Date: 07-08-2018

Case Style:

Case Number: 16-4080

Judge: Kelly

Court: United States Court of Appeals for the Eight Circuit on appeal from the Eastern District of Arkansas (Pulaski County)

Plaintiff's Attorney: Austin Porter

Defendant's Attorney: Amanda LaFever, Caleb J. Norris

Description: Former City of Monticello, Arkansas, police officer Ray Singleton appeals afterthe district court1 denied his request for qualified immunity at summary judgment inthis 42 U.S.C. § 1983 action alleging he used excessive force against SheldonThompson.
I. Background
The following facts are undisputed. In the early morning hours of December12, 2010, Thompson was walking to his home in Monticello, Arkansas. He wasdrunk, but he was accompanied by another adult male, Carl Tyson, Jr., as well as histeenaged nephew, Tajah Hicks. Singleton saw Thompson, Tyson, and Hicks from hispolice cruiser, and ordered them to stop. Tyson and Hicks stopped, but Thompsoncontinued walking. Singleton exited his cruiser and walked in front of Thompson,taking a semi-circular route so as to position Thompson between himself and hiscruiser. He drew his taser on Thompson, who then stopped walking. After pullinghis taser, Singleton twice ordered Thompson to walk back to the cruiser. At first, hedid not comply, and simply stood still. Then, Singleton ordered, “let me see yourhands.” After Thompson showed his hands, Singleton again directed him to walkback to his cruiser. Thompson dropped his arms to his sides, placed his hands behindhis back but underneath his coat, turned around, and started walking toward thecruiser. After taking approximately five steps, he turned back around to faceSingleton, raised his left arm to point toward a nearby residence, and said, “You knowwhat? That’s my house right over there.” At that point, Singleton tased Thompson,
1The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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who fell to the ground. Thompson’s head struck the pavement, rendering himunconscious. When another officer arrived on the scene shortly thereafter, Singletonsaid, “He [was] refusing to go back and do what I told him to do[. T]ased him and Ithink he hit his head when he fell.”
Singleton’s taser recorded these events from the moment it was unholstered,and the parties offer divergent descriptions of what that video depicts. In Singleton’sview, the video shows that Thompson failed to fully comply with his order that heshow his hands, was being belligerent, demonstrated resistance, and turned aroundin an “aggressive manner,” causing Singleton to justifiably fear for the safety of bothmen. According to Thompson, the video shows that he fully complied withSingleton’s order that he show his hands, started to walk back to the cruiser inaccordance with Singleton’s order that he do so, and innocently turned around to tellSingleton he lived nearby and to point at his house. Thompson does not rememberthe incident, but denies being aggressive. He admits he was intoxicated and beingdisagreeable.
Recognizing its obligation to take the taser video and all other facts in the lightmost favorable to Thompson, the district court summarized the facts as follows:
Officer Singleton initiated a stop of three men who were walking on theside of the road at night. Mr. Thompson was suspected of committinga minor, nonviolent crime late at night. After the stop was initiated, twoof the men obeyed Officer Singleton’s commands to stop. One man, Mr.Thompson, did not obey Officer Singleton’s first command. OfficerSingleton then pulled out his taser, and Mr. Thompson stopped walking. Mr. Thompson then complied with Officer Singleton’s commands byextending his arms, showing his palms, and walking towards OfficerSingleton’s patrol car as directed. At this point, Officer Singleton knewthat Mr. Thompson did not have a weapon in his hands.
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Mr. Thompson then placed his hands under or inside his coat while hewas walking. Officer Singleton did not instruct Mr. Thompson to takehis hands out of his coat or to otherwise show his hands a second time. Mr. Thompson then turned towards Officer Singleton with both handsvisible and outside of his coat—a disputed fact the court must resolvein favor of Mr. Thompson at this stage—and raised one arm to pointtowards his house. Officer Singleton then utilized his taser withoutwarning and without providing any additional instructions to Mr.Thompson.
The district court reasoned that, viewing the facts in the light most favorableto Thompson, “Officer Singleton intentionally tasered, without warning, an individualwho was stopped for a nonviolent misdemeanor offense and who was not resistingor fleeing arrest while the individual’s hands were visible.” The district court thenexplained that, because there remained genuine issues of material fact, it could notconclude that Singleton’s use of the taser was objectively reasonable as a matter oflaw, and denied his request for qualified immunity. Singleton appeals.
II. Discussion
“Ordinarily, we lack jurisdiction to review the denial of a motion for summaryjudgment, because it does not constitute a final order. However, under the collateralorder doctrine, we may conduct a limited interlocutory review of a district court’sorder denying summary judgment on the basis of qualified immunity.” Edwards v.Byrd, 750 F.3d 728, 731 (8th Cir. 2014) (internal citations omitted); see also Mitchellv. Forsyth, 472 U.S. 511, 530 (1985). Our jurisdiction “extends only to abstractissues of law, not to determinations that the evidence is sufficient to permit aparticular finding of fact after trial.” Edwards, 750 F.3d at 731 (quoting White v.Smith, 686 F.3d 740, 753 (8th Cir. 2012)). “More precisely, we have jurisdiction toconsider the ‘purely legal’ issue of whether the facts, taken in the light most favorableto [Thompson], support a finding that [Singleton] violated [Thompson’s] clearlyestablished constitutional rights.” Langford v. Norris, 614 F.3d 445, 455 (8th Cir.
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2010). Our review is thus “limited to determining whether all of the conduct that thedistrict court deemed sufficiently supported for purposes of summary judgmentviolated the plaintiff’s clearly established federal rights.” Edwards, 750 F.3d at 731(quoting White, 686 F.3d at 753). “Accordingly, we accept as true the facts that thedistrict court found were adequately supported, as well as the facts that the districtcourt likely assumed, to the extent they are not ‘blatantly contradicted by the record.’” Burnikel v. Fong, 886 F.3d 706, 709 (8th Cir. 2018) (quoting Thompson v. Murray,800 F.3d 979, 983 (8th Cir. 2015)). “We review de novo the issues of law.” Id.
“Qualified immunity shields government officials from liability in a § 1983action unless their conduct violates a clearly established right of which a reasonableofficial would have known.” Id. “Courts conduct a two-part inquiry to determinewhether qualified immunity protects a government official from liability: (1) whetherthe facts taken in the light most favorable to [Thompson] make out a violation of aconstitutional or statutory right; and (2) whether that right was clearly established atthe time of the alleged violation.” Buckley v. Ray, 848 F.3d 855, 863 (8th Cir. 2017).
“The Fourth Amendment protects citizens from being seized through excessiveforce by law enforcement officers.” Mettler v. Whitledge, 165 F.3d 1197, 1202 (8thCir. 1999). “To establish a constitutional violation under the Fourth Amendment’sright to be free from excessive force, the test is whether the amount of force used wasobjectively reasonable under the particular circumstances.” Coker v. Ark. StatePolice, 734 F.3d 838, 842 (8th Cir. 2013) (quoting Henderson v. Munn, 439 F.3d 497,502 (8th Cir. 2006)). “The Fourth Amendment requires us to ask, based on theperspective of a reasonable officer on the scene, ‘whether the officers’ actions areobjectively reasonable in light of the facts and circumstances confronting them,without regard to their underlying intent or motivation.’” Ellison v. Lesher, 796 F.3d910, 916 (8th Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). Relevant considerations include: “‘the severity of the crime at issue, whether thesuspect poses an immediate threat to the safety of the officers or others, and whether
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he is actively resisting arrest or attempting to evade arrest by flight.’” Burnikel, 886F.3d at 710 (quoting Graham, 490 U.S. at 396). We may also consider whether “thesituation is ‘tense, uncertain, and rapidly evolving,’ which would force an officer tomake ‘split-second judgments’ about how much force is necessary.” Coker, 734 F.3dat 842–43. “[F]orce is least justified against nonviolent misdemeanants who do notflee or actively resist arrest and pose little or no threat to the security of the officersor the public.” Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quotingBrown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)).
Initially, Singleton argues that the district court relied on facts that are blatantlycontradicted by the evidence in the record. In Scott v. Harris, the Supreme Court heldthat police officers were entitled to qualified immunity because a video conclusivelyestablished that the officers had acted reasonably under the circumstances and, thus,had not committed a Fourth Amendment violation. 550 U.S. 372, 380–81 (2007). Relying on Scott, Singleton contends that the taser video—coupled with Thompson’sinability to independently recall the incident—establishes beyond dispute that thecircumstances were “tense, uncertain, and rapidly evolving,” and that his use of forcewas therefore reasonable. We disagree.
Singleton and Thompson each believe the video supports his version of howthe incident transpired. They also disagree as to whether Thompson’s behavior canbe characterized as aggressive and confrontational such that a reasonable officer inSingleton’s shoes would have believed he posed an immediate threat. Havingreviewed the video, we note that it captures only part of the incident, and that it doesnot clearly show where Thompson’s other hand was positioned when he turned topoint at his house. But the video does not conclusively disprove Thompson’s viewof the incident. Singleton simply disagrees with “the district court’s conclusionsregarding evidence sufficiency and the genuineness of factual disputes—conclusionsthat we have no jurisdiction to review.” See Thompson, 800 F.3d at 983. And, underthe district court’s version of the facts, Singleton’s conduct constituted a violation of
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Thompson’s Fourth Amendment right to be free from excessive force. See Brown,574 F.3d at 499 (holding that it was “unlawful to Taser a nonviolent, suspectedmisdemeanant who was not fleeing or resisting arrest, who posed little to no threatto anyone’s safety, and whose only noncompliance with the officer’s commands wasto disobey two orders to end her phone call”).
Next, Singleton argues that, in December 2010, it was not clearly establishedthat he could not tase Thompson.2 But Singleton has attempted to define Thompson’sconstitutional right by describing him as aggressive, confrontational, and resistant. In doing so, Singleton has construed disputed facts in his own favor, and haseffectively “asked us to examine a matter over which we lack jurisdiction, i.e., whichfacts [Thompson] may, or may not, be able to prove at trial.” See Burnikel, 886 F.3dat 711 (internal quotation omitted); see also Franklin ex rel. Franklin v. Peterson, 878F.3d 631, 638 (8th Cir. 2017) (“While we have jurisdiction to determine whetherconduct the district court deemed sufficiently supported for purposes of summaryjudgment constitutes a violation of clearly established law, we lack jurisdiction todetermine whether the evidence could support a finding that particular conductoccurred at all.”).
Nevertheless, it was clearly established in December 2010 that the facts asfound by the district court would give rise to a Fourth Amendment violation. “Aclearly established right is one that is ‘sufficiently clear that every reasonable official
2The district court did not reach the second-prong of the qualified immunity
analysis, finding that it was “not in dispute in this case.” This was understandable,
as Singleton offered no meaningful argument in the district court as to why the
constitutional right that Thompson seeks to vindicate in this case was not clearly
established. Instead, in his brief in support of his motion for summary judgment,
Singleton simply cited Coker for the proposition that “[t]he right to be free from
excessive force in the context of an arrest is clearly established under the Fourth
Amendment’s prohibition against unreasonable searches and seizures.”
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would have understood that what he is doing violates that right.’” Burnikel, 886 F.3dat 711 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). While “clearlyestablished law should not be defined at a high level of generality . . . it is notnecessary, of course, that the very action in question has previously been heldunlawful.” Dean v. Searcey, No. 16-4059, 2018 WL 2770805, at *9 (8th Cir. June11, 2018) (citations omitted) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017);Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)). Rather, “the dispositive question iswhether there was a fair and clear warning of what the Constitution requires.” Id.(quoting City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015)). Asthis court explained in Brown in June 2009,
[I]t is clearly established that force is least justified against nonviolentmisdemeanants who do not flee or actively resist arrest and pose little orno threat to the security of officers or the public. At the time [theofficer] deployed his Taser and arrested [the suspect], the law wassufficiently clear to inform a reasonable officer that it was unlawful toTaser a nonviolent, suspected misdemeanant who was not fleeing orresisting arrest, who posed little to no threat to anyone’s safety, andwhose only noncompliance with the officer’s commands was to disobeytwo orders to end her phone call . . . .
574 F.3d at 499 (citations omitted). By December 2010, it was clearly establishedthat intentionally tasering, without warning, an individual who has been stopped fora nonviolent misdemeanor offense and who is not resisting or fleeing arrest while hishands are visible violates that individual’s Fourth Amendment right to be free fromexcessive force.

Outcome: Accordingly, the district court’s denial of qualified immunity is affirmed.

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