Rohrbough v. Hall
| Citation | 586 F.3d 582 |
| Decision Date | 09 November 2009 |
| Docket Number | No. 08-3617.,08-3617. |
| Parties | Kenneth ROHRBOUGH, Appellee, v. Luther HALL; Anna Kimble; Mary Nelson, Board of Police for the City of St. Louis; Susan Rollins, Board of Police Commissioners for the City of St. Louis; Bartholomew Saracino, Board of Police Commissioners for the City of St. Louis Francis Slay, Board of Police Commissioners for the City of St. Louis; Mark Smith, Board of Police Commissioners for the City of St. Louis, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert J. Isaacson, Asst. Atty. Gen., St. Louis, MO, argued (Chris Koster, Atty. Gen., Jefferson City, MO, on the brief), for appellants.
Steven J. Gunn, Ryals & Breed, P.C., St. Louis, MO, argued (Stephen M. Ryals, Tyler R. Breed, on the brief), for appellee.
Before BYE, ARNOLD, and SMITH, Circuit Judges.
Kenneth Rohrbough brought an action under 42 U.S.C. § 1983 and Missouri law against St. Louis police officers Luther Hall and Anna Kimble, as well as the members of the St. Louis Board of Police Commissioners. Mr. Rohrbough sought damages under § 1983 based on claims that Officers Hall and Kimble used excessive force against him, failed to intervene, unlawfully seized him without probable cause, and conspired to violate his civil rights and that the Board failed to instruct, supervise, discipline, and otherwise control their subordinate officers, all in violation of the fourth and fourteenth amendments. See U.S. Const. amends. IV, XIV. Mr. Rohrbough also brought state law tort claims against the officers.
The defendants moved for summary judgment contending, inter alia, that the officers were entitled to qualified immunity. The district court1 granted the motion in part but, as relevant here, denied summary judgment as to the excessive force claim against Officer Hall and the failure to supervise claim against the Board. In this interlocutory appeal, the defendants maintain that the district court should have granted Officer Hall qualified immunity on Mr. Rohrbough's excessive force claim and should have granted summary judgment to the Board on the related claim that the Board's failure to supervise caused the officer to use excessive force. (Although Officer Kimble is named in the notice of appeal, she has not raised any issues before this court.)
Initially, the defendants assert that the district court erred by considering portions of Mr. Rohrbough's deposition testimony that contradicted his earlier sworn testimony. For purposes of summary judgment, however, we resolve any conflicting testimony in favor of Mr. Rohrbough unless "the inconsistency represents only an effort ... to manufacture a sham issue of fact." Roberts v. Park Nicollet Health Servs., 528 F.3d 1123, 1126-27 (8th Cir.2008). The district court believed that any contradictions in Mr. Rohrbough's testimony were attributable to his mental condition, and the defendants have not shown that the testimony at issue was an effort by Mr. Rohrbough to manufacture nonexistent issues of fact rather than a by-product of his mental condition. We view all of the evidence in the light most favorable to Mr. Rohrbough, drawing all reasonable inferences in his favor. See Burnham v. Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc).
The evidence viewed favorably to Mr. Rohrbough reveals the following. A store owner approached Officers Hall and Kimble on the street and told them that a man had just created a disturbance in her optometry shop. The woman then identified Mr. Rohrbough to them as the man in question as Mr. Rohrbough walked away from the store. While Officer Kimble stayed with the woman, Officer Hall followed Mr. Rohrbough and instructed him to stop. Mr. Rohrbough turned and greeted Officer Hall. Mr. Rohrbough's arms were raised but he did not make a fist or assume a fighting stance. At this point, Officer Hall pushed Mr. Rohrbough. After Mr. Rohrbough returned the push, Officer Hall punched Mr. Rohrbough in the face; Officer Hall then pushed Mr. Rohrbough again, took him to the ground face down, landed on top of him, and handcuffed him. At this point, Officer Hall sat Mr. Rohrbough on the curb. According to Mr. Rohrbough, an unknown second officer then hit him several times with a club; Officer Hall attested, however, that no other officer was present. Although Mr. Rohrbough was arrested for disturbing the peace and resisting arrest, he was taken straight to the hospital and discharged three days later. Mr. Rohrbough suffered a subconjunctival hemorrhage on his left eye, orbital swelling, a fractured rib, and other lacerations.
The denial of summary judgment based on qualified immunity is immediately appealable, and we review it de novo. See Sexton v. Martin, 210 F.3d 905, 909 (8th Cir.2000). Officer Hall is entitled to qualified immunity unless the evidence viewed favorably to Mr. Rohrbough supports a finding that Officer Hall's conduct violated a constitutional right, and that constitutional right was so "clearly established" at the time of the alleged violation that a reasonable officer would have known that his conduct was unlawful. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated on other grounds by Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). In Pearson, 129 S.Ct. at 818, the Supreme Court held that courts may address these two aspects of qualified immunity in the order most suited to the particular case.
Mr. Rohrbough has made a sufficient showing that Officer Hall used excessive force in violation of the fourth amendment. "Not every push or shove ... violates the Fourth Amendment," but force is excessive when the officers' actions are not "objectively reasonable in light of the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks and citations omitted); see Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002). Objective reasonableness depends on the facts and circumstances of the case, "`including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Mann v. Yarnell, 497 F.3d 822, 825-26 (8th Cir.2007) (quoting Graham, 490 U.S. at 394, 109 S.Ct. 1865). "A court may also evaluate the extent of the suspect's injuries." Mann, 497 F.3d at 826.
Here, as we have said, Mr. Rohrbough attested that he responded to Officer Hall's instruction to stop by turning and greeting him. Mr. Rohrbough did not attempt to resist or evade arrest, and his actions did not pose an immediate threat to the safety of Officer Hall. Officer Hall initiated the physical confrontation by pushing Mr. Rohrbough; when Mr. Rohrbough pushed back, Officer Hall punched him in the face and wrestled him to the ground. Mr. Rohrbough sustained injuries to his eye, ribs, and face requiring him to spend three days in the hospital, and assuming the facts in the light most favorable to Mr. Rohrbough, as we must in the present procedural posture, a jury could conclude that these injuries resulted from Officer Hall's use of force and that the force was excessive, even given the fact that Mr. Rohrbough pushed Officer Hall — a push that may have been de minimis or inconsequential. In other words, we believe that Mr. Rohrbough's evidence created genuine issues of material fact concerning whether the force used was "objectively reasonable in light of the facts and circumstances confronting" Officer Hall. See Graham, 490 U.S. at 397, 109 S.Ct. 1865.
We think that our prior cases are clear that the matter of whether the constitutional right at...
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