Submitted: June 15, 2018
from United States District Court for the District of South
Dakota - Sioux Falls
LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
GRUENDER, Circuit Judge.
Dakota State Trooper Cody Jansen appeals the district
court's denial of summary judgment on Troy
Rokusek's claim under 42 U.S.C. § 1983. The district
court determined that Trooper Jansen was not entitled to
qualified immunity because the evidence, construed in
Rokusek's favor, showed that Jansen violated his clearly
established right to be free from excessive force. We affirm.
night of April 14, 2015, Jansen arrested Rokusek for driving
while impaired and transported him to a garage at the
courthouse in Clay County, South Dakota. Once there, Jansen
removed the handcuffs from Rokusek, who consented to having
his blood drawn. Though a medical technician was in the
garage to perform the blood draw, Rokusek preferred a more
sanitary environment and withdrew his consent. Jansen ordered
Rokusek to stand so that he could handcuff him again before
obtaining a warrant to draw blood. Despite Jansen's three
requests, Rokusek refused to comply. Jansen, who was
6'4" and weighed at least 180 pounds at the time of
the incident, pulled Rokusek, who was 5'6" and
weighed 135 pounds, to a standing position. He then placed
him in a "double-chicken-wing hold" by putting his
arms around Rokusek's arms and interlocking them behind
Rokusek's back. As is evident from a video recording of
the incident, the hold immobilized the much smaller Rokusek.
The two remained in this position until Jansen suddenly threw
Rokusek face-first to the ground. Because his arms were
immobilized, Rokusek was unable to brace his fall and lost
review de novo the district court's denial of
qualified immunity on summary judgment, viewing the record in
the light most favorable to Rokusek and drawing all
reasonable inferences in his favor. See Shannon v.
Koehler, 616 F.3d 855, 861-62 (8th Cir. 2010). To
overcome Trooper Jansen's claim of qualified immunity,
Rokusek must show the violation of a constitutional right
that was clearly established at the time of the violation.
See Gilmore v. City of Minneapolis, 837 F.3d 827,
832 (8th Cir. 2016). "To establish a constitutional
violation under the Fourth Amendment's right to be free
from excessive force, the test is whether the amount of force
used was objectively reasonable under the particular
circumstances." Brown v. City of Golden Valley,
574 F.3d 491, 496 (8th Cir. 2009). A right is clearly
established if "every reasonable official would have
understood that what he is doing violates that right."
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(internal quotation marks omitted).
Jansen argues that the district court did not consider his
point of view in evaluating the reasonableness of his
actions. While reasonableness is an objective standard, it
must account "for the fact that police officers are
often forced to make split-second judgments-in circumstances
that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular
situation." Graham v. Connor, 490 U.S. 386,
396-97 (1989). An officer need not "pursue the most
prudent course of conduct as judged by 20/20 hindsight
vision." Retz v. Seaton, 741 F.3d 913, 918 (8th
Cir. 2014). With these principles in mind, we consider
several factors, including the severity of the suspect's
crime, whether the suspect was threatening the officers or
others, and whether the suspect was actively resisting or
fleeing. Graham, 490 U.S. at 396.
these factors, Jansen's use of force was not objectively
reasonable under the circumstances. Rokusek was an unarmed,
nonviolent offender. He was not threatening Jansen or the
technician, and he was not actively resisting or fleeing.
Nonetheless, the much larger Jansen lifted him off the ground
and slammed his head into the floor, causing him to lose two
teeth. Though Jansen testified that Rokusek pushed back
against him while he was in the double-chicken-wing hold, the
video makes clear that any contact was slight.
argues that we sanctioned a comparable takedown under similar
circumstances in Vester v. Hallock, 864 F.3d 884
(8th Cir. 2017). But in finding that the officer in
Vester had not used excessive force, we relied on
"the very real possibility that [the suspect] still had
a concealed knife on his person." Id. at 887.
Rokusek posed no such danger. The situation Jansen faced also
differed from that in Ehlers v. City of Rapid City,
846 F.3d 1002, 1007, 1011 (8th Cir. 2017), where an officer
took a fleeing arrestee to the ground after he ignored
repeated warnings to put his hands behind his back. While
Rokusek had disobeyed Jansen's three prior orders to
stand up, he has denied that he continued to ignore
Jansen's commands. Jansen had him fully under control.
Construing the evidence in Rokusek's favor, Jansen used
more than "the force necessary" to handcuff
Rokusek. See id. at 1011.
turn to the second prong of the qualified immunity test:
whether the right was clearly established at the time of the
violation. Jansen correctly emphasizes that Rokusek bears the
burden of showing that the law was clearly established.
See Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir.
2013). The Supreme Court has warned that we must not
"define clearly established law at a high level of
generality," and a right's contours must be
"sufficiently clear" so that "every reasonable
official would have understood that what he is doing violates
that right." al-Kidd, 563 U.S. at 741-42
(internal quotation marks omitted). But as the Court has
explained, "[A] general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question." Hope
v. Pelzer, 536 U.S. 730, 741 (2002).
several cases establish that every reasonable official would
have understood that he could not throw Rokusek-a nonviolent,
nonthreatening misdemeanant who was not actively
resisting-face-first to the ground. See Small v.
McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013);
Montoya v. City of Flandreau, 669 F.3d 867, 873 (8th
Cir. 2012); see also Brown, 574 F.3d at 499;
Rohrbough v. Hall, 586 F.3d 582, 586-87 (8th Cir.
2009). While none of these cases involve a fact pattern
precisely like the one at issue here, there is no requirement
that Rokusek must find a case where "the very action in
question has previously been held unlawful," see
Rohrbough, 586 F.3d at 587, so long as "existing
precedent [has] placed the statutory or constitutional
question beyond debate," al-Kidd, 563 U.S. at
741. Jansen had "fair warning" that he should not
have thrown a nonviolent, nonthreatening suspect who was not
actively resisting face-first to the ground. See
Hope, 536 U.S. at 741.
we affirm the district court's order denying Jansen
summary judgment ...