439 F.3d 497 (8th Cir. 2006), 05-1403, Henderson v. Munn

Docket Nº:05-1403.
Citation:439 F.3d 497
Party Name:Kenneth R. HENDERSON, Appellee, v. Les MUNN, in his individual capacity, Appellant.
Case Date:February 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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439 F.3d 497 (8th Cir. 2006)

Kenneth R. HENDERSON, Appellee,


Les MUNN, in his individual capacity, Appellant.

No. 05-1403.

United States Court of Appeals, Eighth Circuit.

February 28, 2006

Submitted: Nov. 17, 2005.

Appeal from the United States Western District Court for the Western District of Arkansas.

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Jeannette Denham, argued, North Little Rock, AR, for appellant.

Robert Pressman, argued, Lexington, MA (John W. Walker, Little Rock, on the brief), for appellee, AR.

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Before ARNOLD, BEAM, and RILEY, Circuit Judges.


RILEY, Circuit Judge.

Following his arrest, Kenneth R. Henderson (Henderson) filed suit under 42 U.S.C. § 1983 against Magnolia, Arkansas, Police Officer Les Munn (Officer Munn), in Officer Munn's individual capacity, alleging Officer Munn used excessive force when arresting Henderson, in violation of the Fourth and Fourteenth Amendments. Resolving Officer Munn's motion for summary judgment, the district court1 dismissed the Fourteenth Amendment claim, denied summary judgment on the Fourth Amendment claim, and denied summary judgment on the basis of qualified immunity. Officer Munn appeals. We dismiss in part for lack of jurisdiction, and we affirm the district court's denial of summary judgment on the basis of qualified immunity.


On November 12, 2002, Officer Munn was patrolling an area of Magnolia looking for Henderson, the subject of two active arrest warrants for failure to appear. At approximately 12:30 a.m., Officer Munn stopped a car driven by Jackie Alexander (Alexander) for going well below the posted speed limit. Soon thereafter, a second patrol car, occupied by Magnolia Police Officer Adam Creek (Officer Creek), arrived at the scene. Officer Munn first approached the stopped car on the driver's side, shone his flashlight into the car, noticed two open beer cans on the floor behind the driver's seat, and observed three passengers: two women in the front seat, and one male (Henderson) in the back. Officer Creek approached the car's passenger side, stopping at the back door and opening it. Officer Creek asked the male passenger his name, and the passenger falsely stated his name was Steven Henderson.

During the encounter between Officer Creek and the male passenger, Officer Munn asked the car's driver, Alexander, to exit the car for a field sobriety test. After Officer Munn questioned Alexander regarding how much alcohol she had consumed, Officer Munn asked her the name of the man in the back seat. Alexander eventually replied the man's name was Ken Henderson. Officer Munn told Officer Creek who Henderson was and that Officer Creek should arrest him.2 Officer Creek informed Henderson he was under arrest, to which Henderson replied "why?" Officer Creek replied, "[You] don't ask the questions, [I do]."

After coming around to the car's passenger side to the open rear door, and without saying anything to Henderson, Officer Munn grabbed Henderson's right wrist to pull him from the car. Henderson turned to get out of the car but did not stand up. Officer Munn then pulled Henderson out of the car, and Officer Creek controlled Henderson by putting his arms around Henderson's neck in a headlock position or

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choke hold. The two officers and Henderson fell to the ground, with Henderson landing face down on his stomach. Officer Creek then placed his knee in the center of Henderson's back, pulled Henderson's left wrist behind Henderson's back, and handcuffed Henderson's left hand. Officer Creek was unable to cuff Henderson's right hand because Henderson's right arm was pinned under his body.

While Officer Creek was on top of Henderson, Henderson felt a blow to his right ankle from what Henderson believed was a heavy flashlight or baton. Henderson cried out in pain, screaming, "Oh, my leg." Officer Creek then moved off Henderson's back, and Henderson brought his right arm from beneath his body, allowing Officer Creek to handcuff Henderson's right hand. While Henderson lay face down on the ground with both hands restrained behind his back, Officer Munn sprayed pepper spray in Henderson's face, causing Henderson to experience difficulty breathing.

Officer Munn and Officer Creek lifted Henderson to his feet while Henderson complained of the pain. One of the officers called for an ambulance, which arrived at the scene shortly thereafter. After the ambulance arrived, Alexander saw Officer Munn pick up a flashlight and a baton from the ground. Around 1:00 a.m., Henderson was transported to Magnolia Hospital. The radiology department staff informed Henderson he had a dislocated right ankle and a vertical fracture through the lower end of the fibula near the ankle with separation of the fragments. Henderson later underwent two surgeries to repair his right ankle.

As a result of the events occurring on November 12, 2002, Henderson was charged in state court with obstructing governmental operations by giving a false name, resisting arrest, and public intoxication. He was convicted of obstructing governmental operations and resisting arrest.

On August 27, 2004, Henderson filed an amended complaint under 42 U.S.C. § 1983 against Officer Munn, in his individual capacity, alleging Officer Munn violated Henderson's Fourth and Fourteenth Amendment rights to be free from excessive force. Officer Munn moved for summary judgment, arguing: (1) Henderson is barred from arguing he did not resist arrest in his section 1983 action by the doctrine of collateral estoppel, because Henderson was convicted of resisting arrest in state court; (2) Officer Munn did not use excessive force during Henderson's arrest; and (3) Officer Munn is protected from suit by qualified immunity. Denying Officer Munn's summary judgment motion, the district court held that under Arkansas law, Henderson was not estopped from arguing he did not resist arrest. The district court further held a jury could find the degree of force used against Henderson was not "objectively reasonable," and Officer Munn was not entitled to qualified immunity.


A. Extent of Jurisdiction Over Interlocutory Appeal

Officer Munn now brings this interlocutory appeal, arguing the district court erred in denying his summary judgment motion because he did not violate Henderson's Fourth Amendment rights and is entitled to qualified immunity. Officer Munn argues Henderson's assertion Officer Munn hit him in the lower right leg with a heavy flashlight or baton "amounts to mere speculation, and cannot form the basis of a denial of summary judgment." Officer Munn also contends Henderson's

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state court conviction for resisting arrest estops Henderson from asserting in this section 1983 action he was not resisting arrest.

Although a party generally cannot appeal a district court's order denying summary judgment, Pool v. Sebastian County, Ark., 418 F.3d 934, 937 (8th Cir. 2005) (citation omitted), this court has limited authority to review the denial of qualified immunity, Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005) (citing Johnson v. Jones, 515 U.S. 304, 311 (1995)). A denial of summary judgment based on qualified immunity is immediately appealable to the extent the appellant seeks review of the purely legal determinations made by the district court. See, e.g., Johnson, 515 U.S. at 312-13; Wilson v. Lawrence County, Mo., 260 F.3d 946,951 (8th Cir. 2001). "The question of what was known to a person who might be shielded by qualified immunity is reviewable, to determine if the known facts would inform a reasonable actor that his actions violate an established legal standard." Miller v. Schoenen, 75 F.3d 1305, 1309 (8th Cir. 1996). On the other hand, "if the issues relate to whether the actor actually committed the act of which he is accused . . . or other similar matters...

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