Tweed while Mr. Tweed lay handcuffed on the ground, such use of force is objectively unreasonable. Graham, 490 U.S. at 396 (including threat to the safety of the officers or others and active resistance or evasion of arrest as factors justifying the use of force); see also Frazell v. Flanigan, 102 F.3d 877, 885 (7th Cir. 1996) ("The fact that a certain degree of force may have been justified earlier in the encounter to restrain [the plaintiff] does not mean that such force still was justified once [the plaintiff] had been restrained"), abrogated on other grounds by Saucier. 533 U.S. 194 (2001). This is despite Trooper McLaughlin's statement that even after Mr. Tweed was handcuffed, he "continued to roll around and twist his body to try to get away," kicking, rolling around, struggling to get up, and screaming "Let me up!" (McLaughlin Decl. ¶ 30.) Applying the Graham factors, it is abundantly clear that Sergeant Bertram lost any and all justification for using force once Mr. Tweed was restrained in handcuffs on his stomach on the ground.
B. Mr. Tweed's Failure to Intervene Claim Against the Troopers
Mr. Tweed claims an independent violation of his Fourth Amendment rights based on the Troopers' failure to intervene to prevent the force applied by Sergeant Bertram. Clearly established Tenth Circuit case law pre-dating the July 8, 2000 incident holds that "a law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983" if he or she had the opportunity to intervene but failed to take that opportunity. Mick v. Brewer, 76 F.3d at 1136 (citing Lusby v. T.G. Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984)). Accordingly, if Sergeant Bertram used excessive force when Mr. Tweed was handcuffed, the Troopers could be liable for their failure to intervene if they had the opportunity to do so and did not take it. The record is clear that the Troopers were standing by Mr. Tweed and Sergeant Bertram. Furthermore, there is language (adopted from the Second Circuit) in an unpublished Tenth Circuit case finding that "[w]hether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise." Hall v. Burke, 12 Fed. Appx. 856, available at 2001 WL 694142, at **4 (10th Cir. June 12, 2001) (citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). Because the jury will decide the question of whether Sergeant Bertram applied excessive force, they must also decide the corresponding question of whether the Troopers should have or could have intervened to prevent such force.
C. Mr. Tweed's Malicious Prosecution Claim Against all Four Defendants
Following the July 8, 2000 incident, in September of that same year, Mr. Tweed's case was screened by Deputy District Attorney Brendan McCullagh, who charged Mr. Tweed with three counts of Assault on a Police Officer and one count of Driving Under the Influence of drugs. (See Information, attached as Ex. to Provost's Mem. Supp. Mot. Summ. J.) The charges were later dismissed on the motion of another prosecutor, Laura Kirwan. (Affidavit of Laura Kirwan ("Kirwan Aff.") at ¶¶ 4-5; see also Deposition of Laura Kirwan ("Kirwan Dep.") at 8:3-11.) These four charges are the focus of Mr. Tweed's malicious prosecution claim, from which all four Defendants seek qualified immunity.
The common law elements of malicious prosecution are:
(1) defendants initiated or procured the prosecution against an innocent plaintiff; (2) defendants did not have probable cause to initiate the prosecution; (3) defendants initiated the prosecution primarily for a purpose other than bringing an offender to justice; and (4) the prosecution terminated in favor of the plaintiff.Haywood v. Nye, 999 F. Supp. 1451, 1461 (D. Utah 1998). Although these elements form "the `starting point' for the analysis of a § 1983 malicious prosecution claim," the Tenth Circuit "always reaches the ultimate question, which it must, of whether the plaintiff has proven a constitutional violation" Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996).
Clearly, Mr. Tweed meets the fourth element of malicious prosecution, since the charges against him were dismissed in April of 2001. But because Mr. Tweed has put forth no evidence (1) that any of the Defendants initiated or procured Mr. Tweed's prosecution, or (2) that there was no probable cause to institute the prosecution, his malicious prosecution claim cannot stand.
For purposes of this analysis, the court assumes without finding that Mr. Tweed was an "innocent plaintiff."
Mr. Tweed claims that Sergeant Bertram and the Troopers "initiated the chain of prosecution by effecting [Mr. Tweed's] arrest based on fabricated claims of intoxication and assault." (Pl.'s Mem. Opp. Officers' Mot.'s Summ. J. at 22.) He further maintains that they "perpetuated prosecution by preparing written incident reports which included their fabricated claims." (Id.) And he claims that Trooper Provost commenced prosecution by signing the probable cause statement as the affiant and presenting the Information to the magistrate.
Although Mr. Tweed does not organize his argument according to the elements of malicious prosecution, he appears to argue that the "fabricated" nature of the officers' reports goes to the absence of probable cause justifying the prosecution.
Utah law defines "commencement of prosecution" as "the filing of an information or indictment." Utah Code Ann. § 77-2-2(3) (2003). Mr. Tweed's argument that Trooper Provost initiated his prosecution is entirely without merit, despite this definition. Although Trooper Provost did in fact sign and deliver the Information to the magistrate, swearing that it was true and correct to the best of his knowledge (Deposition of Sterling Bruce Provost ("Provost Dep.") at 43:5-45:19), he argues convincingly that in suing him, Mr. Tweed has essentially "sued the messenger." Indeed, the evidence demonstrates that Trooper Provost's duties are limited to (1) delivering the "officers' paperwork" (the screening packets) to the District Attorney's office, (2) collecting the Criminal Informations from the DA's Office, and (3) presenting and attesting to those Informations before a magistrate. (Id. at 12:7-15:18, 43:5-45:19.)
Trooper Provost did not discuss or review the documents with anyone at the DA's office. (Id. at 11:13-20, 15:8-16:9.) Furthermore, he made bulk deliveries of both the incident reports and the Informations, placing twenty to thirty incident reports at a time in the DA's Office's "in-basket," and presenting the same number at once to the magistrate (swearing that all of them were true and correct to the best of his knowledge). (Id. at 55:9-56:6; 44:13-45:19; 128:9-129:5.) The parties have not cited case law defining a "desk trooper's" role in the chain of prosecution. Nonetheless, it is undisputed that Trooper Provost played no role in the arrest, the criminal investigation, or the prosecution screening (including decision-making and exercise of prosecutorial discretion) leading up to the commencement of prosecution, In short, Mr. Tweed has produced no evidence demonstrating that Trooper Provost's involvement in Mr. Tweed's prosecution was anything but wholly administrative. In defining commencement of prosecution in terms of the "filing of an Information," Utah Code Ann. § 77-2-2(3) clearly contemplates more than just the administrative errand of physically filing the document with the magistrate, the accompanying "swearing" notwithstanding.
Mr. Tweed's attempt to characterize Trooper Provost as a "complaining witness" does not change this analysis. Furthermore, the case Mr. Tweed relies on for the proposition that a complaining witness initiates prosecution, State v. Leary, 646 P.2d 727, 730 (Utah 1982), is premised on repealed Utah statutes. Even under the state of the law as explained in Leary, a "complaining witness" is described as a proxy to the prosecuting attorney, "acting with the knowledge and at the direction of the prosecutor." Id.
Likewise, the Troopers and Sergeant Bertram had no personal involvement in the filing of criminal charges against Mr. Tweed, apart from their response at the scene of the accident on July 8, 2000, and the filing of incident reports. Still, Mr. Tweed emphasizes his allegations that Sergeant Bertram and the Troopers filed fabricated incident reports.
Mr. Tweed further alleges that the officers conspired to bring about his prosecution, agreeing "to fabricate their reports to protect each other." But these allegations of conspiracy — which seemingly go to the question of malice — are entirely speculative, conclusory, and lacking in factual foundation.
The Tenth Circuit has held that "a police officer who `purposefully conceal[s] and misrepresent[s] material facts to the district attorney which may have influenced his decision to prosecute' is not insulated by the prosecutor's actions in initiating or continuing the prosecution as an intervening break in the chain of causation." Thomas v. City of Snyder. Okl., 1996 WL 662453, 103 F.3d 145, at **4 (10th Cir. 1996) (citing Robinson v. Maruffi, 895 F.2d 649, 655 (10th Cir. 1990)). Here, Mr. Tweed argues that the officers' reports are "fabricated" because (1) the officers allegedly knew about Mr. Tweed's seizure condition before they prepared their incident reports; (2) the officers had conversations about the July 8, 2000 incident with other officers and with each other following the incident; (3) there are factual discrepancies between Sergeant Bertram's and the Troopers' characterizations of Mr. Tweed's "refusals" to comply with Sergeant Bertram's commands; and (4) Trooper McLaughlin received a reprimand (unrelated to this case) regarding an ethical violation involving her personal dealings with a pawn shop. (See Pl.'s Mem. Opp. Officers' Mot.'s Summ. J. at xxi-xxiii, xxv-xxvi.)
Mr. Tweed appears to imply that the officers omitted information about the seizure condition from their incident reports despite their knowledge of that condition. However, as Mr. Tweed himself recognizes in the relevant portion of his fact section, Trooper Mackey's report includes the following:
En route to the hospital medical personnel asked [Mr. Tweed] medical history questions in which he stated he had a history of seizures and as taking four dilantin per day, two in the morning and two at night. He also stated that he was taking pheno-barbital, two at night and that he had taken his dilantin this morning but had not taken any other medications today. They also asked him if he had been drinking any alcoholic beverages or taken any recreational drugs today, he denied using either.
(Mackey Incident Report, attached as Ex. to Mackey Decl.)
Mr. Tweed also recites a litany of facts (listed at Pi's Mem. Opp. Provost's Mot. Summ. J. at xxv-xxvii) which he contends would have invalidated probable cause (much of it involving various defendants' alleged knowledge of Mr. Tweed's seizure history and use of seizure medications), yet were omitted from Trooper Provost's sworn probable cause affidavit. (See Information, included as Ex. to Provost's Mem. Supp. Mot. Summ. J.) Many of these facts regarding his seizure history and medications Mr. Tweed calls "critical information" in the possession of the Troopers, Trooper Vallett (the arresting officer), and their supervisors (See id. at xviii-xxiii). Mr. Tweed further alleges that some of these facts were in Trooper Provost's possession when he signed the probable cause affidavit. He further points out that prosecuting attorney Laura Kirwan dismissed the criminal case against Mr. Tweed upon receiving information about his seizure history, noting that Mr. Tweed's mother was "prepared to testify that [Mr. Tweed] had prior staring episode, where he acted in fashion similar to this case when she and hospital personnel tried to remove him from the car," and that "we'd lose big time on this at trial." (See Kirwan Dep. at 8:3-9:20, and attached Ex.)
Underlying all of Mr. Tweed's factual assertions is the argument that had the magistrate been provided with specific material facts describing Mr. Tweed's seizure condition (including the fact that the toxicology report showed the presence of his seizure medications only, and in therapeutic amounts), this information would have invalidated probable cause and prevented Mr. Tweed's prosecution.
Knowing or reckless omission of such material facts from a probable cause affidavit when they would have vitiated probable cause is a clearly established violation of the Fourth Amendment. Haywood v. Nye, 999 F. Supp. 1451, 1458 (D. Utah 1998) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). Mr. Tweed is correct that there is absolutely no mention in the probable cause affidavit of Mr. Tweed's seizure condition and of the opinions of various medical personnel that he might have suffered a seizure and been in a postictal state at the time of the incident. But, as both Sergeant Bertram and Trooper Provost point out, it was Brendan McCullagh, the charging prosecutor, who determined that probable cause existed for the two charges filed against Mr. Tweed. (Declaration of Brendan P. McCullagh ("McCullagh Decl.") ¶ 6.) Mr. McCullagh made this determination based in part on the officers' incident reports (including Trooper Mackey's report which mentioned the seizure condition and anti-seizure medications) and the toxicology reports from the blood draw taken the day of the incident. (Id. at ¶ 4.) Clearly, then, Mr. McCullagh had knowledge of Mr. Tweed's seizure condition and the presence of anti-seizure medication, but determined that they were not relevant to the probable cause determination. (Id. at ¶¶ 7, 9.)
With regard to the DUI charge, Utah Code Ann. § 41-6-44(2)(b) specifically provided that the use of prescription drugs does not constitute a defense to the charge of driving under the influence, a fact which Mr. McCullagh considered. (Id. at ¶ 9.) Furthermore, Utah Code Ann. § 41-6-44, provides that a person is criminally liable for DUI when he drives or is in actual physical control of a vehicle under the influence of any drug "to a degree which rendered the defendant incapable of safely driving said vehicle." (Id.)
Looking at the three charges of assault on a peace officer, Trooper Provost points out that Mr. Tweed had "no right to physically resist either an arrest or an order of the police, irrespective of the legality of the arrest or order, so long as the officers [were] within the scope of their authority." State v. Trane, 57 P.3d 1052 (Utah 2002) (citingState v. Gardiner, 814 P.2d 568, 574 (Utah 1991)). Additionally, even Laura Kirwan, the prosecutor who moved to dismiss the charges against Mr. Tweed, testified in her deposition that there were other attorneys in her office who would have taken the case to trial on the DUI charge, that there was evidence supporting the assault charge despite evidence of Mr. Tweed's seizure disorder, and that she herself had not determined that there was no probable cause justifying the arrest and charging of Mr. Tweed. (Kirwan Dep. at 25:22-24, 26:2-7, 32:3-11, 38:6-10.)
Indeed, as Sergeant Bertram correctly points out, the standard for conviction ("beyond a reasonable doubt") is distinct from the probable cause standard. Ms. Kirwan dismissed this case not because it was not substantiated by probable cause, but because "we'd lose big time on this at trial."
Clearly, evidence of Mr. Tweed's seizure condition and the presence of anti-seizure medication in therapeutic amounts would not (and indeed did not, from Mr. McCullagh's standpoint) invalidate probable cause on the assault charges, though it might provide Mr. Tweed with a defense that he lacked the culpable mental state to be held criminally responsible. (McCullagh Decl. ¶ 7). As it stood, there was ample evidence in the affidavit accompanying the Information to conclude that there was probable cause to charge Mr. Tweed with DUI and assault on a peace officer. Consequently, where facts going to Mr. Tweed's seizure condition and the officers' knowledge of it would not have vitiated probable cause, they are not "material" for purposes of finding that the officers' allegedly fabricated reports played a role in initiating Mr. Tweed's prosecution. Accordingly, because Mr. Tweed has produced no evidence showing that Sergeant Bertram and the Troopers initiated prosecution or that there was no probable cause justifying that prosecution, he has failed to satisfy the first two essential common law elements of his malicious prosecution claim against Sergeant Bertram and the Troopers.
Incidentally, even if the omission of information going to the seizure condition and the presence of anti-seizure medications had been material, which information Trooper Mackey included this information in her report, it was Mr. McCullagh, not Trooper Mackey or any of the other officers, who made the decision to omit such information from the probable cause affidavit.
Having found that there was probable cause for Mr. Tweed's prosecution, with or without facts going to his seizure condition, this court finds that there has been no constitutional violation under the clearly established Tenth Circuit rule, mentioned above, that knowing or reckless omission of material facts from a probable cause affidavit when they would have vitiated probable cause violates the Fourth Amendment.Haywood, 999 F. Supp. at 1458 (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). All four Defendants are entitled to qualified immunity from Mr. Tweed's malicious prosecution claim.
Accordingly, the court declines to consider whether Trooper Provost is absolutely immune under the prosecutorial immunity and judicial proceedings privilege theories he advances.
CONCLUSION
On the basis of this analysis, the court holds that (1) Mr. Tweed's excessive force claim survives only to the extent that it addresses Sergeant Bertram's use of force after Mr. Tweed was handcuffed, and the Troopers' failure to intervene in that use of force; and (2) there are no genuine issues of material fact supporting Mr. Tweed's malicious prosecution claim, and that claim is DISMISSED.