Date: 03-28-2018

Case Style:

Case Number: 17-1971

Judge: Benton

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Western District of Missouri (Jasper County)

Plaintiff's Attorney: Brandon C. Potter

Defendant's Attorney: John R Lightner and Katherine A O'Dell

Description: Terry Cravener sued Jasper County deputies Mike Shuster, Chris Calvin, andKieth Maggard under 42 U.S.C. § 1983, alleging excessive force. The district courtdenied the deputies’ motion for summary judgment based on qualified immunity. Thedeputies appeal. This court reverses and remands.
I.
Cravener has paranoid schizophrenia. In May 2013, his father called JasperCounty Emergency Services. He requested help getting Cravener a medicalevaluation for erratic behavior and medication issues. He said Cravener was “talkingto the walls” and “not in the right state of mind.” He reported Cravener had not beenviolent that day, but “could possibly become violent.” Emergency Servicesdispatched deputies and EMS to the father’s house.
Deputy Shuster arrived first. The father said he wanted Cravener to get “a 48-hour observation.” Once inside the house, Deputy Shuster heard Cravener repeating“I love Satan.” Deputy Maggard arrived next. With Deputy Shuster, he foundCravener in a bedroom. Entering the room, they told Cravener he was not in troubleand asked him to sit on the mattress, on the floor. Deputy Calvin then arrived, joiningthem in the bedroom. When asked, Cravener said he had not taken his schizophreniamedicine in two days. Deputy Shuster explained that his parents were worried abouthis behavior. Cravener responded with comments about chemical burns on his skinand “two planets that collided into the earth, causing the earth to blow up.” DeputyShuster told him that based on his behavior, they were going to take him to thehospital. Cravener responded that he did not want to go; he began making handgestures like he was shooting himself in the head. The deputies asked him to rollonto his stomach so they could restrain him. He refused, saying he did not want togo to the hospital. Several times, he laid down, holding his arms and legs in adefensive posture, and then sat back up.
-2-
After asking him about 20 times to roll to his stomach, Deputy Shuster tookCravener’s left wrist and walked around him trying to get him to lie on his stomach. Cravener pulled his arms away, and Deputy Shuster placed him in a modified bentarm lock. Cravener continued to resist. Deputy Calvin advised Cravener he wouldtase him if he continued resisting.
Deputy Shuster tried to guide Cravener to his stomach. Cravener suddenlyleaned backward. His left arm broke. Deputy Shuster immediately released his hold,but continued to guide Cravener to the floor. Cravener continued resisting andyelling “just shoot me.” According to Deputy Maggard, Cravener was unfazed by hisbroken arm and continued resisting.
Despite repeated commands to show his hands, Cravener kept both arms underhim. Deputy Shuster unsuccessfully used nunchucks on his right elbow to get himto release. Deputy Calvin again warned him to stop resisting and release his arms, orbe tased. Cravener refused. Deputy Calvin employed a five-second taser cycle (indrive-stun mode1) to Cravener’s back. When the cycle ended, Cravener resumedcursing and resisting. Four more times, Deputy Calvin warned Cravener to stopresisting or be tased. Each time he refused, resulting in another drive-stun taser cycleon his back. Deputy Maggard observed that the taser did not appear to affectCravener, and he “kept fighting like nothing.” Eventually, using nunchucks, Deputies
1In drive-stun mode (used here), the officer “applies the taser so as to make
direct contact with the subject’s body.” De Boise v. Taser Int’l, Inc., 760 F.3d 892,
895 n.5 (8th Cir. 2014). When used in drive-stun mode, the taser “causes discomfort”
but “does not incapacitate the subject.” Id. In dart mode (not used here), “[t]asers
fire metal probes into the skin, penetrating up to half an inch” and “deliver[ing] a
50,000 volt shock that lasts up to five seconds and causes electrical muscular
disruption.” McKenney v. Harrison, 635 F.3d 354, 362 (8th Cir. 2011) (Murphy, J.,
concurring) (internal citations and quotation marks omitted).
-3-
Shuster and Maggard were able to restrain his right hand and apply a belly chain andleg shackles.
Once secured, the deputies called EMS (waiting outside the door) to inspect hisbroken arm. Cravener was still resisting. EMS gave him a sedative. Once that tookeffect, they placed him on a body board and took him to the hospital. Cravenerremembers nothing from the day of the incident.
Cravener sued the deputies for excessive force and Jasper County for failureto train and unconstitutional policies, customs, and practices. The district courtgranted summary judgment to Jasper County. In two short paragraphs with littleexplanation, however, the district court found genuine issues of material factprecluding summary judgment for the deputies on the basis of qualified immunity. The district court failed to identify any disputed facts. Because there are no materialdisputed facts, this court now grants qualified immunity.
II.
Government officials, like the deputies here, are entitled to qualified immunity“unless the official’s conduct violated a clearly established constitutional or statutoryright of which a reasonable official would have known.” Chambers v. Pennycook,641 F.3d 898, 904 (8th Cir. 2011), citing Harlow v. Fitzgerald, 457 U.S. 800, 818(1982). This court reviews a denial of summary judgment de novo, viewing therecord most favorably to the non-moving party. Revels v. Vincenz, 382 F.3d 870, 874(8th Cir. 2004). This court also reviews “the finding of qualified immunity de novo.” Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014).
Determining qualified immunity, this court considers a “two-step inquiry: (1)whether the facts shown by the plaintiff make out a violation of a constitutional orstatutory right, and (2) whether that right was clearly established at the time of the
-4-
defendant’s alleged misconduct.” Brown v. City of Golden Valley, 574 F.3d 491, 496(8th Cir. 2009), citing Saucier v. Katz, 533 U.S. 194, 201 (2001). To deny qualifiedimmunity, the answer to both questions must be yes. See Pearson v. Callahan, 555U.S. 223, 232 (2009).
A.
To show excessive force, a plaintiff “must demonstrate a seizure occurred andthe seizure was unreasonable.” McCoy v. City of Monticello, 342 F.3d 842, 846 (8th
Cir. 2003). “The ‘reasonableness’ of a particular use of force must be judged fromthe perspective of a reasonable officer on the scene, rather than with the 20/20 visionof hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “Factors relevant toassessing the objective reasonableness of force used by officers include:
‘the relationship between the need for the use of force and the amountof force used; the extent of the plaintiff’s injury; any effort made by theofficer to temper or to limit the amount of force; the severity of thesecurity problem at issue; the threat reasonably perceived by the officer;and whether the plaintiff was actively resisting.’”
Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017), quoting Graham, 490 U.S.at 396. Because liability under § 1983 is personal, courts must assess thereasonableness of each defendant’s conduct independently. See Heartland Acad.Cmty. Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010).
The parties do not dispute there was a seizure. The question is whether it wasreasonable. This court first considers the factors common to all three deputies: theseverity of the security problem; the threat reasonably perceived; and whetherCravener actively resisted. See Ryan, 850 F.3d at 427. Each of the deputies knewCravener was a paranoid schizophrenic who had not taken his antipsychoticmedication, could potentially be dangerous, refused repeated requests to go to the
-5-
hospital or lie on his stomach, pretended to shoot himself in the head, took adefensive position lying on the ground with his hands and feet up, and yelled “justshoot me.” Thus, the deputies knew there was a reasonable expectation of aggressionand a resistant subject.
Turning next to an individualized assessment of each deputy, this courtconsiders: the relationship between the need for the use of force and the amount offorce used; the extent of Cravener’s injury; and any effort made by the deputy totemper or limit the amount of force. See id.
From least force to most, this court begins with Deputy Maggard. He did notuse any defensive tactics or weapons on Cravener. His only contact was placingCravener’s right hand in restraints and applying a belly chain and leg shackles. Theseacts did not cause any injuries. In light of Cravener’s resistance to instructions andinterventions, this contact was entirely reasonable.
Deputy Shuster did apply the modified bent arm lock that broke Cravener’s armand the nunchucks that resulted in his restraint. However, he did so only afterexplaining the situation and asking Cravener 20 times to roll over onto his stomach. Deputy Shuster thus made multiple attempts to limit the amount of force. Due toCravener’s repeated refusals to comply with reasonable instructions, Deputy Shusterdetermined there was a need for force; the use of a standard defensive tactic wasreasonable. See Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir. 2011) (holding noexcessive force where the officer used an “arm-bar maneuver” on a man being bookedin prison, who had no weapon but “refused to comply with directions, loudly abusedthe correctional officers, and aggressively leapt toward” one officer); Reed v. City ofSt. Charles, 561 F.3d 788, 791-92 (8th Cir. 2009) (affirming summary judgment onexcessive force claim for officers who used batons and mace against a subjectresisting arrest).
-6-
The conduct of Deputy Calvin–who tased Cravener five times in drive-stunmode—is the closest call. Like the others, Deputy Calvin observed Cravener refusemultiple orders. Before deploying his taser, Deputy Calvin warned Cravener at leasttwice that if he did not comply, he would be tased. He also waited until other lessintrusive methods—the modified bent arm lock and nunchucks—were used. DeputyCalvin employed his taser only after Cravener yelled “just shoot me,” refused torelease his arms, and struggled so violently that his arm broke.
This court has granted qualified immunity to officers in similar circumstanceswhere an individual refuses to comply with reasonable orders. See Ehlers v. City ofRapid City, 846 F.3d 1002, 1011 (8th Cir. 2017) (holding no constitutional violationwhere an arrestee was “continuing to lay on his hands and refusing to comply withinstructions” because officers “could have interpreted” this “as resistance,”“regardless of whether [the man] actually intended to resist”); Carpenter v. Gage, 686F.3d 644, 650 (8th Cir. 2012) (granting qualified immunity to an officer who tasedan arrestee who “refused to offer his hands when ordered to do so” and “was warnedabout the use of the taser” because “[e]ven if Carpenter’s motive was innocent, thedeputies on the scene reasonably could have interpreted Carpenter’s actions asresistance and responded with an amount of force that was reasonable to effect thearrest”).
Cravener argues his case is unique because he was not engaged in criminalactivity, and thus the force greatly exceeded the need. True, Cravener’s lack ofcriminal activity is an important consideration in the qualified immunity analysis. However, officers may seize a person “in order to ensure the safety of the publicand/or the individual, regardless of any suspected criminal activity.” Winters v.Adams, 254 F.3d 758, 763 (8th Cir. 2001) (holding officers entitled to qualifiedimmunity where they seized a subject without observing any criminal activity). Here,the deputies were called to the house to ensure Cravener’s safety. This court hasfound no excessive force where the subject was not currently engaged in criminal
-7-
activity or resisting arrest. See Ryan, 850 F.3d at 428 (holding no excessive forcewhere officers twice tased a prisoner (in drive-stun mode) who was being removedfrom his cell for a medical assessment due to erratic behavior because he was“actively resisting the extraction procedure by ignoring directives to lie down on hisbunk and resisting the defendants’ efforts to subdue him once they entered his cell”).
Cravener also argues the deputies faced no imminent harm because Cravenerwas unarmed and was passively, not actively, resisting. Even if Cravener werepassively resisting, this argument fails. Unarmed, passively resisting subjects canpose a threat necessitating the use of taser force. See Ehlers, 846 F.3d at 1011(“Thus, Ehlers’s argument that no force was appropriate because he was beingarrested for a nonviolent misdemeanor and was not resisting is inapplicable becausehe at least appeared to be resisting.”); Carpenter, 686 F.3d at 650 (“Even ifCarpenter’s motive was innocent, the deputies on the scene reasonably could haveinterpreted Carpenter’s actions as resistance and responded with an amount of forcethat was reasonable to effect the arrest.”).
B.
Deputy Calvin also is entitled to qualified immunity based on the secondinquiry because “even if the reasonableness of [his] actions was questionable,”Cravener cannot “show that a reasonable officer would have been on notice that theofficers’ conduct violated a clearly established right.” De Boise v. Taser Int’l, Inc.,760 F.3d 892, 896 (8th Cir. 2014). “When determining whether an action was aclearly established constitutional violation, we look to the state of the law at the timeof the incident,” here May 2013. Id., quoting Shekleton v. Eichenberger, 677 F.3d361, 366 (8th Cir. 2012). “Particularly, the contours of [Cravener’s] right to be freefrom excessive force must be so sufficiently clear that a reasonable officer wouldknow that the multiple tasings under the circumstances were a violation of that right.” Id. at 897.
-8-
In the De Boise case, this court considered “whether a violent subject, actingaggressively toward officers, has a clearly established right to be free from multipletasings.” Id. at 897. There, a schizophrenic man’s mother called police after her sonwandered through the neighborhood naked, claimed to be God, demanded his motherworship him, and “held her head down to the floor.” Id. at 894. Arriving at themother’s house, officers heard the son screaming, breaking glass, and throwingfurniture. Id. at 894-95. After he refused officer commands to lie down, they tasedhim eight times in dart mode and twice in drive-stun mode. He went into cardiacarrest, dying soon after. Id. at 894-96. Noting that “in 2008, case law related to theuse of tasers was still developing,” this court found the officers did not violate anyclearly established right because “the state of the law would not have placed anofficer on notice that he must limit the use of his taser in certain circumstances, eventhough the subject continues to struggle and resist.” Id. at 897 (internal quotationmarks omitted).
Although this court decided De Boise after the incident here, the case isinstructive because it analyzes whether a schizophrenic individual, refusing to complywith repeated officer demands, had a clearly established right to be free from multipletasings in 2008. There are distinctions between this case and De Boise. Significantly,officers arrived at De Boise’s house to make a criminal arrest (based on his mother’s911 call reporting violent behavior), while officers arrived at Cravener’s for a civilinvoluntary detention. Additionally, De Boise’s behavior (tearing down a screendoor, screaming, breaking glass, throwing furniture, clenching his fist) was moreaggressive than Cravener’s (mimicking shooting himself in the head, holding handsand feet in a defensive position, yelling “just shoot me”). But, there are significantsimilarities: (1) police receive a phone call from a parent concerned about the erraticbehavior of a schizophrenic who had the capacity for violence; (2) officers knew theindividual was schizophrenic and had the capacity for violence; (3) the individualdemonstrated aggressive behavior in front of officers; (4) the individual failed tocomply with repeated officer directions; and (5) the individual continued resisting
-9-
after initial taser use. Additionally here, the deputies tried multiple less seriousmethods of restraining Cravener and gave significant warning before tasing him.
Because of the significant similarities between this case and De Boise—withno intervening Eighth Circuit case between 2008 and 2013—De Boise controls here. “[N]o reasonable officer, observing [Cravener’s] behavior, would have understoodthe actions taken to be so disproportionate and unnecessary as to amount to aviolation of [Cravener’s] rights.” Id. at 897-98. See Lash v. Lemke, 786 F.3d 1, 7(D.C. Cir. 2015) (“[T]here is no clearly established right for a suspect who activelyresists and refuses to be handcuffed to be free from a Taser application.”), quotingGoodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015); Abbott v.Sangamon Cnty., 705 F.3d 706, 727 (7th Cir. 2013) (“Courts generally hold that theuse of a taser against an actively resisting suspect either does not violate clearlyestablished law or is constitutionally reasonable.”).
The district court erred in denying qualified immunity.
III.
For the first time in Cravener’s opposition to summary judgment, he raised afailure to intervene claim. The deputies immediately objected. The district courtwrote: “In his opposition suggestions, Plaintiff raises a seemingly new claim of‘failure to intervene.’ To the extent necessary, the Court analyses this argument inthe context of Plaintiff’s excessive force claim as alleged.” Even if this claim waspreserved for appeal, Cravener cannot sustain his failure to intervene claim becausethe officers did not use excessive force. See Hicks, 640 F.3d at 843 (“[O]ur holdingthat Captain Norwood did not use excessive force is fatal to Hicks’s claims that theremaining defendants unconstitutionally failed to intervene.”).
-10-
The district court erred in denying summary judgment on the failure tointervene claim.
* * * * * * *

Outcome: The judgment is reversed, and the case remanded for proceedings consistentwith this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: