570 F.3d 984 (8th Cir. 2009), 08-2448, Howard v. Kansas City Police Dept.

Docket Nº:08-2448.
Citation:570 F.3d 984
Opinion Judge:BYE, Circuit Judge.
Party Name:Eddie HOWARD, Plaintiff-Appellee, v. KANSAS CITY POLICE DEPARTMENT; Michael Galley, Police Officer; Board of Police Commissioners, Through its members; Angela Wasson-Hunt, in her official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri; Karl Zobrist, in his official capacity as a member of the Board of Police Comm
Attorney:Virginia H. Murray, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., Emily Kalmer, Asst. Atty. Gen., on the brief), for appellants. Eric E. Vernon, Baldwin & Vernon, Liberty, MO, argued (Kevin Baldwin, on the brief), for appellee.
Judge Panel:Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Case Date:July 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 984

570 F.3d 984 (8th Cir. 2009)

Eddie HOWARD, Plaintiff-Appellee,

v.

KANSAS CITY POLICE DEPARTMENT; Michael Galley, Police Officer; Board of Police Commissioners, Through its members; Angela Wasson-Hunt, in her official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri; Karl Zobrist, in his official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri; James Wilson, in his official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri; Terry Brady, in his official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri; Mayor Kay Barnes, in his official capacity as a member of the Board of Police Commissioners of Kansas City, Missouri, Defendants,

Ryan Bronner, Police Officer; Mike Sartain, Police Officer, Defendants-Appellants.

No. 08-2448.

United States Court of Appeals, Eighth Circuit.

July 2, 2009

Submitted: Jan. 16, 2009.

Rehearing and Rehearing En Banc Denied Aug. 26, 2009.

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[Copyrighted Material Omitted]

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Virginia H. Murray, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., Emily Kalmer, Asst. Atty. Gen., on the brief), for appellants.

Eric E. Vernon, Baldwin & Vernon, Liberty, MO, argued (Kevin Baldwin, on the brief), for appellee.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Kansas City, Missouri, police officers Ryan Bronner and Mike Sartain (collectively, the " Officers") filed an interlocutory appeal from a district court 1 order denying their motion for summary judgment on Eddie Howard's claim of excessive force on the basis of qualified immunity. We affirm.

I

Viewing the alleged facts in the light most favorable to Howard, this lawsuit arises from the following events.2 On July 27, 2002, the temperature in Kansas City, Missouri, exceeded 100 degrees Fahrenheit, and local weather forecasters had issued a heat advisory. At approximately 4:45 p.m., Howard, who was sitting in his red Chevrolet Camaro, was shot in his upper left arm by someone in a green Mitsubishi Mirage. Howard drove away at a high rate of speed, and the assailants

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gave chase. Soon thereafter, Howard saw a police cruiser and attempted to get its attention by honking and swerving his vehicle. Police officer Michael Galley observed the chase, activated his emergency lights, and pursued the speeding vehicles.

At some point during the car chase, Howard removed his shirt and wrapped it around his arm in an attempt to stem the flow of blood. Howard eventually decided to stop the vehicle and flee from his assailants on foot; he abandoned his vehicle, ran across a vacant lot, and climbed a fence. Howard's assailants then ceased their pursuit. After climbing the fence, Howard saw another police officer and attempted to get his attention. Other police officers, including officers Bronner and Sartain, arrived on the scene.

Officers Bronner and Sartain drew their weapons and pushed Howard, who remained shirtless, onto the asphalt street. The Officers began administering first aid and questioning Howard about who shot him. After two to three minutes, Howard began complaining that the hot asphalt was burning his exposed skin. The Officers interrupted Howard's complaints and continued to question him about his assailants. Howard continued to complain about the heat, and he asked the Officers whether he could move to a less painful spot. Specifically, he asked if he could lean on a police cruiser or if he could lay on a nearby patch of grass until an ambulance arrived. The Officers denied both requests.

As the asphalt continued to burn Howard, he began struggling to remove his exposed skin from the asphalt. In addition to his constant verbal complaints, Howard started moving his shoulders back and forth in an attempt to lift his back and arms off the asphalt. One of the Officers, however, held his arms down and restrained him against the asphalt. Howard then began moving his legs, but the other Officer grabbed hold of his legs and held them in place. After Howard was on the asphalt for seven to eight minutes, either Bronner or Sartain instructed a nearby officer to retrieve a yellow blanket from their police cruiser, and they placed the blanket underneath Howard.3 As a result of his exposure to the asphalt, Howard suffered second-degree burns on his arms, back, shoulders, neck, and upper buttocks.

Claiming they used excessive force in violation of the Fourth Amendment, Howard sued Bronner and Sartain under 42 U.S.C. § 1983.4 Bronner and Sartain moved for summary judgment on the grounds of qualified immunity. The district court denied the Officers' motion, concluding the alleged facts state the violation of a clearly established right. This interlocutory appeal followed.

II

We have jurisdiction over this interlocutory appeal under the collateral order doctrine. Bonner v. Outlaw, 552 F.3d 673, 676 (8th Cir.2009). We review de novo the district court's denial of summary judgment on the issue of qualified immunity. Ngo v. Storlie, 495 F.3d 597, 601-02 (8th Cir.2007). " Qualified immunity protects a government official from liability

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in a section 1983 action unless the official's conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known." Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.2006). To overcome the defense of qualified immunity, a plaintiff must show: (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation. See id. at 501-02. In Saucier v. Katz, the Supreme Court mandated us to consider these two requirements in sequential order. 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). That is, we were required to determine whether the facts demonstrated the violation of a constitutional or statutory right before determining whether that right was clearly established. See id. Recently, however, the Supreme Court abandoned this rigid sequence and allowed judges " to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). In the instant case, we elect to proceed under the traditional framework and decide first whether the facts demonstrate a violation of Howard's constitutional rights before determining whether such rights were clearly established.

A

Viewing the facts in the light most favorable to Howard, we conclude the Officers used excessive force in violation of Howard's constitutional rights. We analyze excessive force claims in the context of the Fourth Amendment. Henderson, 439 F.3d at 502. " To establish a violation of the Fourth Amendment in a section 1983 action, the claimant must demonstrate a seizure occurred and the seizure was unreasonable." Moore v. Indehar, 514 F.3d 756, 759 (8th Cir.2008) (quoting McCoy v. City of Monticello, 342 F.3d 842, 846 (8th Cir.2003)).

For purposes of the Fourth Amendment, a seizure occurs whenever " an officer restrains an individual's liberty through physical force or a show of authority." Id. Because the facts show the Officers pushed Howard to the ground and restrained him on the asphalt in spite of his attempts to move elsewhere, we conclude the Officers seized Howard. While the dissent is correct to note that Howard " voluntarily and willingly sought assistance" from the Officers, post at 994, it is equally true the Officers forced Howard to the ground, refused his verbal demands to be moved elsewhere, and actively resisted his physical efforts to remove himself from the burning pavement. Moreover, nowhere in the record is it clear that Howard felt free to leave the Officers' care, but was simply objecting to a specific application of force as part of his treatment. Given the rapidly evolving circumstances of the situation, it is difficult to accept the dissent's argument that a reasonable person would have viewed the seven to eight minute encounter as a series of mini-events that began as consensual, turned into a seizure, and then at some point once again became consensual. In contrast, a reasonable person who flags down police officers, is forced to the ground by those officers, is denied his requests to move elsewhere, and has his arms and legs pinned to the ground as he tries to get up would not believe that he was at " liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

Because the Officers seized Howard, we must determine whether the

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seizure was reasonable. " Once the predicate facts are established, the reasonableness of the official's conduct under the circumstances is a question of law." Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.2007) (quoting Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001)). The penultimate question is " whether the amount of force used was objectively reasonable under the particular circumstances." Ngo, 495 F.3d at 602 (quoting Henderson, 439 F.3d at 502). " 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." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). In assessing the reasonableness of the Officers' conduct, we look at the totality of the circumstances and focus...

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