(CN) — A 10th Circuit panel heard arguments Tuesday morning on whether a Wyoming judge correctly tossed a federal lawsuit brought by a backseat car passenger who was brutally arrested during a DUI stop in 2018.
The appeal brought by Brandon Wuebker seeks to revive his constitutional lawsuit against the town of Evansville, Wyoming, and two officers of its police department — Luke Nelson and Bryce Norcross — over his violent arrest on May 20, 2018, when says in his complaint that he was pepper sprayed, tased and slammed into the road for not complying with the officers’ requests to stay in the car.
When dismissing the lawsuit in 2023, U.S. District Judge Alan Johnson explained that Wuebker failed to obey the officers’ commands to stay in the vehicle at risk of arrest. By examining the officers’ use of force — a four-part test otherwise known as the “Graham factors” — Johnson ruled that the officers’ actions had been “objectively reasonable” and “therefore, did not violate plaintiff’s constitutional or statutory rights.”
Johnson also determined that the two officers are entitled to qualified immunity for Wuebker’s First and Fourth Amendment violation claims, with the claims against the town being similarly dismissed.
Before a three-judge panel on Tuesday, Wuebker’s attorney — Reid Allison of Killmer Lane in Denver, Colorado — disagreed and doubled down on how Johnson overlooked video evidence of free speech retaliation when Nelson walked away from the vehicle stating, “I’m taking my coat off, fuck these people up.”
“First, the district court gave no weight whatsoever to the defendants’ repeated statements in their lead up to their use of force against Mr. Wuebker, essentially saying that they were going to arrest him for mouthing off or talking back to them,” Allison said.
Attorney Debra Hulett defended the officers’ conduct during Wuebker’s arrest, noting that he was repeatedly told to stay in the car.
“Well, unfortunately, he was also told multiple times that he needed to stay in the car, and he couldn’t get out,” said U.S. Circuit Judge Nancy Moritz, a Barack Obama appointee.
“That is true,” Hulett said. “He was told multiple times not to get out of the car. He was warned if he got out of the car again, he was going to jail. And then he was informed he was under arrest.”
The panel also pointed out two prongs of the Graham test that seemingly favor Wuebker: One being that he posed no immediate threat and that a third responding officer, Matthew McGraw, performed two knee strikes on Wuebker as he was getting tased.
This prompted Senior U.S. Circuit Judge David Ebel, a Ronald Reagan appointee, to ask Hulett whether any of the four Graham factors favored the officers’ conduct.
“I think the actively resisting arrest is the strongest factor in our favor,” Hulett said, adding that the officers had no other way of arresting Wuebker in his belligerent state.
After a brief argument from Evansville attorney Thomas Thompson, Allison made his underlying point clear about how the officers’ conduct is a motivation question better suited for a jury.
“And we just skipped that part because the district court said those statements don’t matter for excessive force,” Allison said.
While Wuebker’s charges associated with the traffic stop were dropped, Johnson had disagreed that Wuebker had viable excessive force or free speech retaliation claims against the defendants — even despite video evidence of Nelson making “inappropriate” and “unbecoming” statements before Wuebker’s arrest.
“Once placed under arrest, instead of exiting the vehicle, in compliance with individual defendants’ commands, plaintiff pulled back into the vehicle and refused to exit,” Johnson wrote in his order.
Johnson also noted that, when officers tried to pull Wuebker from the car, camera footage demonstrated that there had been a significant struggle that warranted further force for his arrest.
U.S. Circuit Judge Timothy Tymkovich, a George W. Bush appointee, rounded out Tuesday’s panel. The judges adjourned the hearing without indicating how they would rule.