United States Court of Appeals
For the Eighth Circuit
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No. 22-1685
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Derek Westwater
lllllllllllllllllllllPlaintiff - Appellant
v.
Kevin Church
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: October 19, 2022
Filed: February 23, 2023
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Derek Westwater fled when Keokuk, Iowa, police officer Zeth Baum stopped
him based on an outstanding warrant for fifth-degree theft. Apprehended a few
minutes later, Westwater was placed in Captain Kevin Church’s squad car. At the
nearby police station, Westwater briefly refused to obey Church’s command to exit
the squad car and proceed to the station for booking. When the handcuffed
Westwater finally exited the car and stood up, Church struck him with his fist on the
back of the head and neck. Westwater brought this action for excessive force under
42 U.S.C. § 1983 and asserted pendent Iowa state law claims for tortious assault and
battery. The district court granted summary judgment dismissing both claims on the
ground that the force used was objectively reasonable. Alternatively, the court ruled
that Church was entitled to qualified immunity on the federal § 1983 claim because
any constitutional violation was not clearly established. Westwater appeals.
Reviewing the grant of summary judgment de novo, we conclude that genuine issues
of disputed facts preclude a determination, on this summary judgment record, of
whether the alleged unlawful use of excessive force was objectively reasonable and,
if not, whether the violation was clearly established at the time of the incident in
question. Accordingly, we reverse the dismissal of all claims, including Westwater’s
pendent state law claims.
I. Background
Officer Baum stopped Westwater, driving a motorcycle, on May 1, 2018.
Westwater approached Baum, refusing Baum’s directions to stay by the motorcycle
and keep his hands raised. When Baum drew his taser, Westwater fled into nearby
woods, running three or four blocks. Officers Steve Dray and Andrew Whitaker
apprehended Westwater when he exited the woods, handcuffed him, and placed him
in the back of Captain Church’s squad car on the passenger side. In 2015, Westwater
had pleaded guilty to assaulting Officer Hymes, punching him multiple times in the
face and head in an altercation. Church, normally on duty with Hymes, was not
present but knew of the prior assault.
Church drove Westwater to the police station. During the drive, Westwater
claims he only asked Church to roll down the window, and Church replied it was
broken. Church claims Westwater threatened “to beat [Church’s] mother f*****g ass
as he beat Officer Hymes’ ass.” Upon arriving at the police station, Church opened
the squad car door next to Westwater and told him to exit. Westwater instead sat in
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the car for 30-45 seconds. Westwater, recently released after serving a prison
sentence, says he sat in resignation, processing the fact that he was going back to jail.
Church repeated his order to exit. According to Church, Westwater told
Church to “get the F away from me” before starting to get out of the vehicle. Telling
Church to “not f***ing touch me,” Westwater stood up, hunched over with both feet
on the ground. Church testified he believed Westwater was looking for a way to
“create just enough distance to where he could run.” Church further testified that,
when he came closer, Westwater “lunged back” and said “I’m going to f***ing head-
butt you.” Church then “grabbed a hold of [Westwater’s] head” with both hands and
pulled them together. Westwater yelled “I’m going to f*** you up.” Church testified
that he took two swings (not with full force) at the back of Westwater’s neck with his
fist, making contact once.
Westwater told a different story. After Church repeated his order to get out of
the squad car, Westwater announced “I can walk,” and started to exit the vehicle.
Though claiming the incident was “a blur” he can’t fully remember, he testified that
shortly after exiting the squad car Church struck him in the back of the head with his
fist at least five times, while Westwater tried to escape back into the squad car.
Westwater testified that he never threatened to head-butt Church, that he had to bend
his body and lower his head to exit the squad car handcuffed, and that there was no
way he could have run, being blocked by Church and the squad car on all sides.
A security camera recorded the scene before and after the use of force but
failed to capture the physical struggle. Church immediately called for assistance.
Two nearby firefighters heard the commotion and came to assist Church, the only
police officer present. Other officers came from the police station and brought
Westwater in for booking. He later pleaded guilty to criminal harassment for threats
made against Church after being placed in a holding cell.
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Westwater initially asserted various state and federal claims against Church and
other officials. The district court dismissed all claims except his § 1983 excessive
force and Iowa assault and battery claims against Church. Church moved for
summary judgment, arguing the force used was objectively reasonable and he is
entitled to qualified immunity. The district court granted the motion. Construing the
facts favorably for Westwater, the non-moving party, the court held that the force
used was reasonable because Church could reasonably view Westwater as a threat,
based on his prior assault of Officer Hymes, and a flight risk, based on his earlier
attempt to escape from Officer Baum. After Westwater’s initial refusal to exit the car,
Church could reasonably interpret Westwater’s motions as preparing to assault
Church with a head-butt. The court also held that a reasonable official in Church’s
shoes would not have believed that the excessive force alleged by Westwater “under
the above-described circumstances” violated his clearly established rights.
II. Discussion
Qualified immunity shields police officers from liability for civil damages
when their conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” White v. Pauly, 580 U.S.
78-79 (2017) (per curiam) (quotation omitted). To survive summary judgment
dismissing his § 1983 claim, Westwater must proffer facts showing that (1) a statutory
or constitutional right was violated; and (2) the right was “clearly established.”
Hansen v. Black, 872 F.3d 554, 557-58 (8th Cir. 2017).
A. Reasonable Force. The Fourth Amendment includes the right “to be secure
. . . against unreasonable . . . seizures.” Citizen claims that a police officer “used
excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’
of his person . . . are properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). Though
Westwater was already detained when the alleged excessive force was used in this
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case, the objective reasonableness standard applies to his claim. Cf. Kingsley v.
Hendrickson, 576 U.S. 389 (2015).
“[D]etermining whether the force used to effect a particular seizure is
‘reasonable’ requires balancing of the individual’s Fourth Amendment interests
against the relevant governmental interests.” County of L.A. v. Mendez, 581 U.S.
420, 427 (2017) (quotation omitted). The inquiry is based on the totality of the
relevant circumstances, 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.” Graham, 490
U.S. at 396. We analyze these factors from “the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Id.
As the district court recognized, when the issue of unreasonable force is raised
in a motion for summary judgment, a court must construe the facts in favor of
Westwater, the non-moving party. Frederick v. Motsinger, 873 F.3d 641, 644 (8th
Cir. 2017). Thus, when “opposing parties tell two different stories,” the court must
view material disputed facts “in a light most favorable to the non-moving party -- as
long as those facts are not so ‘blatantly contradicted by the record . . . that no
reasonable jury could believe’ them.” Reed v. City of St. Charles, 561 F.3d 788, 790
(8th Cir. 2009), quoting Scott v. Harris, 550 U.S. 372, 380 (2007). Here, there is
conflicting testimony as to the amount of force used and whether Westwater posed
an immediate threat to Church or a risk of flight. The security camera did not capture
the use of force, and the conversation in the squad car was not recorded. Therefore,
Westwater’s version of the incident is not “blatantly contradicted by the record,” and
a reasonable fact-finder could find it credible after trial.1
1
It is worth noting again, because many of our cases have obscured the point
by referring to what a reasonable jury could find, that the question whether force used
was objectively reasonable or constitutionally excessive is a question of law, at the
summary judgment stage and after trial. See Brossart v. Janke, 859 F.3d 616, 624
(8th Cir. 2017); Davis v. White, 794 F.3d 1008, 1013 (8th Cir. 2015).
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Westwater argues Church used objectively unreasonable force when he struck
Westwater in the back of the head “at least five times.” Church testified he swung
twice and struck Westwater only once. He argues that the force used was de minimis
and therefore objectively reasonable. Our cases distinguish between de minimis
force, which is not actionable under the Fourth Amendment, and de minimis injury,
which is actionable unless it establishes de minimis use of force. See Chambers v.
Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). Five strikes to the back of the head
with a closed fist is more force than other situations where we have rejected the
defense of de minimis force, and Westwater presented evidence of more than de
minimis injury. See Montoya v. City of Flandreau, 669 F.3d 867, 871 (8th Cir. 2012)
(sweeping a leg to trip someone). We agree with the district court that Church did not
warrant summary judgment on this ground.
The critical factor in this excessive force case, as in most others, is whether
Westwater, a handcuffed detainee, posed a realistic threat to the safety of Church or
a risk of flight that justified the degree of force used. “The use of force is least
justified against a nonviolent misdemeanant who does not flee or actively resist arrest
and poses little threat to officers or the public.” Kohorst v. Smith, 968 F.3d 871, 876
(8th Cir. 2020). Westwater denied threatening Church in the brief ride to the police
station. Though he delayed obeying Church’s order to exit the car, he denied
threatening to head-butt Church as he exited, explaining that he had to bend over to
exit the car while handcuffed. Westwater testified it was not physically possible for
him to flee past Church when he exited the squad car. See McDaniel v. Neal, 44
F.4th 1085, 1090 (8th Cir. 2022) (severe force unjustified where arrestee could no
longer escape). Westwater claims that at the time Church struck him he was fully
compliant and nonviolent.
On the other hand, Church testified that Westwater made repeated threats to
Church’s safety during the ride to the police station, including a specific reference to
Westwater’s prior assault of Church’s colleague, Hymes. Westwater threatened to
head-butt Church as he exited the squad car and then moved his head as if preparing
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to do so. Church also knew Westwater had just been arrested after fleeing from
Officer Baum, which supported his concern about Westwater fleeing again rather than
proceeding to the police station to be jailed.
This is a close case on a question of law -- whether, on this summary judgment
record, the force used by Church was objectively reasonable, as the district court
concluded. If a reasonable fact-finder were to credit Church’s testimony, the answer
would be clear. Westwater was not fully compliant when Church used the force at
issue. See Hosea v. City of St. Paul, 867 F.3d 949, 958-59 (8th Cir. 2017). He had
repeatedly threatened Church’s safety and was capable of carrying out that threat as
he exited the squad car. And he posed at least some risk of flight. Prior knowledge
of violent behavior, particularly towards law enforcement officers, is a relevant factor
in deciding whether to use force. See Wenzel v. City of Bourbon, 899 F.3d 598, 602
(8th Cir. 2018). And Westwater’s testimony does not clearly refute Church’s version
of the split-second incident; his recall of the critical time period, which was not
recorded by the security camera, was “a blur.”
But we may not simply credit Church’s testimony at the summary judgment
stage. Westwater’s contrary testimony, though a “blur” to some extent, would if
credited by a reasonable fact-finder (i) eliminate the alleged oral threats to Church’s
safety, (ii) innocently explain Westwater’s head movements in exiting the squad car,
and (iii) discredit Church’s concern there was a risk of flight, perhaps creating an
inference that Church used force to retaliate for Westwater’s prior assault of Officer
Hymes. Therefore, on this summary judgment record, we decline to affirm the district
court’s reasonable-use-of-force conclusion and turn to the second prong of the
qualified immunity inquiry, whether it was clearly established on May 1, 2018, that
the force Church used was constitutionally excessive.
B. Clearly Established. Qualified immunity “gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those who knowingly
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violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991). Our standard for
applying this principle is well established:
For a right to be clearly established, the contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right. A plaintiff must identify either
controlling authority or a robust consensus of cases of persuasive
authority that placed the statutory or constitutional question beyond
debate at the time of the alleged violation.
Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (en banc) (citations omitted).
When the Fourth Amendment issue is the use of excessive force, the Supreme Court
has made it clear that specificity is required. “[P]olice officers are entitled to
qualified immunity unless existing precedent squarely governs the specific facts at
issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quotation omitted).
Westwater must “identify a case that put [Church] on notice that his specific conduct
was unlawful.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021).
In deciding this issue, the district court must “view the evidence at summary
judgment in the light most favorable to [Westwater] with respect to the central facts
of this case.” Tolan v. Cotton, 572 U.S. 650, 657 (2014). As our sharply divided en
banc decision in Kelsay illustrates, controlling Supreme Court and Eighth Circuit
precedents prior to May 2018 drew fine lines in determining when police officers’ use
of non-deadly force was objectively reasonable in making an arrest or other seizure.
Our cases clearly established that it was objectively unreasonable to use more than
de minimis force to seize a non-threatening misdemeanant who was not fleeing,
resisting arrest, or ignoring officer commands. See Kelsay, 933 F.3d at 985 (Smith,
C.J., dissenting), and pre-2018 cases cited; Blazek v. City of Iowa City, 761 F.3d 920
(8th Cir. 2014).
Blazek did not involve the use of force against a person who the officer knew
had committed a prior violent assault against another officer and had attempted to
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escape from a third officer just minutes earlier. And, when they arrived at the police
station, Westwater refused to comply with Church’s order to exit the squad car, a
display of passive resistance that justified use of some force to pull Westwater from
the car and take him into the station. See Wertish v. Krueger, 433 F.3d 1062, 1066
(8th Cir. 2006). Nor was the degree of force Church allegedly used clearly excessive
in light of our prior excessive force decisions. Cf. Murphy v. Engelhart, 933 F.3d
1027, 1028-29 (8th Cir. 2019); Wertish, 433 F.3d at 1065. Church is entitled to
qualified immunity if the facts establish that his action “falls within the zone
described as the ‘sometimes hazy border between excessive and acceptable force.’”
Shelton v. Stevens, 964 F.3d 747, 753 (8th Cir. 2020), quoting Saucier v. Katz, 533
U.S. 194, 206 (2001). Our decision in Kelsay makes clear that, in excessive force
cases, the clearly established inquiry requires careful scrutiny of the particular
conduct and circumstances at issue. 933 F.3d at 980-82.
Though the ultimate clearly established issue is a question of law, the district
court in ruling on Church’s motion for summary judgment viewed the facts in the
light most favorable to Westwater, and “we ordinarily lack jurisdiction to decide
‘which facts a party may, or may not, be able to prove at trial.’” Id. at 979, quoting
Johnson v. Jones, 515 U.S. 304, 313 (1995). As previously explained, the facts
viewed most favorably to Westwater -- primarily his deposition testimony -- would
establish that Westwater did not threaten Church as they drove to the police station,
did not threaten to head-butt Church as Westwater voluntarily exited the squad car
after passively resisting a command to exit for 30 to 45 seconds, and could not flee.
If credited by a reasonable factfinder, our pre-2018 excessive force cases establish
that Church is not entitled to qualified immunity because Westwater was a non-
threatening misdemeanant who was not fleeing, resisting arrest, or significantly
ignoring officer commands. In these circumstances, summary judgment should not
be granted on either qualified immunity issue, whether the force used was reasonable
and, if not, whether the violation was clearly established. Though qualified immunity
should be determined prior to trial when feasible, the issues of law in this case cannot
be determined without findings on these central fact issues.
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C. State Law Claims. This leaves Westwater’s remaining state law claims of
tortuous assault and battery. Iowa law justifies police force where “the peace officer
reasonably believes [such force] to be necessary to effect the arrest or to defend any
person from bodily harm.” Iowa Code § 804.8. Iowa courts apply an objective
reasonableness standard. Parrish v. Dingman, 912 F.3d 464, 469 (8th Cir. 2019). As
Church more or less concedes, because we have declined to affirm the district court’s
grant of summary judgment dismissing Westwater’s § 1983 federal claims, we must
reverse the district court’s dismissal of Westwater’s state law claims and remand to
the district court for further consideration of this issue under Iowa law.
The judgment of the district court is reversed and the case is remanded for
further proceedings not inconsistent with this opinion.
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