Submitted: November 8, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
ERICKSON, WOLLMAN, and GRASZ, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Jackson brought an action for damages under 42 U.S.C. §
1983, alleging various constitutional violations against the
City of Jacksonville, Arkansas, the Jacksonville Police
Department, and Jacksonville Police Officer Billy D. Stair,
III, individually and in his official capacity, after Jackson
was detained and tased by Officer Stair as part of an arrest.
The district court granted summary judgment in favor of
defendants, and Jackson appealed. In an earlier opinion, we
affirmed in part, reversed in part, and remanded to the
district court. See Jackson v. Stair, 938 F.3d 966
(8th Cir. 2019). We subsequently vacated that opinion and
granted a petition for rehearing, to clarify our decision in
light of this court's recent holdings in Kelsay v.
Ernst, 933 F.3d 975 (8th Cir. 2019) (en banc), and
Rudley v. Little Rock Police Dep't, 935 F.3d 651
(8th Cir. 2019). Our opinion today recites those portions of
our earlier decision for which the substance has not changed.
We issue a new, clarifying analysis on the excessive force
and qualified immunity claims involving Officer Stair. For
the reasons stated below, we again affirm in part, reverse in
part, and remand.
23, 2013, Jacksonville Police Department (JPD) officers were
dispatched to a dispute in progress at a local business,
Vaughn Tire. The dispute arose because Jackson believed that
Vaughn Tire had damaged a wheel lug during the course of a
repair of Jackson's dump truck. Officer Stair was the
first to respond on the scene, where he found Jackson walking
with another man. Video evidenceshows that Officer Stair
asked, "What's going on guys?" In response,
Jackson, who was obviously quite agitated, began to yell and
point toward another group of men. Officer Stair instructed
Jackson to relax, and Jackson replied, pointing at one of the
men, "Get him, and I'm gonna relax." Officer
Stair directed Jackson to go stand by the patrol car. Jackson
began to comply, still yelling, when Officer Stair told him
to keep his hands out of his pockets. Jackson reached his
left hand into his pocket and stopped immediately in front of
Officer Stair to shout that he did not have anything in his
pockets. Officer Stair ordered Jackson to turn around.
Jackson got louder and did not comply.
Stair pulled out his Taser, pointed it at Jackson, and again
ordered Jackson to turn around, or he would be tased. More
yelling and pointing ensued from Jackson - at one point
Jackson shouted: "You tase me and see what
happens." Officer Stair ordered Jackson to turn around
five more times before Jackson began to comply. Officer Stair
told Jackson to put his hands up, and he did, but he was
still facing Officer Stair. Officer Stair again ordered
Jackson to turn around, and Jackson did so with his hands in
the air, but Jackson continued to yell, asking for Officer
Stair's badge number and threatening to file a complaint
with his supervisor.
officer, Kenneth Harness, approached Jackson and attempted to
handcuff him. Jackson put his hands behind his back, and then
he stated: "Don't hurt my arm." Jackson turned
around to face Officer Harness and raised his right fist
toward the officer's head. Officer Stair immediately
deployed his Taser, and Jackson fell to the ground, kicking
his legs. Moments later, and without another warning, Officer
Stair deployed his Taser a second time. Officer Stair then
ordered Jackson to turn on his stomach or he would be tased
again. Officer Stair repeated the order, but Jackson rose to
one knee, in the direction of Officer Stair. Officer Stair
deployed his Taser a third time. Jackson finally complied
with the order to lie on his stomach, and Officer Harness
handcuffed him. Jackson was arrested for disorderly conduct.
filed a complaint under 42 U.S.C. § 1983 against Officer
Stair, in his individual and official capacities, the City of
Jacksonville (City), and the JPD, alleging that his
constitutional rights were violated during the tasing
incident. The district court granted summary
judgment in favor of the defendants, and Jackson filed a
timely notice of appeal.
record contains copies of the City's Taser policy and
evidence of Officer Stair's completion of Taser-specific
and general law enforcement trainings upon his hiring. The
record also includes documentation of the JPD's "Use
of Force Review" of the tasing incident at issue here.
Following that investigation, Officer Stair received a
written warning and additional use-of-force training.
review de novo a district court order granting
summary judgment, viewing the evidence in the light most
favorable to Jackson, and drawing all reasonable inferences
in his favor. Schoelch v. Mitchell, 625 F.3d 1041,
1045 (8th Cir. 2010). Summary judgment is appropriate when
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
at the outset that Jackson failed to make any meaningful
argument on appeal regarding his claims against the JPD.
Those claims are therefore waived. Ahlberg v. Chrysler
Corp., 481 F.3d 630, 634 (8th Cir. 2007). Likewise, the
complaint alleged violations of the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments. However, as noted by the
district court, the Fifth Amendment applies only to the
federal government or federal actions and does not apply to
state and municipality actors as alleged here, Barnes v.
City of Omaha, 574 F.3d 1003, 1005 n.2 (8th Cir. 2009);
the Eighth Amendment applies only to convicted prisoners,
Hott v. Hennepin County, 260 F.3d 901, 905 (8th Cir.
2001); and the Fourteenth Amendment does not apply to
excessive force claims involving arrests, which are
appropriately reviewed under a ...