JACKSON v. STAIR III (2020)

ORDER

The petition for rehearing en banc is denied. The petition for panel rehearing is also denied.

Judge Colloton would grant the petition for rehearing en banc. Judge Loken joins.

Four judges have considered whether Officer Stair used reasonable force in apprehending appellant Jackson. Two judges (the district judge and the dissenting panel judge) concluded that the force was reasonable under the Fourth Amendment; two judges (the panel majority) concluded that the force was unreasonable. Jackson v. Stair, 944 F.3d 704 (8th Cir. 2019). Yet the panel majority did not merely decide the reasonableness issue in a way that “promotes the development of constitutional precedent.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The panel opinion went further on the question of qualified immunity and concluded that a contrary conclusion about reasonableness was so clearly wrong that the issue was “beyond debate.” 944 F.3d at 711 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Under qualified immunity doctrine, therefore, the panel decision necessarily determined that a police action deemed constitutionally reasonable by the district judge and the dissenting panel judge would have been undertaken by only “the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). I would rehear the case “to secure and maintain uniformity of the court’s decisions.” Fed. R. App. P. 35(b)(1)(A).

Qualified immunity has been a point of emphasis for the Supreme Court over the last decade, particularly in cases involving alleged use of excessive force by police officers. In 2017, the Court explained that, in the preceding five years, it had issued a number of opinions reversing federal courts in qualified immunity cases. White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam); see City and County of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1774 n.3, 191 L.Ed.2d 856 (2015) (collecting cases). This was “necessary both because qualified immunity is important to society as a whole, and because as an immunity from suit, qualified immunity is effectively lost if a case is erroneously permitted to go to trial.” White, 137 S. Ct. at 551 (internal quotoations omitted). The Court’s attention to this topic, and the string of reversals, continued in the last two years. City of Escondido v. Emmons, ––– U.S. ––––, 139 S. Ct. 500, 202 L.Ed.2d 455 (2019) (per curiam); Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 200 L.Ed.2d 449 (2018) (per curiam). The Eighth Circuit thus far has avoided reversal in a qualified immunity case, although it may be noteworthy that no petition for writ of certiorari was filed from several divided panel decisions. E.g., Robinson v. Hawkins, 937 F.3d 1128 (8th Cir. 2019); Z.J. ex rel. Jones v. Kansas City Bd. of Police Comm’rs, 931 F.3d 672 (8th Cir. 2019); Michael v. Trevena, 899 F.3d 528 (8th Cir. 2018); Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017); Duffie v. City of Lincoln, 834 F.3d 877 (8th Cir. 2016); Atkinson v. City of Mountain View, 709 F.3d 1201 (8th Cir. 2013); Johnson v. Carroll, 658 F.3d 819 (8th Cir. 2011).

The Supreme Court has enunciated several principles that should guide a court in evaluating qualified immunity in a case involving alleged use of excessive force:

• The Court “has repeatedly told courts ․ not to define clearly established law at a high level of generality.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotation omitted); Kisela, 138 S. Ct. at 1152; District of Columbia v. Wesby, [––– U.S. ––––] 138 S. Ct. 577, 590 [199 L.Ed.2d 453] (2018); White, 137 S. Ct. at 552; Mullenix v. Luna, [––– U.S. ––––] 136 S. Ct. 305, 308 [193 L.Ed.2d 255] (2015) (per curiam); Sheehan, 135 S. Ct. at 1775-76; Plumhoff v. Rickard, 572 U.S. 765, 779 [134 S.Ct. 2012, 188 L.Ed.2d 1056] (2014); Reichle v. Howards, 566 U.S. 658, 665 n.5 [132 S.Ct. 2088, 182 L.Ed.2d 985] (2012); al-Kidd, 563 U.S. at 742 [131 S.Ct. 2074].

• “The dispositive question is whether the violative nature of the particular conduct is clearly established.” Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 1866, 198 L.Ed.2d 290 (2017) (internal quotation omitted); Mullenix, 136 S. Ct. at 308; al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.

• “[S]pecificity is especially important in the Fourth Amendment context, where ․ it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotation omitted); Kisela, 138 S. Ct. at 1152-53; Mullenix, 136 S. Ct. at 308.

• “Use of excessive force is an area of the law in which the result depends very much on the facts of the case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotations omitted); Kisela, 138 S. Ct. at 1153.

All of these propositions were discussed and applied in this court’s recent en banc decision in Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019) (en banc), albeit with four judges dissenting. None of the propositions is even mentioned by the panel majority.

Officer Stair deployed a taser device three times to subdue Jackson after he refused to comply with commands and raised his fist toward another police officer’s head. The panel majority ruled that the first and third deployments were reasonable, but that the second deployment was unreasonable and violated a clearly established right of Jackson. The panel opinion cited no comparable decision involving application of a taser against a non-compliant subject who threatened use of force against a police officer, and no decision holding that a subject’s “momentary post-tasered position on the ground” requires an officer to consider it “a clearly punctuated interim of compliance” that makes another use of the taser unreasonable under the Fourth Amendment. See 944 F.3d at 714 (Wollman, J., dissenting).

Instead, to justify reversing the district court’s grant of qualified immunity, the panel majority reasoned that “ ‘general constitutional principles against excessive force’ are enough to create a clearly established right and to put a reasonable officer on notice that a particular tasing was excessive.” 944 F.3d at 713 (quoting Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012)). The opinion does not attempt to reconcile its reliance on “general constitutional principles” with the rule that clearly established law should not be defined at “a high level of generality.”

The panel opinion also relied on decisions involving different legal inquiries or materially different circumstances that do not squarely govern the specific facts of this case. One authority, Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009), held that use of a taser against a “seat-belt restrained passenger cowering in her automobile” was unreasonable. See Rudley v. Little Rock Police Department, 935 F.3d 651, 654 (2019). The panel cited Smith v. Conway County, 759 F.3d 853 (8th Cir. 2014), which examined—under the Eighth Amendment—a taser shot fired as a “corporal inducement” against a nonviolent detainee who was in pain, seeking medical assistance, and attempting to comply with a jailer’s orders. Id. at 860. The opinion referenced Shekleton, which addressed an officer’s use of a taser against a compliant, nonviolent, nonfleeing misdemeanant after the officer unsuccessfully sought to handcuff the suspect and the two men accidentally fell to the ground. 677 F.3d at 366-67; see Kelsay, 933 F.3d at 980. And the panel majority relied on two decisions—Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010), and Montoya v. City of Flandreau, 669 F.3d 867 (8th Cir. 2012)—that did not even involve deployment of a taser, much less the question whether the Fourth Amendment forbids two five-second deployments of a taser to subdue a rage-filled subject who threatens force against an officer.^*

Whether the panel’s reasoning is consistent with the Supreme Court’s admonitions—including that clearly established law should not be defined “at a high level of generality,” and that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue,” Emmons, 139 S. Ct. at 503—is a matter that warrants further review.

FOOTNOTES

FOOTNOTE.   In a footnote, the panel opinion suggests that its holding is supported by the fact that “an internal department review of the tasing incident resulted in a reprimand of Officer Stair.” 944 F.3d at 713 n.4. Stair’s supervisor, however, reasoned only from a high level of generality that the second application of the taser was unreasonable under the standard of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whatever the merit of that conclusion, the supervisor did not purport to apply the law of qualified immunity. See R. Doc. 33-1.