Kuessner v. Wooten

• Decision Date: 28 January 2021
• Docket Number: No. 19-1173,19-1173
• Citation: 987 F.3d 752
• Parties: Sonia KUESSNER, Plaintiff - Appellant v. Justin WOOTEN, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

987 F.3d 752

Sonia KUESSNER, Plaintiff - Appellant

v.Justin WOOTEN, Defendant - Appellee

No. 19-1173

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2020

Filed: January 28, 2021

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was Matthew Brian Lee, of Poplar Bluff, MO. The following attorney(s) appeared on the appellant brief; Daniel T. Moore, of Poplar Bluff, MO.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was Dudley Keith Henson, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Bradley J. Sylwester, of Saint Louis, MO.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

BENTON, Circuit Judge.

Sonia S. Kuessner sued officer Justin Wooten under 42 U.S.C. § 1983 for unreasonable seizure in violation of the Fourth Amendment. The district court¹ granted summary judgment to Wooten. Kuessner v. Wooten , 2018 WL 6788602, at *6 (E.D. Mo. Dec. 26, 2018). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In the early hours of October 23, 2016, a Scott County officer stopped Mitchell Wood's Chevrolet Tahoe for a broken headlight. Sonia Kuessner was in the car with him. Wood was arrested by officer Justin Wooten.

Police told Kuessner they would release Wood if she produced a money order. The Scott County officer told her where to get a money order in a neighboring town. She returned to the police station just before 4:00 a.m.

Kuessner informed the dispatcher she was there to pick up Wood. The dispatcher told the on-duty officer, Wooten, that a woman was there for Wood. Wooten confronted Kuessner in the lobby, standing by herself. Only one other person—a man—was sitting across the room. As shown by Wooten's bodycam, Kuessner had keys in her hand. He asked if she had been drinking. She admitted having "a couple of drinks." He asked her to take a preliminary breath test. She declined. He arrested her. The encounter lasted about 20 seconds.

Kuessner sued, alleging a Fourth Amendment violation. Wooten moved for summary judgment. The district court granted it on qualified immunity grounds. Kuessner then moved under Fed. R. Civ. P. 59(e) and 56(e)(1) to amend the judgment and supplement new evidence. The district court denied the motions.

II.

This court reviews de novo the grant of summary judgment, viewing the facts most favorably to the nonmoving party. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). This court affirms if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

This court reviews for abuse of discretion both a Rule 59(e) motion to amend a judgment and a Rule 56(e)(1) motion to introduce new evidence. DG & G, Inc. v. FlexSol Packaging Corp. , 576 F.3d 820, 826 (8th Cir. 2009) ; United States v. Metro. St. Louis Sewer Dist. , 440 F.3d 930, 933 (8th Cir. 2006).

III.

Qualified immunity shields government officers from civil damages liability. Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official is not entitled to qualified immunity if (1) the plaintiff demonstrates the violation of a constitutional right, and (2) that right was "clearly established" at the time of the official's alleged wrongdoing. Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), citing Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The plaintiff has the burden to show that his or her right was clearly established at the time of the alleged violation. Davis v. Scherer , 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). See also District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 591, 199 L.Ed.2d 453 (2018) ("Tellingly, neither the panel majority nor the [plaintiffs] have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation ‘under similar circumstances.’ "), quoting White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam).

To be clearly established, the "contours of the right must be sufficiently clear that a reasonable official would [have understood] 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). The state of the law at the time of the alleged violation must give officials " ‘fair warning’ their conduct was unlawful." Sisney v. Reisch , 674 F.3d 839, 845 (8th Cir. 2012), quoting Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). There must be "precedent," "controlling authority," or a "robust consensus of cases of persuasive authority." Wesby , 138 S. Ct. at 589-90 (internal citations and quotations omitted).

In determining whether an officer acted with probable cause, this court "examine[s] the events leading up to the arrest" and "then decide[s] whether these historical facts, viewed from the standpoint of an objectively reasonable officer, amount to probable cause." Id. (internal citations and quotations omitted). But an officer only has to have arguable probable cause to receive qualified immunity. See Bell v. Neukirch , 979 F.3d 594, 607 (8th Cir. 2020). "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.

Here, the closest thing to "controlling authority" is Wesby , but it does not discuss the probable cause showing for a DWI arrest. See Wesby , 138 S. Ct. at 589-90. Kuessner does not cite any Eighth Circuit case considering probable cause under similar circumstances. Because there is no "precedent" or "controlling authority," this court looks for a "robust consensus of cases." See id.

IV.

Kuessner argues that a robust consensus appears in Missouri law. In Missouri, a person "commits the offense of driving while intoxicated if he or she operates a vehicle while in an intoxicated condition." § 577.010, RSMo 2016 . Kuessner argues that Wooten lacked arguable probable cause because he did not have enough information that Kuessner (1) was intoxicated and (2) had driven or operated a vehicle while intoxicated.

What constituted probable cause for a DWI arrest, however, was not "sufficiently clear" in October 2016. A survey of DWI cases in Missouri demonstrates that even if Wooten acted without arguable probable cause, existing law did not give him "fair warning" that his conduct was unconstitutional. See Sisney , 674 F.3d at 845.

A.

Missouri police weigh several indicia of intoxication to decide whether an individual is intoxicated, including: bloodshot eyes, slurred speech, alcohol smell, difficulty walking, refusal to submit to a sobriety test, among others. See, e.g. , Edwards v. Dir. of Revenue , 295 S.W.3d 909, 914 (Mo. App. 2009) ; Arch v. Dir. of Revenue , 186 S.W.3d 477, 480-81 (Mo. App. 2006). No particular combination clearly establishes probable cause for a DWI arrest. See Rain v. Dir. of Revenue , 46 S.W.3d 584, 588 (Mo. App. 2001) ("There is no precise test for determining whether probable cause existed; rather, it is based on the particular facts and circumstances of the individual case."), quoting State v. Clayton , 995 S.W.2d 468, 477 (Mo. banc 1999).

Wooten arrested Kuessner based on three undisputed indicia: bloodshot eyes, drinking admission, and refusal to take a breath test. By some cases, he had at least arguable probable cause. See Rinne v. Dir. of Revenue , 13 S.W.3d 658, 661 (Mo. App. 2000) (probable cause—admitted to drinking and smelled like alcohol after a one-car accident); McFall v. Dir., Dep't of Revenue , 162 S.W.3d 526, 532 (Mo. App. 2005) (probable cause—strong alcohol odor and glassy, bloodshot eyes); Flaiz v. Dir. of Revenue , 182 S.W.3d 244, 248-49 (Mo. App. 2005) (probable cause—strong alcohol odor, watery and bloodshot eyes, slurred speech, failure to follow instructions, refusal to submit to sobriety tests); Findley v. Dir. of Revenue , 204 S.W.3d 722, 727-28 (Mo. App. 2006) (probable cause—refusal to take a breath test, along with other indicia of intoxication). Cf. Schaffer v. Beringer , 842 F.3d 585, 592 (8th Cir. 2016) (arguable probable cause—watery eyes, flushed face, alcohol odor, and friends’ drinking admissions) (applying South Dakota law).

Other cases, however, indicate Wooten did not have arguable probable cause. See Cain v. Dir. of Revenue , 130 S.W.3d 1, 3-7 (Mo. App. 2004) (no probable cause—glassy eyes and refusal to take a field sobriety test); Stolle v. Dir. of Revenue , 179 S.W.3d 470, 472 (Mo. App. 2005) (no probable cause—alcohol odor, improperly-administered field sobriety test, and drinking admission).

These disparate cases did not give Wooten fair warning that arresting Kuessner based on bloodshot eyes, a drinking admission, and her refusal to take a breath test was unconstitutional.

Kuessner relies heavily on Rocha v. Director of Revenue , 557 S.W.3d 324, 327-28 (Mo. App. 2018). Because Rocha was decided two years after Kuessner's arrest, it could not clearly establish the law at the time of Kuessner's arrest in 2016.

B.

Kuessner contends that because Wooten did not see her driving or operating a vehicle, he did not have arguable probable cause.

It was clearly established that Wooten did not have to see her driving to arrest her. See United States v. Winarske , 715 F.3d 1063, 1067 (8th Cir. 2013) ; Saladino v. Dir. of Revenue , 88 S.W.3d 64, 70 (Mo. App. 2002) ; Routt v. Dir. of Revenue , 180 S.W.3d 521, 524 (Mo. App. 2006). He was entitled to rely on circumstantial evidence. See Saladino , 88 S.W.3d at 70. However, Missouri law is unclear about what Wooten had to observe to make the arrest.

If the officer does not observe the suspect driving or sitting in a vehicle, there is no bright-line rule about probable cause. Compare Bouillon v. Dir. of Revenue , 306 S.W.3d 197,...