A Wyoming man who was tased, kneed and pepper sprayed by Evansville police during a 2018 traffic stop lost his court appeal this week when a federal judicial panel concluded the officers did not violate his constitutional rights.
The three-judge panel for the 10th Circuit U.S. Court of Appeals found a lower court judge was correct when he ruled last year in the officers’ favor based on qualified immunity. That legal principle, as the lower court explained, protects government officials from liability as long as they make reasonable judgements while performing their jobs, even if those judgements turn out to be mistaken.
Brandon Wuebker filed a federal lawsuit against three Evansville police officers and the town in 2022, alleging they violated his constitutional rights by using excessive force and retaliating against him during the traffic stop. The court heard evidence that, prior to the arrest, officers discussed taking him to jail for talking back to them, even though the police supervisor on scene later acknowledged Wuebker’s conduct did not warrant charges. After another passenger in the car cursed at the officers, that supervisor, Sgt. Luke Nelson, was recorded on police camera footage muttering, “I’m taking my coat off, fuck these people up,” court documents state.
However, U.S. District Court Judge Alan B. Johnson concluded the officers’ conduct “was objectively reasonable and they were acting with probable cause, [and] the recording demonstrates that the officers would have utilized force with [Wuebker], independent of retaliatory animus.” The appeals court agreed with Johnson that the officers’ use of force was “appropriate to the level of resistance encountered during the arrest.”
“In short, plaintiff was arrested after failing to comply with officer commands during a traffic stop,” the appeals court decision, which was released Tuesday, states. “He was injured as the officers made their arrest.”
The traffic stop
On May 20, 2018, Wuebker was riding in the backseat of a two-door Volvo traveling in Evansville, a small town neighboring Casper. He had been drinking at a nearby bar, and the Volvo’s driver agreed to give him a ride home because he was unable to drive himself. Another passenger was in the front.
Officer Bryce Norcross pulled over the Volvo on an Interstate 25 onramp after the driver allegedly failed to fully stop at a stop sign. Wuebker wasn’t wearing a seat belt, so Norcross asked for his ID, which he provided, court documents state.
Dash and body camera footage, along with testimony, described what happened next:
A second officer, Matthew McGraw, arrived, and police began to suspect the driver was too intoxicated to be behind the wheel. As they investigated, McGraw shined a flashlight at Wuebker, which led to a contentious exchange between the two.
When Nelson arrived, McGraw told him that Wuebker “has a big problem and is about to have a bigger problem here in a second.” McGraw later walked to Norcross’ patrol car and told the other officer that Wuebker was “about to go to jail … he wants to be mouthy, thinks that if I shine my light on him that is illegal.”
Wuebker’s behavior toward the officers prompted the two women in the car to tell him he was being belligerent and ask him to stop, according to court records.
Wuebker asked to leave the car to urinate at a nearby gas station, but police told him no. As Norcross performed field sobriety tests on the driver, the front-seat passenger got out of the car and told officers Wuebker needed to go to the bathroom. McGraw again told him to wait. Less than two minutes later, she got out again and was told to get back in the car. She screamed out the window that she knew “fucking plenty of cops, you’re a fucking dick … asshole.” Nelson told her that he would talk to her in a minute, but in the same breath muttered, “I’m taking my coat off, fuck these people up,” court documents state.
Arrest
About a minute later, Wuebker opened the driver’s side door, saying he was going to the gas station. Nelson ordered him to shut the door. The back and forth continued until Wuebker complied and closed the door. Nelson told him, according to the recordings, that if he got out again, he would be going to jail.
As the officers arrested the driver for drunken driving, and while Norcross placed her in handcuffs, Nelson could be heard saying, “he is getting tased,” court documents state. Six seconds later, Nelson saw Wuebker open the door. He was on his phone and told the officers he was going to the bathroom. The officers told him he was not free to leave and ordered him to shut the door. When he stepped toward them with his foot and left arm outside the car, McGraw told him he was under arrest.
Wuebker pulled back into the car. Nelson aimed the taser at him and McGraw used pepper spray on him. Wuebker did not exit, later testifying that he was scared because the taser was pointed at him.
Soon, Norcross and McGraw began trying to pull Wuebker out of the car, which he allegedly resisted, court documents state. Dashcam footage, the judge noted, showed both officers struggling significantly to get Wuebker out of the car. Norcross then fired the Taser at Wuebker, who cried out in pain. Norcross and McGraw pulled him out of the car headfirst, and his head slammed into the road.
As the officers tried to arrest Wuebker — court documents state he was flailing on the ground at this point — Norcross used his Taser a second time on him, while McGraw kneed him twice. They placed him in handcuffs. Body camera footage shows him bleeding from his head. He was taken to Wyoming Medical Center, where doctors recommended sutures for a 3-centimeter cut above his right eye. (He declined due to lack of insurance.)
He was booked at Natrona County Detention Center on suspicion of interference with a police officer, and a breath test there showed his blood alcohol level at .213%. In Wyoming, a person with a blood alcohol level of .08 is presumed too drunk to operate a car.
The prosecutor in the case later dismissed the charge at the request of Nelson, who testified he did so because his “fuck these people up” statement had a “bad optic” and would affect his reputation with the court and district attorney’s office.
Legal proceedings
Wuebker filed suit roughly four years later. His attorneys alleged the police used excessive force, noting that Wuebker did not present an immediate threat to them, did not attempt to flee and did not actively resist arrest. The attorneys further accused the officers of violating their client’s First Amendment right to be free from retaliation for his protected speech. Finally, they alleged the town itself had failed to properly train and supervise the officers.
By this time, two of the officers were no longer with the department. The town of Evansville had fired Norcross in 2020 “for lying about a drug transaction and initiating a high-speed chase during the same encounter,” court documents show. McGraw, meanwhile, died shortly before the suit was filed. (Nelson remains on the force, according to the department’s website).
Last year, the officers and the town separately asked Johnson, the federal district judge, to rule in their favor without the matter proceeding to trial. In August, he ruled in their favor, finding both officers were protected by qualified immunity. Johnson concluded the officers had the authority to detain Wuebker during the stop, which was not over when he tried to leave the car, and that Wuebker had failed to comply with their orders.
Johnson also addressed the plaintiff’s contention that Nelson’s comments ahead of the altercation indicated police planned to use significant force against Wuebker. The judge called the comments “wholly inappropriate and unbecoming of a peace officer,” but said they weren’t relevant given Nelson did not put his hands on Wuebker during the arrest and altercation.
“Ultimately … the Court finds that the use of force, in this case, was objectively reasonable and, therefore, did not violate Plaintiff’s constitutional or statutory rights.”
Johnson further dismissed the claims related to Wuebker’s First Amendment rights and the allegations against the town related to training and supervision of the officers.
Appeal
Earlier this month, lawyers for both sides made their case before the three-judge panel. Reid Allison, the attorney for Wuebker, argued his client did not represent a threat to the officers and that the force they used was excessive considering he was at most facing arrest for non-violent misdemeanors. Moreover, Wuebker did not kick, bite or hit the officers once they put their hands on him, he said.
“And here, Mr. Wuebker, it’s on video. He may be annoying. He may be mouthy. But he never threatens anyone at any time,” Allison said.
Debra Hulett, a lawyer in the Wyoming Attorney General’s Office, represented the officers during the appeal hearing. She noted that Wuebker did not comply when the officers issued orders or used minimal force when one grabbed him by the arm. He was also belligerent and intoxicated, she said.
“The officers didn’t have a different way to get him out of the car,” she said.
In its Tuesday decision, the appeals panel affirmed Johnson’s decision for largely the same reasons he had previously laid out, notably that the officers’ use of force was reasonable under the circumstances.
“Plaintiff’s excessive force claim fails because there was no constitutional violation …,” the panel concluded.