April 5, 2012

BRUCE HARPER, PLAINTIFF,

v.

KEVIN ROSE, ET AL.,

DEFENDANT.







The opinion of the court was delivered by: Tena Campbell U.S. District Court Judge

ORDER AND MEMORANDUM DECISION

Plaintiff Bruce Harper alleges that in the early morning hours of May 2, 2009, police officers used excessive force when he was repeatedly tased during a traffic stop and an arrest. Defendant Kevin Rose, a Deputy Sheriff for Davis County, initiated the traffic stop and was the first officer on the scene. Mr. Harper brought this suit against Deputy Rose and Davis County*fn1 under 42 U.S.C. § 1983, alleging violation of his civil rights under the Fourth Amendment.

Deputy Rose and Davis County filed a motion for summary judgment seeking dismissal of the civil rights claims on the basis that Deputy Rose is entitled to qualified immunity and that Davis County is not liable as a matter of law. In Mr. Harper's opposition to the motion, he conceded that Davis County is not liable under § 1983. (See Pl.'s Opp'n Mem. (ECF No. 83) at 3.) Accordingly, the court GRANTS the motion for summary judgment for Davis County. But Mr. Harper presses forward on his claims against Deputy Rose. Because the court finds that Deputy Kevin Rose is not entitled to qualified immunity, the court DENIES his motion for summary judgment.

I. FACTUAL BACKGROUND*fn2

Around 2:00 a.m. on May 2, 2009, Deputy Kevin Rose was patrolling in his squad car and had a ride-along passenger with him. His dashboard camera was turned on, so it captured the entire traffic stop on video. (See Ex. 5 to Pl.'s Mem. Opp'n (ECF No. 83); DVD attached to Decl. of Kevin Rose (ECF No. 75) [hereinafter "Rose Video"].)

As depicted in the Rose Video, Deputy Rose saw a car traveling in the opposite direction and noticed that the front license plate was crooked. Plaintiff Bruce Harper was driving the car. Deputy Rose made a U-turn to follow the car, believed that he saw that the rear license plate light did not work, and signaled to the car's driver to pull over. Having an improperly secured license plate and a broken rear license plate light are both Class C misdemeanors in Utah.

Mr. Harper slowly drove to the first side street, pulled over under a street light, and stopped his car. Mr. Harper, who is slim and of medium height, immediately got out of the car and took three to four steps toward Deputy Rose (who was in uniform), stopping about twenty to twenty-five feet from the officer. The area where the two were standing was relatively well lit by the street light above and the headlights from Deputy Rose's squad car.

At the same time, Deputy Rose jumped out of his car, pointed a loaded gun at Mr. Harper, and ordered Mr. Harper multiple times in quick succession to "stay in your car" and "get back in your car now!" (Rose Video 9:22:19-25.) But Mr. Harper did not comply. As Deputy Rose was yelling orders, Mr. Harper had his right hand in his front pocket, and said something to the effect of "Don't pull your weapon on me." (Id. at 9:22:27-31.) Deputy Rose ordered him to remove his hand from the pocket. Mr. Harper removed his hand from his pocket and continued to ask why he had been stopped. Deputy Rose never answered Mr. Harper's questions. All this time, Deputy Rose pointed a loaded gun at Mr. Harper and continued to order Mr. Harper to turn around and put his hands on his head.

For an interminable three minutes, while Deputy Rose continued to aim his gun at Mr. Harper and repeatedly order Mr. Harper to put his hands on his head and turn around (and at one point, to get down on his knees), Mr. Harper ignored the orders. Instead of doing what Deputy Rose told him to do, Mr. Harper walked back and forth, getting progressively closer to the front bumper of the squad car, repeatedly asking throughout the incident "what's this about," "what did I do," and "what do you want?" (See Rose Video at 9:22:19-9:25:45.) Mr. Harper became more and more agitated as time progressed. He went from appearing annoyed and irritated to becoming angry and yelling and cursing at Deputy Rose. During that time, Deputy Rose repeatedly yelled "turn around, put your hands on your head." (See id.)

About thirty seconds into the encounter, Deputy Rose called for backup, telling dispatch to "expedite, one at gun point." (Rose Video at 9:22:46.) Mr. Harper was not armed, and Deputy Rose testified during his deposition that he did not believe at the time that Mr. Harper ever reached for a weapon. (Rose Dep. at 17-18.) Mr. Harper did not verbally threaten Deputy Rose, although he was passively resisting the officer's commands.

Officer Jon Purcell was next to arrive. As soon as he pulled up (his dashboard video camera also captured the incident), he pulled out his Taser, said "Taser," pointed the Taser at Mr. Harper (one or two red lights indicated that it was aimed at Mr. Harper's chest), and counted to two. (Rose Video at 9:25:40-43; Officer Purcell Video (Ex. 6 to Pl.'s Mem. Opp'n (ECF No. 83)) at 2:33:32-33.) At this point, three officers were on the scene. As Officer Purcell aimed the Taser, Deputy Rose said "Taser" right after Officer Purcell said "Taser," and then either Deputy Rose or Officer Purcell immediately said "do it now or you are going to get tased." (Rose Video at 9:25:40-43.) Officer Purcell immediately shot the Taser at Mr. Harper.*fn3 The arrival of Officer Purcell, Deputy Rose's order to tase, and the tasing of Mr. Harper happened very quickly (about five seconds passed from the time Officer Purcell got out of his squad car to the time he fired the Taser).

In the moments before being tased, Mr. Harper was standing still, approximately fifteen feet from the officers. He was not told he was under arrest.

Upon being tased, Mr. Harper turned around, slightly bent over, and slowly jogged or stumbled a few feet away from the officers. Officer Purcell immediately ran up to Mr. Harper and directly placed the Taser on Mr. Harper's left buttock or lower back , delivering a "drive-stun."*fn4 Mr. Harper yelled, "What are you doing?" (Rose Video at 9:25:50.) Officer Purcell pushed Mr. Harper towards the front of Mr. Harper's car and down to the ground. He was followed by Deputy Rose and a third officer. At that point, Mr. Harper was on the ground screaming and crying in pain as he was tased four more times. Eventually, the officers handcuffed Mr. Harper.

Officer David Suekawa arrived on the scene as the officers were struggling with Mr. Harper and Mr. Harper was being tased. Officer Suekawa's dashboard video camera provided partial footage of the event (see Suekawa Video (Ex. 7 attached to Pl.'s Mem. Opp'n (ECF No. 83)) at 2:33:07-44), but the images were low quality or taken from too far away so it was not possible to observe on the video exactly what occurred when Mr. Harper was on the ground.

Over a period of approximately fifty to sixty seconds, Mr. Harper was tased six times. Mr. Harper contends that this constituted excessive force because he was not fleeing or resisting arrest. He testified that he was involuntarily reacting to the loss of muscle control and the intense pain resulting from being tased. (See Pl.'s Opp'n Mem. at 23-24, 26-27.) But Deputy Rose and Officer Purcell claim that Mr. Harper was fleeing after he was tased the first time and that he was resisting arrest both during the time he refused to comply with the multiple orders to place his hands on his head and during the time the officers were trying to subdue him and place handcuffs on him.

II. ANALYSIS

Deputy Rose asserts that he is entitled to qualified immunity from Mr. Harper's excessive force claim. For the reasons set forth below, the court finds that Deputy Rose is not entitled to qualified immunity because, although he did not actually use the Taser on Mr. Harper, a reasonable jury could find that he personally participated in the infliction of excessive force through his order to Officer Purcell to tase Mr. Harper and so predictably set in motion the subsequent events at issue.

Specifically, based on a review of the Rose Video and the Purcell Video, which together capture a significant portion of the incident, the court holds that a reasonable jury could find that during the first two critical points in the incident-i.e., the initial tasing and the first drive-stun by Officer Purcell-Deputy Rose's actions were not objectively reasonable. As for the third critical point during the incident-that is, the melee on the ground in front of Mr. Harper's car during which Mr. Harper was tased four more times before he was finally handcuffed by the officers-no video sufficiently captures this portion of the incident and the parties present conflicting evidence of whether Mr. Harper was resisting arrest. Accordingly, the court finds that a genuine dispute of material facts exists concerning whether Deputy Rose is liable for the use of excessive force during the melee.

Qualified Immunity