United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3116
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Wesley D. Hemphill, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Andrew J. Hale, Officer, *
* [PUBLISHED]
Appellant, *
*
Jeffrey N. Seerey, Detective; *
Tim Lowrey, Captain; David *
Rohlfing, Detective; Mark *
Pounders, Detective, *
*
Defendants. *
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Submitted: April 2, 2012
Filed: May 10, 2012
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Before WOLLMAN, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Defendant Andrew Hale appeals the district court’s1 denial of qualified
immunity on an excessive-force claim in Wesley Hemphill’s 42 U.S.C. § 1983 action.
For the reasons that follow, we affirm.
Hemphill filed a complaint naming five defendants, including Officer Hale, and
alleging that on August 19, 2009, while he was at a gas station, officers surrounded
his car and pointed a gun at him. They ordered him to exit his car and put him,
handcuffed, in a patrol car. Officers drove him to his apartment, which they entered
and searched without his permission. After planting marijuana and a gun, they took
Hemphill into the apartment. Officers seized property that belonged to him and
demanded that he sign a consent form for the search. When Hemphill refused to sign,
Officer Hale choked him and hit him in the side rib area with his fists. Hemphill was
driven to the police station and held in jail for 24 hours. He was then released, some
of his property was returned, and he was not charged with any crime in connection
with the incident. Hemphill asserted various claims, including a Fourth Amendment
claim of excessive force by Hale.
Shortly before trial, Hale moved for summary judgment on the excessive-force
claim. The court later denied the motion, finding that Hale was not entitled to
qualified immunity. Hale challenges this ruling, arguing that Hemphill’s injuries from
the incident were de minimis and that it was not clearly established at the time of the
incident that an officer could be liable under the Fourth Amendment when the plaintiff
suffered only de minimis injury, relying on Chambers v. Pennycook, 641 F.3d 898
(8th Cir. 2011).
In this interlocutory appeal, our review is limited to determining whether the
conduct that the district court found was sufficient to withstand a motion for summary
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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judgment violated Hemphill’s clearly established rights. See Shannon v. Koehler, 616
F.3d 855, 861 (8th Cir. 2010). We review de novo the court’s determination that Hale
is not entitled to qualified immunity, and we must decide whether the facts, construed
in the light most favorable to Hemphill, established a constitutional violation, and, if
so, whether the right was clearly established such that a reasonable person in Hale’s
position would have known that his actions were unlawful. See Krout v. Goemmer,
583 F.3d 557, 564 (8th Cir. 2009).
In Chambers, we held that evidence of de minimis injury does not necessarily
foreclose a Fourth Amendment excessive-force claim, that the force alleged was not
reasonable under the circumstances, but that defendants were entitled to qualified
immunity because the state of the law in August 2005 was such that a reasonable
officer could have believed that as long as he did not cause more than de minimis
injury to an arrestee, he would not violate the Fourth Amendment. See Chambers, 641
F.3d at 904, 906-08.
Chambers, however, did not address the situation alleged here: that the force
was used in an attempt to coerce consent to a search. While in Chambers we stated
that “[p]olice officers undoubtedly have a right to use some degree of physical force,
or threat thereof, to effect a lawful seizure,” see id. at 907, we agree with the district
court that officers do not have the right to use any degree of physical force or
threatened force to coerce an individual to consent to a warrantless search of his home.
See United States v. Drayton, 536 U.S. 194, 201 (2002) (law enforcement officers
may request consent to search “provided they do not induce cooperation by coercive
means”); United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996) (consent to search
may not be result of “‘duress or coercion, express or implied’” (internal citation
omitted)); cf. Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (showing of physical
injury required to state Fourth Amendment excessive-force claim for force used in
course of arrest is not required in situations not involving arrest, such as during
interrogation). Because no use of force to obtain Hemphill’s consent to search would
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have been reasonable, the force Hale was alleged to have used–grabbing Hemphill by
the neck, choking him, and hitting him two or three times while he was
handcuffed–was objectively unreasonable given the facts and circumstances in the
case. See Graham v. Connor, 490 U.S. 386, 396-97 (1989) (officer’s use of force
violates Fourth Amendment when it is objectively unreasonable given facts and
circumstances of particular case, judged from perspective of reasonable officer at
scene). The law regarding forced consent was clearly established in August 2009 such
that a reasonable person in Hale’s position would have known that his actions were
unreasonable. See Drayton, 536 U.S. at 201; Thomas, 93 F.3d at 486.
The order denying qualified immunity is affirmed.
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