Kirk D. Vester Plaintiff-Appellant
Daniel Hallock, in his Official Capacity Defendant-Appellee
Submitted: June 7, 2017
from United States District Court for the District of
Nebraska - Omaha
WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Vester appeals the district court's 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.
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.
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.
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
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
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 must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right." Ehlers v. City of Rapid City, 846 F.3d
1002, 1008 (8th Cir. 2017) (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In
other words, to lose the shield of immunity, an officer must
have been "plainly incompetent" or must have
"knowingly violate[d] the law." See Gladden v.
Richbourg, 759 F.3d 960, 964 (8th Cir. 2014) (citation
contends that Hallock infringed his Fourth Amendment right to
be free from unreasonable seizures by using excessive force
in arresting him. See Chambers v. Pennycook, 641
F.3d 898, 905 (8th Cir. 2011) (noting that an excessive-force
claim related to an arrest "is most properly
characterized as one invoking the protections of the Fourth
Amendment" (citations omitted)). In evaluating this sort
of constitutional claim, "the test is whether the amount
of force used was objectively reasonable under the particular
circumstances." Johnson, 658 F.3d at 825
(quotation omitted). "The 'reasonableness' of a
particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id. at 826 (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). For
example, we have considered as relevant "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." Id. (citation omitted).
on the circumstances Hallock confronted upon arriving at the
101 Bar & Grill, his use of the arm-bar technique fell
short of the level of force required to constitute a
constitutional violation. Although Vester neither visibly
possessed a weapon nor attempted to resist arrest prior to
the takedown, a variety of factors suggest that the amount of
force Hallock employed was reasonable under the
circumstances. Particularly relevant are the severity of
Vester's criminal conduct of threatening to stab various
individuals, his refusal to comply with Hallock's
repeated commands, the very real possibility that he still
had a concealed knife on his person after exiting the
vehicle, the resulting potential threat to Hallock's
safety, and the fact that Hallock was making the arrest
without any backup. Cf. Hicks v. Norwood, 640 F.3d
839, 842 (8th Cir. 2011) (finding reasonable an officer's
determination that the arrestee-plaintiff's refusal to
change into a jail uniform and his aggressive leap off of a
booking-room bench constituted a safety threat and therefore
affirming grant of qualified immunity).
even assuming that Hallock's use of the arm-bar technique
rose to the level of a constitutional violation, we reject
Vester's claim that his right to be free from such force
in this factual context was clearly established at the time
of his arrest. In demonstrating that a right is clearly
established, "[i]t is unnecessary to have 'a case
directly on point, but existing precedent must have placed
the statutory or constitutional question beyond
debate.'" Parker v. Chard, 777 F.3d 977,
980 (8th Cir. 2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). Vester primarily argues that the
general "right to be free from excessive force[, which]
dates back to the adoption of the Bill of Rights, "
compels us to reverse the grant of qualified immunity.
However, as the district court correctly noted,
"'Qualified immunity is no immunity at all if
clearly established law' can be defined at such a
'high level of generality.'" See City &
Cty. of S.F., Calif. v. Sheehan, 135 S.Ct. 1765, 1776
(2015); see also Plumhoff v. Rickard, 134 S.Ct.
2012, 2023 (2014) ("[W]e have repeatedly told courts . .
. not to define clearly established law at a high level of
generality since doing so avoids the crucial question whether
the official acted reasonably in the particular circumstances
that he or she faced." (quotation and citation
Vester contends that relevant precedent demonstrates as
clearly established his right to be free from the use of the
arm-bar technique in these circumstances. First, he points to
two unpublished district court opinions from a different
district to suggest that Hallock's deployment of the
arm-bar technique was unlawful. See B.J.R. ex rel. Garcia
v. Golgart, 2013 WL 3455598 (D. Minn. July 9, 2013)
(unpublished); Stockton v. Auren, 2008 WL 1994992
(D. Minn. May 5, 2008) (unpublished). Second, Vester cites
two Eight Circuit opinions for the proposition that "a
reasonable officer would conclude it is inappropriate to use
force on a ...