United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2058
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Karim G. El-Ghazzawy, *
*
Plaintiff - Appellee, *
*
v. *
*
Kay Berthiaume, acting in her * Appeal from the United States
individual capacity as an officer * District Court for the
of the Bloomington Police Department, * District of Minnesota.
*
Defendant - Appellant, *
*
Michael David Wisniewski, and *
Pawn America, Minnesota, L.L.C., *
a Minnesota limited liability company, *
*
Defendants. *
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Submitted: December 15, 2010
Filed: March 15, 2011
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Before LOKEN, ARNOLD, and BYE, Circuit Judges.
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BYE, Circuit Judge.
Karim El-Ghazzawy brought suit against Officer Kay Berthiaume under 42
U.S.C. § 1983 for violating his constitutional rights after Berthiaume arrested
El-Ghazzawy due to his alleged sale of counterfeit watches to a pawn shop. The
district court1 denied Berthiaume’s motion for summary judgment, concluding she
was not entitled to qualified immunity. Berthiaume contends the court erred because
it was reasonable for her to place El-Ghazzawy in handcuffs for an investigatory
detention. We affirm.
I
Karim El-Ghazzawy is a lawyer licensed to practice law in Minnesota. As a
hobby, he collects and sells high-end wrist watches. The instant action arose after
El-Ghazzawy was arrested for allegedly selling counterfeit watches at Pawn America
in Bloomington, Minnesota.
On October 29, 2008, El-Ghazzawy brought five or six watches to Pawn
America and met with Robert Schmidt, an employee who had the authority to make
purchasing decisions on items from prospective sellers. Schmidt evaluated the
watches and determined their approximate value. Schmidt also reviewed
El-Ghazzawy’s driver’s license and learned El-Ghazzawy was a lawyer. At the end
of the meeting, El-Ghazzawy sold two watches, a Corum and an Ebel, for $1,200.
The following day, El-Ghazzawy returned with a few more watches and spoke
with the store manager, Jon Garner. Garner “qualified” El-Ghazzawy as a seller after
learning he was both a lawyer and a long-time watch collector. After examining
El-Ghazzawy’s watches closely and receiving authority from District Manager
Michael David Wisniewski, Garner purchased a women’s 18-carat yellow gold Baume
& Mercier for $1,500 and a men’s stainless steel Breitling for $1,200.
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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On November 11, 2008, El-Ghazzawy again returned seeking to sell five
additional watches – a Corum Trapeze, a Corum, a Baume & Mercier, a Chaumet, and
an Ebel. Wisniewski examined the watches and asked El-Ghazzawy how much he
paid for the watches, but El-Ghazzawy refused to provide that information.
Wisniewski then inspected the Breitling sold two weeks earlier, and after conducting
website research and a visual review of the watch, he determined it was a fake based
on the tilted symbol, the blurry numbers, the undetailed dial, and the watch’s weight.
Surveillance footage of the incident revealed Wisniewski’s inspection lasted, at most,
one minute and eight seconds. As a result of his determination, Wisniewski called the
Bloomington Police Department. Shortly thereafter, Officer Kay Berthiaume
responded to the following dispatch:
I’ll put you in the area of Pawn America, 8650 Lyndale. They have a
male there that’s ah . . . employee called in. They have a male that’s
returned. He . . . in the past, sold counterfeit watches. Apparently he’s
trying to do it again. Mixed race male, wearing the suit.
Berthiaume testified she responded to a possible theft by swindle, which was a felony.
Less than two minutes after the dispatch, Berthiaume entered Pawn America,
approached El-Ghazzawy, and told him he was going to be detained. Berthiaume
immediately placed El-Ghazzawy in handcuffs, without making any investigation,
which she testified was due to her safety and the safety of those around the store.
Berthiaume then conducted a weapons search and ran El-Ghazzawy’s driver’s license
to check for any outstanding warrants. About four minutes after the handcuffing,
Bloomington Police Officer Larry Mena arrived at the store so as to provide additional
assistance.
While Mena monitored El-Ghazzawy, Berthiaume proceeded to the back room
to meet with Wisniewski. Wisniewski indicated El-Ghazzawy’s watches were
counterfeit based on the Breitling he inspected earlier. Berthiaume also looked at the
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Breitling, and Wisniewski informed her the store had suffered a loss of $3,900.
Because Berthiaume had no independent experience upon which to draw her own
opinion as to the legitimacy of the watches, she relied on Wisniewski’s expertise as
District Manager of the store.
Berthiaume then questioned El-Ghazzawy about the transactions. He denied
selling fake watches, and he indicated he was a lawyer and he had receipts for the
watches at his office. He also stated he purchased all of the watches at the ShopNBC
store in Eden Prairie, Minnesota, except for the Breitling, which was purchased from
the Tourneau store in Las Vegas, Nevada. Based on all the above information,
El-Ghazzawy was arrested for theft by swindle and transported to the Bloomington
Police Department, where he was fingerprinted and booked. Because it was Veterans
Day, there were no investigators on duty, and El-Ghazzawy was required to stay
overnight in the jail. He estimated he was held for twenty-three hours.
The next day, El-Ghazzawy met with Detective Douglas Barland.
El-Ghazzawy’s wife brought the watch receipts to Barland, and El-Ghazzawy was
released shortly thereafter pending further investigation. Barland went to Pawn
America to retrieve the watches sold by El-Ghazzawy, and during his visit, Garner
informed Barland the watches were authentic based on Garner’s prior investigation.
Barland subsequently brought the watches to a local expert, who determined each
watch was authentic. Finally, Barland spoke with employees at ShopNBC to obtain
more information about El-Ghazzawy’s purchases. After Barland concluded his
investigation, no charges were brought against El-Ghazzawy.
In February 2009, El-Ghazzawy brought suit against Berthiaume in her
individual capacity for depriving him of his constitutional right to be free from
unreasonable searches and seizures under the Fourth Amendment when she placed
him under arrest. His complaint also included allegations of defamation per se and
false imprisonment against Pawn America and Wisniewski. All three defendants filed
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motions for summary judgment to dismiss El-Ghazzawy’s claims. The district court
denied Berthiaume’s motion, but granted the motions from Pawn America and
Wisniewski by dismissing the false imprisonment claim and denying the motion in
part with regard to the defamation per se claim. El-Ghazzawy later settled his
remaining claims against Pawn America and Wisniewski. Berthiaume now appeals
the court’s denial of her motion for summary judgment based on qualified immunity.
II
We review the district court’s denial of summary judgment based on qualified
immunity de novo and view the evidence in the light most favorable to the nonmoving
party. Morris v. Zefferi, 601 F.3d 805, 808 (8th Cir. 2010) (citation omitted). While
we ordinarily lack jurisdiction to hear an immediate appeal of a denial of summary
judgment, an interlocutory appeal denying qualified immunity is appealable “to the
extent that it turns on an issue of law.” Aaron v. Shelley, 624 F.3d 882, 883 (8th Cir.
2010) (internal quotation marks and citation omitted).
“Qualified immunity shields a public official . . . from civil lawsuits when her
conduct does not violate ‘clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Doe v. Flaherty, 623 F.3d 577, 583 (8th
Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing
qualified immunity, we ascertain (1) whether the facts alleged, construed in the light
most favorable to the nonmoving party, establish a violation of a constitutional right,
and (2) whether such right was clearly established so that a reasonable officer would
have known her actions were unlawful. Id. We retain discretion to decide which of
these prongs to analyze first. Dodd v. Jones, 623 F.3d 563, 566-67 (8th Cir. 2010)
(citing Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). “Denial of qualified
immunity will be affirmed if a genuine issue of material fact exists as to whether a
reasonable officer could have believed his actions to be lawful.” Nance v. Sammis,
586 F.3d 604, 609 (8th Cir. 2009) (internal quotation marks and citation omitted).
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A. Whether a Constitutional Violation Occurred
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S.
Const. amend. IV. Under Terry v. Ohio, 392 U.S. 1 (1968), “an officer may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois
v. Wardlow, 528 U.S. 119, 123 (2000). “A Terry stop that is supported by reasonable
suspicion at the outset may nonetheless violate the Fourth Amendment if it is
excessively intrusive in its scope or manner of execution.” United States v. Johnson,
592 F.3d 442, 451 (3d Cir. 2010). Accordingly, the Supreme Court in Terry created
a dual inquiry whereby we examine (1) whether the investigatory stop is lawful at the
outset, and (2) whether the manner in which the stop was conducted “was reasonably
related in scope to the circumstances which justified the interference in the first
place.” Terry, 392 U.S. at 19-20.
It is the second prong to which we focus our analysis in the instant matter. The
Supreme Court has long recognized an officer’s right to conduct an investigatory stop
inherently includes the right to use some degree of physical force or threat to effect
the stop. Graham v. Connor, 490 U.S. 386, 396 (1989). “The use of handcuffs is the
use of force, and such force must be objectively reasonable under the circumstances.”
Muehler v. Mena, 544 U.S. 93, 103 (2005) (Kennedy, J., concurring) (citing Graham,
490 U.S. at 397). With this in mind, we have previously held officers may use
handcuffs as a reasonable precaution to protect the officers’ safety and maintain the
status quo during the Terry stop. United States v. Martinez, 462 F.3d 903, 907 (8th
Cir. 2006). “However, the use of handcuffs is greater than a de minimus intrusion and
thus requires the [officer] to demonstrate that the facts available to the officer would
warrant a man of reasonable caution in the belief that the action taken was
appropriate.” Lundstrom v. Romero, 616 F.3d 1108, 1122 (10th Cir. 2010) (internal
quotation marks and citation omitted).
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In other words, to conduct a protective frisk under Terry, officers must have
specific articulable facts, which, along with rational inferences, support a reasonable
suspicion a suspect is potentially armed and dangerous. United States v. Binion, 570
F.3d 1034, 1039 (8th Cir. 2009). “[L]ikewise, for the use of handcuffs during a Terry
stop, the Fourth Amendment requires some reasonable belief that the suspect is armed
and dangerous or that the restraints are necessary for some other legitimate purpose,
evaluated on the facts of each case.” Bennett v. City of Eastpointe, 410 F.3d 810, 836
(6th Cir. 2005).
Applying these principles to the instant matter, we conclude on this record that
Berthiaume’s handcuffing and frisk of El-Ghazzawy violated his Fourth Amendment
rights. First, there was nothing in the dispatch to indicate El-Ghazzawy could be
armed or dangerous. See Washington v. Lambert, 98 F.3d 1181, 1189-90 (9th Cir.
1996) (considering the specificity of the information received by the officers in
determining whether the officers’ response was reasonable). Second, the crime
El-Ghazzawy was suspected of committing, theft by swindle, was not a dangerous
crime which would cause concern of him being armed and dangerous. Compare with
United States v. Johnson, 528 F.3d 575, 580 (8th Cir. 2008) (“In light of the
dangerousness of the suspected drug trafficking, and the likelihood that [the
defendant] had access to a weapon, it was reasonable for the police to restrain [the
defendant’s] hands.”); United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir.
1999) (holding the use of handcuffs were reasonably necessary to protect the officers
and maintain the status quo in light of the nature of the suspected crime of drug
trafficking and the good possibility the suspects had a weapon).
Third, El-Ghazzawy exhibited no erratic or suspicious behavior prior to or
during Berthiaume’s arrival at the scene. To the contrary, El-Ghazzawy was, by all
accounts, calm and cooperative during the entirety of the incident. Compare Shannon
v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010) (“Assuming, then, that [the plaintiff’s]
story is true – i.e., assuming he was not threatening anyone, not resisting arrest, and
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so on – it was not reasonable for [the officer] to use more than de minimus force
against him.”) and Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306 (11th Cir.
2006) (concluding the officer’s handcuffing of the suspect was not reasonably related
to the circumstances justifying the initial stop where there was no threat to anyone’s
safety and the suspect was complying with instructions and not engaging in disruptive
behavior), with United States v. Gilliam, 520 F.3d 844, 847-48 (8th Cir. 2008)
(relying on the fact the suspect was avoiding contact with the police and ignoring
commands to stop to conclude there was a reasonable concern for officer safety).
Fourth, Berthiaume failed to conduct even the most basic investigation into the
facts prior to handcuffing and frisking El-Ghazzawy, which occurred less than a
minute after she entered the store. In a case involving similar circumstances, the
Tenth Circuit concluded the officers’ handcuffing of a suspect violated the Fourth
Amendment because (1) the officers did not interview the suspect, and (2) the suspect
did not act in a threatening manner or refuse to cooperate with police, and therefore,
there were no concerns for the officers’ safety. Lundstrom, 616 F.3d at 1123.
Likewise, in this case, Berthiaume failed to pose a single question to El-Ghazzawy or
store personnel to ascertain the basis of the dispatch. Instead, Berthiaume handcuffed
and detained El-Ghazzawy within mere seconds of entering Pawn America, despite
conducting no investigation into the facts. See id. (“Rather than undertake the most
rudimentary investigation–asking [the suspect] what happened–the officers
handcuffed her . . . .”).
Finally, we note Berthiaume had plenty of opportunity to make the stop in a less
threatening manner because there were no exigent circumstances and the allegedly
counterfeit watches sold by El-Ghazzawy were already in the custody of Pawn
America personnel. See United States v. Newell, 596 F.3d 876, 879 (8th Cir. 2010)
(“Officers must use the least intrusive means of detention and investigation, in terms
of scope and duration, that are reasonably necessary to achieve the purpose of the
Terry stop.”) (internal quotation marks and citation omitted). Although Berthiaume
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was the only officer to respond to the scene initially, this fact, standing alone, does not
permit the intrusive conduct of handcuffing and frisking a cooperative individual
suspected of a non-dangerous offense. Indeed, nowhere in our case law is it suggested
that a sole responding officer retains the ability to handcuff and frisk suspects absent
any objective safety concern. Moreover, as the district court recognized, even after
backup arrived a few minutes later, Berthiaume did not remove the handcuffs as she
began her investigation.
In sum, Berthiaume fails to point to specific facts supporting her concern for
officer safety. See United States v. Mohamed, 630 F.3d 1, 6-7 (1st Cir. 2010) (“When
challenged, the government must be able to point to some specific fact or
circumstance that could have supported a reasonable belief that the use of [handcuffs]
was necessary to carry out the legitimate purposes of the stop without exposing law
enforcement officers, the public, or the suspect himself to an undue risk of harm.”)
(internal quotation marks and citation omitted). By Berthiaume’s logic, officers
would be allowed to handcuff, frisk, and detain virtually every suspect they encounter,
without regard to the nature of the crime, the behavior exhibited by the suspect, or the
circumstances surrounding the alleged crime, under the pretext of officer safety.
Terry does not permit such intrusive measures in the absence of any objective safety
concerns. Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996) (“The police
may not employ such tactics [including handcuffing] every time they have an
‘articulable basis’ for thinking that someone may be a suspect in a crime.”) (emphasis
in original); Bowden v. Town of Speedway, Ind., 539 F. Supp. 2d 1092, 1101 (S.D.
Ind. 2008) (concluding the handcuffing of an unarmed, non-violent person violated
the Fourth Amendment because it exceeded the bounds of Terry).
Viewing the circumstances in the light most favorable to El-Ghazzawy,
Berthiaume’s conduct was not reasonably necessary to protect her personal safety and
to maintain the status quo during the investigatory stop. We therefore conclude her
handcuffing and frisking of El-Ghazzawy was not “reasonably related in scope to the
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circumstances which justified the [stop] in the first place,” Terry, 392 U.S. at 19-20,
and Berthiaume violated El-Ghazzawy’s Fourth Amendment right to be free from
unreasonable searches and seizures.2
B. Whether the Constitutional Right Was Clearly Established
Next, the parties dispute whether the constitutional right was clearly
established, which is “a legal question for the court to decide.” Brown v. City of
Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (citation omitted). “This second
step is a fact-intensive inquiry and must be undertaken in light of the specific context
of the case, not as a broad general proposition.” Seymour v. City of Des Moines, 519
F.3d 790, 798 (8th Cir. 2008) (internal quotation marks and citation omitted). “In
determining whether a right is clearly established, we ask whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Frye v. Kansas City Mo. Police Dep’t., 375 F.3d 785, 789 (8th Cir. 2004) (internal
quotation marks and citation omitted). To this end, we must examine whether prior
case law provided “fair warning” the officer’s conduct was unconstitutional. Hope
v. Pelzer, 536 U.S. 730, 740-41 (2002).
“It is well settled that, under the Fourth Amendment, ‘[t]he scope of a detention
must be carefully tailored to its underlying justification’ and that the ‘investigatory
methods employed [during a detention] should be the least intrusive means reasonably
2
We decline to reach the issue of whether a de facto arrest occurred when
Berthiaume handcuffed El-Ghazzawy because the unreasonable application of Terry
alone establishes the requisite constitutional violation for qualified immunity
purposes. See Johnson, 592 F.3d at 451-52 (“[The defendant] devotes most of his
brief to arguing that the officers’ conduct subjected him to a de facto arrest . . .
However, an excessively intrusive Terry stop is not unconstitutional because its overly
broad scope necessarily places a suspect under de facto arrest . . . [but] because its
scope is generally unreasonable under all of the circumstances.”) (internal citation
omitted).
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available to verify or dispel the officer’s suspicion in a short period of time.’” Bostic,
458 F.3d at 1306 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Nevertheless,
we have acknowledged there is no litmus test to determine when an officer’s conduct
exceeds the confines of Terry. United States v. Fisher, 364 F.3d 970, 973 (8th Cir.
2004). “It is well established, however, that when officers are presented with serious
danger in the course of carrying out an investigative detention, they may brandish
weapons or even constrain the suspect with handcuffs in order to control the scene and
protect their safety.” Id. It follows that the converse is equally true: it is well
established that if suspects are cooperative and officers have no objective concerns for
safety, the officers may not use intrusive tactics such as handcuffing absent any
extraordinary circumstances. Lambert, 98 F.3d at 1192. Stated differently:
Counsel may shout “officer safety” until blue-in-the-face, but the Fourth
Amendment does not tolerate, nor has the Supreme Court or this Court
ever condoned, pat-down searches without some specific and articulable
facts to warrant a reasonable officer in the belief that the person detained
was armed and dangerous. The Supreme Court has, in interpreting the
Fourth Amendment, struck a balance between the justifiable concern for
officer safety when confronting an individual and the substantial
individual interest in being free from unreasonable intrusion. The
Framers’ concerns and clear intent to protect individuals from arbitrary
government intrusion was enshrined in the Fourth Amendment to
prevent situations such as those alleged here – officers, having no reason
to fear for their safety, may not require citizens, whom they have not
arrested, to stand up against gates or place their hands on police cars, and
submit to searches. This has long been the law.
Bennett, 410 F.3d at 841.
In the instant matter, El-Ghazzawy relies on a report by an expert in police
practices and law enforcement that articulates the series of professionally
unreasonable actions conducted by Berthiaume. For instance, in conjunction with the
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above case law, the expert states, “[i]n cases where officers handcuff a person for
officer safety the officer must be able to articulate facts and circumstances that would
lead a reasonable officer to believe that there is a reasonable safety concern.” App’ee
App’x 306. The expert goes on to conclude there was no such articulable safety threat
in this case, and thus “the stop should have been conducted without handcuffing while
the preliminary investigation took place.” Id. Moreover, the expert points to
Berthiaume’s failure to evaluate all of the information, including exculpatory
information, within her grasp during the stop. Id. at 313.
We agree. Accordingly, we conclude a reasonable officer could not have
believed it was lawful to handcuff and frisk a suspect absent any concern for safety.
See Manzanares v. Higdon, 575 F.3d 1135, 1150 (10th Cir. 2009) (“[A]ny reasonable
officer would understand that it is unconstitutional to handcuff someone absent
probable cause or an articulable basis to suspect a threat to officer safety combined
with reasonable suspicion.”). Because the prior case law provided fair warning to
Berthiaume at the time of the incident, we conclude Berthiaume violated
El-Ghazzawy’s clearly established Fourth Amendment right to be free from
unreasonable searches and seizures. As a result, the district court properly denied
qualified immunity to Berthiaume.3
3
Berthiaume suggests her investigation subsequent to the initial detention, at a
minimum, limits El-Ghazzawy’s damages to the brief time between the constitutional
violation and the investigation. However, any issues regarding damages are not
before us at this time because the sole issue on appeal concerns qualified immunity.
See Krout v. Goemmer, 583 F.3d 557, 564-65 (8th Cir. 2009) (noting we have no
jurisdiction to review issues of causation or damages in an interlocutory appeal of a
denial of summary judgment based on qualified immunity).
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III
For the foregoing reasons, we affirm the district court’s denial of Berthiaume’s
summary judgment motion based on qualified immunity.
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