(concurring in part & dissenting in part).
[¶ 24] I agree on Issue 1 as Horne’s guilty plea was a waiver of lack of probable cause as a basis for suit under 42 U.S.C. § 1983.
[¶ 25] I dissent on Issue 2. The majority concludes that Horne, by asserting “gross negligence” in Crozier’s use of excessive force, has failed to state a claim under § 1983. This conclusion is incorrect because an assertion of “excessive force” during an arrest, in violation of the Fourth Amendment to the United States Constitution — standing *57alone — states the claim, and Crozier’s state of mind is essentially irrelevant.
[¶ 26] I would reach the merits of Crozier’s qualified immunity defense claim and conclude it is not available to him under these circumstances.
[¶ 27] Additionally, it is incredible that the City of Sioux Falls is allowed to withhold its written police procedure policy manual, yet the circuit court and the majority proceed as if it were produced, concluding that Crozier was simply following “policy” or “routine practice.” The majority’ even states “there was no direct causal link between his actions and any alleged policy or custom.” How could we possibly deduce that in the absence of the written policy? 4 Therefore, I can only concur in result in affirmance of summary judgment to City.
[¶ 28] THE USE OF “EXCESSIVE FORCE” DURING AN ARREST CONSTITUTES GROUNDS FOR RELIEF UNDER 42 U.S.C. § 1983.
[¶ 29] The United States Supreme Court has repeatedly stated that § 1983 is to be broadly construed. See Dennis v. Higgins, 498 U.S. 439, 443-45, 111 S.Ct. 865, 868-70, 112 L.Ed.2d 969, 975-77 (1991) (collecting cases):
A broad construction of § 1983 is compelled by the statutory language, which speaks of deprivations of “any rights, privileges, or immunities secured by the Constitution and laws.” Accordingly, we have repeatedly held that the coverage of § 1983 must be broadly construed, The legislative history of the section also stresses that as a remedial statute, it should be “liberally and beneficiently construed.”
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[W]e have given full effect to its broad language, recognizing that § 1983 provides a remedy, to be broadly construed, against all forms of official violation of federally protected rights.
(Emphasis in original) (citations & internal quotations omitted). The majority effectively narrows the construction of § 1983 by focusing on Horne’s deposition testimony and his interpretation of Crozier’s actions. See supra ¶ 16. Since when do we allow our analysis to be controlled by a party’s uninformed legal conclusion? Horne’s complaint alleges that Crozier used excessive force in handcuffing him, resulting in permanent damage to his wrists, in violation of the Fourth Amendment to the United States Constitution. His complaint is sufficient to state a claim under § 1983, and the language “gross negligence” is superfluous and irrelevant to the analysis.5
[¶30] The United States Supreme Court instructs that § 1983 “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443, 453-54 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 2695 n. 3, 61 L.Ed.2d 433, 442 n. 3 (1979)).
In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. The first inquiry in any § 1983 suit is to isolate the precise constitutional violation with which the defendant is charged.
Id. at 394, 109 S.Ct. at 1870, 104 L.Ed.2d at 454 (citation & internal quotation omitted). The majority skips this “first inquiry” by assuming the analysis is conducted under § 1983 instead of a specific constitutional provision.
*58[¶ 31] The Graham Court held that the amount of force which an arresting officer may employ is limited by the Fourth Amendment to the United States Constitution. “Today we make explicit what was implicit in [Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ], and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment!).]” Id. at 395, 109 S.Ct. at 1871, 104 L.Ed.2d at 454. The Fourth Amendment provides, in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. Amend. IV. The question is whether the force used to effect a seizure is “reasonable” under the Fourth Amendment.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force ease is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.
Graham, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456 (emphasis added) (citations omitted).
[¶ 32] The majority is correct that “mere negligence” is not enough to sustain a § 1983 claim when the plaintiff is asserting a deprivation of certain rights other than those protected by the Fourth Amendment. However, as stated above, the arresting officer’s state of mind is irrelevant in a Fourth Amendment excessive force case.6 Therefore, the eases relied upon by the majority in ¶¶ 14^-16 are inapposite to the Fourth Amendment analysis set forth in Graham, supra. A review of those cases demonstrates that none dealt with excessive force during an arrest, and therefore, none conducted a Fourth Amendment analysis.7 In this case, Horne may have incorrectly inserted “gross negligence” *59in his complaint, but that language is of no moment. A plain reading of his complaint states a claim of excessive force in violation of the Fourth Amendment, and § 1983 liability may be imposed for such a violation. Graham, 490 U.S. at 395, 109 S.Ct. at 1871, 104 L.Ed.2d at 454-55.
[¶ 33] Graham explains why an analysis of an excessive force complaint under the Fourth Amendment is conducted without inquiry into the subjective intent of the arresting officer, while excessive force inflicted on a prisoner is subject to a different analysis:
Differing standards under the Fourth and Eighth Amendments8 are hardly surprising: the terms “cruel” and “punishments” clearly suggest some inquiry into subjective state of mind, whereas the term “unreasonable” does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. The Fourth Amendment inquiry is one of “objective reasonableness” under the circumstances, and subjective concepts ... have no proper place in that inquiry.
Id. at 398-99, 109 S.Ct. at 1873, 104 L.Ed.2d at 457 (citation omitted).
[¶34] In light of the correct standard of review of an arresting officer’s actions when accused of excessive force, it is obvious summary judgment should not be affirmed in favor of Crozier on this basis.9 He has failed to demonstrate an absence of a genuine issue of material fact. See Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 70 (stating that “the burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.”) (quoting State Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)). The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. Id.
[¶ 35] Even the trial court stated “there is no doubt about the issues of fact ... I don’t think we have to waste a lot of time talking about whether the facts are in controversy because I think they are.... ” Horne claims Crozier used excessive force in using.the handcuffs and ignored his pleas to loosen them, causing him severe and debilitating injury. He offers medical testimony to support his claim. As noted by the majority, supra at ¶ 3, “As there were no factual submissions from defendants, including no deposition or affidavit from either Crozier or the nurse, Horne’s version rests uncontradicted.”
[¶ 36] Because Crozier did not meet the standard for a successful motion for summary judgment, we should reverse and remand for trial to determine whether he used excessive force in arresting Horne. This will require an analysis of
the facts and circumstances of [the] case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. [T]he question is “whether the totality of the circumstances justifies a particular sort of seizure.”
Graham, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455 (citations & alterations omitted).
[¶ 37] SUMMARY JUDGMENT WAS IMPROPERLY GRANTED ON THE BASIS OF QUALIFIED IMMUNITY.
[¶ 38] The trial court applied the incorrect standard in determining whether the defense of qualified immunity is available to Crozier.10 In Hafner v. Delano, 520 N.W.2d 587 (S.D.1994), we adopted the Eighth Circuit Court of Appeals’ three-part test to determine whether qualified immunity precludes a § 1983 claim:
1. First, we determine whether the plaintiff has asserted a violation of a constitutional right;
*602. Second, we determine whether the allegedly violated constitutional right was clearly established; and
3. Third, we determine if, given the facts most favorable to the plaintiff, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged actions violated that right.
Id. at 592 (quoting Foulks v. Cole Cty., 991 F.2d 454, 456 (8thCir.1993) (citing Cross v. City of Des Moines, 965 F.2d 629, 631-32 (8thCir.1992))).
[¶39] First, as already discussed, Horne has adequately asserted a violation of his Fourth Amendment right to be free from unreasonable seizures, i.e., the right to be free from a law enforcement officer’s use of excessive force during an arrest.
[¶40] Second, this constitutional right is clearly established. The burden is on Horne to show that Crozier’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982). “[I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987) (citations omitted). Obviously, a reasonable police officer should know of the Fourth Amendment’s proscription of unreasonable seizures. See also SD Const. art. VI, § 11 (“The right of the people to be secure in their persons ... against unreasonable ... seizures shall not be violated!)]”); SDCL 23A-3-5 (providing, in relevant part, “No person shall subject an arrested person to more physical restraint than is reasonably necessary to effect the arrest.”).
[¶ 41] Third, viewing the facts most favorable to Horne, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged actions, handcuffing so tightly as to cause permanent physical injuries, violated that right. While Horne carried the burden on the first two prongs, Crozier bears the burden to show that there were extraordinary circumstances or that he neither knew nor should have known of the relevant legal standard. Qualified immunity is an affirmative defense, and the burden of proving the defense lies with the official asserting it. Harlow, 457 U.S. at 819, 102 S.Ct. at 2738, 73 L.Ed.2d at 411; accord Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8thCir.1989). As previously noted, Crozier offered no facts to support his motion for summary judgment. Crozier argued and the trial court granted summary judgment on the basis of an alleged policy of handcuffing drunk drivers. Even if we assume such a policy exists, it would not relieve Crozier of liability under § 1983 for using excessive force in the course of handcuffing a cooperative arrestee.11 Crozier is not entitled to qualified immunity in the absence of showing either 1) extraordinary circumstances or 2) that he neither knew nor should have known of the relevant legal standard. Because he demonstrated neither, genuine issues of material fact remain whether he used excessive force in handcuffing *61Horne, and summary judgment was improperly granted on this basis. See Amott v. Mataya, 995 F.2d 121 (8thCir.1993) (genuine issue of material fact as to conduct engaged in by officers precluded summary judgment on ground of qualified immunity); accord Washington v. Newsom, 977 F.2d 991 (6thCir,1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1848, 123 L.Ed.2d 472 (1993); see also Butler v. City of Norman, 992 F.2d 1053 (10thCir.1993) (upholding denial of summary judgment on ground of qualified immunity when plaintiffs testimony was sufficient to support a claim of violation of clearly established law under Graham, supra). We should reverse and remand for a trial.
. In resistance to the subpoena to produce the Sioux Falls Police Department's procedure policy manual, Assistant City Attorney Shawn Tor-now asserted that "this is a confidential record within the Sioux Falls Police Department." He even claimed, without authority, that there was "case law authority for its confidentiality and we would resist." Incredibly, the trial court granted the defendant's motion to quash the subpoena, apparently on this basis. Unfortunately for Horne, he did not appeal this ruling. See infra note 8.
. The majority's statement, supra at ¶ 14, that "A conscious choice to inflict force and a negligent exercise of force are wholly different species of conduct. Only the first implicates a constitutional infringement,” is incorrect and made without supporting authority.
. The exception to this was stated by the Graham Court:
Of course, in assessing the credibility of an officer’s account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen.
Graham, 490 U.S. at 399 n. 12, 109 S.Ct. at 1873 n. 12, 104 L.Ed.2d at 457 n. 12.
. For example, the majority cites the following cases to support its conclusion: Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (Fourteenth Amendment Due Process Clause); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (Equal Protection Clause of the Fourteenth Amendment); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Eighth Amendment prohibition of cruel and unusual punishment); Chapman v. Musich, 726 F.2d 405 (8thCir.), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984) (Sixth Amendment right to effective assistance of counsel); Davis v. Fulton County, Ark., 90 F.3d 1346, 1352 (8thCir.1996) (Fourteenth Amendment); Lewellen v. Metropolitan Gov't of Nashville, 34 F.3d 345 (6thCir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995) (Fourteenth Amendment Due Process Clause); Collins v. City of Harker Heights, Tex., 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (Fourteenth Amendment Due Process Clause & Texas Hazard Communication Act); Morton v. City of Little Rock, 728 F.Supp. 543 (E.D.Ark.1989), aff'd, 934 F.2d 180 (8thCir.1991) (Fourteenth Amendment Due Process & Equal Protection Clauses). Clearly, these cases do not govern our analysis.
The majority also cites Rasmussen v. Larson, 863 F.2d 603 (8thCir.1988), a case in which a claim of excessive force was made. The plaintiffs alleged that the arresting officers acted- with gross negligence, thereby depriving their decedent of his liberty interest under the Fourteenth Amendment. "Negligent or even grossly negligent actions do not trigger the due process clause [.] Id. at 605 (emphasis added). As for the excessive force claim, the Court of Appeals simply agreed with the trial court that there was insufficient evidence to prove a constitutional violation. Id. at 605-06. Without a Fourth Amendment analysis, Rasmussen, too, is inappo-site to this case. As for Gonzalez v. City of Chicago, 888 F.Supp. 887, 890 (N.D.Ill.1995), (again, not a Fourth Amendment excessive force case), that case held that despite plaintiff's incorrect assertion of "gross negligence” in the supervision of police officers, the court would not dismiss that count of the complaint because the plaintiff did state a cause of action with his allegation of "deliberate indifference” in that portion of the complaint.
. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments.”
. Whether Crozier is entitled to the defense of qualified immunity is discussed infra at ¶¶ 38-41.
. As already noted by the majority, supra at ¶ 18, the trial court erred in granting summary judgment to the City of Sioux Falls on the basis of qualified immunity, as that defense is not available to a municipality.
. The trial court was incorrect in granting summary judgment to Crozier on the basis of his alleged adherence to police policy. The significance of a policy in a § 1983 action concerns City’s liability. The United States Supreme Court stated that a municipality is a "person” for liability purposes under § 1983 in Monell v. Department of Social Services of City of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611, 635 (1978). A municipality may be held liable only if a municipal custom or policy caused the deprivation of the constitutional or statutory right. Id. at 690-91, 98 S.Ct. at 2035-36, 56 L.Ed.2d at 636. The plaintiff must show that
[t]he action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the municipality's officers or that a constitutional deprivation was visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decision channels.
Marchant v. City of Little Rock, Ark., 741 F.2d 201, 204 (8thCir.1984) (quoting Monell, supra). In his docketing statement to this court, Home listed as an issue for appeal whether the trial court erred by quashing his subpoena duces te-cum, in which he requested copies of City’s police procedure policy manual. However, he did not brief or argue this issue in this appeal and it is waived. Therefore, I concur in result of affir-mance of summary judgment to City. I do not agree with the majority that the policy is "immaterial.” ¶ 20, supra.