Ehlers v. City of Rapid City

• Decision Date: 25 January 2017
• Docket Number: No. 16-1834, No. 16-1835,16-1834
• Citation: 846 F.3d 1002
• Parties: Randall EHLERS, Plaintiff–Appellee v. CITY OF RAPID CITY, a municipal corporation, its agents, subsidiaries and employees, Defendant Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants–Appellants Robert Rybak, individually and in his official capacity; John Doe 1–10, Defendants Randall Ehlers, Plaintiff–Appellee v. City of Rapid City, a municipal corporation, its agents, subsidiaries and employees; Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants Robert Rybak, individually and in his official capacity, Defendant–Appellant John Doe 1–10, Defendant
• Court: U.S. Court of Appeals — Eighth Circuit

846 F.3d 1002

Randall EHLERS, Plaintiff–Appellee

v.CITY OF RAPID CITY, a municipal corporation, its agents, subsidiaries and employees, Defendant

Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants–Appellants

Robert Rybak, individually and in his official capacity; John Doe 1–10, Defendants

Randall Ehlers, Plaintiff–Appellee

v.City of Rapid City, a municipal corporation, its agents, subsidiaries and employees; Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants

Robert Rybak, individually and in his official capacity, Defendant–Appellant

John Doe 1–10, Defendant

No. 16-1834

No. 16-1835

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2016

Filed: January 25, 2017

Counsel who presented argument on behalf of the appellants—Mr. Scott Dirkes and Mr. Jim Hansen was John K. Nooney, of Rapid City, SD. Counsel who presented argument on behalf of the appellant—Robert Rybak was Robert L. Morris, II, Special Assistant Attorney General of Belle Fourche, SD. The following attorney(s) appeared on the brief of appellants—Mr. Scott Dirkes and Mr. Jim Hansen; John K. Nooney, of Rapid City, SD., and Robert James Galbraith, of Rapid City, SD. The following attorney(s) appeared on the brief of the appellant—Robert Rybak; Robert L. Morris, II, Special Assistant Attorney General of Belle Fourche, SD.

Counsel who presented argument on behalf of the appellee was Michael W Strain, of Sturgis, SD. The following attorney(s) appeared on the appellee brief; Michael W Strain, of Sturgis, SD.

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Plaintiff–Appellee Randall Ehlers brought suit under 42 U.S.C. § 1983 against Officers Jim Hansen and Scott Dirkes of the Rapid City Police Department and Trooper Robert Rybak of the South Dakota State Police for unlawful arrest and excessive force. Hansen, Dirkes, and Rybak appeal the district court's order denying their motions for summary judgment on the basis of qualified immunity. For the following reasons, we reverse.

I.

On December 21, 2010, Randall Ehlers ("Ehlers") and his wife, three adult children, and several friends attended a Rush hockey game at Rushmore Plaza Civic Center in Rapid City, South Dakota. Mrs. Ehlers and her son Derrik Ehlers were at a table in the hospitality area when the table was jostled and beer spilled on Mrs. Ehlers. Some confusion ensued, and Civic Center staff asked Mrs. Ehlers to leave and escorted her out of the area. The Ehlers children began to yell profanities at the staff, and they were also instructed to leave. An altercation between the children and security personnel occurred shortly thereafter. Rapid City Police responded, and officers ultimately arrested several of the Ehlers children and a family friend.

Meanwhile, Ehlers was advised of the confrontation involving his family, and he proceeded outside. At the time, Officer Hansen was in the process of arresting Derrik Ehlers and was about to place him in the police car. Ehlers approached Hansen, asking Hansen questions regarding his son's arrest. Officer Hansen told Ehlers to step back to the curb and pointed towards the Civic Center, but Ehlers stepped closer to Hansen and asked more questions about his son. Officer Hansen pointed to the Civic Center again, stating that before he counted to three Ehlers should be on the far sidewalk. At this time, Officer Dirkes pulled up in his patrol car. Dirkes testified that Officer Hansen instructed him to arrest Ehlers, and Dirkes's dash camera picked up audio of Hansen saying, "Take this guy, he's not listening." Ehlers finally complied with Hansen's instructions and proceeded to walk towards the Civic Center.

Dash camera video shows that Dirkes approached Ehlers and instructed him twice to put his hands behind his back. When Ehlers ignored him and continued to walk toward the Civic Center, Dirkes executed a spin takedown, taking hold of Ehlers's neck and shoulder to bring him to the ground. Ehlers landed on his back with his arms in the air, and Dirkes turned him over onto his hands and knees. Dirkes pushed Ehlers's head down and shouted for him to put his hands behind his back. Another officer approached and put his right knee on Ehlers's left shoulder, took Ehlers's left arm, and placed Ehlers face down on the ground. A third officer took Ehlers's right leg and placed it across the back of his left leg, then pressed him into the ground by lifting and pressing the left leg toward Ehlers's back. Trooper Rybak then approached, took Ehlers's left arm from underneath his body and then allegedly pushed the arm forward and locked Ehlers's elbow before bringing it behind him to handcuff him.¹ Ehlers alleged that he suffered shoulder and knee injuries, including a damaged rotator cuff.

Meanwhile, Dirkes prepared his taser for drive stun and put the prongs against Ehlers's lower back, warning Ehlers that he was going to use the taser. The audio recording picked up someone saying "let him have it," but the taser initially did not fire when Dirkes attempted to engage it because the safety switch was on. Dirkes released the safety switch and the taser discharged. Although Dirkes claims that he moved the prongs off Ehlers at the last moment, Ehlers claims that the taser did shock him. Ehlers was then handcuffed and arrested for resisting arrest and obstructing a police officer.

Ehlers brought unlawful arrest and excessive force claims against Hansen, Dirkes, and Rybak under 42 U.S.C. § 1983. The defendants moved for summary judgment on the basis of qualified immunity, and the district court denied the motions. Hansen, Dirkes, and Rybak appeal.

II.

We have authority under the collateral order doctrine to hear an interlocutory appeal of a denial of qualified immunity. Shannon v. Koehler , 616 F.3d 855, 861 (8th Cir. 2010). However, we are limited to reviewing the denial of summary judgment only insofar as it concerns questions of law, not factual disputes. Jones v. McNeese , 675 F.3d 1158, 1161 (8th Cir. 2012) ; see Shannon , 616 F.3d at 861. Accordingly, "[w]e review a district court's qualified immunity determination on summary judgment de novo , viewing the record in the light most favorable to [the plaintiff] and drawing all reasonable inferences in [his] favor." Shannon , 616 F.3d at 861–62 (quoting Langford v. Norris , 614 F.3d 445, 459 (8th Cir. 2010) (alterations in original)).

To determine whether the defendants are entitled to qualified immunity, we ask two questions: "(1) whether the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) whether the right was clearly established at the time of the deprivation." Jones , 675 F.3d at 1161 (quoting Parrish v. Ball , 594 F.3d 993, 1001 (8th Cir. 2010) ). The court may consider these steps in any order, see Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), but "[u]nless the answer to both of these questions is yes, the defendants are entitled to qualified immunity." Krout v. Goemmer , 583 F.3d 557, 564 (8th Cir. 2009). In order to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). While prior cases need not have expressly determined that the action in question is unlawful, "in the light of pre-existing law the unlawfulness must be apparent." Id. Reciting an abstract right at a high level of generality will not suffice. Id. at 639–40, 107 S.Ct. 3034.

A.

First, we address Ehlers's unlawful arrest claim against Officer Hansen. "A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.’ " Borgman v. Kedley , 646 F.3d 518, 522–23 (8th Cir. 2011) (quoting Walker v. City of Pine Bluff , 414 F.3d 989, 992 (8th Cir. 2005) ). Probable cause exists to make a warrantless arrest "when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ " Id. (quoting Fisher v. Wal–Mart Stores, Inc. , 619 F.3d 811, 816 (8th Cir. 2010) ). "Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is ‘objectively reasonable.’ " Id. (quoting Amrine v. Brooks , 522 F.3d 823, 832 (8th Cir. 2008) ).

Ehlers was arrested for obstructing a police officer and resisting arrest. In South Dakota, a person commits the crime of obstructing a police officer if he "by using or threatening to use violence, force, or physical interference or obstacle, intentionally obstructs, impairs, or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer ... acting under color of authority...." S.D. Codified Laws § 22–11–6. Obstructing a police officer "does not require that there be a technical or physical assault upon the officers, nor that violent or physical resistance be exerted." State v. Dale , 379 N.W.2d 811, 815 (S.D. 1985). Refusing to comply with a police officer's orders can constitute obstruction. State v. Hodges , 631 N.W.2d 206, 211 (S.D. 2001) (finding probable cause of obstructing a police officer where individual refused to obey officer's commands to stop and proceeded to hide in a restroom); State v. Wiedeman , 321 N.W.2d 539, 541–42 (S.D. 1982) (upholding conviction for obstructing a police officer where the defendant disobeyed officer's commands to move and persisted in blocking the officer from dispersing a crowd).

Officer Hansen had arguable probable cause to arrest Ehlers for obstructing a police...