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.
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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 § 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.
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