Filed: Aug. 17, 2020
Latest Update: Aug. 17, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 18-3519 _ Charles McManemy Plaintiff - Appellant v. Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose; Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office; Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk Dolleslager, in his individual capacity as a law enforcement officer for th
Summary: United States Court of Appeals For the Eighth Circuit _ No. 18-3519 _ Charles McManemy Plaintiff - Appellant v. Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose; Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office; Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk Dolleslager, in his individual capacity as a law enforcement officer for the..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3519
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Charles McManemy
Plaintiff - Appellant
v.
Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose;
Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law
enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office;
Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk
Dolleslager, in his individual capacity as a law enforcement officer for the Grundy
County Sheriff’s Office; Sheriff Jason Johnson, in his individual capacity; Sheriff
Rick Penning; Butler County; Grundy County
Defendants - Appellees
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No. 18-3520
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Charles McManemy
Plaintiff - Appellee
v.
Bruce Tierney; Kiley Winterberg; Curt Lubben
Defendants - Appellants
Jennifer Degroote; Karson Roose; Dewayne Viet
Defendants
John/Jane Doe(s), in each individual’s capacity as a law enforcement
officer/jailer/dispatcher for the Butler County Sheriff’s Office
Defendant - Appellant
Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk
Dolleslager, in his individual capacity as a law enforcement officer for the Grundy
County Sheriff’s Office
Defendants
Sheriff Jason Johnson, in his individual capacity
Defendant - Appellant
Sheriff Rick Penning
Defendant
Butler County
Defendant - Appellant
Grundy County
Defendant
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No. 18-3554
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Charles McManemy
Plaintiff - Appellee
v.
Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose;
Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law
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enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office;
Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa
Defendants
Kirk Dolleslager, in his individual capacity as a law enforcement officer for the
Grundy County Sheriff’s Office
Defendant - Appellant
Sheriff Jason Johnson, in his individual capacity
Defendant
Sheriff Rick Penning
Defendant - Appellant
Butler County
Defendant
Grundy County
Defendant - Appellant
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Appeals from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: January 15, 2020
Filed: August 17, 2020
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Charles McManemy believes that deputies used excessive force against him
after he led them on a high-speed chase. Although he suffered physical injuries
during the ensuing arrest, the district court1 granted summary judgment to the
deputies based on qualified immunity. We affirm.
I.
The deputies believed that McManemy was on his way to making a drug
delivery. Hoping that they would have the chance to stop him, they seized the
opportunity when he ran a stop sign. Even flashing lights and a siren, however, did
not stop McManemy. For the next 10 minutes, he led them on a high-speed chase
through rural highways, gravel roads, and a private farm.
With their other options exhausted, the deputies finally rammed
McManemy’s vehicle. McManemy eventually emerged from the disabled vehicle
after trying to make a call and lighting a cigarette. When he did, he laid face down
on the road with his arms and legs spread.
Still, the deputies had difficulty arresting him. Although the parties dispute
how much he resisted and why, the dash-cam video shows his legs flailing, and he
admits to having failed to comply with orders to “[q]uit resisting” and to “knock it
off.” See Oral Arg. at 1:44–1:50 (conceding that the dash-cam video “clearly”
shows that he was resisting “up until a point”). In the end, subduing McManemy
took two interlocked sets of handcuffs and six deputies.
This case is all about what happened during the scuffle. McManemy claims
that one deputy tased him up to five times and that another used a knee to
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
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repeatedly bash him in the head. The blows to the head allegedly caused damage
to his eye, first bruising and later problems with light sensitivity and “floaters.”
McManemy brought excessive-force claims under 42 U.S.C. § 1983 against
the deputies and other government defendants. Also included are claims against
the other deputies on the scene, who allegedly failed to intervene and protect him.
These basic theories are mirrored in several Iowa state-law claims, too.
Neither side is satisfied with how the district court decided the case. On one
hand, McManemy believes that the court should not have granted summary
judgment to the defendants on his federal claims. At the same time, the defendants
are disappointed that the court did not exercise supplemental jurisdiction over
McManemy’s state-law claims. Both appeal the parts of the ruling that they lost.
II.
We review the district court’s decision to grant summary judgment de novo.
Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc). “Summary
judgment [was] appropriate [if] the evidence, viewed in [the] light most favorable
to [McManemy], shows no genuine issue of material fact exists and the
[defendants were] entitled to judgment as a matter of law.” Phillips v. Mathews,
547 F.3d 905, 909 (8th Cir. 2008) (citation omitted).
For McManemy’s federal claims, it all comes down to whether the deputies
are entitled to qualified immunity, which depends on the answer to two questions.
First, did they violate a constitutional right? Second, was the right clearly
established? See Morgan, 920 F.3d at 523. If the answer to either question is
“no,” we will affirm. See
id. (making clear that we may answer the questions in
either order).
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A.
The first allegedly unconstitutional act was the use of a taser against
McManemy. See Jackson v. Stair, 944 F.3d 704, 710 (8th Cir. 2019). In addition
to suing Deputy Kirk Dolleslager, who used the taser, McManemy alleges that a
nearby officer, Deputy Curt Lubben, violated clearly established law by failing to
intervene on his behalf. Hicks v. Norwood,
640 F.3d 839, 843 (8th Cir. 2011)
(discussing the duty to intervene). Both claims depend on whether using the taser
was objectively reasonable under the circumstances. See Graham v. Connor,
490
U.S. 386, 396–97 (1989);
Hicks, 640 F.3d at 843.
1.
As in many qualified-immunity cases, the parties have “two different
stories” about what happened. Scott v. Harris, 550 U.S. 372, 378, 380 (2007).
McManemy claims that Deputy Dolleslager “sadistically” tased him in drive-stun
mode,2 once before handcuffing him and two-to-four times afterward. Deputy
Dolleslager says that he only tased him twice, once before placing the handcuffs on
his right wrist and once more to get them on his other wrist.
In an appeal from a summary-judgment ruling on qualified immunity, we
typically credit the plaintiff’s version of the facts. See id. at 378. In some cases,
however, the record so “blatantly contradict[s]” the plaintiff’s account that “no
reasonable jury could believe it.”
Id. at 380. In those instances, we do not “adopt
th[e plaintiff’s] version of the facts” in evaluating whether the officers were
entitled to summary judgment.
Id.
2
Drive-stun mode is the “lowest” setting. In this mode, the taser makes direct
contact with the suspect’s skin, but the charge is not incapacitating. See Cravener v.
Shuster,
885 F.3d 1135, 1137 n.1 (8th Cir. 2018).
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This is one of those cases. Many tasers have logs that record when and how
they are used. The log on Deputy Dolleslager’s device revealed that it had only
been discharged twice—each for three seconds, fifteen seconds apart. McManemy
has never challenged the log’s accuracy, so the record “blatantly contradicts” his
account that he was tased between three and five times. See Oral Arg. at 2:10–2:25
(conceding that the log accurately reflects the number and timing of the taser
bursts).
With the taser having been discharged only twice, McManemy’s admissions
take on central importance. See Tokar v. Armontrout, 97 F.3d 1078, 1081–83 (8th
Cir. 1996) (relying heavily on a plaintiff’s admissions when affirming a qualified-
immunity ruling). The first key admission is that he was not yet handcuffed when
Deputy Dolleslager tased him the first time. Under our precedent, it is reasonable
for an officer to tase an uncuffed suspect who appears to be resisting arrest. See
Ehlers v. City of Rapid City,
846 F.3d 1002, 1011 (8th Cir. 2017); Carpenter v.
Gage,
686 F.3d 644, 650 (8th Cir. 2012).
The second tasing was reasonable too because of McManemy’s other
admission: in the intervening 15 seconds between taser discharges, the deputies
had to get the handcuffs on his other wrist. Construing the remaining disputed
facts in McManemy’s favor, it is possible that Deputy Dolleslager tased him for the
second time just after he was fully handcuffed. Even so, we have already held that
discharging a taser in drive-stun mode under similar circumstances is objectively
reasonable. See Brossart v. Janke, 859 F.3d 616, 626 (8th Cir. 2017); see also
Franklin v. Franklin Cty.,
956 F.3d 1060, 1062–63 (8th Cir. 2020) (discussing
cases allowing the use of drive-stun taser bursts on suspects who are already
handcuffed). After all, here it came at the tail end of a “tumultuous” struggle
between McManemy and the deputies. Rudley v. Little Rock Police Dep’t,
935
F.3d 651, 654 (8th Cir. 2019).
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It makes no difference if, as McManemy argues, one of the deputies knew
that he had a preexisting shoulder condition that made it difficult for him to
comply with their commands. See Schoettle v. Jefferson Cty., 788 F.3d 855, 858,
860–61 (8th Cir. 2015). Regardless of whether one or more of them knew about
his injury, the deputies still had to subdue him, even if he had an “innocent” reason
for flailing his legs and refusing to give up one of his arms.
Carpenter, 686 F.3d at
650 (explaining that the use of a taser does not become excessive just because an
arrestee has an “innocent” motive for refusing to give up his hands); see also
Schoettle, 788 F.3d at 858, 860–61 (holding that the force used to restrain a
noncompliant arrestee was reasonable even if the officers knew that his
belligerence was caused by a hypoglycemic episode).
2.
This conclusion also resolves the failure-to-intervene claim against Deputy
Lubben. To be sure, “an officer who fails to intervene to prevent the
unconstitutional use of excessive force by another officer may be held liable for
violating the Fourth Amendment.” Hollingsworth v. City of St. Ann, 800 F.3d 985,
991 (8th Cir. 2015) (emphases added and citation omitted). But there is no duty to
prevent the constitutional use of reasonable force. See
id. If Deputy Dolleslager
did not violate McManemy’s constitutional rights, then neither did Deputy Lubben.
See
Hicks, 640 F.3d at 843.
B.
According to McManemy, the deputies did more than just tase him. One of
them, Deputy Bruce Tierney, used his knee as a weapon and repeatedly hit him in
the head with it. Once again, the claim is excessive force, but this time it fails for a
different reason: the absence of a clearly established right.
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1.
As with McManemy’s other claim, we must first identify the relevant facts.
Again, the stories differ. McManemy says that he suffered severe bruising and
lasting eye damage from being hit in the face with Deputy Tierney’s knee. The
deputies argue, by contrast, that no one’s knee touched McManemy’s head and that
his injuries must have happened some other way. They claim to have proof: a
dash-cam video.
The dash-cam video, however, is equivocal at best. It shows Deputy Tierney
kneeling next to McManemy’s head for about 40 seconds. But for much of that
time, it is impossible to see what he is doing because another officer and a dog
block the view. And even when they do not, the footage is just too grainy to make
out what is happening. In short, the video does not “blatantly contradict[]”
McManemy’s account. Coker v. Ark. State Police, 734 F.3d 838, 841, 843 (8th
Cir. 2013) (citation omitted) (reaching a similar conclusion when faced with an
inconclusive dash-cam video).
Construing the facts in McManemy’s favor, Deputy Tierney still did not
violate a clearly established right. McManemy does not suggest that this is the
“rare[,] obvious case,” in which the violation is so clear that it is unnecessary to
identify an “existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018) (internal quotation marks and citation omitted). So to prevail on this
claim, McManemy must point to a case that “squarely governs the specific facts at
issue.” Kelsay v. Ernst,
933 F.3d 975, 980 (8th Cir. 2019) (en banc) (quoting
Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018) (per curiam)). He believes there
are two: Gill v. Maciejewski,
546 F.3d 557 (8th Cir. 2008), and Krout v. Goemmer,
583 F.3d 557 (8th Cir. 2009). Neither, however, “squarely governs” this case.
The first, Gill, is the closer of the pair. There too, an officer slammed his
knee into an arrestee’s head. 546 F.3d at 561. The arrestee, who was lying on the
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ground at the time, suffered five facial-bone fractures, a concussion, and a brain
bleed after the officer performed a standing knee-drop maneuver on him. Id. We
upheld the jury’s finding that this level of force was unreasonable under the
circumstances.
Id. at 562.
For two reasons, however, Gill is still not close enough. First, Gill offered
“no resistance,” whereas McManemy led deputies on a 10-minute, high-speed
chase and, by his own admission, put up some resistance once he was captured. Id.
at 561–62; see
Kelsay, 933 F.3d at 980 (distinguishing between fully compliant
and non-compliant arrestees); see also
Kisela, 138 S. Ct. at 1152 (discussing
flight). Second, the level of force was different. By jumping on Gill from a
standing position, the officer used near-deadly force and caused life-threatening
injuries.
Gill, 546 F.3d at 561. Although what happened here was violent, it is not
in the same league as the knee-drop maneuver from Gill. See Mann v. Yarnell,
497
F.3d 822, 826 (8th Cir. 2007) (explaining that we consider the injuries suffered
when evaluating the level of force).
The second, Krout, is not even close. It involved extreme levels of
“gratuitous” force against a “fully[-]subdued,” non-resisting arrestee who
eventually died. 583 F.3d at 563, 566. An officer “hip toss[ed]” him to the
ground, and then, together with other officers, beat him.
Id. at 561. The use of
force in this case, by contrast, falls well short of Krout. And perhaps most
importantly, McManemy admits that he suffered his injuries during a struggle to
handcuff him, not when he was “fully subdued.”
Id. at 566; see
Kelsay, 933 F.3d
at 980 (drawing a similar distinction).
2.
This analysis extends to the other deputies, too. To hold them liable for their
failure to intervene, McManemy had to establish that they knew “or had reason to
know that excessive force would be or was being used.” Hollingsworth, 800 F.3d
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at 991 (citation omitted). If Deputy Tierney did not violate a clearly established
right, then the other deputies would not have had “fair notice” that he was using
unconstitutionally excessive force against McManemy either.
Id.
III.
One loose end remains. The district court declined to exercise supplemental
jurisdiction over McManemy’s Iowa state-law claims after it had “dismissed all
[the] claims over which it ha[d] original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The defendants wanted the court to decide those on the merits too, rather than just
dismissing them without prejudice.
We rarely overturn this “purely discretionary” call. Crest Constr. II, Inc. v.
Doe, 660 F.3d 346, 359 (8th Cir. 2011) (citation omitted) (reviewing for an abuse
of discretion). In fact, when a district court has dismissed every federal claim, as
here, “judicial economy, convenience, fairness, and comity” will usually “point
toward declining to exercise jurisdiction over the remaining state-law claims.”
Wilson v. Miller,
821 F.3d 963, 970–71 (8th Cir. 2016) (citation omitted). This
case is no exception. See, e.g., Zubrod v. Hoch,
907 F.3d 568, 572–73, 580–81
(8th Cir. 2018) (affirming in a similar case).
IV.
We accordingly affirm the judgment of the district court.
GRASZ, Circuit Judge, concurring in part and dissenting in part.
“It [is] clearly established . . . that when a person is subdued and restrained
with handcuffs, a ‘gratuitous and completely unnecessary act of violence’ is
unreasonable and violates the Fourth Amendment.” Blazek v. City of Iowa City,
761 F.3d 920, 925 (8th Cir. 2014) (quoting Henderson v. Munn,
439 F.3d 497, 503
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(8th Cir. 2006)). Viewed in a light most favorable to McManemy, the facts
establish Deputy Tierney repeatedly — twenty to thirty times — kneed
McManemy in the eye area after he was subdued and restrained. Therefore, I do
not believe Tierney is entitled to qualified immunity for this gratuitous use of force
and I dissent from Section II.B. of the court’s opinion.
When defining the context surrounding the challenged use of force for
purposes of either prong of the qualified immunity analysis, we are required to
grant inferences in favor of the non-moving party. See Tolan v. Cotton, 572 U.S.
650, 656–57 (2014). Failure to do so results in the impermissible invasion into the
province of the fact-finder by weighing the evidence.
Id. at 657.
Here, I believe the context surrounding Tierney’s use of force is particularly
important. McManemy led police officers on a long, high-speed chase. This put
both the participants and the public at risk. But ultimately he laid facedown in the
middle of the road with his arms and legs spread, giving himself up for arrest.
According to McManemy, the resulting melee occurred because the officers
incorrectly thought he was resisting arrest when they tried to handcuff him, when
in fact a preexisting shoulder injury and an involuntary response to tasing caused
the appearance of resistence. Regardless of the reason for the struggle, I agree with
the court it was reasonable for the officers to believe otherwise and this justifies
some of the physical force used.
But I do not believe Tierney’s repeated kneeing of McManemy in the eye
was within that justified use of force. The video evidence presented showed
Tierney arrived at the scene after McManemy had laid down and after at least four
officers were already on top of him. Tierney arrived, first kicked or stomped on
McManemy’s leg, and then moved to the left side of McManemy’s head. As the
court explains, the video does not show what Tierney then does for the next minute
or so. But if we are to believe McManemy, Tierney repeatedly — up to twenty or
thirty times — kneed him, resulting in demonstrable injury to the eye.
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The court distinguished what happened to McManemy from cases like Gill
v. Maciejewski, 546 F.3d 557 (8th Cir. 2008), and Krout v. Goemmer,
583 F.3d 557
(8th Cir. 2009), by noting that the plaintiffs in those cases were subdued and
offered no resistence. But in light of the above-mentioned evidence and our duty
to draw inferences in McManemy’s favor, a jury could conclude that some of the
strikes from Tierney’s knee occurred after McManemy was handcuffed and after
any reasonable belief in resistance would cease. That is, a jury could find that
Tierney struck McManemy’s face when he was subdued and offered no resistence.
If true, such actions were completely unnecessary to effect the arrest. This circuit
has clearly established that gratuitous force after a subdued suspect no longer poses
a threat violates the Fourth Amendment. See
Blazek, 761 F.3d at 925 (holding that
jerking a non-resisting suspect from the floor to his bed after he was handcuffed
and posed no threat violated clearly established law);
Krout, 583 F.3d at 566 (“It
was clearly established that the use of this type of gratuitous force against a suspect
who is handcuffed, not resisting, and fully subdued is objectively unreasonable
under the Fourth Amendment.”);
Gill, 546 F.3d at 562 (explaining an officer used
excessive force where he smashed his knee into a suspect’s head when the suspect
was not resisting and was already pinned down by multiple officers). Thus, I
believe there is sufficient evidence of a clearly established Fourth Amendment
violation and would reverse the district court’s grant of summary judgment in
favor of Tierney.
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