Jury May Decide On Immunity Defense

The United States Court of Appeals for the Second Circuit reversed the grant of summary judgment on qualified immunity grounds to a defendant law enforcement officer

Ms. Shela Linton attended a sit-in protest on January 8, 2015, at the Vermont statehouse (the “Statehouse”). She and approximately 200 other demonstrators were protesting what they thought to be the Vermont governor’s failure to adequately support a movement toward universal healthcare. That evening at 8 p.m., when the Statehouse was scheduled to close, law enforcement officers advised the remaining demonstrators that if they did not leave, they would be subject to arrest. Ms. Linton and some 28 other demonstrators nonetheless remained in the legislative chamber of the Statehouse, sitting in a circle on the floor with arms linked, singing songs that Ms. Linton characterized as expressive of their social justice ideals.

After delivering this warning to the remaining demonstrators, law enforcement officers began to arrest the demonstrators. Several videos that were filed in the district court contained remarkably clear footage of many of the arrests, including Ms. Linton’s. Ms. Linton, who would later testify that she did not intend to leave the Statehouse voluntarily, remained seated while several of her fellow demonstrators were arrested. Some stood up and walked out voluntarily, escorted by law enforcement officers. Others were dragged or carried out by several officers. Only one of them complained of pain; he said it resulted from an officer fastening handcuffs too tightly.

Sergeant Jacob Zorn and Trooper Seth Richardson approached Ms. Linton. Sergeant Zorn asserts that he asked Ms. Linton to stand; she alleges that she heard no clear command. Nevertheless, Ms. Linton knew that the police would make her leave the Statehouse by physically removing her and witnessed multiple arrests before her own. Approximately five seconds after Sergeant Zorn asked Ms. Linton to stand, as indicated by videographic evidence, Trooper Richardson took hold of Ms. Linton’s right arm and Sergeant Zorn of her left.  Trooper Richardson tugged at Ms. Linton’s right arm three times before successfully unlinking Ms. Linton’s arm from the arm of the demonstrator to her right, gaining control over that arm. Sergeant Zorn attempted to unlink Ms. Linton’s left arm from the arm of the demonstrator to her left and applied pressure to that arm as part of his attempt to remove Ms. Linton from the Statehouse. At one point in doing so, and after unlinking Ms. Linton’s left arm, Sergeant Zorn used a “rear wristlock”—a “pain compliance technique” in ejecting her from the Statehouse.

While Sergeant Zorn sought to remove Ms. Linton, she cried out in pain. Sergeant Zorn made repeated requests that Ms. Linton stand. Ms. Linton responded saying “I will not stand up.” Sergeant Zorn stated, “I am not strong enough to pick you up, so please stand up.” Ms. Linton shook her head side to side. Sergeant Zorn warned Ms. Linton that he would apply more pressure if she did not comply. She did not stand despite Sergeant Zorn’s requests and orders; she asserts she could not do so because she was in too much pain, and any movement that Sergeant Zorn perceived as active resistance was an involuntary reflex to the force applied by Sergeant Zorn. Ms. Linton was eventually carried out of the Statehouse chamber by three officers. She continued to complain that she was in great pain. As a result of the events of the day, she suffered permanent damage to her left wrist and shoulder and alleges that she has consequently been diagnosed with post-traumatic stress disorder, depression, and anxiety, apparently resulting from these events. Ms. Linton brought this action in the United States District Court for the District of Vermont alleging, in relevant part, that Sergeant Zorn, in his personal capacity, violated her Fourth Amendment rights when he used unreasonable excessive force to remove her from the Statehouse chamber. Sergeant Zorn moved for summary judgment based on his argument that he was entitled to qualified immunity with respect to his alleged excessive use of force. The district court agreed, holding that there was no clearly established law that put Sergeant Zorn on notice that his conduct was unlawful, therefore rendering his actions as to Ms. Linton legally immune.

Ms. Linton now appeals this determination, arguing that the district court erred in concluding that no case law provided such sufficient notice to Sergeant Zorn. She also contends that the district court did not construe the facts of the case in the light most favorable to her as the non-movant, and in so doing made improper factual findings against her. The parties dispute the degree to which Ms. Linton was resisting arrest, whether the degree of force used by Sergeant Zorn was necessary and appropriate in response to the circumstances, and whether Sergeant Zorn acted in good faith when applying this force.

We conclude that our decision in Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004), did clearly establish law governing Sergeant Zorn’s alleged behavior that is the subject of the case at bar, and that there exist genuine issues of material fact that must be resolved by a jury prior to determining whether qualified immunity shields Sergeant Zorn from personal liability. For the reasons set forth in further detail below, we VACATE the district court’s order granting Sergeant Zorn’s motion for summary judgment and REMAND the matter for further proceedings consistent with this opinion.

(Mike Frisch)