The opinion
United States Court of Appeals
For the Eighth Circuit
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No. 23-2656
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Christopher Sean Drew
Plaintiff - Appellant
v.
City of Des Moines; Dana Wingert, Individually and in his official capacity with
the City of Des Moines Police Department; Jason Hemsted, Individually and in his
official capacity with the City of Des Moines Police Department; Jordan Ulin,
Individually and in his official capacity with the City of Des Moines Police
Department
Defendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 12, 2024
Filed: August 2, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
While arresting Christopher Drew, Officer Jason Hemsted pepper sprayed
him at close range without warning. Drew sued Officer Hemsted, among others, for
violating his Fourth Amendment right to be free from unreasonable seizures. The
district court 1 granted summary judgment to the defendants. We affirm.
I.
Officer Hemsted and Officer Jordan Ulin were sent to investigate a woman’s
complaint of harassment from her next-door neighbor. She and her one-year-old
daughter were sitting in the grass outside the apartment building when Officer
Hemsted arrived. She told him that her neighbor, Drew, was “always trying to get
into [her] apartment” and that he had threatened to kill her and “blow [the] place
up.” That day, he had grabbed her shoulders and asked her, “Baby, why
you . . . leaving me.” When he blocked her doorway and refused to let her leave,
she called the building manager to intervene. With the manager standing between
them, the woman scooped up her daughter and escaped—but not before Drew lunged
at her more than once. She told Officer Hemsted that Drew was running around
looking for her. She was fed up. Drew’s non-stop harassment left her feeling unsafe
in her own home, and she wanted him arrested.
When Officer Ulin arrived, the two went inside and found the manager. She
told them that Drew was “a drunken idiot” who “dogs all the single women” and that
residents had to call police on him “sometimes five times a day.” She also said that
there was a case pending against Drew after he “busted in” another female
neighbor’s door. She thought Drew was in his apartment drinking, and as she led
the officers to his unit, she warned that he “gets right up in your space.” They passed
other residents on their way, one of whom commented, “I’m assuming [Drew] . . . as
usual.”
When the trio got to Drew’s apartment, they could hear arguing inside. A
woman yelled, “Get the fuck out of my way, bro!” After some more shouting, Drew
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
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opened the door and let her out. She rushed past the officers, thanking them
repeatedly and asking them to please let her leave. Drew remained in the doorway,
acknowledged the officers, and then yelled toward the fleeing woman, “Bitch, if you
ever come in my crib!”—but she was already down the stairs and out of sight.
What happened next took about 14 seconds. Officer Hemsted put his hand on
Drew’s arm and asked, “Do you got anything on you, any drugs, any guns?” Drew
shot back, “If you touch me one more goddamn time, we gonna have a problem.”
Officer Hemsted unholstered his pepper spray and asked, “Is that right?” But Drew
was firm—“Please. Do not touch me.” Officer Hemsted ordered Drew to turn
around and put his hands behind his back. Drew refused. He began to say, “No. I
am asking you—,” but before he could finish, Officer Hemsted sprayed directly into
one of his eyes from eight to ten inches away. Drew spun around, clutching his face,
and the officers handcuffed him. He later pleaded guilty to second degree
harassment, Iowa Code § 708.7(3).
Drew sued Officer Hemsted, Officer Ulin, the City of Des Moines, and its
police chief under 42 U.S.C. § 1983 for, as relevant here, excessive force, failure to
intervene, and Monell2 liability. The district court found that Officer Hemsted’s use
of force was objectively reasonable and granted summary judgment to the
defendants on all claims.
II.
We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to Drew and drawing all reasonable inferences in his favor.
Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011). Summary judgment is
appropriate if “there is no genuine dispute as to any material fact” and Officer
Hemsted is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
2
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
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Officer Hemsted is entitled to qualified immunity unless “(1) the facts
demonstrate the deprivation of a constitutional or statutory right, and (2) the right
was clearly established at the time of the deprivation.” De Mian v. City of St. Louis,
86 F.4th 1179, 1182 (8th Cir. 2023). “We may resolve the appeal under only the
clearly established prong of the analysis.” Irish v. McNamara, ___ F.4th ___, ___
(8th Cir. 2024).
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” it.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Because it can be difficult for an
officer to “determine how the relevant legal doctrine, here excessive force, will apply
to the factual situation [he] confronts,” we define clearly established law with
“specificity,” asking “whether the violative nature of particular conduct is clearly
established” in “the specific context of the case.” Mullenix v. Luna, 577 U.S. 7, 12
(2015) (per curiam) (citations omitted). Officers “are entitled to qualified immunity
unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v.
Hughes, 584 U.S. 100, 104 (2018) (per curiam) (quoting Mullenix, 577 U.S. at 13).
Relevant facts include “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.” Graham v. Connor, 490 U.S.
386, 396 (1989).
Drew hangs his hat on a series of cases that involved plaintiffs suspected of
less severe crimes who posed a minimal risk of violence, so none “squarely governs
the facts here.” Mullenix, 577 U.S. at 15 (cleaned up). Take Brown v. City of Golden
Valley, where an officer tased someone suspected of an open bottle violation “who
was not fleeing or resisting arrest, who posed little to no threat to anyone’s safety,
and whose only noncompliance with the officer’s commands was to disobey two
orders to end her phone call to a 911 operator.” 574 F.3d 491, 499 (8th Cir. 2009).
Or Peterson v. Kopp, where an officer pepper sprayed a “non-fleeing, non-resisting,
non-violent” suspect who refused to leave a public area, took out his cell phone, and
asked for the officer’s badge number. 754 F.3d 594, 599–601 (8th Cir. 2014). Or
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Johnson v. Carroll, where an officer pepper sprayed and threw to the ground a
woman who was “obstructing legal process” by “interjecting her body” between an
arrestee and the officers—conduct we said was neither severe nor violent. 658 F.3d
819, 827 (8th Cir. 2011). Or even Shannon v. Koehler, where an officer took down
a bar owner who “was not threatening anyone” or resisting arrest and it was unclear
“whether [he] could reasonably have been suspected of committing any crime,” let
alone a serious one. 616 F.3d 855, 862–63 & 862 n.3 (8th Cir. 2010). In each of
these cases, the plaintiff was at most suspected of a nonviolent misdemeanor and
posed “a minimal safety threat.” Johnson, 658 F.3d at 827 (emphasis added). None
were about a severe crime involving threats of violence.
Nor was Tatum v. Robinson, though it gets closer. 858 F.3d 544 (8th Cir.
2017). There, an off-duty, plainclothes officer working security at a store
approached Tatum, a suspected shoplifter. Id. at 546. He identified himself as a
police officer and told Tatum that he was under arrest. Id. Within 14 seconds, the
officer instructed him to put his hands on a clothes rack, warned him that he would
use pepper spray if he did not calm down, sprayed him, and choked him. Id. at 546,
550. We noted that an officer “may act unreasonably” if he pepper sprays a suspect
posing a “non-immediate safety threat[] . . . without warning,” and that force is
“least justified” against a “non-resisting, non-fleeing individual suspected of a
completed, non-violent misdemeanor,” like Tatum. Id. at 549–50 (emphasis added).
We also said that because Tatum was “angrily arguing” and had “made no verbal
threats or physical movements indicating a threat,” he was noncompliant but not
actively resisting arrest. Id. at 548–49. So we held that it was unreasonable for the
officer to “immediately use significant force” without first “attempt[ing] to use other
force to secure compliance.” Id. at 550.
Drew’s is a very different case. He had repeatedly harassed a woman,
threatened to kill her and blow up the apartment building, and lunged at her and her
one-year-old daughter while blocking them from leaving their home. And she
wasn’t his only target—Drew was a persistent problem in the building and had
busted in another female neighbor’s door. As the officers approached Drew’s door,
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they were told that he was likely under the influence and got up in people’s space.
They heard a woman screaming at Drew to get out of her way when they arrived,
and they witnessed him threaten her as she fled. Plus, when Officer Hemsted
grabbed Drew’s arm and asked if he had any guns on him, he skirted the question
and warned the officer that if he touched him “one more goddamn time” they would
“have a problem.”3 He then refused to comply with Office Hemsted’s order to turn
around and put his hands behind his back. Drew’s case differs from Tatum both in
the severity of the suspected crime and the risk of violence. So Tatum does not
“squarely govern” here. Mullenix, 577 U.S. at 15.
All said, it was not clearly established in June 2020 that an officer may not
use pepper spray to arrest someone who is suspected of a serious crime, has made
several violent threats, and is noncompliant. Officer Hemsted is entitled to qualified
immunity.
III.
Because it was not clearly established that Officer Hemsted’s use of force
violated Drew’s Fourth Amendment rights, Officer Ulin was not “on fair notice that
his failure to intervene” would be unconstitutional, so Drew’s claim against Officer
Ulin fails. See Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015).
For the same reason, the City and police chief “did not act with deliberate
indifference by failing to train [their] officers that use of [pepper spray] in these
circumstances was impermissible.” Id. at 992.
3
Drew attacks the district court’s characterization of this statement as a
“verbal threat,” noting that he was calm when he said it and made no physically
threatening movements. See Tolan v. Cotton, 572 U.S. 650, 658–59 (2014) (per
curiam) (holding that it was error to construe plaintiff’s words as a threat because “a
jury could well have concluded that a reasonable officer would have heard [‘Get
your fucking hands off my mom’] not as a threat, but as a son’s plea” (cleaned up)).
But this statement is just one of several facts that make Drew’s case, and the
immediacy of his threat to officers, distinct from Tatum.
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IV.
The district court’s judgment is affirmed. The motion to supplement the
record with the bodycam footage is granted.
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