Shannon v. Koehler

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 09-3889

________________

Timothy Clair Shannon, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Officer Michael Koehler; City of *

Sioux City; Joseph C. Frisbie, *

*

Appellants. *

_______________

Submitted: June 16, 2010

Filed: August 17, 2010

________________

Before LOKEN, ARNOLD and GRUENDER, Circuit Judges.

________________

GRUENDER, Circuit Judge.

The plaintiff, Timothy Shannon, is a former Marine and retired police officer

who owns a pub in Sioux City, Iowa, called “Tom Foolery’s.” In the early morning

hours of September 13, 2006, Shannon was arrested inside Tom Foolery’s by Michael

Koehler, a patrol officer with the Sioux City Police Department. Following his arrest,

Shannon filed this action under 42 U.S.C. § 1983 against Officer Koehler, the City of

Sioux City, the Sioux City Police Department, and Sioux City’s former Chief of

Police, Joseph Frisbie. Shannon’s complaint alleges that Officer Koehler violated the

Fourth Amendment by using excessive force in arresting him, and that the City, the

Department, and Chief Frisbie are liable under § 1983 for establishing or tolerating

certain policies or customs that led to the purported violation of his constitutional

rights. The complaint also includes state-law tort claims against each of the

defendants.

The district court1 dismissed the claims against the Department, holding that the

Department is merely a subdivision of the City and thus not subject to suit.

Thereafter, a magistrate judge granted the City and Chief Frisbie’s motion to

“bifurcate” the claims against Officer Koehler from the claims against them. The

district court later denied the defendants’ motion for summary judgment on all of

Shannon’s claims and reversed the magistrate judge’s order bifurcating the relevant

claims.

The defendants appeal the district court’s denial of summary judgment on

Shannon’s federal claims as well as the district court’s decision on the bifurcation

issue. For the following reasons, we affirm the district court’s denial of qualified

immunity to Officer Koehler and dismiss the rest of the appeal for lack of jurisdiction.

I. BACKGROUND

On the evening of September 12, 2006, Shannon was in Tom Foolery’s

drinking. Starting around closing, at about 1:00 a.m. on September 13, surveillance

cameras recorded Shannon stumbling drunkenly through the pub’s seating area and

interacting with departing patrons.

1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

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At about 1:15 a.m., Christina Navrkal and Jill Murad arrived at Tom Foolery’s,

apparently intending to drive Shannon home. The surveillance videos show Shannon,

Navrkal, and Murad begin arguing almost immediately. The three walk behind the

bar, yelling back and forth, and Shannon punches Navrkal in the face. Murad then

shoves Shannon with both hands, sending him reeling backward and onto the floor.

Shannon stays down until the bartender comes over to help him to his feet. Shannon

touches his scalp and discovers that he is bleeding. The argument continues.

Eventually, Murad becomes concerned about the cut on Shannon’s head and calls 911.

What happened next is the subject of some dispute. The district court described

the relevant events as follows:

Police officer Michael Koehler, a defendant in this case, responds to a

call for a disturbance between two females, at a bar, involving an injured

person. Once Koehler arrives on the scene, he is greeted at the front

door by a woman, Jill Murad, who allegedly states that one of the

females inside had been “touched or grabbed by the male who was in the

bar.” Koehler and Murad walk to the middle of the establishment. The

plaintiff, Timothy Shannon, is behind the bar. Shannon walks out from

behind the bar, toward Koehler, and strongly states to Koehler, using

profanity, that he owns the bar, does not need Koehler, and orders him

to get out of the bar. Shannon eventually comes within arm[’]s length

of Koehler. Koehler alleges that Shannon pokes him, once, in the chest.

Shannon denies this. Koehler uses both his hands to holster his

flashlight on a ring in the back of his belt. As he is doing this, Shannon

allegedly pokes Koehler a second time, which Shannon denies, and

Koehler performs a takedown, which causes Shannon to hit a bar stool

and land on the hardwood floor. Once Shannon is on the ground,

Koehler places a handcuff on one of Shannon’s arms and, after using

additional force, secures a second arm in the other handcuff. Koehler

claims that the additional force was necessary because Shannon had

tucked his arm under his body. Shannon denies being uncooperative and

alleges that he was injured during his arrest.

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673 F. Supp. 2d 758, 761-62 (N.D. Iowa 2009).

In August 2008, Shannon filed suit in federal court. Count 1 of Shannon’s

complaint contains two categories of claims arising under 42 U.S.C. § 1983. The first

claim in Count 1 alleges that Officer Koehler violated the Fourth Amendment by

using excessive force in arresting him. The other claims in Count 1 allege that the

City, the Department, and Chief Frisbie established or tolerated certain policies or

customs that led to Officer Koehler’s use of excessive force. Count 2 of Shannon’s

complaint contains assault and battery claims arising under state law against each of

the defendants.

As we mentioned above, Shannon’s claims against the Department were

promptly dismissed. The City and Chief Frisbie then moved to “bifurcate” the claims

against Officer Koehler from the claims against them. The magistrate judge granted

the request, ordering separate trials under Rule 42(b) of the Federal Rules of Civil

Procedure.

Next, the remaining defendants filed a joint motion for summary judgment,

asserting two principal grounds. First, Officer Koehler argued that he was entitled to

qualified immunity, either because his use of force was objectively reasonable (and

therefore not excessive under the Fourth Amendment) or, alternatively, because the

unlawfulness of his conduct was not clearly established. Second, the City and Chief

Frisbie argued that they were entitled to summary judgment, either because Shannon

could not meet his burden of proving that Officer Koehler used excessive force or,

alternatively, because Shannon could not meet his burden of proving that Frisbie or

some other policymaker “condoned” a policy or custom that led to the alleged

violation of his constitutional rights.

The district court denied summary judgment on all of Shannon’s claims in a

lengthy opinion and order. For now, two parts of the district court’s analysis are

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worth introducing in detail, both of which relate to Officer Koehler’s qualified

immunity defense.

First, in the section of its opinion addressing the circumstances of Shannon’s

arrest, the district court found that several “genuine issues of material fact exist

concerning whether Koehler’s use of force was objectively reasonable.” 673 F. Supp.

2d at 783-84. With respect to the initial confrontation, which culminated in Officer

Koehler using a so-called “leg sweep” to take Shannon to the ground, the court

identified genuine issues of fact “concerning whether Shannon made contact with

Koehler prior to the takedown, whether the takedown was appropriate and

administered in accordance with police procedures, and the extent of Shannon’s

injuries resulting from the takedown.” Id. at 784. With respect to the ensuing struggle

on the ground, the court identified genuine issues of fact “concerning when any

alleged resistance by Shannon ceased and what force was used after resistance ceased,

whether Shannon was fully subdued at any point before the force ended, and whether

police procedures would have instructed Koehler to wait for backup, which was

arriving, to . . . secure Shannon’s other arm [after handcuffs were placed on one of

Shannon’s wrists].” Id.

Second, in the section of its opinion addressing the alleged violation of clearly

established law, the district court held that “view[ing] the record in the light most

favorable to Shannon, . . . Koehler was on notice that his actions . . . were unlawful.”

Id. at 786 (internal citation omitted). The district court’s explanation for that holding

focused on these lines from our decision in Brown v. City of Golden Valley, 574 F.3d

491 (8th Cir. 2009):

The right to be free from excessive force in the context of an arrest is

clearly established under the Fourth Amendment’s prohibition against

unreasonable searches and seizures. Moreover, it is clearly established

that force is least justified against nonviolent misdemeanants who do not

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flee or actively resist arrest and pose little or no threat to the security of

the officers or the public.

673 F. Supp. 2d at 785 (internal citations omitted) (quoting Brown, 574 F.3d at 499).

The district court went on to find that “Shannon has properly supported, for [the

purpose of opposing] . . . summary judgment, his allegations that he was simply a

nonviolent misdemeanant, at most”; that he “did not flee or actively resist arrest”; and

that he “posed little or no threat to Koehler’s security or that of Navrkal and Murad.”

Id. Based on these considerations, the district court rejected Officer Koehler’s

contention that “[his] actions were within the ‘hazy border between excessive and

acceptable force.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled

in part on other grounds by Pearson v. Callahan, 555 U.S. ---, 129 S. Ct. 808 (2009)).

As to the rest of the claims, it suffices to note the result. Specifically, the

district court denied summary judgment on Shannon’s § 1983 claims against the City

and Chief Frisbie—what the parties call the “Monell claims,” see Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690-91 (1978) (“[L]ocal governments, like every other

§ 1983 ‘person,’ by the very terms of the statute, may be sued for constitutional

deprivations visited pursuant to governmental ‘custom’ . . . .”)—concluding that

“Shannon has generated a genuine issue of material fact concerning whether Koehler’s

alleged use of excessive force was committed pursuant to a municipal custom,” 673

F. Supp. 2d at 803. Likewise, the court denied summary judgment on Shannon’s state

assault and battery claims, concluding that “there are genuine issues of material fact”

about whether Officer Koehler exceeded the bounds of his lawful authority in

arresting Shannon. Id. at 804-05 (discussing Iowa Code § 804.8 and the interaction

between Iowa Code § 670.2 and Iowa Code § 670.4).

In addition to ruling on the motion for summary judgment, the district court also

reviewed, sua sponte, the magistrate judge’s order granting separate trials on the

claims against Officer Koehler and the claims against the City and Chief Frisbie.

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Noting that separate trials “would be a waste of . . . judicial resources,” the court held

that the magistrate judge’s “finding that the claims should be bifurcated was clearly

erroneous.” Id. at 770.

The defendants filed a notice of appeal setting out three issues: “(1) qualified

immunity and whether the law was clearly established; (2) Monell liability; and (3)

reversal of the Order bifurcating the . . . claims [against the City and Chief Frisbie]

from the . . . claims against Officer [Koehler].” Shannon moved to dismiss the appeal

to the extent the defendants sought review of issue (3). Initially, Shannon did not

dispute that this court has jurisdiction under the collateral order doctrine to review

issue (1). See Johnson v. Jones, 515 U.S. 304, 311-12 (1995). And Shannon

conceded that this court has pendent appellate jurisdiction to consider issue (2)

because it is, in his words, “arguably inextricably intertwined” with issue (1). See

Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir. 1995). The defendants

opposed Shannon’s motion to dismiss, arguing that the district court’s decision on the

bifurcation issue is “inextricably intertwined with the issues of qualified immunity and

Monell liability.”

The discussion of jurisdiction in the parties’ merits briefs leaves much to be

desired. In their opening brief, the defendants assert that they “have the right to

appeal the denial of qualified immunity in a § 1983 action,” and that this court has

pendent appellate jurisdiction “to consider the Monell claims . . . as well as the

bifurcation issue.” In his brief, Shannon renews his previous argument for dismissing

the appeal from the district court’s decision on the bifurcation issue and now also

argues that this court lacks jurisdiction to review the other two issues pressed by the

defendants.

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II. DISCUSSION

We begin by addressing the qualified immunity issue, since that is the hook on

which the defendants hang their assertion of pendent appellate jurisdiction to consider

the other two issues raised in this appeal. “Ordinarily, we lack jurisdiction ‘to hear

an immediate appeal from a district court’s order denying summary judgment, because

such an order is not a final decision.’” Langford v. Norris, --- F.3d ---, 2010 WL

2813551, at *5 (8th Cir. July 20, 2010) (quoting Krout v. Goemmer, 583 F.3d 557,

563-64 (8th Cir. 2009)); see also 28 U.S.C. § 1291. “We do, however, have ‘limited

authority . . . to review the denial of qualified immunity through an interlocutory

appeal under the collateral order doctrine.’” Langford, 2010 WL 2813551, at *5

(alteration in original) (quoting Krout, 583 F.3d at 564). Jurisdiction over an

interlocutory appeal from the denial of qualified immunity “extends only to ‘abstract

issues of law,’ not to ‘determination[s] that the evidence is sufficient to permit a

particular finding of fact after trial.’” Krout, 583 F.3d at 564 (alteration in original)

(internal citation omitted) (quoting Johnson v. Jones, 515 U.S. 304, 314, 317 (1995)).

Appellate review in these circumstances is therefore limited to “determin[ing] whether

all of the conduct that the district court ‘deemed sufficiently supported for purposes

of summary judgment’ violated the plaintiff’s clearly established federal rights.”

Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en

banc) (quoting Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).

Shannon halfheartedly argues that we lack jurisdiction to review the district

court’s denial of qualified immunity to Officer Koehler because “[t]he district court

found disputed facts at nearly every stage of the case.” But that argument appears to

stem from a misreading of the Supreme Court’s decision in Johnson v. Jones. See

Behrens, 516 U.S. at 312-13 (“Denial of summary judgment often includes a

determination that there are controverted issues of material fact, and Johnson surely

does not mean that every such denial of summary judgment is nonappealable.”

(internal citation omitted)). As the Supreme Court has explained,

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Johnson held, simply, that determinations of evidentiary sufficiency at

summary judgment are not immediately appealable merely because they

happen to arise in a qualified-immunity case; if what is at issue in the

sufficiency determination is nothing more than whether the evidence

could support a finding that particular conduct occurred, the question

decided is not truly “separable” from the plaintiff’s claim, and hence

there is no “final decision” under [Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949)] and [Mitchell v. Forsyth, 472 U.S. 511

(1985)]. See 515 U.S. at 313-18. Johnson reaffirmed that summary

judgment determinations are appealable when they resolve a dispute

concerning an “abstract issu[e] of law” relating to qualified immunity,

id. at 317—typically, the issue whether the federal right allegedly

infringed was “clearly established.”

Behrens, 516 U.S. at 313 (alteration to internal quotation in original) (some citations

omitted). Here, there is no serious question that we have jurisdiction to decide

whether, accepting Shannon’s version of the facts, Officer Koehler is entitled to

qualified immunity as a matter of law. See Kahle v. Leonard, 477 F.3d 544, 549-50

(8th Cir. 2007).2

“We review a district court’s qualified immunity determination on summary

judgment de novo, viewing the record in the light most favorable to [the plaintiff] and

drawing all reasonable inferences in [his] favor.” Langford, 2010 WL 2813551, at *9

(quoting Krout, 583 F.3d at 564). In this instance, the district court chose to follow

2

Shannon also complains that Officer Koehler is not “[p]laying fair” because

Koehler’s challenge to the denial of qualified immunity is premised on “his own

version of the facts” rather than Shannon’s version. While Officer Koehler’s briefing

does occasionally go too far in shading the facts in his favor, see, e.g., Appellants’ Br.

at 12-16, 22-23, we do not think those stray examples of overzealous advocacy

warrant dismissal of the qualified immunity appeal. Cf. Felder v. King, 599 F.3d 846,

849 (8th Cir. 2010) (dismissing for lack of jurisdiction because the officers seeking

qualified immunity “fail[ed] to raise any purely legal question for review” (emphasis

omitted)).

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the traditional sequence for resolving a qualified immunity claim, asking first

“whether the facts alleged or shown, construed in the light most favorable to

[Shannon], establish a violation of a constitutional . . . right,” and second, “whether

that constitutional right was clearly established as of [September 13, 2006], such that

a reasonable official would have known that his actions were unlawful.” 673 F. Supp.

2d at 773 (quoting Krout, 583 F.3d at 564); see also Pearson v. Callahan, 555 U.S. ---

, 129 S. Ct. 808, 818 (2009) (holding that while the “two-step protocol” set out in

Saucier v. Katz, 533 U.S. 194 (2001), “is often appropriate, it should no longer be

regarded as mandatory”). We see no good reason to depart from that sequence on

appeal.

Shannon’s theory of the constitutional violation is run-of-the-mill: He claims

that Officer Koehler violated the Fourth Amendment by using excessive force in

arresting him. The dispositive question is whether the amount of force the officer

used was objectively reasonable. See Graham v. Connor, 490 U.S. 386, 396-97

(1989). In turn, “[t]he reasonableness of a particular use of force depends on the

circumstances of each case, 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.’” Wertish v.

Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (quoting Graham, 490 U.S. at 396).

As we recounted above, the district court found adequate support in the record

for Shannon’s allegations that he was not suspected of committing a serious crime,

that he did not attempt to flee or actively resist arrest, and that he posed little or no

threat to Officer Koehler or others.3 The court also found that there were genuine

3

Regarding the severity of the crime at issue, it is not clear from the record

whether Shannon could reasonably have been suspected of committing any crime. As

the district court noted, “[t]he defendants claim that Murad informed Koehler, upon

his arrival at the bar, that a female had been touched or grabbed by the male in the

bar.” 673 F. Supp. 2d at 779 n.12. At Officer Koehler’s deposition, however, he

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disputes about whether Shannon poked Officer Koehler in the chest and about the

severity of the injuries that Shannon suffered as a result of Koehler’s use of force in

arresting him. The defendants have a somewhat different account of what happened

in Tom Foolery’s, but nothing in the record—including the surveillance

videos—clearly contradicts Shannon’s version of the facts. Cf. Scott v. Harris, 550

U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which

is blatantly contradicted by the record, so that no reasonable jury could believe it, a

court should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.”).

Assuming, then, that Shannon’s story is true—i.e., assuming he was not

threatening anyone, not resisting arrest, and so on—it was not reasonable for Officer

Koehler to use more than de minimis force against him. See, e.g., Brown v. City of

Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009); Bauer v. Norris, 713 F.2d 408, 412

(8th Cir. 1983); Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981); Agee v.

Hickman, 490 F.2d 210, 212 (8th Cir. 1974) (per curiam). It follows, a fortiori, that

using enough force to cause the injuries that Shannon alleges—a partially collapsed

lung, multiple fractured ribs, a laceration to the head, and various contusions—was

also unreasonable. See Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir.

2003) (“In addition to the circumstances surrounding the use of force, we may also

consider the result of the force.”); see also Blankenhorn v. City of Orange, 485 F.3d

463, 477 (9th Cir. 2007) (“[E]ven where some force is justified, the amount actually

stated that Murad told him “to check [Shannon’s] head.” Id. When asked whether

Murad said anything else, Officer Koehler said, “Not that I recall, no.” Id. Aside

from this discrepancy in Officer Koehler’s position, it must be noted that the

emergency call to which Koehler responded referred to “a disturbance between two

females.” Id. at 778 (emphasis added). And we agree with the district court’s

assessment that when Officer Koehler entered Tom Foolery’s, “there were no

indications that [the] disturbance was serious and nothing occurred that would have

drastically altered the severity of the potential crime[] at issue.” Id. at 779.

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used may be excessive.” (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir.

2002))).

This is not to say that police officers are categorically prohibited from using

more than de minimis force to subdue suspects who are drunk and belligerent. Cf.

Marvin v. City of Taylor, 509 F.3d 234, 246-48 (6th Cir. 2007) (stating that the

arrestee’s “heavy intoxication created a volatile situation,” and remarking that

volatility supported the conclusion that the arresting officers’ use of force was

objectively reasonable); Wilson v. Flynn, 429 F.3d 465, 468-69 (4th Cir. 2005)

(finding that the suspect’s drunkenness, among other factors, supported the conclusion

that the arresting officers’ use of force was objectively reasonable). And there can be

no doubt that officers are permitted to use force when their safety is threatened. See,

e.g., Brown, 574 F.3d at 497 (“A threat to an officer’s safety can justify the use of

force in cases involving relatively minor crimes and suspects who are not actively

resisting arrest or attempting to flee.”). But considering the facts and circumstances

of this particular case, see Graham, 490 U.S. at 396, we cannot say that a reasonable

officer on the scene would have felt the need to use any force against Shannon, much

less enough force to cause the injuries of which he complains. The cases on which

Officer Koehler relies do not compel a contrary conclusion, for each of the relevant

cases involved a threat to officer safety that was more obvious, more serious, or both

more obvious and more serious than the potential threat Officer Koehler faced in Tom

Foolery’s. See, e.g., Wertish, 433 F.3d at 1067 (“Officer safety concerns made it

objectively reasonable for . . . officers to assume they were dealing with a belligerent

drunk—or perhaps a fleeing criminal—who required forcible detention.”); Lawyer v.

City of Council Bluffs, 361 F.3d 1099, 1105 (8th Cir. 2004) (“[I]t was objectively

reasonable for [the arresting officer] to believe that he was in immediate danger, as he

faced the possibility that he could be dragged down the road with his arm trapped in

the window [of the arrestee’s car] if the vehicle began to move.”); see also Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that the arresting officer’s

use of a taser was objectively reasonable, in part because the arrestee had refused to

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comply with at least five of the officer’s verbal commands and was generally “hostile,

belligerent, and uncooperative”). Accordingly, we are satisfied that the facts,

construed in the light most favorable to Shannon, establish a violation of a

constitutional right. See Krout, 583 F.3d at 564.4

It remains to decide whether the constitutional right Officer Koehler allegedly

violated was clearly established as of September 13, 2006, such that a reasonable

official would have known that his actions were unlawful.5 As the district court

4

Shannon was convicted in state court of interfering with official acts, a

misdemeanor offense that has as an element knowingly “resist[ing] or

obstruct[ing] . . . a peace officer.” See Iowa Code § 719.1. The district court found

that it could not give preclusive effect to any issues of fact decided in the state court

proceeding because the parties had not “sufficiently discussed” the basis for the

conviction. 673 F. Supp. 2d at 783 n.14. The defendants mention the conviction in

their opening brief on appeal, but only in passing. Consequently, the defendants have

abandoned any possible issue preclusion defense (for this stage of the federal case at

least) by failing to properly raise it in the district court or in their opening brief on

appeal. See Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997); see

also Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).

5

We pause to note that the district court at one point suggested that factual

disputes prevented it from deciding at least the first part of the qualified immunity

inquiry before trial. See 673 F. Supp. 2d at 784 & n.15. Generally speaking, the

existence of genuine issues of material fact does not mean that a district court may

defer addressing a qualified immunity claim until after trial; qualified immunity, after

all, “is ‘an immunity from suit rather than a mere defense to liability[,] and like an

absolute immunity, it is effectively lost if a case is erroneously permitted to go to

trial,’” Scott, 550 U.S. at 376 n.2 (quoting Mitchell, 472 U.S. at 526); see also id.

(“[W]e repeatedly have stressed the importance of resolving immunity questions at

the earliest possible stage in litigation.” (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991) (per curiam))). When qualified immunity is raised at the summary judgment

stage, the proper course is to view the facts and draw reasonable inferences in the light

most favorable to the plaintiff—which “usually means adopting . . . the plaintiff’s

version of the facts”—and then to assess the constitutionality of the challenged

conduct. Scott, 550 U.S. at 377-78. But we need not dwell on this, since the district

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observed, this court has said many times that “[t]he right to be free from excessive

force in the context of an arrest is clearly established under the Fourth Amendment’s

prohibition against unreasonable searches and seizures.” See, e.g., Brown, 574 F.3d

at 499 (citing Graham, 490 U.S. at 396, among other cases). But the Supreme Court

has made clear that reciting the “general proposition” established in Graham v.

Connor “is not enough.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)

(quoting Saucier, 533 U.S. at 201-02). Rather, the Court emphasized in Anderson v.

Creighton, 483 U.S. 635 (1987), that “the right the official is alleged to have violated

must have been ‘clearly established’ in a more particularized, and hence more

relevant, sense: The contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right,” id. at 640. “This

is not to say that an official action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.” Id. (internal citation omitted).

Assuming once again that Shannon’s story is true, the contours of the right at

issue were sufficiently clear that a reasonable official standing in Officer Koehler’s

shoes would have understood that the amount of force he used was excessive. Long

before September 13, 2006, this court (among others) had announced that the use of

force against a suspect who was not threatening and not resisting may be unlawful.

See, e.g., Bauer, 713 F.2d at 412 (“Force can only be used to overcome physical

resistance or threatened force . . . .” (quoting Agee, 490 F.2d at 212)); Feemster, 661

F.2d at 89 (“There is no occasion for the use of any force against a prisoner who

quietly submits.”); see also Brown, 574 F.3d at 499 (“[I]t is clearly established that

force is least justified against nonviolent misdemeanants who do not flee or actively

resist arrest and pose little or no threat to the security of the officers or the public.”

(citing Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002), and Henderson v. Munn,

court proceeded to address the second part of the qualified immunity inquiry. See 673

F. Supp. 2d at 784-86.

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439 F.3d 497, 503 (8th Cir. 2006), among other cases)).6 Although Shannon greeted

Officer Koehler in a disrespectful, even churlish manner, that alone did not make

Officer Koehler’s use of force acceptable under extant law. See Bauer, 713 F.2d at

412 (“‘[T]he use of any force by officers simply because a suspect is argumentative,

contentious, or vituperative’ is not to be condoned.” (alteration in original) (quoting

Agee, 490 F.2d at 212)). We are convinced that the right Officer Koehler allegedly

violated was clearly established as of September 13, 2006, such that a reasonable

official would have known that his actions were unlawful, see Krout, 583 F.3d at 564;

that is to say, the excessiveness of Officer Koehler’s use of force was apparent, see

Anderson, 483 U.S. at 640. Thus, we affirm the district court’s denial of qualified

immunity to Officer Koehler.7

6

We want to make clear that in this part of the qualified immunity inquiry,

Brown is only relevant to the extent it describes the state of the law on September 13,

2006. Brown was decided on July 22, 2009, so our opinion in Brown obviously could

not have given “fair notice” to Officer Koehler that the actions he took nearly three

years earlier were unlawful. See Brosseau, 543 U.S. at 200 n.4. Nevertheless, the

court’s analysis in Brown focused on legal principles that were clearly established on

October 8, 2005, the date of the events giving rise to that case. Thus, an objectively

reasonable police officer at work on September 13, 2006, would have known about

the principles of Fourth Amendment law applied in the pre-September 2006

authorities cited in Brown. See generally Harlow v. Fitzgerald, 457 U.S. 800, 819

(1982) (“[A] reasonably competent public official should know the law governing his

conduct.”).

7

The defendants assert in a footnote that if Officer Koehler is entitled to

qualified immunity under federal law then all three defendants are immune from

liability for assault and battery under Iowa law because the analysis of the federal and

state immunity defenses is, supposedly, “the same.” We do not consider the issue of

state-law immunity, however, as the defendants did not mention it in their notice of

appeal, see Fed. R. App. P. 3(c)(1)(B); Woodward v. Epps, 580 F.3d 318, 333 (5th Cir.

2009) (citing Lockett v. Anderson, 230 F.3d 695, 699 (5th Cir. 2000)), cert. denied,

559 U.S. ---, 130 S. Ct. 2093 (2010), and their argument on that issue is skeletal at

best, see Chay-Velasquez, 367 F.3d at 756. Of course, even if we did consider the

issue, that would be of no help to the defendants, for accepting their assertion that the

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Returning at last to the scope of our jurisdiction over this appeal, we reject the

defendants’ assertion that we have pendent appellate jurisdiction to review either the

district court’s denial of summary judgment on the Monell claims against the City and

Chief Frisbie or the district court’s decision on the bifurcation issue.8 Another panel

of this court recently examined the doctrine of pendent appellate jurisdiction, see

Langford, 2010 WL 2813551, at *8-9, and we are not inclined to duplicate that

analysis here. The only remotely plausible argument for exercising jurisdiction over

the present defendants’ pendent claims hinges on finding that those claims are

“inextricably intertwined” with Officer Koehler’s qualified immunity defense. See

id. at 8. They are not.

“An issue is ‘inextricably intertwined’ with properly presented issues only

‘when the appellate resolution of the collateral appeal necessarily resolves the pendent

claims as well.’” Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th

Cir. 2003) (en banc) (quoting Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th

Cir. 1995)). Put differently, “[a] pendent appellate claim can be regarded as

inextricably intertwined with a properly reviewable claim on collateral appeal only if

the pendent claim is coterminous with, or subsumed in, the claim before the court on

analysis of the federal and state immunity defenses is identical would mean that the

defendants’ state-law immunity claims fall with Officer Koehler’s federal immunity

claim.

8

It is common ground that both the denial of summary judgment on the Monell

claims and the decision on the bifurcation issue are interlocutory orders, and that those

orders are not immediately appealable under the collateral order doctrine. See, e.g.,

Shockency v. Ramsey County, 493 F.3d 941, 952 (8th Cir. 2007) (noting that “[a]

denial of summary judgment based on a Monell defense is not an appealable order

under Swint v. Chambers County Commission, 514 U.S. 35 (1995), unless the defense

is intertwined with a qualified immunity defense”); In re Lieb, 915 F.2d 180, 185 (5th

Cir. 1990) (collecting cases holding that orders granting or denying separate trials

under Rule 42(b) are “interlocutory and non-appealable before final judgment”).

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interlocutory appeal.” Kincade, 64 F.3d at 394 (quoting Moore v. City of Wynnewood,

57 F.3d 924, 930 (10th Cir. 1995)).

Our decision to uphold the district court’s denial of qualified immunity to

Officer Koehler did not resolve whether the City and Chief Frisbie are entitled to

summary judgment on the Monell claims, so those matters cannot be described as

inextricably intertwined. See, e.g., Veneklase v. City of Fargo, 78 F.3d 1264, 1270

(8th Cir. 1996) (concluding that the denial of summary judgment on a municipal

liability claim was not inextricably intertwined with the underlying qualified

immunity appeal because resolving the relevant claims “require[d] entirely different

analyses”); see also Cunningham v. Gates, 229 F.3d 1271, 1285-86 (9th Cir. 2000)

(explaining that whether a city’s “policy, customs, or usage caused [the] plaintiffs’

injuries is a separate inquiry from whether . . . non-supervisory officers are entitled

to qualified immunity”). Likewise, our resolution of the qualified immunity appeal

said nothing about the propriety of the district court’s decision on the bifurcation

issue, so those matters are not inextricably intertwined either. In short, the

requirements for exercising pendent appellate jurisdiction are not met in this case

because affirming the denial of qualified immunity to Officer Koehler did not resolve

the pendent claims. Since we see no other source of jurisdiction to consider the

pendent claims, we dismiss this appeal insofar as it challenges the district court’s

denial of summary judgment on the Monell claims against the City and Chief Frisbie

and the district court’s decision on the bifurcation issue.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of qualified

immunity to Officer Koehler and dismiss the rest of the appeal for lack of jurisdiction.

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