Gerling v. City of Hermann

• Decision Date: 23 June 2021
• Docket Number: No. 20-1528,20-1528
• Parties: Wayne GERLING, Plaintiff - Appellee, v. CITY OF HERMANN, MISSOURI, Defendant, Matthew Waite, individually and in his official capacity as a police officer for the Hermann, Missouri, Police Department, Defendant - Appellant, Frank Tennant, individually and in his official capacity as Police Chief of the Hermann, Missouri, Police Department, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.4th 737

Wayne GERLING, Plaintiff - Appellee,

v.CITY OF HERMANN, MISSOURI, Defendant,Matthew Waite, individually and in his official capacity as a police officer for the Hermann, Missouri, Police Department, Defendant - Appellant,Frank Tennant, individually and in his official capacity as Police Chief of the Hermann, Missouri, Police Department, Defendant.

No. 20-1528

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2021

Filed: June 23, 2021

Rehearing and Rehearing En Banc Denied August 3, 2021

Counsel who presented argument and appeared on the brief on behalf of the appellant was Ryan Eugene Bertels, of Jefferson City, MO. The following attorney also appeared on the appellant brief; Christopher Perry Rackers, of Jefferson City, MO.

Counsel who presented argument and appeared on the brief on behalf of the appellee was Jonathan Weinberg, of Washington, DC. The following attorneys also appeared on the appellee brief; Paul Alessio Mezzina, of Washington, DC., I. Cason Hewgley IV, of Washington, DC., David J. Welder, of Overland Park, KS., Kevin M. Carnie, Jr., of St. Louis, MO., and Patrick R. McPhail, of St. Louis, MO.

Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Wayne Gerling sued Matthew Waite, a police officer in Hermann, Missouri, under 42 U.S.C. § 1983, alleging that Waite unlawfully arrested him and used excessive force during the arrest. The district court denied Waite's motion for summary judgment. Waite appeals, arguing that he is entitled to qualified immunity. We affirm the denial of summary judgment on Gerling's unlawful arrest claim, but conclude that Waite is entitled to qualified immunity on Gerling's excessive force claim.

I.

On November 18, 2012, an anonymous caller informed the Hermann police department that a tractor-trailer was parked on Ninth Street. Waite's lieutenant instructed him to investigate a potential parking violation. Waite arrived and observed the truck's license plate, which returned the name of a trucking company. Believing that he needed the driver's name to issue a ticket, Waite tried to locate the driver.

Waite knocked on Gerling's door at around 9:00 p.m. Gerling and his son-in-law answered. In response to Waite's inquiry, Gerling said that the truck belonged to him. Waite said he was issuing a ticket for illegal parking, and asked for Gerling's driver's license.

Gerling gestured at the street and informed Waite that it was "a commercial street," implying that Gerling's parking was permissible. Gerling refused to give Waite his license, and Waite told Gerling he was "going to jail." The parties disagree about some of the remaining facts, but we must consider them in the light most favorable to Gerling, the non-movant.

The parties dispute whether Gerling was inside his house, in the doorway, or on the porch during his initial exchange with Waite. According to Gerling, however, although one of his feet "might have stepped over the threshold" during the discussion, he was back inside the house when Waite "reached in" and grabbed Gerling's wrist. Gerling then twisted away and told Waite to get out of his house. As Gerling walked away from the doorway and further into the house, Waite crossed the threshold of the home, drew his taser, and told Gerling to put his hands up. When Gerling continued to move away from Waite and into the living room, Waite fired his taser. The taser barbs struck Gerling; he fell onto a table and injured his chest and shoulder. Waite arrested Gerling and transported him to the police station.

The police issued tickets to Gerling for illegal parking and resisting arrest. He pleaded guilty to illegal parking by signing the ticket at the police station that night. The City later dismissed the charge of resisting arrest.

Gerling sued the City of Hermann, the police chief, and Waite, alleging use of excessive force, wrongful arrest, malicious prosecution, and deliberate indifference. The district court granted summary judgment for all defendants except Waite. The court denied Waite's motion on the excessive force claim because the court thought it was unclear whether a reasonable officer in Waite's position would have believed that Gerling was fleeing or resisting arrest. On the unlawful arrest claim, the court concluded that a genuine dispute over an issue of material fact—whether Gerling was located inside the home at the time of his arrest—precluded summary judgment.

II.

Qualified immunity protects officers from suit under 42 U.S.C. § 1983 unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When a defendant asserts that he is entitled to qualified immunity, the plaintiff must show that the defendant violated his constitutional right, and that the right was "clearly established" at the time of the incident. Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A right is clearly established if, "at the time of the officer's conduct, the law was ‘sufficiently clear that every reasonable official would understand that what he is doing’ is unlawful." District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). A plaintiff must show either "controlling authority" or a "robust ‘consensus of cases of persuasive authority’ " that "placed the statutory or constitutional question beyond debate." Ashcroft , 563 U.S. at 741-42, 131 S.Ct. 2074 (quoting Wilson v. Layne , 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ).

A.

An officer may carry out a warrantless arrest in a public place if he has probable cause to believe that a person is committing or has committed "even a very minor criminal offense." Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ; see United States v. Watson , 423 U.S. 411, 422-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). In assessing a claim of qualified immunity, "the governing standard for a Fourth Amendment unlawful arrest claim ‘is not probable cause in fact but arguable probable cause.’ " Walker v. City of Pine Bluff , 414 F.3d 989, 992 (8th Cir. 2005) (quoting Habiger v. City of Fargo , 80 F.3d 289, 295 (8th Cir. 1996) ). Arguable probable cause exists where an officer arrests a suspect on the mistaken belief that the arrest is supported by probable cause if the officer's mistake is objectively reasonable. Borgman v. Kedley , 646 F.3d 518, 523 (8th Cir. 2011).

Probable cause by itself, however, is insufficient to justify an arrest in a home. "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York , 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). If an arrestee voluntarily leaves the confines of his home, then an arrest outside the home occurs in a public place, so "arresting officers need only demonstrate that there was probable cause." Duncan v. Storie , 869 F.2d 1100, 1102 (8th Cir. 1989). An arrestee who stands in the "threshold of [his] dwelling" is "exposed to [the] public," and may be arrested based on probable cause. United States v. Santana , 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). And a suspect may not defeat an arrest which has been set in motion in a public place by the expedient of escaping to a private place. Id . at 43, 96 S.Ct. 2406. But "a warrantless arrest that occurs inside an individual's home is unconstitutional unless the officers demonstrate the existence of probable cause and exigent circumstances." Duncan , 869 F.2d at 1102. "[I]n the absence of exigent circumstances, an officer cannot reach over the threshold and into a person's home to forcibly effectuate a warrantless arrest." Mitchell v. Shearrer , 729 F.3d 1070, 1076 (8th Cir. 2013).

The district court considered both whether Waite had probable cause to arrest Gerling and whether Waite unlawfully entered Gerling's home to make the arrest. Although Gerling's complaint alleged only that Waite arrested him without probable cause, this court has treated an issue that is raised and considered with the consent of the parties on a motion for summary judgment as if it were raised in the pleadings. See, e.g. , Brand v. Nat'l Union Fire Ins. Co. of Pittsburgh , 934 F.3d 799, 803 & n.2 (8th Cir. 2019) ; Cook v. City of Bella Villa , 582 F.3d 840, 852 (8th Cir. 2009) ; Fed. R. Civ. P. 15(b)(2). In this case, the parties briefed the issue of Waite's entry into the home, and the district court treated the claim as though it were pleaded, so the complaint was implicitly amended to conform to the proof. See Cook , 582 F.3d at 852-53.

On the question of probable cause, Waite is entitled to qualified immunity if a reasonable officer in his position could have believed that Gerling had committed or was committing a crime. See Borgman , 646 F.3d at 523. The district court thought it was irrelevant whether Waite had probable cause to arrest Gerling for illegal parking, because Waite testified that his purpose for the arrest was Gerling's alleged interference with the investigation. It is well settled, however, that the officer's subjective intent for an arrest does not control whether probable cause existed. Devenpeck v. Alford , 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ; Carpenter v. Gage , 686 F.3d 644, 649 (8th Cir. 2012).

Here, Gerling pleaded guilty to illegal parking after the City issued him a ticket based on the information known to Waite. Therefore, insofar as his claim alleging unlawful arrest is based on the lack of probable cause, it is barred by the rule of Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). A conclusion that Waite lacked probable cause to arrest Gerling...