Shannon v. Koehler

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________

No. 09-3889
________________

Timothy Clair Shannon, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Officer Michael Koehler; City of *
Sioux City; Joseph C. Frisbie, *
*
Appellants. *

_______________

Submitted: June 16, 2010
Filed: August 17, 2010
________________

Before LOKEN, ARNOLD and GRUENDER, Circuit Judges.
________________

GRUENDER, Circuit Judge.

The plaintiff, Timothy Shannon, is a former Marine and retired police officer
who owns a pub in Sioux City, Iowa, called “Tom Foolery’s.” In the early morning
hours of September 13, 2006, Shannon was arrested inside Tom Foolery’s by Michael
Koehler, a patrol officer with the Sioux City Police Department. Following his arrest,
Shannon filed this action under 42 U.S.C. § 1983 against Officer Koehler, the City of
Sioux City, the Sioux City Police Department, and Sioux City’s former Chief of
Police, Joseph Frisbie. Shannon’s complaint alleges that Officer Koehler violated the
Fourth Amendment by using excessive force in arresting him, and that the City, the
Department, and Chief Frisbie are liable under § 1983 for establishing or tolerating
certain policies or customs that led to the purported violation of his constitutional
rights. The complaint also includes state-law tort claims against each of the
defendants.

The district court1 dismissed the claims against the Department, holding that the
Department is merely a subdivision of the City and thus not subject to suit.
Thereafter, a magistrate judge granted the City and Chief Frisbie’s motion to
“bifurcate” the claims against Officer Koehler from the claims against them. The
district court later denied the defendants’ motion for summary judgment on all of
Shannon’s claims and reversed the magistrate judge’s order bifurcating the relevant
claims.

The defendants appeal the district court’s denial of summary judgment on
Shannon’s federal claims as well as the district court’s decision on the bifurcation
issue. For the following reasons, we affirm the district court’s denial of qualified
immunity to Officer Koehler and dismiss the rest of the appeal for lack of jurisdiction.

I. BACKGROUND

On the evening of September 12, 2006, Shannon was in Tom Foolery’s
drinking. Starting around closing, at about 1:00 a.m. on September 13, surveillance
cameras recorded Shannon stumbling drunkenly through the pub’s seating area and
interacting with departing patrons.

1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.

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 At about 1:15 a.m., Christina Navrkal and Jill Murad arrived at Tom Foolery’s,
apparently intending to drive Shannon home. The surveillance videos show Shannon,
Navrkal, and Murad begin arguing almost immediately. The three walk behind the
bar, yelling back and forth, and Shannon punches Navrkal in the face. Murad then
shoves Shannon with both hands, sending him reeling backward and onto the floor.
Shannon stays down until the bartender comes over to help him to his feet. Shannon
touches his scalp and discovers that he is bleeding. The argument continues.
Eventually, Murad becomes concerned about the cut on Shannon’s head and calls 911.

What happened next is the subject of some dispute. The district court described
the relevant events as follows:

Police officer Michael Koehler, a defendant in this case, responds to a
call for a disturbance between two females, at a bar, involving an injured
person. Once Koehler arrives on the scene, he is greeted at the front
door by a woman, Jill Murad, who allegedly states that one of the
females inside had been “touched or grabbed by the male who was in the
bar.” Koehler and Murad walk to the middle of the establishment. The
plaintiff, Timothy Shannon, is behind the bar. Shannon walks out from
behind the bar, toward Koehler, and strongly states to Koehler, using
profanity, that he owns the bar, does not need Koehler, and orders him
to get out of the bar. Shannon eventually comes within arm[’]s length
of Koehler. Koehler alleges that Shannon pokes him, once, in the chest.
Shannon denies this. Koehler uses both his hands to holster his
flashlight on a ring in the back of his belt. As he is doing this, Shannon
allegedly pokes Koehler a second time, which Shannon denies, and
Koehler performs a takedown, which causes Shannon to hit a bar stool
and land on the hardwood floor. Once Shannon is on the ground,
Koehler places a handcuff on one of Shannon’s arms and, after using
additional force, secures a second arm in the other handcuff. Koehler
claims that the additional force was necessary because Shannon had
tucked his arm under his body. Shannon denies being uncooperative and
alleges that he was injured during his arrest.

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673 F. Supp. 2d 758, 761-62 (N.D. Iowa 2009).

In August 2008, Shannon filed suit in federal court. Count 1 of Shannon’s
complaint contains two categories of claims arising under 42 U.S.C. § 1983. The first
claim in Count 1 alleges that Officer Koehler violated the Fourth Amendment by
using excessive force in arresting him. The other claims in Count 1 allege that the
City, the Department, and Chief Frisbie established or tolerated certain policies or
customs that led to Officer Koehler’s use of excessive force. Count 2 of Shannon’s
complaint contains assault and battery claims arising under state law against each of
the defendants.

As we mentioned above, Shannon’s claims against the Department were
promptly dismissed. The City and Chief Frisbie then moved to “bifurcate” the claims
against Officer Koehler from the claims against them. The magistrate judge granted
the request, ordering separate trials under Rule 42(b) of the Federal Rules of Civil
Procedure.

Next, the remaining defendants filed a joint motion for summary judgment,
asserting two principal grounds. First, Officer Koehler argued that he was entitled to
qualified immunity, either because his use of force was objectively reasonable (and
therefore not excessive under the Fourth Amendment) or, alternatively, because the
unlawfulness of his conduct was not clearly established. Second, the City and Chief
Frisbie argued that they were entitled to summary judgment, either because Shannon
could not meet his burden of proving that Officer Koehler used excessive force or,
alternatively, because Shannon could not meet his burden of proving that Frisbie or
some other policymaker “condoned” a policy or custom that led to the alleged
violation of his constitutional rights.

The district court denied summary judgment on all of Shannon’s claims in a
lengthy opinion and order. For now, two parts of the district court’s analysis are

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worth introducing in detail, both of which relate to Officer Koehler’s qualified
immunity defense.

First, in the section of its opinion addressing the circumstances of Shannon’s
arrest, the district court found that several “genuine issues of material fact exist
concerning whether Koehler’s use of force was objectively reasonable.” 673 F. Supp.
2d at 783-84. With respect to the initial confrontation, which culminated in Officer
Koehler using a so-called “leg sweep” to take Shannon to the ground, the court
identified genuine issues of fact “concerning whether Shannon made contact with
Koehler prior to the takedown, whether the takedown was appropriate and
administered in accordance with police procedures, and the extent of Shannon’s
injuries resulting from the takedown.” Id. at 784. With respect to the ensuing struggle
on the ground, the court identified genuine issues of fact “concerning when any
alleged resistance by Shannon ceased and what force was used after resistance ceased,
whether Shannon was fully subdued at any point before the force ended, and whether
police procedures would have instructed Koehler to wait for backup, which was
arriving, to . . . secure Shannon’s other arm [after handcuffs were placed on one of
Shannon’s wrists].” Id.

Second, in the section of its opinion addressing the alleged violation of clearly
established law, the district court held that “view[ing] the record in the light most
favorable to Shannon, . . . Koehler was on notice that his actions . . . were unlawful.”
Id. at 786 (internal citation omitted). The district court’s explanation for that holding
focused on these lines from our decision in Brown v. City of Golden Valley, 574 F.3d
491 (8th Cir. 2009):

The right to be free from excessive force in the context of an arrest is
clearly established under the Fourth Amendment’s prohibition against
unreasonable searches and seizures. Moreover, it is clearly established
that force is least justified against nonviolent misdemeanants who do not

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 flee or actively resist arrest and pose little or no threat to the security of
the officers or the public.

673 F. Supp. 2d at 785 (internal citations omitted) (quoting Brown, 574 F.3d at 499).
The district court went on to find that “Shannon has properly supported, for [the
purpose of opposing] . . . summary judgment, his allegations that he was simply a
nonviolent misdemeanant, at most”; that he “did not flee or actively resist arrest”; and
that he “posed little or no threat to Koehler’s security or that of Navrkal and Murad.”
Id. Based on these considerations, the district court rejected Officer Koehler’s
contention that “[his] actions were within the ‘hazy border between excessive and
acceptable force.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled
in part on other grounds by Pearson v. Callahan, 555 U.S. ---, 129 S. Ct. 808 (2009)).

As to the rest of the claims, it suffices to note the result. Specifically, the
district court denied summary judgment on Shannon’s § 1983 claims against the City
and Chief Frisbie—what the parties call the “Monell claims,” see Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690-91 (1978) (“[L]ocal governments, like every other
§ 1983 ‘person,’ by the very terms of the statute, may be sued for constitutional
deprivations visited pursuant to governmental ‘custom’ . . . .”)—concluding that
“Shannon has generated a genuine issue of material fact concerning whether Koehler’s
alleged use of excessive force was committed pursuant to a municipal custom,” 673
F. Supp. 2d at 803. Likewise, the court denied summary judgment on Shannon’s state
assault and battery claims, concluding that “there are genuine issues of material fact”
about whether Officer Koehler exceeded the bounds of his lawful authority in
arresting Shannon. Id. at 804-05 (discussing Iowa Code § 804.8 and the interaction
between Iowa Code § 670.2 and Iowa Code § 670.4).

In addition to ruling on the motion for summary judgment, the district court also
reviewed, sua sponte, the magistrate judge’s order granting separate trials on the
claims against Officer Koehler and the claims against the City and Chief Frisbie.

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Noting that separate trials “would be a waste of . . . judicial resources,” the court held
that the magistrate judge’s “finding that the claims should be bifurcated was clearly
erroneous.” Id. at 770.

The defendants filed a notice of appeal setting out three issues: “(1) qualified
immunity and whether the law was clearly established; (2) Monell liability; and (3)
reversal of the Order bifurcating the . . . claims [against the City and Chief Frisbie]
from the . . . claims against Officer [Koehler].” Shannon moved to dismiss the appeal
to the extent the defendants sought review of issue (3). Initially, Shannon did not
dispute that this court has jurisdiction under the collateral order doctrine to review
issue (1). See Johnson v. Jones, 515 U.S. 304, 311-12 (1995). And Shannon
conceded that this court has pendent appellate jurisdiction to consider issue (2)
because it is, in his words, “arguably inextricably intertwined” with issue (1). See
Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995). The defendants
opposed Shannon’s motion to dismiss, arguing that the district court’s decision on the
bifurcation issue is “inextricably intertwined with the issues of qualified immunity and
Monell liability.”

The discussion of jurisdiction in the parties’ merits briefs leaves much to be
desired. In their opening brief, the defendants assert that they “have the right to
appeal the denial of qualified immunity in a § 1983 action,” and that this court has
pendent appellate jurisdiction “to consider the Monell claims . . . as well as the
bifurcation issue.” In his brief, Shannon renews his previous argument for dismissing
the appeal from the district court’s decision on the bifurcation issue and now also
argues that this court lacks jurisdiction to review the other two issues pressed by the
defendants.

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II. DISCUSSION

We begin by addressing the qualified immunity issue, since that is the hook on
which the defendants hang their assertion of pendent appellate jurisdiction to consider
the other two issues raised in this appeal. “Ordinarily, we lack jurisdiction ‘to hear
an immediate appeal from a district court’s order denying summary judgment, because
such an order is not a final decision.’” Langford v. Norris, --- F.3d ---, 2010 WL
2813551, at *5 (8th Cir. July 20, 2010) (quoting Krout v. Goemmer, 583 F.3d 557,
563-64 (8th Cir. 2009)); see also 28 U.S.C. § 1291. “We do, however, have ‘limited
authority . . . to review the denial of qualified immunity through an interlocutory
appeal under the collateral order doctrine.’” Langford, 2010 WL 2813551, at *5
(alteration in original) (quoting Krout, 583 F.3d at 564). Jurisdiction over an
interlocutory appeal from the denial of qualified immunity “extends only to ‘abstract
issues of law,’ not to ‘determination[s] that the evidence is sufficient to permit a
particular finding of fact after trial.’” Krout, 583 F.3d at 564 (alteration in original)
(internal citation omitted) (quoting Johnson v. Jones, 515 U.S. 304, 314, 317 (1995)).
Appellate review in these circumstances is therefore limited to “determin[ing] whether
all of the conduct that the district court ‘deemed sufficiently supported for purposes
of summary judgment’ violated the plaintiff’s clearly established federal rights.”
Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en
banc) (quoting Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).

Shannon halfheartedly argues that we lack jurisdiction to review the district
court’s denial of qualified immunity to Officer Koehler because “[t]he district court
found disputed facts at nearly every stage of the case.” But that argument appears to
stem from a misreading of the Supreme Court’s decision in Johnson v. Jones. See
Behrens, 516 U.S. at 312-13 (“Denial of summary judgment often includes a
determination that there are controverted issues of material fact, and Johnson surely
does not mean that every such denial of summary judgment is nonappealable.”
(internal citation omitted)). As the Supreme Court has explained,

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 Johnson held, simply, that determinations of evidentiary sufficiency at
summary judgment are not immediately appealable merely because they
happen to arise in a qualified-immunity case; if what is at issue in the
sufficiency determination is nothing more than whether the evidence
could support a finding that particular conduct occurred, the question
decided is not truly “separable” from the plaintiff’s claim, and hence
there is no “final decision” under [Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949)] and [Mitchell v. Forsyth, 472 U.S. 511
(1985)]. See 515 U.S. at 313-18. Johnson reaffirmed that summary
judgment determinations are appealable when they resolve a dispute
concerning an “abstract issu[e] of law” relating to qualified immunity,
id. at 317—typically, the issue whether the federal right allegedly
infringed was “clearly established.”

Behrens, 516 U.S. at 313 (alteration to internal quotation in original) (some citations
omitted). Here, there is no serious question that we have jurisdiction to decide
whether, accepting Shannon’s version of the facts, Officer Koehler is entitled to
qualified immunity as a matter of law. See Kahle v. Leonard, 477 F.3d 544, 549-50
(8th Cir. 2007).2

“We review a district court’s qualified immunity determination on summary
judgment de novo, viewing the record in the light most favorable to [the plaintiff] and
drawing all reasonable inferences in [his] favor.” Langford, 2010 WL 2813551, at *9
(quoting Krout, 583 F.3d at 564). In this instance, the district court chose to follow

2
Shannon also complains that Officer Koehler is not “[p]laying fair” because
Koehler’s challenge to the denial of qualified immunity is premised on “his own
version of the facts” rather than Shannon’s version. While Officer Koehler’s briefing
does occasionally go too far in shading the facts in his favor, see, e.g., Appellants’ Br.
at 12-16, 22-23, we do not think those stray examples of overzealous advocacy
warrant dismissal of the qualified immunity appeal. Cf. Felder v. King, 599 F.3d 846,
849 (8th Cir. 2010) (dismissing for lack of jurisdiction because the officers seeking
qualified immunity “fail[ed] to raise any purely legal question for review” (emphasis
omitted)).

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the traditional sequence for resolving a qualified immunity claim, asking first
“whether the facts alleged or shown, construed in the light most favorable to
[Shannon], establish a violation of a constitutional . . . right,” and second, “whether
that constitutional right was clearly established as of [September 13, 2006], such that
a reasonable official would have known that his actions were unlawful.” 673 F. Supp.
2d at 773 (quoting Krout, 583 F.3d at 564); see also Pearson v. Callahan, 555 U.S. ---
, 129 S. Ct. 808, 818 (2009) (holding that while the “two-step protocol” set out in
Saucier v. Katz, 533 U.S. 194 (2001), “is often appropriate, it should no longer be
regarded as mandatory”). We see no good reason to depart from that sequence on
appeal.

Shannon’s theory of the constitutional violation is run-of-the-mill: He claims
that Officer Koehler violated the Fourth Amendment by using excessive force in
arresting him. The dispositive question is whether the amount of force the officer
used was objectively reasonable. See Graham v. Connor, 490 U.S. 386, 396-97
(1989). In turn, “[t]he reasonableness of a particular use of force depends on the
circumstances of each case, including ‘the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officer or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.’” Wertish v.
Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (quoting Graham, 490 U.S. at 396).

As we recounted above, the district court found adequate support in the record
for Shannon’s allegations that he was not suspected of committing a serious crime,
that he did not attempt to flee or actively resist arrest, and that he posed little or no
threat to Officer Koehler or others.3 The court also found that there were genuine

3
Regarding the severity of the crime at issue, it is not clear from the record
whether Shannon could reasonably have been suspected of committing any crime. As
the district court noted, “[t]he defendants claim that Murad informed Koehler, upon
his arrival at the bar, that a female had been touched or grabbed by the male in the
bar.” 673 F. Supp. 2d at 779 n.12. At Officer Koehler’s deposition, however, he

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disputes about whether Shannon poked Officer Koehler in the chest and about the
severity of the injuries that Shannon suffered as a result of Koehler’s use of force in
arresting him. The defendants have a somewhat different account of what happened
in Tom Foolery’s, but nothing in the record—including the surveillance
videos—clearly contradicts Shannon’s version of the facts. Cf. Scott v. Harris, 550
U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”).

Assuming, then, that Shannon’s story is true—i.e., assuming he was not
threatening anyone, not resisting arrest, and so on—it was not reasonable for Officer
Koehler to use more than de minimis force against him. See, e.g., Brown v. City of
Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009); Bauer v. Norris, 713 F.2d 408, 412
(8th Cir. 1983); Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981); Agee v.
Hickman, 490 F.2d 210, 212 (8th Cir. 1974) (per curiam). It follows, a fortiori, that
using enough force to cause the injuries that Shannon alleges—a partially collapsed
lung, multiple fractured ribs, a laceration to the head, and various contusions—was
also unreasonable. See Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir.
2003) (“In addition to the circumstances surrounding the use of force, we may also
consider the result of the force.”); see also Blankenhorn v. City of Orange, 485 F.3d
463, 477 (9th Cir. 2007) (“[E]ven where some force is justified, the amount actually

stated that Murad told him “to check [Shannon’s] head.” Id. When asked whether
Murad said anything else, Officer Koehler said, “Not that I recall, no.” Id. Aside
from this discrepancy in Officer Koehler’s position, it must be noted that the
emergency call to which Koehler responded referred to “a disturbance between two
females.” Id. at 778 (emphasis added). And we agree with the district court’s
assessment that when Officer Koehler entered Tom Foolery’s, “there were no
indications that [the] disturbance was serious and nothing occurred that would have
drastically altered the severity of the potential crime[] at issue.” Id. at 779.

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used may be excessive.” (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir.
2002))).

This is not to say that police officers are categorically prohibited from using
more than de minimis force to subdue suspects who are drunk and belligerent. Cf.
Marvin v. City of Taylor, 509 F.3d 234, 246-48 (6th Cir. 2007) (stating that the
arrestee’s “heavy intoxication created a volatile situation,” and remarking that
volatility supported the conclusion that the arresting officers’ use of force was
objectively reasonable); Wilson v. Flynn, 429 F.3d 465, 468-69 (4th Cir. 2005)
(finding that the suspect’s drunkenness, among other factors, supported the conclusion
that the arresting officers’ use of force was objectively reasonable). And there can be
no doubt that officers are permitted to use force when their safety is threatened. See,
e.g., Brown, 574 F.3d at 497 (“A threat to an officer’s safety can justify the use of
force in cases involving relatively minor crimes and suspects who are not actively
resisting arrest or attempting to flee.”). But considering the facts and circumstances
of this particular case, see Graham, 490 U.S. at 396, we cannot say that a reasonable
officer on the scene would have felt the need to use any force against Shannon, much
less enough force to cause the injuries of which he complains. The cases on which
Officer Koehler relies do not compel a contrary conclusion, for each of the relevant
cases involved a threat to officer safety that was more obvious, more serious, or both
more obvious and more serious than the potential threat Officer Koehler faced in Tom
Foolery’s. See, e.g., Wertish, 433 F.3d at 1067 (“Officer safety concerns made it
objectively reasonable for . . . officers to assume they were dealing with a belligerent
drunk—or perhaps a fleeing criminal—who required forcible detention.”); Lawyer v.
City of Council Bluffs, 361 F.3d 1099, 1105 (8th Cir. 2004) (“[I]t was objectively
reasonable for [the arresting officer] to believe that he was in immediate danger, as he
faced the possibility that he could be dragged down the road with his arm trapped in
the window [of the arrestee’s car] if the vehicle began to move.”); see also Draper v.
Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that the arresting officer’s
use of a taser was objectively reasonable, in part because the arrestee had refused to

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comply with at least five of the officer’s verbal commands and was generally “hostile,
belligerent, and uncooperative”). Accordingly, we are satisfied that the facts,
construed in the light most favorable to Shannon, establish a violation of a
constitutional right. See Krout, 583 F.3d at 564.4

It remains to decide whether the constitutional right Officer Koehler allegedly
violated was clearly established as of September 13, 2006, such that a reasonable
official would have known that his actions were unlawful.5 As the district court

4
Shannon was convicted in state court of interfering with official acts, a
misdemeanor offense that has as an element knowingly “resist[ing] or
obstruct[ing] . . . a peace officer.” See Iowa Code § 719.1. The district court found
that it could not give preclusive effect to any issues of fact decided in the state court
proceeding because the parties had not “sufficiently discussed” the basis for the
conviction. 673 F. Supp. 2d at 783 n.14. The defendants mention the conviction in
their opening brief on appeal, but only in passing. Consequently, the defendants have
abandoned any possible issue preclusion defense (for this stage of the federal case at
least) by failing to properly raise it in the district court or in their opening brief on
appeal. See Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997); see
also Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
5
We pause to note that the district court at one point suggested that factual
disputes prevented it from deciding at least the first part of the qualified immunity
inquiry before trial. See 673 F. Supp. 2d at 784 & n.15. Generally speaking, the
existence of genuine issues of material fact does not mean that a district court may
defer addressing a qualified immunity claim until after trial; qualified immunity, after
all, “is ‘an immunity from suit rather than a mere defense to liability[,] and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to
trial,’” Scott, 550 U.S. at 376 n.2 (quoting Mitchell, 472 U.S. at 526); see also id.
(“[W]e repeatedly have stressed the importance of resolving immunity questions at
the earliest possible stage in litigation.” (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam))). When qualified immunity is raised at the summary judgment
stage, the proper course is to view the facts and draw reasonable inferences in the light
most favorable to the plaintiff—which “usually means adopting . . . the plaintiff’s
version of the facts”—and then to assess the constitutionality of the challenged
conduct. Scott, 550 U.S. at 377-78. But we need not dwell on this, since the district

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observed, this court has said many times that “[t]he right to be free from excessive
force in the context of an arrest is clearly established under the Fourth Amendment’s
prohibition against unreasonable searches and seizures.” See, e.g., Brown, 574 F.3d
at 499 (citing Graham, 490 U.S. at 396, among other cases). But the Supreme Court
has made clear that reciting the “general proposition” established in Graham v.
Connor “is not enough.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)
(quoting Saucier, 533 U.S. at 201-02). Rather, the Court emphasized in Anderson v.
Creighton, 483 U.S. 635 (1987), that “the right the official is alleged to have violated
must have been ‘clearly established’ in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right,” id. at 640. “This
is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be apparent.” Id. (internal citation omitted).

Assuming once again that Shannon’s story is true, the contours of the right at
issue were sufficiently clear that a reasonable official standing in Officer Koehler’s
shoes would have understood that the amount of force he used was excessive. Long
before September 13, 2006, this court (among others) had announced that the use of
force against a suspect who was not threatening and not resisting may be unlawful.
See, e.g., Bauer, 713 F.2d at 412 (“Force can only be used to overcome physical
resistance or threatened force . . . .” (quoting Agee, 490 F.2d at 212)); Feemster, 661
F.2d at 89 (“There is no occasion for the use of any force against a prisoner who
quietly submits.”); see also Brown, 574 F.3d at 499 (“[I]t is clearly established that
force is least justified against nonviolent misdemeanants who do not flee or actively
resist arrest and pose little or no threat to the security of the officers or the public.”
(citing Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002), and Henderson v. Munn,

court proceeded to address the second part of the qualified immunity inquiry. See 673
F. Supp. 2d at 784-86.

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439 F.3d 497, 503 (8th Cir. 2006), among other cases)).6 Although Shannon greeted
Officer Koehler in a disrespectful, even churlish manner, that alone did not make
Officer Koehler’s use of force acceptable under extant law. See Bauer, 713 F.2d at
412 (“‘[T]he use of any force by officers simply because a suspect is argumentative,
contentious, or vituperative’ is not to be condoned.” (alteration in original) (quoting
Agee, 490 F.2d at 212)). We are convinced that the right Officer Koehler allegedly
violated was clearly established as of September 13, 2006, such that a reasonable
official would have known that his actions were unlawful, see Krout, 583 F.3d at 564;
that is to say, the excessiveness of Officer Koehler’s use of force was apparent, see
Anderson, 483 U.S. at 640. Thus, we affirm the district court’s denial of qualified
immunity to Officer Koehler.7

6
We want to make clear that in this part of the qualified immunity inquiry,
Brown is only relevant to the extent it describes the state of the law on September 13,
2006. Brown was decided on July 22, 2009, so our opinion in Brown obviously could
not have given “fair notice” to Officer Koehler that the actions he took nearly three
years earlier were unlawful. See Brosseau, 543 U.S. at 200 n.4. Nevertheless, the
court’s analysis in Brown focused on legal principles that were clearly established on
October 8, 2005, the date of the events giving rise to that case. Thus, an objectively
reasonable police officer at work on September 13, 2006, would have known about
the principles of Fourth Amendment law applied in the pre-September 2006
authorities cited in Brown. See generally Harlow v. Fitzgerald, 457 U.S. 800, 819
(1982) (“[A] reasonably competent public official should know the law governing his
conduct.”).
7
The defendants assert in a footnote that if Officer Koehler is entitled to
qualified immunity under federal law then all three defendants are immune from
liability for assault and battery under Iowa law because the analysis of the federal and
state immunity defenses is, supposedly, “the same.” We do not consider the issue of
state-law immunity, however, as the defendants did not mention it in their notice of
appeal, see Fed. R. App. P. 3(c)(1)(B); Woodward v. Epps, 580 F.3d 318, 333 (5th Cir.
2009) (citing Lockett v. Anderson, 230 F.3d 695, 699 (5th Cir. 2000)), cert. denied,
559 U.S. ---, 130 S. Ct. 2093 (2010), and their argument on that issue is skeletal at
best, see Chay-Velasquez, 367 F.3d at 756. Of course, even if we did consider the
issue, that would be of no help to the defendants, for accepting their assertion that the

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 Returning at last to the scope of our jurisdiction over this appeal, we reject the
defendants’ assertion that we have pendent appellate jurisdiction to review either the
district court’s denial of summary judgment on the Monell claims against the City and
Chief Frisbie or the district court’s decision on the bifurcation issue.8 Another panel
of this court recently examined the doctrine of pendent appellate jurisdiction, see
Langford, 2010 WL 2813551, at *8-9, and we are not inclined to duplicate that
analysis here. The only remotely plausible argument for exercising jurisdiction over
the present defendants’ pendent claims hinges on finding that those claims are
“inextricably intertwined” with Officer Koehler’s qualified immunity defense. See
id. at 8. They are not.

“An issue is ‘inextricably intertwined’ with properly presented issues only
‘when the appellate resolution of the collateral appeal necessarily resolves the pendent
claims as well.’” Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th
Cir. 2003) (en banc) (quoting Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th
Cir. 1995)). Put differently, “[a] pendent appellate claim can be regarded as
inextricably intertwined with a properly reviewable claim on collateral appeal only if
the pendent claim is coterminous with, or subsumed in, the claim before the court on

analysis of the federal and state immunity defenses is identical would mean that the
defendants’ state-law immunity claims fall with Officer Koehler’s federal immunity
claim.
8
It is common ground that both the denial of summary judgment on the Monell
claims and the decision on the bifurcation issue are interlocutory orders, and that those
orders are not immediately appealable under the collateral order doctrine. See, e.g.,
Shockency v. Ramsey County, 493 F.3d 941, 952 (8th Cir. 2007) (noting that “[a]
denial of summary judgment based on a Monell defense is not an appealable order
under Swint v. Chambers County Commission, 514 U.S. 35 (1995), unless the defense
is intertwined with a qualified immunity defense”); In re Lieb, 915 F.2d 180, 185 (5th
Cir. 1990) (collecting cases holding that orders granting or denying separate trials
under Rule 42(b) are “interlocutory and non-appealable before final judgment”).

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interlocutory appeal.” Kincade, 64 F.3d at 394 (quoting Moore v. City of Wynnewood,
57 F.3d 924, 930 (10th Cir. 1995)).

Our decision to uphold the district court’s denial of qualified immunity to
Officer Koehler did not resolve whether the City and Chief Frisbie are entitled to
summary judgment on the Monell claims, so those matters cannot be described as
inextricably intertwined. See, e.g., Veneklase v. City of Fargo, 78 F.3d 1264, 1270
(8th Cir. 1996) (concluding that the denial of summary judgment on a municipal
liability claim was not inextricably intertwined with the underlying qualified
immunity appeal because resolving the relevant claims “require[d] entirely different
analyses”); see also Cunningham v. Gates, 229 F.3d 1271, 1285-86 (9th Cir. 2000)
(explaining that whether a city’s “policy, customs, or usage caused [the] plaintiffs’
injuries is a separate inquiry from whether . . . non-supervisory officers are entitled
to qualified immunity”). Likewise, our resolution of the qualified immunity appeal
said nothing about the propriety of the district court’s decision on the bifurcation
issue, so those matters are not inextricably intertwined either. In short, the
requirements for exercising pendent appellate jurisdiction are not met in this case
because affirming the denial of qualified immunity to Officer Koehler did not resolve
the pendent claims. Since we see no other source of jurisdiction to consider the
pendent claims, we dismiss this appeal insofar as it challenges the district court’s
denial of summary judgment on the Monell claims against the City and Chief Frisbie
and the district court’s decision on the bifurcation issue.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of qualified
immunity to Officer Koehler and dismiss the rest of the appeal for lack of jurisdiction.
____________________________

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