Vester v. Hallock, 16-3389

• Decision Date: 25 July 2017
• Docket Number: No. 16-3389,16-3389
• Citation: 864 F.3d 884
• Parties: Kirk D. VESTER, Plaintiff-Appellant v. Daniel HALLOCK, in his Official Capacity, Defendant-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

864 F.3d 884

Kirk D. VESTER, Plaintiff-Appellant
v.
Daniel HALLOCK, in his Official Capacity, Defendant-Appellee

No. 16-3389

United States Court of Appeals, Eighth Circuit.

Submitted: June 7, 2017
Filed: July 25, 2017

Counsel who presented argument on behalf of the appellant and appeared on the brief was Matthew M. Munderloh, of Omaha, NE.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Mark D. Fitzgerald, of Norfolk, NE. The judge who heard the case in

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Kirk D. Vester appeals the district court's¹ grant of summary judgment as to his excessive-force claim against Deputy Sheriff Daniel Hallock. Vester argues that Hallock's use of an "arm bar technique" was objectively unreasonable and that he is therefore not entitled to qualified immunity. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

864 F.3d 886

On May 30, 2013, Hallock was dispatched to the 101 Bar & Grill in Hadar, Nebraska, in response to a report that a man had threatened to stab several patrons with a knife. The dispatcher advised Hallock that the suspect had been disarmed but warned that he had threatened to get another knife from his car. Hallock was also told that the man drove a black 1997 Chevy Camaro.

Several minutes later, Hallock arrived at the scene and discovered Vester, who matched the suspect's description, sitting in a black Camaro outside the bar. Hallock ordered Vester to get out of the vehicle five times before he finally complied. Hallock then issued three separate commands for Vester to get on either the ground or his knees. Vester ignored these instructions, instead opting to turn his back to Hallock and place his hands on the car. Concerned that Vester might have a weapon, Hallock wanted to get him to the ground, as his experience suggested that it would be safer to disarm him in a prone position. Accordingly, Hallock approached Vester from behind, seized his right arm, and used the arm-bar technique to take him swiftly to the ground. Vester was unable to use his free arm to brace the fall and landed face-first on the ground, sustaining contusions, abrasions, and lacerations to his head and hand. After securing Vester, Hallock noticed his injuries and immediately called for a rescue squad. Vester was then taken to the emergency room for medical treatment.

Vester subsequently brought the present action under 42 U.S.C. § 1983, alleging that Hallock used excessive force to effect his arrest in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. After filing an answer, Hallock moved for summary judgment based on qualified immunity. The district court agreed that Hallock was entitled to qualified immunity and granted his motion for summary judgment, finding that it was not clearly established that Vester had a right to be free from Hallock's use of the arm-bar technique under these circumstances. Vester timely appealed.

We review a district court's grant of summary judgment de novo . Bishop v. Glazier , 723 F.3d 957, 960-61 (8th Cir. 2013) (citation omitted). "Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law." Johnson v. Carroll , 658 F.3d 819, 825 (8th Cir. 2011) (citations omitted); Fed. R. Civ. P. 56. Although Vester identifies several purported factual disputes, the parties appear to agree as to all material facts, so we read his argument as one focused on the legal question of whether Hallock was entitled to qualified immunity. See McKenney v. Harrison , 635 F.3d 354, 359 (8th Cir. 2011) ("Once the predicate facts are established, the reasonableness of the official's conduct under the circumstances is a question of law." (citation omitted)).

"Qualified immunity shields government officials from liability for civil damages and the burdens of litigation insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 358 (quotation omitted). "We analyze qualified immunity in two steps: (1) whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct." Peterson v. Kopp , 754 F.3d 594, 598 (8th Cir. 2014) (alteration in original) (quotation omitted). As we recently reaffirmed, for a right to be clearly established, "[t]he contours of the right

864 F.3d 887

must be sufficiently clear that a reasonable official would...