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24814 - Quesinberry, et al. v. Rouppasong, et al.

Davis Adv. Sh. No. 25
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





Melissa Quesinberry,

Shannon Foxworth,

Teresa Ann Lewis, and

Scott Roth, Petitioners,

v.

Paul Rouppasong and

M.B. Rosbrugh,

individually and in their

capacity as police

officers; City of Myrtle

Beach, a governmental

entity within the State

of South Carolina; and

Myrtle Beach Police

Department, an agency

of the City of Myrtle

Beach, Respondents.





ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS





Appeal From Horry County

David H. Maring, Sr., Judge





Opinion No. 24814

Heard November 6, 1997 - Filed July 13, 1998





AFFIRMED IN PART; REVERSED IN PART

AND REMANDED.



p.32


QUESINBERRY, et al. v. ROUPPASONG, et al.



Ronald W. Hazzard, of Myrtle Beach, for

petitioners.





Michael W. Battle, of Battle & Vaught, P.A., of

Conway, for respondents.





WALLER., A.J.: Petitioners brought actions against respondents

alleging, inter alia, respondents violated their constitutional rights in using

excessive force to effect their arrest. Recovery was sought under section

1983, Title 42 of the United States Code.1 At the close of petitioners' case,

the trial judge directed a verdict in favor of respondents.2 The Court of

Appeals affirmed. Quesinberry v. Rouppasong, Op. No. 96-UP-158 (S.C. Ct.

App. filed May 16, 1996). We granted petitioners a writ of certiorari to

review the sole issue of whether the trial judge properly directed verdicts for

respondents on the excessive force claims.





FACTS3

On the evening of September 15, 1991, the Dutch Deli, a restaurant

located on Highway 17 in Myrtle Beach, hosted a party for staff and guests.


1 "Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in . . . [any] proper proceeding for redress . . . ."



2 Petitioners also alleged false arrest and confinement; outrage; denial

of medical treatment; and negligent supervision, hiring and training. The

trial judge directed a verdict in respondents' favor on a number of these

causes of action; the jury returned a verdict for respondents on the

remainder.





3 This factual recitation summarizes the evidence petitioners presented

during their case in chief. In affirming the trial court, the Court of Appeals

also considered evidence presented by respondents' expert. We find

consideration of this evidence was improper and have disregarded it.

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QUESINBERRY, et al. v. ROUPPASONG, et al.





All petitioners attended the party.

Petitioner Lewis gave the following account of events. She had

consumed two mixed drinks and was sitting with others on the porch outside

the restaurant when a patrol car stopped a vehicle traveling on Highway 17.

A second patrol car arrived. Lewis and her daughter, petitioner Quesinberry,

thought it strange two patrol cars had stopped for one vehicle.





Lewis, a thirty-eight year old photographer interested in obtaining a

photograph to enter into a contest, walked across Highway 17 with her

camera, intending to ask an officer if she could take a picture. One of the

officers told her to return to the sidewalk. Lewis complied and was looking

at her camera when respondent Rouppasong grabbed her arms. Lewis told

him she did not take a picture. Thereafter, both Officer Rouppasong and

respondent Rosbrugh pulled Lewis's arms behind her back. Lewis testified

the officers handcuffed her in such a way that she could not stand up

straight. When she asked if she was under arrest, she received no response.





By this time, Quesinberry had approached the scene. She informed the

officers Lewis was her mother and inquired whether Lewis was under arrest.

Lewis told Quesinberry to take pictures. After Quesinberry took one picture,

Officer Rouppasong told her to stop. Quesinberry circled around the officers

and her mother, snapping pictures. Officer Rouppasong placed Lewis in a

patrol car. From the car, Lewis witnessed the arrest of her daughter and of

petitioners Foxworth and Roth.





Inside the patrol car, as she was being transported to jail, Lewis asked

what she was charged with. Officer Rouppasong replied, "you're drunk."4

Lewis also complained to Officer Rouppasong about her handcuffs:





... Officer Rouppasong got in, got in the car, and I said, "I think

these handcuffs must be too tight. I can't feel my wrists." I

said, "I can't feel my hands at all. Could you check them?" and

he didn't respond, and I said several more times driving to the

jail, "Something's wrong with my hands. I can't, I can't feel my

hands," . . . .



After her release from jail, Lewis went to the hospital emergency room where

bandages were applied to her arms. She consulted an orthopedic surgeon a


4 Lewis was charged with and convicted of public intoxication and

resisting arrest.





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QUESINBERRY, et al. v. ROUPPASONG, et al.



month later who diagnosed her with mild carpal tunnel syndrome in both

wrists. She ultimately underwent cortisone injections and orthopedic surgery

on her wrists.





Petitioner Quesinberry gave the following account of events. She had

finished one alcoholic beverage and was beginning to drink a second when

she saw her mother walk across Highway 17 towards Officer Rouppasong,

turn around, and walk back. Quesinberry went to the parking lot next to the

highway, where she saw the officers release the individual they had stopped,

come up behind Lewis, grab her arms, and tug and jerk on her camera and

purse straps. Quesinberry asked why they were arresting Lewis but received

no response. Quesinberry began taking pictures with her own camera. When

Officer Rouppasong told her to stop, she replied, "Stop doing what? Taking

pictures? I have a right to take pictures. This is America. I can take

pictures if I want to take pictures."





Officer Rosbrugh grabbed her right arm and jerked it around behind

her back up into the air. He forced her onto the hood of a patrol car, told

her to spread her legs, and then kicked her legs apart, causing bruises and

breaking the straps on her sandals. He then handcuffed her. When

Quesinberry asked if she were under arrest, Officer Rosbrugh did not reply.

At this point she saw five other people in the parking lot and about ten

people on the porch of the Dutch Deli. The people were screaming at the

officers, "Why are you arresting her? What is going on?" Officer Rosbrugh

placed Quesinberry in the patrol car with her mother.5





Petitioner Roth gave the following account of events. He had consumed

four or five beers and a "shooter or two" when he saw the officers arrest

Lewis and Quesinberry. He and his girlfriend, petitioner Foxworth, went out

to the parking lot. Quesinberry's boyfriend was there shouting obscenities

at the officers. Roth said, "This is bull----. He asked the officers, "Why

don't [you] go down to Tenth Avenue and bust some crack cocaine dealers,

why don't [you] do something real for once." He estimated four or five people

were standing in the parking lot.





Officer Rosbrugh then asked Roth, "Why don't you come over here?"

Roth held up his hands and stepped back. Officer Rosbrugh jumped over a

small retaining wall and grabbed Roth's right hand. Roth jerked his hand

away. Rosbrugh grabbed Roth's arm again and pulled it behind his back.

Roth went down on his knees. Roth testified if he stresses his back and


5 A jury convicted Quesinberry of interfering with a police officer.





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QUESINBERRY, et al. v. ROUPPASONG, et al.



shoulder, they will twinge., but "I wouldn't call it a real injury."6

Petitioner Foxworth gave the following account of events. She

consumed three wine coolers at the party. Foxworth saw Lewis approach the

officers, and heard Quesinberry ask what was going on. Between thirty to

thirty-five people were on the Dutch Deli's porch watching the incident. She

then walked out to the parking lot with Roth where she witnessed the

officers arrest Lewis and Quesinberry. Foxworth asked the officers why

Lewis and Quesinberry were being arrested. Quesinberry's boyfriend was

cursing at the police. Officer Rosbrugh pointed at Roth and asked if he had

something to say. Foxworth grabbed Roth's elbow and pulled him back.

Officer Rosbrugh then grabbed Roth and pulled him to the ground.





She was watching Roth when someone suddenly grabbed her. She

jerked her arm away but was grabbed again and placed in handcuffs by a

third officer who had arrived on the scene. She had no idea why she was

being arrested.7





Finally, petitioners presented the testimony of eyewitness Sandra

Hucks. Hucks testified she did not recall either Lewis's or Quesinberry's

arrests, but viewed portions of Roth's and Foxworth's arrests from the Dutch

Deli's porch (some sixty to eighty feet from the incident). According to

Hucks, there were approximately forty people at the party. A group of people

were on the porch, and some people were yelling obscenities.





ISSUE

Did the Court of Appeals err in affirming the trial judge's

directing a verdict in respondents' favor on petitioners' excessive

force claims?





DISCUSSION

On review of a ruling granting a directed verdict, the evidence and all

reasonable inferences therefrom must be viewed in the light most favorable


6 Roth was charged with disorderly conduct. He was acquitted.

7 Foxworth was charged with interfering with a police officer. She was

acquitted.

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QUESINBERRY, et al. v. ROUPPASONG, et al.





to the party against whom the verdict was directed. Carson v. Adger, 326

S.C. 212, 486 S.E.2d 3 (1997). If the evidence is susceptible to more than one

reasonable inference, the case should be submitted to the jury. Gamble v.

Int'l Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438, (1996).





Our decision is controlled by the Supreme Court's decision in Graham

v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Graham

held all claims that law enforcement officers used excessive force in the

course of an arrest, investigatory stop, or other seizure of a free citizen

should be analyzed under the reasonableness standard of the Fourth

Amendment to the United States Constitution.8





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. 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. 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,

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 [the suspect] is resisting arrest or attempting to

evade arrest by flight.





The "reasonableness" of a particular use of force must be

judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight. With respect to

a claim of excessive force, the same standard of reasonableness

at the moment applies: "Not every push or shove, even if it may

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

violates the Fourth Amendment. The calculus of reasonableness

must embody allowance for the fact that police officers are often

forced to make split-second judgments -- in circumstances that


8 "The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated

. . . ."

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QUESINBERRY, et al. v. ROUPPASONG, et al.





are tense, uncertain, and rapidly evolving -- about the amount of

force that is necessary in a particular situation.





Id. at 396-97, 109 S. Ct. at 1871-72, 104 L. Ed. 2d at 455-56 (citing Johnson

v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)) (other internal quotations

omitted). Finally, the Court held the "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." Id. at 397,

109 S. Ct. at 1872, 104 L. Ed. 2d at 456.



Pursuant to Graham, we have balanced the nature and quality of the

force used against petitioners with the officers' concerns at the time of the

arrests. We find no evidence was presented by petitioners Quesinberry and

Roth to suggest the force used by Officers Rouppasong and Rosbrugh was not

objectively reasonable under the circumstances of this case. However, we find

petitioner Lewis presented sufficient evidence of excessive force to survive a

directed verdict motion.9





The arrests occurred at night. By the time Quesinberry and Roth were

involved in the incident, a large crowd had gathered. People in the crowd

were yelling and cursing at the officers. Both Quesinberry and Roth had

been drinking. Quesinberry was questioning her mother's arrest, circling

around the officers, and taunting them. Roth was cursing at the officers and

challenging their arrest of Lewis and Quesinberry. When Officer Rosbrugh

first touched Roth, he yanked his arm away. We find an objective officer

would have viewed these circumstances as a threat to his own and others'

safety. Furthermore, Roth's actions would give an objective officer the

impression he was resisting arrest. We conclude no evidence was presented

the force used was excessive regarding these petitioners.





Petitioner Lewis, however, was the first person involved with the

officers. She obeyed Officer Rouppasong's command to return to the sidewalk


9 As to petitioner Foxworth, the Court of Appeals summarily dismissed

her claim because she did not file suit against the officer who arrested her.

This finding was not contested in the petition for rehearing, petition for

certiorari to this Court, or petitioners' brief. Therefore, this unappealed

ruling of the Court of Appeals has now become the law of the case and is

dispositive of Foxworth's appeal. See Rule 226(d), SCACR (only questions

raised in petition for rehearing may be properly considered in petition for

writ of certiorari to this Court).





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QUESINBERRY, et al. v. ROUPPASONG, et al.





after she initially approached the traffic stop. She was doing nothing more

than standing on the sidewalk, across the highway from the officers, when

she was grabbed. At the time of her arrest, there were no other people

around. Furthermore, once she was in the patrol, car she repeatedly

complained about her wrists and received no response whatsoever from

Officer Rouppasong.





The crimes Lewis was charged with were not severe, and she did not

pose an immediate safety threat to the officers or others. Furthermore, at

the time these injuries were inflicted, particularly those caused by the

handcuffs, she was not actively resisting arrest but was sitting in a patrol

car, in police custody. The Ninth Circuit Court of Appeals had the

opportunity to address an argument similar to Lewis's in Palmer v.

Sanderson, 9 F.3d 1433 (1993). In that case, Palmer claimed Sanderson, a

police officer, used excessive force in arresting him when Sanderson placed

him in handcuffs tight enough to cause "pain and discoloration to his wrists,

and that [the officer] refused his request to loosen them." In finding

Sanderson was not entitled to qualified immunity,10 that Court stated:





Defendants are not entitled to qualified immunity under the

"reasonableness standard" of the Fourth Amendment. Palmer

claims that Sanderson fastened Palmer's handcuffs so tightly

around his wrist that they caused Palmer pain and left bruises

that lasted for several weeks. Sanderson has presented no

evidence that would justify handcuffing Palmer so tightly that he

suffered pain and bruises, or to justify his refusal to loosen the

handcuffs after Palmer complained of the pain. Under these

circumstances, no reasonable officer could believe that the abusive

application of handcuffs was constitutional. Because Palmer's

evidence, if credited, would establish that Sanderson's use of force

was excessive in violation of the Fourth Amendment, the district

court properly refused to grant summary judgment in defendants'

favor on this claim.




10 "Law enforcement officials sued under ยง 1983 are entitled to qualified

immunity if (1) the 'right' they allegedly violated was not "clearly established"

at the time of the violation, or (2) if a reasonable officer would have thought

that the defendants' actions were constitutional." Palmer. 9 F.3d at 1435.



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QUESINBERRY, et al. v. ROUPPASONG, et al.





Id. at 1436 (internal citation omitted)."11 See also Hansen v. Black, 885 F.2d

642, 645 (9th Cir. 1989) (finding officers used excessive force by

"unreasonably injuring her wrist and arm as they handcuffed her"). Under

these circumstances, we find the Court of Appeals erred in affirming the trial

judge's ruling that the conduct as to petitioner Lewis Was constitutional as

a matter of law.





We affirm the Court of Appeals' ruling as to petitioners Quesinberry,

Roth, and Foxworth. We reverse the Court of Appeals' ruling as to petitioner

Lewis. This case is therefore remanded for further proceedings consistent

with this opinion. 12





AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

FINNEY, C.J. and TOAL, A.J., concur. MOORE and BURNETT, JJ., concurring in part

and dissenting in part in separate opinion.




11 We emphasize, however, that Palmer involved an issue and procedural

posture somewhat different from that decided here today. Thus, in citing it

we do not suggest the force used against Lewis was, as a matter of law,

unconstitutional. The determination of whether the actions taken exceeded

the bounds of the Fourth Amendment will of course be made after evidence

has been presented on both sides.



12 Respondent City of Myrtle Beach argues it was entitled to a directed

verdict on the additional ground that petitioners presented no evidence any

respondents were executing an unconstitutional municipal policy or custom.

The trial judge did not rule on this issue. It is clear from reading the

transcript that his sole basis for granting the directed verdicts was lack of

evidence. Therefore, we decline to address the issue and leave it to the trial

court upon remand should respondent choose to raise it.



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QUESINBERRY, et al. v. ROUPPASONG, et al.





BURNE'IT., A.J. (concurring in part and dissenting in part): I

concur in part and dissent in part. I agree Petitioners Quesinberry and

Roth did not present any evidence suggesting the force used against them

by Respondents Officers Rouppasong and Rosbrugh was objectively

unreasonable under the circumstances. I also agree Petitioner Foxworth's

claim is not preserved for this Court's review. However, I disagree with

the majority's conclusion in regard to Petitioner Lewis.





In considering an excessive force claim, the Court must judge



[t]he 'reasonableness' of a particular use of force . . .from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.



'Not every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers,' (citation

omitted) violates the Fourth Amendment. The calculus of

reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments - in

circumstances that are tense, uncertain, and rapidly evolving -

about the amount of force that is necessary in a particular

situation.





Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104

L.Ed.2d 443, 455-56 (1989)(citing Johnson v. Glick, 481 F.2d 1028, 1033

(2nd Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324

(1973)).



Viewing the evidence in the light most- favorable to Lewis, I

conclude the trial judge properly directed the verdict on Lewis' excessive

force claim. At the time of Lewis' arrest, it was nighttime. The police

had stopped a vehicle; the driver was standing outside the vehicle,

undergoing questioning by the police when Lewis approached the officers.

Lewis exchanged words with the officers. She then stood near the

highway, preparing to take photographs of the vehicle and of the stop.1a As

the officers walked towards Lewis, Quesinberry arrived. According to

Quesinberry, the police were struggling with Lewis. Quesinberry taunted

the police and, at Lewis' insistence, circled around the officers, snapping

photographs. As a result of these events, a jury convicted Lewis of public


1a Lewis testified she hoped to take pictures of the driver performing

sobriety tests.

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QUESINBERRY, et al. v. ROUPPASONG, et al.



intoxication and resisting arrest.



Lewis presented some evidence the handcuffs were applied

tightly. Her own expert testified, however, carpal tunnel syndrome is not

caused by a single event.





Assuming the officers used some force in effectuating Lewis'

arrest, the force was objectively reasonable in light of the circumstances

surrounding the arrest. It was nighttime; Lewis was intoxicated; she was

resisting arrest; her daughter was taunting the police. Lewis presented no

evidence the officers used excessive force in effectuating her arrest.





In every arrest, some amount of force is used. However, the

use of force does not automatically give rise to a jury issue as to whether

the forced used was appropriate. In this instance, the trial judge properly

determined the forced used was objectively reasonable. I would affirm the

trial judge and the decision of the Court of Appeals.





MOORE, A.J. concurs.





p.42