On July 9, 2020, the Eighth Circuit Court of Appeals decided Shelton v. Stevens[i], in which the court examined whether an officer who stomped on a resistive suspect’s ankle, as several officers had the suspect on the ground, violated the Fourth Amendment, and if so, whether the officer was still entitled to qualified immunity. The relevant facts of Shelton, taken directly from the case, are as follows:
In the early morning hours of October 15, 2015, Shelton violently assaulted a man at a strip club in Davenport, Iowa. Shelton and his two brothers repeatedly kicked the man in the head and left the victim in a coma.
Police obtained a warrant for Shelton’s arrest the next day. That afternoon, police officers Walker and Proehl observed Shelton exit a business and enter a car. The business was located across the Mississippi River from Davenport in Rock Island, Illinois.
The officers approached the vehicle and ordered Shelton out of the car. Shelton refused. Proehl attempted to pull Shelton out and used force that included a punch to the face and a knee to the head. Walker observed a loaded magazine of bullets in the front seat. At that point, Proehl saw that Shelton was sitting on a handgun. The officers backed away and drew their weapons, but Shelton started his car and sped away.
Walker, Proehl, and several more officers from Davenport and Rock Island chased Shelton at high speed for several miles. Walker announced several times over the radio that Shelton was armed with a gun. Stevens, a Davenport officer, joined the pursuit. Having crossed the river back to Iowa, Shelton eventually crashed his car in a wooded area. He then fled on foot into the surrounding woods, and eventually emerged on the other side where a city street bounded the woods.
Police found Shelton walking on the street with his hands in [*3] the air, but he refused to comply with police commands to stop and get on the ground. The ensuing scene was captured on a video recording. Two officers, Colclasure and Lansing, tackled Shelton to the ground. Three others joined in attempting to restrain and handcuff Shelton. Shelton was held down by the officers, but he refused to surrender and kept his hands underneath him in a position described as “turtling.” One officer felt a hard object in Shelton’s front pocket. Approximately thirty seconds after the first officers tackled Shelton, officers Robinson and Stevens approached the scuffle.
During the scrum on the ground, Colclasure punched Shelton in the ribs to keep him from reaching his pocket. Lansing said that officers were able to gain control of one arm only, and he then used a chokehold that eventually caused Shelton to lose consciousness briefly. At almost the same moment when Lansing applied the chokehold, Robinson arrived and hit Shelton on the head with the butt of his radio. R. Doc. 69-2, at 69, pp. 45-46. No more than two seconds later, Stevens stomped on Shelton’s ankle. R. Doc. 26-3, Disc E, at 14:11-14:13. The officers then gained control of Shelton’s hands and placed them in handcuffs. The hard object in his pocket turned out to be a cell phone.[ii]
Officer Stevens disputes some of the facts above. First, he asserts that he stomped on the suspect’s healthy, right ankle, not the injured, left ankle. Second, Stevens asserts that at the time he stomped on Shelton’s ankle, Shelton was trying to stand by drawing his feet under his body. The video is not conclusive on his assertions, so at this stage of the litigation, the court must view disputed facts in favor of the plaintiff.
Shelton filed suit against five officers involved in his arrest, including Officer Stevens, and claimed that the officers violated his Fourth Amendment right to be free from an unreasonable seizure due to the excessive force used against him. The district court granted qualified immunity to all the officers except Officer Stevens, who had stomped on Shelton’s ankle, allegedly breaking the ankle. The district court discussed the other officer’s use of force for which qualified immunity was granted which is summarized as follows:
As to the other officers at the scene of the seizure, the court explained that “Shelton did not comply with instructions from officers to give them his hands, had a cell phone in his right pants pocket that could be mistaken for a gun, and made movements which could be construed as attempts to access something in his front pants pocket.” The court decided that a reasonable officer in [Officer] Colclasure’s situation could have believed it reasonable to use several closed-fisted strikes to the ribs to subdue a non-compliant suspect. The court ruled that [Officer] Lansing’s use of “a brief chokehold to subdue a non-compliant, potentially armed suspect” did not violate a clearly established right. And the court concluded that “[a] reasonable officer in [Officer] Robinson’s situation would have believed using one strike with the butt end of a radio to try to subdue a non-compliant, potentially armed suspect was not a constitutional violation.”[iii]
Thus, the officers were granted qualified immunity. However, regarding Officer Steven’s use of the ankle stomp, the district court denied qualified immunity. The district court reasoned that
[A] reasonable officer in the situation would have known the force used violated Shelton’s constitutional rights under the Fourth Amendment“. . .[because] [a]t the time Stevens approached, Shelton was being restrained by at least five other officers” who “appeared to have Shelton substantially under control.” The court concluded that it was “unclear any legitimate restraint purpose” was served by Stevens’s stomp on Shelton’s ankle.[iv]
Officer Stevens appealed the denial of qualified immunity to the Eighth Circuit Court of Appeals.
QUALIFIED IMMUNITY EXPLAINED
When officers act in their discretionary capacity, for example deciding what type of force to use on a resisting or fleeing suspect, officers can file a motion for qualified immunity, if they are sued. In order to defeat an officer’s motion for qualified immunity, the plaintiff must satisfy a two-pronged test and show (1) that the officer(s) violated a federally protected right, and (2) that the law was clearly established such that any reasonable officer in the same situation would have known that the conduct at issue was unlawful. If the plaintiff fails to satisfy both prongs above, the officer is entitled to qualified immunity from suit and the suit is dismissed.
The court then set out to examine the two prongs of the qualified immunity analysis.
PRONG ONE: DID STOMPING ON THE RESISTIVE SUSPECTS ANKLE IN THE CIRCUMSTANCES OF THIS CASE, VIOLATE THE FOURTH AMENDMENT?
The Eighth Circuit began by discussing the relevant legal principles to the question above. The court stated
[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. Reasonableness must be judged from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The inquiry is objective, so the officer’s subjective motivations are not controlling.
The objective reasonableness of an officer’s actions must be assessed with careful attention to particular circumstances of the case. These include “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. The degree of a plaintiff’s injury is also relevant “insofar as it tends to show the amount and type of force used.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). We bear in mind that police are required to make “split-second judgments” regarding what force to use in “tense, uncertain, and rapidly evolving” circumstances. Graham, 490 U.S. at 397.[v]
The court then examined the facts relevant to the issue which were as follows: (1) Shelton was involved in a very violent attack on another person; (2) Shelton led police on dangerous, high-speed vehicle pursuit when he fled their attempt to arrest him; (3) Shelton was armed with a handgun during the vehicle pursuit; (4) Shelton fled on foot after the vehicle pursuit ended; (5) when Shelton was caught, he actively resisted arrest by refusing to surrender one of his arms which he had under his body in an area where it is common to carry weapons; (6) officer’s felt a hard object on Shelton’s person during the struggle which they could reasonably believe was a gun, even though it turned out to be a cellular phone; and (7) Shelton had a broken ankle that required surgery.
Thus, applying the facts above to the factors from Graham v. Conner, Shelton had [1] committed a serious attack on a person and led police on a dangerous vehicle pursuit, [2] he posed a threat to officers as he was known to have a gun and suspected to be armed in the struggle, and [3] he was actively resisting arrest. As such, the court stated that it was reasonable to use force on Shelton, but the issue was whether the type of force used, stomping on Shelton’s ankle, was objectively reasonable under the Fourth Amendment.
The court of appeals discussed this and stated
The particular question here, then, is whether the amount and type of force that Stevens used was objectively reasonable under the circumstances taken in the light most favorable to Shelton. How much force was reasonable presents a fact-specific judgment call, and there may be a fine line between employing a brief chokehold that rendered Shelton unconscious, striking Shelton in the head with a radio, and stomping on Shelton’s ankle.
Under all the circumstances, however, we conclude that Stevens’s alleged use of force was unreasonable under the Fourth Amendment. A stomp on the ankle with sufficient force to break it was excessive when the legitimate objective was to facilitate restraint of Shelton’s hands while he was pinned to the ground by several officers. Although the reasonableness requirement of the Fourth Amendment does not require an officer to pursue the least aggressive or most prudent course of conduct, Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993), the availability of lesser measures is relevant to the inquiry. Retz v. Seaton, 741 F.3d 913, 918 (8th Cir. 2014). There were other means, short of the force employed, to distract Shelton from his efforts to avoid restraint and to assist with apprehension of the arrestee while still maintaining officer safety. The force used by other officers on the scene, for example, likely was sufficient to produce the desired outcome without causing serious injury to Shelton. Even allowing for the rapidly evolving situation, and eschewing the temptation to evaluate police conduct with perfect hindsight, we conclude on balance that Stevens’s stomp, under the assumed facts, constituted an unreasonable use of force.[vi]
Therefore, since the first prong of the qualified immunity analysis was satisfied when the court of appeal’s held that the ankle stomp was an unreasonable use of force, the court moved to the second prong.
PRONG TWO: WAS THE LAW CLEARLY ESTABLISHED SUCH THAT ANOTHER REASONABLE OFFICER IN OFFICER STEVENS’ POSITION WOULD HAVE KNOWN THAT THE ANKLE STOMP VIOLATED THE FOURTH AMENDMENT?
The court of appeals began by examining the legal principles related to the qualified immunity and the second prong of its analysis. The court stated
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). Even where an officer’s action is deemed unreasonable under the Fourth Amendment, he is entitled to qualified immunity if a reasonable officer could have believed, mistakenly, that the use of force was permissible—if he was “reasonably unreasonable.” Anderson v. Creighton, 483 U.S. 635, 643, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). “Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153, 200 L. Ed. 2d 449 (2018) (per curiam) (internal quotation marks omitted). “While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular action beyond debate.” City of Escondido v. Emmons, 139 S. Ct. 500, 504, 202 L. Ed. 2d 455 (2019) (per curiam) (internal quotation and brackets omitted).[vii]
Thus, for the law to be “clearly established” such that an officer would be denied qualified immunity, there must be case law factually similar enough to place “the lawfulness of the” use of force “beyond debate.[viii]
The court first noted that there are situations where an officer’s use of force is clearly lawful and situations where an officer’s use of force is clearly unlawful (excessive). The court stated that Shelton’s incident is in the “hazy” area between clearly lawful and clearly unlawful. This is precisely the reason qualified immunity exists – to provide liability protection for officers that make split-second decisions in “gray areas.” The court stated
The district court’s treatment of three officers suggests the haziness: Robinson and Lansing were granted qualified immunity for a blow to Shelton’s head and a brief chokehold, respectively, because they were trying to “subdue a non-compliant, potentially armed suspect.” But the court reasoned that Stevens’s stomp, no more than two seconds later, violated a clearly established right because “Shelton was being restrained by at least five other officers” who “appeared to have Shelton substantially under control.”
As we see it, all three officers confronted a suspect who was being restrained by several other officers, and all three were trying to subdue a non-compliant, potentially armed suspect. Is it obvious that a chokehold with its potential for asphyxiation, or blunt force to the skull with the attendant risk of head injury, is more suitable to the situation than a hard step on the talus? As it turned out, given how the officers applied the tactics here, Shelton was able to resume breathing after the choke, did not suffer brain injury from the blow to the cranium, but assumedly sustained a fractured ankle from Stevens’s act. Some use of force was reasonable, and constitutional distinctions among a chokehold, a radio-bang to the head, and an unreasonable ankle-stomp—all objectively designed to prompt Shelton to surrender his hands—are hazy enough to warrant qualified immunity for Stevens.[ix]
The court also examined case law that Shelton argued supported his position that the law was clearly established. However, the court noted that those cases involved non-violent, unarmed suspects and, as such, could not “clearly establish” the law for this case.
Thus, regarding the second prong of the qualified immunity analysis, the court of appeals held that the plaintiff failed to meet his burden to show that the law was clearly established as to the unreasonableness of Steven’s use of force.
Therefore, Officer Steven’s was entitled to qualified immunity in this case.
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Citations
[i] No. 18-3379 (8th Cir. Decided July 9, 2020)
[ii] Id. at 2-4
[iii] Id. at 5 (emphasis added)
[iv] Id. at 5-6
[v] Id. at 7 (emphasis added)
[vi] Id. at 10-11 (emphasis added)
[vii] Id. at 11-12 (emphasis added)
[viii] Id.
[ix] Id. at 12-13
