DaVias v. Kelly, et al. CV-02-326-M 05/10/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Erico DaVias, Plaintiff

v. Crvrl No. 02-326-M Opinion No.

Officer John Kelly, and Officer Christopher Hamilton, Defendants

O R D E R

Veteran pro se litigant, Erico DaVias,1 brings this action

against the Somersworth Police Department and two of its police

officers. Officer John Kelly and Officer Christopher Hamilton.

By prior order, the court dismissed DaVias's claims against the

Somersworth Police Department and, pursuant to the Soldiers' and

Sailors' Civil Relief Act, stayed those against Officer Hamilton.

As to defendant Officer John Kelly, DaVias claims that his

constitutional rights were violated when Kelly used excessive

force during the course of a traffic stop. Kelly moves for

1 DaVias is a freguent pro se litigant in this court, who has filed approximately 20 civil actions over the years. In those cases, he has proceeded under several variations of his name including, for example, Eric Davis. summary judgment, saying the record establishes that no material

facts are in dispute and that he is entitled to judgment as a

matter of law. DaVias has not filed a response to Kelly's

dispositive motion. Nevertheless, that motion must be considered

on its merits.

Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griggs-Ryan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

'material' if it potentially affects the outcome of the suit and

a dispute over it is 'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Intern'1 Ass'n of

Machinists & Aero. Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

2 Background

Kelly's affidavit, filed in support of his motion for

summary judgment, establishes (without contradiction by

plaintiff), that on the evening of July 27, 1999, he encountered

a car driving with high-beam headlights. Officer Kelly twice

signaled the driver to dim his lights, but got no response.

Accordingly, he turned his cruiser around, followed the car, and

pulled it over. DaVias was driving; a woman and a child were in

the back seat. DaVias got out of the car and approached Kelly,

shouting and accusing Kelly of racism for having pulled him over

without cause. Kelly instructed DaVias to return to his vehicle,

but he refused. Finally, Officer Kelly put his hand on his

pepper spray canister and told DaVias to return to his car or he

would be pepper-sprayed.

Eventually, DaVias returned to his car, but got into the

back seat and refused to respond to Kelly's efforts to identify

him. Kelly called for back-up. DaVias again got out of his car

and approached the officer, screaming obscenities, waiving his

hands in the area of Kelly's face, and behaving in a threatening

manner. As DaVias closed in on Kelly, the officer raised his

3 hands, palms facing DaVias, and shoved him backward. DaVias

quickly took one or two steps back, but did not fall to the

ground or lose his balance. Kelly then drew the pepper spray

canister and again warned DaVias that if he did not return to his

car, he would be sprayed. DaVias retreated, yelling obscenities

and shouting to his female passenger that he had been assaulted.

But, instead of getting back into his car, DaVias left the scene,

walking down the roadway and leaving his passengers behind.

Parenthetically, the court notes that Officer Kelly's

account of the events in question is confirmed by the video tape

of the traffic stop, made from Kelly's patrol car. That tape

puts the lie to DaVias's claim that Kelly "rush[ed] up to the

plaintiff taking his closed fist [and] hitting plaintiff on the

right side of [his] eyebrow and forehead, then shoving plaintiff,

pushing him onto the street." Amended complaint (document no. 9)

at para. 3. Regardless of whether DaVias has imperfect recall of

the events in question or has purposefully fabricated them to

support his excessive force claims, the video tape reveals that

the factual allegations set forth in his complaint are, to say

the least, inaccurate.

4 Shortly after leaving the scene of the traffic stop, DaVias

was taken into custody by defendant Officer Christopher Hamilton.

He was charged with operating a motor vehicle without a license

and eventually pled guilty to that charge. DaVias subseguently

filed this action, claiming to have been the victim of excessive

force. See generally

.

Discussion

The United States Supreme Court has made clear that "all

claims that law enforcement officers have used excessive force -

deadly or not - in the course of an arrest, investigatory stop,

or other 'seizure' of a free citizen should be analyzed under the

Fourth Amendment and its 'reasonableness' standard, rather than

under a 'substantive due process' approach." Graham v. Connor,

(1989) (emphasis in original).

The Fourth Amendment to the Constitution guarantees the

right of individuals to be free from "unreasonable searches and

seizures." Not surprisingly, then, a police officer violates the

Fourth Amendment when he or she uses force that is not

"reasonable," given all the attendant circumstances.

5 Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment 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. . . . Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case.

Graham,

(citations and internal quotation marks

omitted). It is also important to note that the determination of

whether an officer's conduct was "reasonable" is an objective

one. Consequently, the individual officer's subjective intent

and motivation are not relevant.

("[T]he

'reasonableness' inquiry in an excessive force case is an

objective one: the question is whether the officers' actions are

'objectively reasonable' in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation."). See also Jarrett v. Town of Yarmouth,

(1st Cir.) ("[0]bjective reasonableness is the

touchstone of the excessive force inquiry."), cert. denied,

(2003) .

6 While the term "reasonable" is a familiar one, used often in

the context of negligence claims, the court of appeals for this

circuit has noted that it has a more "generous" meaning in the

context of excessive force claims.

[T]he Supreme Court's standard of reasonableness is comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. In Graham v. Connor, the Court said that the "calculus of reasonableness" must make "allowance" for the need of police officers "to make splitsecond judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation."

Roy v. Inhabitants of Lewiston,

(1st Cir. 1994) .

The court concluded that, "the Supreme Court intends to surround

the police who make these on-the-spot choices in dangerous

situations with a fairly wide zone of protection in close cases."

See also Graham,

("Our Fourth Amendment

jurisprudence has long recognized that the right to make an

arrest or investigatory stop necessarily carries with it the

right to use some degree of physical coercion or threat thereof

to effect it . . . Not every push or shove, even if it may later

seem unnecessary in the peace of a judge's chambers, violates the

7 Fourth Amendment.") (citation and internal quotation marks

omitted).

In determining whether an officer's conduct was objectively

reasonable under the circumstances, the court (or trier of fact,

as the case may be) must consider, among other things, the

following factors: "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." Graham,

. See also Alexis v. McDonald's Rest, of Mass., Inc.,

(1st Cir. 1995). As the Court of Appeals for the

Ninth Circuit has observed, "[t]he force which was applied must

be balanced against the need for that force: it is the need for

force which is at the heart of the consideration of the Graham

factors." Alexander v. City & County of San Francisco,

, 1367 (9th Cir. 1994) .

In this case, DaVias exited his car (for a second time) and

advanced toward Officer Kelly in a threatening manner, shouting

obscenities. When he came within striking distance of Kelly and refused to comply with the officer's directive to stop, the

officer acted in an objectively reasonable manner when he raised

his hands and shoved DaVias back. The evidence of record

unquestionably demonstrates that DaVias was agitated and posed a

potential physical threat to Kelly. Under those circumstances,

the decision to push DaVias back was certainly reasonable,

particularly since decisions of that sort must be made in the

context of rapidly evolving circumstances in which an officer

might reasonably be concerned for his or her own safety.

The uncontested evidence demonstrates that Kelly used no

more force than was objectively reasonably necessary to stop

DaVias from continuing his menacing advance: a simple shove,

which did not cause DaVias to fall to the ground or even lose his

balance. DaVias retreated and, although he left the scene, Kelly

did not pursue him, nor did he attempt to subdue or apprehend him

(though he certainly could have done so). On these facts, no

reasonable and properly instructed jury could conclude that the

force Kelly employed was excessive in any constitutional sense.

Consequently, the court holds that, as a matter of law, when

Officer Kelly shoved DaVias back to stop his agitated and threatening advance, he did not use constitutionally excessive

force. Instead, he behaved in an appropriate and objectively

reasonable manner under the circumstances.

Conclusion

Officer Kelly is entitled to judgment as a matter of law and

his motion for summary judgment (document no. 28) is granted, as

is his motion to supplement the record (document no. 33).

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 10, 2 004

cc: Erico DaVias John A. Curran, Esg.

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