Danelle Hollingsworth v. City of St. Ann

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1583

___________________________

Danelle Hollingsworth,

lllllllllllllllllllll Plaintiff - Appellant,

v.

City of St. Ann; Robert McCallum, Police Officer, in his individual capacity only;

Johnny King, Police Officer; Joseph Mayberry, Correctional Officer,

lllllllllllllllllllll Defendants - Appellees.

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: January 13, 2015

Filed: September 3, 2015

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

Danelle Hollingsworth was detained for booking at the police station in St.

Ann, Missouri, after an arrest for stealing wine coolers from a convenience store at

a gas station. When she refused a directive from police and corrections officers to

change from her street clothes into an orange jumpsuit, a police officer stunned her

with a Taser device to encourage compliance.

Hollingsworth later brought this action against the police officer, two

corrections officers, and the City of St. Ann, pursuant to 42 U.S.C. § 1983. She

alleged that police officer Robert McCallum violated her rights under the Fourth

Amendment by using excessive force when he stunned her with the Taser. She

claimed that corrections officers Johnny King and Joseph Mayberry violated her

constitutional rights by failing to intervene. She further asserted that the City was

liable for the violations because its policy regarding the use of Tasers was

unconstitutional.

The district court1 granted summary judgment for defendants on all claims,

concluding that the officers were entitled to qualified immunity, and that the City’s

Taser policy did not cause any potential violation of Hollingsworth’s rights.

Hollingsworth appeals, and we affirm. We conclude that although the actions of one

or more officers might have been unreasonable, their conduct did not violate clearly

established law at the time of the incident. We also agree with the district court that

the City is not liable.

I.

The incident in question happened in the early morning hours of July 21, 2009.

At about 1:30 a.m., Hollingsworth left a bar in St. Louis County, Missouri, and

entered a gas station across the street. Hollingsworth had consumed several drinks,

and admits she was “quite intoxicated,” but “not severely intoxicated where [she]

couldn’t walk or focus.” Hollingsworth took $7.38 worth of wine coolers from the

station and left without paying for them.

1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

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Shortly thereafter, police officers from St. Ann arrested Hollingsworth.

According to Hollingsworth, she surrendered with her hands up. Officer Robert

McCallum testified that she was belligerent, and that she was screaming and cursing

at the officers. Hollingsworth has a “vague memory” of officers performing a pat-

down search during the arrest.

Officers brought Hollingsworth to the St. Ann police station, where she was

placed in a small processing room that was monitored by a video camera. Officer

Mayberry brought an orange jumpsuit into the room. Officer King started the

booking process by having Hollingsworth remove property from her person and fill

out paperwork. According to Hollingsworth, she was compliant during this process.

King then instructed Hollingsworth to change into the orange jumpsuit. He

informed her she was required to take off her bra but not her bottom underwear.

Hollingsworth says she felt scared and asked to have a woman present while she

changed clothes. After the officers left Hollingsworth alone in the processing room

to change clothes, Hollingsworth sat on a concrete bench and refused to don the

orange jumpsuit. A female dispatcher monitoring the video feed of the processing

room informed officers that Hollingsworth was not changing clothes.

Officer McCallum then entered the room with a Taser, reiterated to

Hollingsworth that she must change into the jumpsuit, and warned her that she would

be tased if she did not change. Hollingsworth waived a finger at McCallum and said

something to the effect that “you better not tase me.” McCallum then left the room

and closed the door.

After the dispatcher watching the video feed reported that Hollingsworth still

was not changing into the jumpsuit, McCallum re-entered the room and deployed the

Taser on Hollingsworth. He shot one barb into her upper chest and one into her

shoulder. McCallum applied energy through the Taser on Hollingsworth for five

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seconds. During this interval, McCallum also touched the end of the Taser onto

Hollingsworth’s inner thigh. After the first application, McCallum stopped for five

seconds and told Hollingsworth to change clothes. She replied by directing an

expletive at McCallum, and McCallum then applied another five seconds of energy

through the Taser.

Hollingsworth testified she suffered “excruciating pain . . . like something was

being . . . shocked through [her] legs” when she was tased. Two days after the

incident, Hollingsworth continued to suffer leg spasms. She visited a hospital, where

doctors prescribed muscle relaxants.

In July 2009, the City of St. Ann had a written policy on “Use of Stun Type

Device.” The policy stated that stun devices “shall be applied to [a] subject until

resistance has ceased, or the subject complies with officer’s commands, and the

subject is no longer a threat.” The policy provided that “[b]ecause a handcuffed, or

restrained subject can still be noncompliant, or even a substantial threat, the use of

a Stun Device may be permissible as discretion dictates.” Sergeant Sam Barrale, who

trained McCallum and others on the use of Tasers, testified that the City’s policy

authorized the use of a Taser when an officer’s safety is threatened by an individual,

including when a threat is foreseeable and could be prevented by use of the stun

device. Barrale also testified that a Taser is not to be used for “punishment” or

“coercion.”

Hollingsworth brought this action pursuant to 42 U.S.C. § 1983 against

McCallum, King, Mayberry, and the City of St. Ann, alleging, as relevant on appeal,

that they violated her Fourth Amendment right to be free from excessive force. The

district court granted summary judgment for the defendants. The court ruled that

McCallum, King, and Mayberry were entitled to qualified immunity because it was

not clearly established at the time of Hollingsworth’s arrest that a use of force that

resulted in only de minimis injury could constitute an unreasonable seizure based on

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an excessive use of force. The court dismissed the claim against the City on the

ground that the City’s policy on use of stun devices did not cause McCallum to

deploy the Taser. We review the district court’s grant of summary judgment de novo,

viewing the record in the light most favorable to the nonmoving party.

II.

The parties agree that the conduct of the officers at issue here was governed by

the Fourth Amendment. Their submission is consistent with our precedents, which

have applied the Fourth Amendment when resolving excessive force claims arising

during transportation, booking, and initial detention of recently arrested persons. See

Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011) (citing cases); cf.

Kingsley v. Hendrickson, No. 14–6368, 2015 WL 2473447, at *13 (U.S. June 22,

2015) (Alito, J., dissenting). An officer’s use of force violates the Fourth Amendment

if it is objectively unreasonable in light of the facts and circumstances of the

particular case, as “judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,

396 (1989).

In § 1983 actions, qualified immunity shields government officials from suit

unless their conduct violated a clearly established right of which a reasonable official

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The contours

of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). In a series of recent decisions, the Supreme Court has emphasized that for a

plaintiff to overcome qualified immunity, existing precedent must have placed the

constitutional question “beyond debate.” City & Cnty. of S.F., Calif. v. Sheehan, 135

S. Ct. 1765, 1774 (2015) (internal quotation omitted); see Carroll v. Carman, 135 S.

Ct. 348, 350 (2014); Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); Stanton v.

Sims, 134 S. Ct. 3, 4-5 (2013); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).

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“When properly applied, [qualified immunity] protects all but the plainly incompetent

or those who knowingly violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015) (alteration in original) (internal quotation omitted).

Hollingsworth contends that McCallum violated clearly established law,

because there was no justification for the use of any force against her in the holding

cell. She points to dicta in Agee v. Hickman, 490 F.2d 210 (8th Cir. 1974), that the

court—by upholding a particular use of force—did “not mean to condone . . . the use

of any force by officers simply because a suspect is argumentative, contentious or

vituperative.” Id. at 212. She cites the court’s statement in Feemster v. Dehntjer, 661

F.2d 87 (8th Cir. 1981), that “[t]here is no occasion for the use of any force against

a prisoner who quietly submits.” Id. at 89. And she draws on the conclusion in

Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010), that where a citizen was not

suspected of committing a crime, did not resist arrest, and did not threaten anyone,

we could not say that “a reasonable officer . . . would have felt the need to use any

force.” Id. at 863. Hollingsworth also relies on Hickey v. Reeder, 12 F.3d 754 (8th

Cir. 1993), an Eighth Amendment case in which the court held that the use of a stun

gun on a nonviolent inmate solely to enforce a “housekeeping order” to sweep his cell

violated the inmate’s right to be free from cruel and unusual punishment. Id. at 759.

These cases are inapposite because they involve or contemplate situations

where there was no justification for the use of any force. Here, Hollingsworth

repeatedly refused to change from her street clothes into an orange jumpsuit when she

was booked into the jail. The officers had a legitimate safety reason for requiring the

change of clothes. King testified that it was the city’s policy to require all prisoners

to change into a jumpsuit. McCallum testified that it was important for arrestees to

change into jumpsuits to “insure safety of themselves and other people in the

facility,” and to allow officers to search for contraband. Recent arrestees may have

contraband or weapons concealed in their street clothes, and introduction of such

objects into the jail could threaten the safety of officers, detainees, or others. A

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requirement to change clothes is a reasonable means to maintain institutional safety

and to preserve internal order. See Stanley v. Henson, 337 F.3d 961, 966 (7th Cir.

2003); cf. Kelsey v. County of Schoharie, 567 F.3d 54, 64 (2d Cir. 2009) (“A clothing

exchange is a common practice in jails and prisons as is the need for corrections

officers to be vigilant at all times.”). After Hollingsworth was recalcitrant, it was not

unreasonable for officers to use some force to cause her to wear the orange jumpsuit.

The issue in this case is whether McCallum, having justification to use some

force to cause Hollingsworth to change into an orange jumpsuit, violated her clearly

established rights by deploying the Taser rather than employing other means such as

physical restraint and forcible removal of clothing. Cf. Peters v. Risdal, 786 F.3d

1095 (8th Cir. 2015). As we have explained in other decisions, it was an open

question at the time of this incident in July 2009 whether a plaintiff must demonstrate

greater than de minimis injury to establish an excessive force claim under the Fourth

Amendment. Chambers, 641 F.3d at 904; see also Peterson v. Kopp, 754 F.3d 594,

601 (8th Cir. 2014); Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013). The

district court, citing a concession by Hollingsworth, concluded that her injuries were

de minimis, and she does not dispute that point on appeal. Therefore, Hollingsworth

can prevail only if it was clearly established in July 2009 that use of a Taser that

caused de minimis injury violated the Fourth Amendment.

Hollingsworth’s claim founders on our decision in LaCross v. City of Duluth,

713 F.3d 1155 (8th Cir. 2013). LaCross held that it was not clearly established in

2006 that an officer’s use of a Taser that resulted in no lasting physical injuries or

injuries requiring medical care nonetheless could be unreasonable because Tasers

caused “excruciating pain without lasting physical effects.” Lacross, 713 F.3d at

1157-58. This court held that despite the Taser’s unique capability to cause high

levels of pain without long-term injury, “we have not categorized the Taser as an

implement of force whose use establishes, as a matter of law, more than de minimis

injury.” Id. at 1158. We thus concluded it was not clearly established that an

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officer’s use of a Taser, resulting in only de minimis injury, was an unconstitutional

use of force. Id. The law was not materially different in July 2009, so McCallum is

entitled to qualified immunity. “‘[A] reasonable officer could have believed that as

long as he did not cause more than de minimis injury to an arrestee, his actions would

not run afoul of the Fourth Amendment.’” Bishop, 723 F.3d at 962 (quoting

Chambers, 641 F.3d at 908).

Hollingsworth also invokes Brown v. City of Golden Valley, 574 F.3d 491 (8th

Cir. 2009), where this court ruled that an officer violated clearly established rights in

2005 by using a Taser against “a nonviolent, suspected misdemeanant 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.” Id. at 493, 499. The officer in Brown tased the

plaintiff as she sat in the passenger seat of a car and spoke with a 911 operator on her

cell phone during a traffic stop. Id. at 494, 496. Brown, however, did not address

whether the plaintiff’s injuries were de minimis—the plaintiff alleged that she

suffered bruises and welts on her arms, problems sleeping, difficulties focusing, and

anxiety-related symptoms when she saw police after the incident, and that she was

prescribed anti-anxiety medication. Id. at 495. Brown thus had no occasion to

consider whether it was clearly established that de minimis injury could sustain an

excessive force claim under the Fourth Amendment, and LaCross distinguished

Brown on precisely that basis. 713 F.3d at 1158 n.4.

Qualified immunity also shields King and Mayberry from suit on the claims

alleging an unreasonable failure to intervene. This court had established by July

2009 that “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.” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009). To establish a

failure to intervene claim, however, the plaintiff must show that the “officer observed

or had reason to know that excessive force would be or was being used.” Id. Here,

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because it was not clearly established that McCallum’s actions constituted excessive

force, a reasonable officer was not on fair notice that his failure to intervene when

McCallum deployed the Taser violated Hollingsworth’s Fourth Amendment rights.

III.

Hollingsworth separately challenges the district court’s conclusion that the City

of St. Ann was not liable for any violation of her Fourth Amendment rights. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). The district court ruled that

even assuming McCallum acted unreasonably, the City’s Taser policy did not cause

McCallum to use the Taser on Hollingsworth. The court reasoned that McCallum did

not act pursuant to City policy, because he testified that he used the Taser in order to

ensure compliance with a safety protocol, and the policy did not provide for use in

that situation. We affirm for related reasons: the City’s Taser policy was not

unlawful on its face, and Hollingsworth did not present evidence that the City was

deliberately indifferent to her Fourth Amendment rights.

A municipality may be liable under § 1983 where “action pursuant to official

municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at

691. A municipality, however, cannot be held liable solely because it employs a

tortfeasor. Id. Two of the circumstances in which municipality liability can arise

warrant discussion here: First, where a particular municipal action or policy “itself

violates federal law, or directs an employee to do so,” and second, where “an official

policy is lawful on its face and does not compel unconstitutional action” but

“municipal action has led an employee to violate a plaintiff’s rights,” and that action

was “taken with ‘deliberate indifference’ as to its known or obvious consequences.”

Szabla v. City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir. 2007) (en banc)

(quoting in part Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 404, 407

(1997)).

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The City’s policy on the use of a “stun type device” was not unlawful on its

face and did not compel unconstitutional action. The written policy allowed officers

to use a Taser in response to a threat, and training officer Barrale said it permitted use

when a detainee presented a non-immediate, but “foreseeable” threat. But both the

written policy and Barrale’s oral supplement specified that officers were vested with

discretion about when to deploy the Taser. Barrale testified that the City’s policy

prohibited the use of the Taser for “punishment” or “coercion,” and nothing in the

policy directed McCallum to use a stun type device to cause a detainee to change

from street clothes into an orange jumpsuit. The policy allowed for discretion and

was not unlawful on its face. See Seymour v. City of Des Moines, 519 F.3d 790, 800

(8th Cir. 2008).

Hollingsworth also has not made a submissible case that the City acted with

deliberate indifference to her Fourth Amendment rights by failing to prevent

McCallum from using the Taser when a detainee presented no immediate threat.

Assuming for the sake of analysis that McCallum’s use of the Taser was

unreasonable, Hollingsworth presented no evidence of a pattern of such use by

officers in St. Ann. While a single constitutional violation arising out of a lack of

safeguards or training may be sufficient to establish deliberate indifference where the

need for such safeguards or training is “obvious,” a municipality “cannot exhibit fault

rising to the level of deliberate indifference to a constitutional right when that right

has not yet been clearly established.” Szabla, 486 F.3d at 393. As it was not clearly

established in July 2009 that force resulting in only de minimis injury could violate

the Fourth Amendment, the City did not act with deliberate indifference by failing to

train its officers that use of a Taser in these circumstances was impermissible.

* * *

The judgment of the district court is affirmed.

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KELLY, Circuit Judge, concurring.

I concur in the decision to affirm the judgment of the district court. I write

separately for three reasons. First, to state clearly that, in my belief, Officer

McCallum acted unreasonably in tasing Hollingsworth. Second, to highlight my

concern that Hollingsworth did not, in fact, concede to the district court that she

sustained merely de minimis injuries. And third, to explain that while I believe that

at the time this event occurred in July 2009, it was clearly established that it was

unlawful to use a Taser on an unarmed, secured, and nonthreatening misdemeanant,

I recognize that I am constrained by this court’s decision in LaCross, and thus I

concur.

Unreasonable use of force

The majority allows that “the actions of one or more officers might have been

unreasonable” and does not elaborate further—instead reaching its decision on the

second prong of the qualified immunity test. In my view Officer McCallum’s actions

were unreasonable. The “proper application [of the test for reasonableness] requires

careful attention to the facts and circumstances of each particular 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.” Graham v. Connor, 490 U.S. 386, 396 (1989).

As to the “severity of the crime,” Hollingsworth was arrested for stealing $7.38 worth

of wine coolers from a gas station, a misdemeanor. Mo. Rev. Stat. § 570.030 (2015).

At the time of the tasing she was neither “attempting . . . flight” nor an “immediate

threat to the safety of . . . others.” She had been subjected to a pat-down search

during her arrest and was contained in a jail cell. Officer McCallum himself testified

that at no point during his encounter with Hollingsworth in the jail cell did he fear for

his safety. Hollingsworth was compliant during the booking process—she testified

that she removed property from her person and filled out paperwork without incident.

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At the time of her tasing she was sitting on a bench in her cell. I recognize that a

prisoner’s refusal to change into a jumpsuit may create a security issue, but the

language of the Graham test requires an “immediate threat” to safety, which was not

present here. Further, while a given situation may justify the use of some force, that

does not foreclose a finding that the force employed was nevertheless unreasonably

excessive. Each of these factors weighs in favor of the conclusion that Officer

McCallum acted unreasonably in using his Taser on Hollingsworth.

The City of St. Ann’s official Taser policy provides that “[t]he charge from the

unit shall be applied to the subject until resistance has ceased, or the subject complies

with the officer’s commands, and the subject is no longer a threat. Any further use

is not necessary or permissible.” (Emphasis added). Training Officer Barrale

testified that the city’s policy does not allow the use of a Taser for “punishment” or

“coercion.” Despite this fact, Officer McCallum used his Taser—a weapon designed

to immobilize its victim’s muscles—on Hollingsworth to force her to change into her

clothes—an act that requires the use of one’s muscles. After the first tasing,

Hollingsworth shouted “Fuck you!” and Officer McCallum immediately used his

Taser on her a second time. In my view, the second tasing can be viewed as nothing

other than punishment for Hollingsworth’s insolence. See Cook v. City of Bella

Villa, 582 F.3d 840, 859–60 (8th Cir. 2009) (Shepherd, J., dissenting) (arguing that

it was unreasonable to “discharge [a] Taser simply because of insolence” (quotation

omitted)).

Officer McCallum made no attempt to resolve the situation with Hollingsworth

in a non-violent manner. He did not assure Hollingsworth that the only person

watching her change was a female officer, he did not answer her requests for a female

officer to be present, and he did not allow her time to cool down or sober up. The

amount of time that passed between his initial order to Hollingsworth to change out

of her clothes and his use of the Taser was a matter of minutes. The second time he

entered her cell he gave no warning and instead deployed his Taser three seconds

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after entering. From the perspective of a reasonable officer on the scene, this was an

unreasonable and excessive use of force.

De minimis concession

As the court notes, the district court summarily concluded that Hollingsworth’s

injuries were de minimis by citing to a “concession” made by Hollingsworth on this

point. The district court’s citation points to a page of Plaintiff’s Amended

Memorandum in Opposition to Defendant’s Motion for Summary Judgment, stating:

The pain was at a 10 on a ten scale, and the officer applied two ten

second applications. To Plaintiff that amount is excessive under a

reasonable person standard. But Plaintiff acknowledges that the Eighth

Circuit does not believe a taser causes more than de minimis injury,

LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013). To the

extent the Eighth Circuit has concluded that getting tased for two five

second jolts is “no big deal,” Plaintiff makes a good faith argument for

modification of the law.

I question the characterization of this paragraph as a “concession” that the injuries

Hollingsworth received from the Taser were merely de minimis. Acknowledging that

Eighth Circuit precedent may construe her injuries as de minimis does not constitute

a concession that Hollingsworth agreed her injuries were de minimis, particularly

when she goes on to argue for a change in the law.

Further, in LaCross the plaintiff “did not seek any treatment for injuries related

to the Taser application, nor [was he] diagnosed with any injuries or conditions

related thereto.” LaCross, 713 F.3d at 1157. Even if we take LaCross to be a

declaration that Tasers do not per se cause greater than de minimis injuries, the

argument remains that Hollingsworth experienced greater than de minimis injuries as

a result of being tased in this instance. The pain from the two tasings caused

Hollingsworth to urinate herself. Following the incident she experienced leg spasms

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serious enough that she visited a hospital and was prescribed muscle relaxants. I also

note that the officer who employed the Taser against Hollingsworth described the

pain as a “ten” on a scale from one to ten. Our case law provides several examples

of instances in which the use of a Taser resulted in more than de minimis injuries.

See, e.g., De Boise v. Taser Int’l, Inc., 760 F.3d 892, 896 (8th Cir. 2014) (resulting

in death); McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011) (resulting in

death); Mahamed v. Anderson, 612 F.3d 1084, 1086 (8th Cir. 2010) (resulting in

incontinence, impotence, and nerve damage).

It appears from her briefing, however, that Hollingsworth has abandoned any

argument that her injuries were above and beyond the injuries alleged in LaCross, and

thus I agree with the court that she is limited by our ruling in that case.

Clearly established prohibition

Finally, I write to express my belief that at the time of Hollingworth’s tasing

in July 2009, it was clearly established that it was unlawful to use a Taser on an

unarmed, secured, and nonthreatening misdemeanant. Were I not constrained by

precedent, I would decline to extend qualified immunity to Officer McCallum. See

LaCross, 713 F.3d at 1157–58.

In Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009), this

court found that it was unreasonable for the officer to have deployed his Taser and

held that:

the law was sufficiently clear [in 2005] to inform a reasonable officer

that it was unlawful to Taser a nonviolent, suspected misdemeanant 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.

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(Emphasis added). The court determined that the law was clear because “[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.”

Id. “Moreover, it 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 officers or the public.” Id. (citing Casey v. City of Fed. Heights, 509

F.3d 1278 (10th Cir. 2007) (finding that it was not reasonable for officer to employ

Taser under clearly established law)).

It is true, as the court points out, that Brown did not analyze whether the

injuries received by the plaintiff in that case were more than de minimis, but I do not

believe this is a reason to ignore its precedential value. Indeed, in Shekleton v.

Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012) the court followed Brown’s

precedent rather than rule it had been invalidated post-Chambers. The court ruled

that:

at the time of the incident [in Brown], we had not yet had an opportunity

to determine whether an officer’s use of a taser on a nonviolent,

nonfleeing misdemeanant was an excessive use of force. However, the

right to be free from excessive force dates back to the adoption of the

Bill of Rights of our Constitution, as it is a clearly established right

under the Fourth Amendment’s prohibition against unreasonable

seizures of the person . . . .

Shekleton, 677 F.3d at 367 (internal quotations omitted).

Accordingly, the court followed the decision in Brown, finding that the

officer’s use of a Taser was unlawful, and determined that “the general law

prohibiting excessive force in place at the time of the incident was sufficient to

inform an officer that use of his taser on a nonfleeing, nonviolent suspected

misdemeanant was unreasonable, even though [prior to Brown,] we did not have a

case specifically addressing officer taser use.” Shekleton, 677 F.3d at 367 (citing

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Brown, 574 F.3d at 499–500). While the decision in Shekleton was reached after our

decision in Chambers, it concerned pre-Chambers events. The Shekleton decision

similarly does not use the words “de minimis,” but again I think that is not a reason

to ignore its precedential weight. As recently as last year this court re-confirmed that

“non-violent, non-fleeing subjects have a clearly established right to be free from the

use of tasers.” De Boise, 760 F.3d at 897 (emphasis added) (citing Brown, 574 F.3d

at 499–500)). See also Carpenter v. Gage, 686 F.3d 644, 652–53 (8th Cir. 2012)

(Smith, dissenting) (reiterating that “‘an officer’s use of a taser on a non-violent,

nonfleeing misdemeanant was an excessive use of force’ in violation of clearly

established law,” (quoting Shekleton, 677 F.3d at 367) (emphasis added) and holding

that the suspect’s flight risk and the safety risk to the officers and others present are

considerations when determining the justified level of force); Bell v. Kansas City

Police Dept., 635 F.3d 346, 347 (8th Cir. 2011) (holding that whether Bell was

disobeying orders to show his hands and get out of his truck was material to

determining the objective reasonableness of the officer’s use of a Taser on him and

citing Brown, 574 F.3d at 496–98, for the proposition that an officer’s use of a Taser

was not objectively reasonable when the “passenger posed minimal security threat

and was not resisting arrest or attempting to flee, officer was not faced with split

second decision, and circumstances did not constitute tense, uncertain, and rapidly

evolving situation”).

Each of these cases stands for the proposition that a reasonable officer would

have known that the use of a Taser in circumstances similar to the one at present was

clearly established as unlawful: Brown concerned events that took place in 2005, and

Shekleton and DeBoise concerned separate events that took place in 2008. Indeed,

just five months after the incident in the present case a district court in this circuit

concluded that the use of a Taser in 2006 constituted unreasonable force, reasoning:

Even if a taser does not require hospitalization or cause quantifiable

injuries, it does cause extreme pain, and such pain may support a claim

for excessive force. . . . The Eighth Circuit has noted that “extreme pain

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can be inflicted with little or no injury.” [Hickey v. Reeder, 12 F.3d

754, 757 (8th Cir. 1993)] Just as it would be unacceptable to “permit any

physical punishment, no matter how diabolic or inhuman, inflicting less

than some arbitrary quantity of injury,” [Hudson v. McMillian, 503 U.S.

1, 9 (1992)], it would also be unacceptable to permit arresting officers

to use any degree of force, no matter how painful or intrusive, so long

as it did not inflict some arbitrary quantity of injury.

Orsak v. Metro. Airports Comm’n Airport Police Dep’t, 675 F. Supp. 2d 944, 958–59

(D. Minn. Dec. 14, 2009).

These holdings, then, must be reconciled with Chambers, which holds that

prior to 2012, arrestees did not have a clearly established right to be free from

unreasonable force that resulted in merely de minimis injuries. Rather than ignoring

these cases, I read Brown and Shekleton as support for the view that a Taser, when

effectively used, typically results in more than de minimis injuries. Prior to Chambers

in 2011, this court had a line of cases holding that “the necessary level of injury is

actual injury.” Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). In these cases

we found that such injuries as bruised knees and elevated blood pressure, id.,

“posttraumatic stress disorder,” id., and a “single small cut of the lateral right eyelid

and small scrapes of the right posterior knee and upper calf,” Lambert v. City of

Dumas, 187 F.3d 931, 936 (8th Cir. 1999), could support a finding of excessive force.

See also Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998) (ruling that an officer

grabbing plaintiff’s wrist and holding him against a door could constitute

unreasonable force).

Another line of cases required that the unreasonable force resulted in more than

de minimis injuries, and in these cases, both before and after Chambers, we found that

a wide range of arguably-minor injuries met the de minimis threshold. See, e.g.,

Davis v. White, --- F.3d --- (8th Cir. 2015) (“a concussion, scalp laceration, and

bruising with almost no permanent damage” is not de minimis); Small v. McCrystal,

708 F.3d 997, 1005 (8th Cir. 2013) (lacerations above the eye resulting in a hospital

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visit but requiring no stitches is not de minimis); Irving v. Dormire, 519 F.3d 441, 448

(8th Cir. 2008) (blow to the face resulting in difficulty breathing is not de minimis).

Meanwhile, a Taser

uses compressed nitrogen to propel a pair of “probes”—aluminum darts

tipped with stainless steel barbs connected to the [taser] by insulated

wires—toward the target at a rate of over 160 feet per second. Upon

striking a person, the [taser] delivers a 1200 volt, low ampere electrical

charge . . . The electrical impulse instantly overrides the victim's central

nervous system, paralyzing the muscles throughout the body, rendering

the target limp and helpless.

Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (quotation omitted). It is

difficult to make a meaningful distinction between the aforementioned injuries and

those injuries suffered by Hollingsworth. See Cook 582 F.3d at 859–60 (Shepherd,

J., dissenting) (stating that if a plaintiff is required to “make a showing of some

minimum level of injury in order to make out a claim for excessive force, the pain and

puncture marks inflicted by the taser are sufficient to do so”).

The Brown court was well aware that “[n]ot every push or shove . . . violates

the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quotation

omitted). The Shekleton court reached its decision after Chambers had been

published. The court in those cases nevertheless concluded that the use of a Taser

was a constitutional violation.2 Either the court concluded that the Taser caused more

than de minimis injuries in each instance or it believed that a modern technological

2

This court notes that the plaintiff in Brown “alleged that she suffered bruises

and welts on her arms, problems sleeping, difficulties focusing, and anxiety-related

symptoms when she saw police after the incident, and that she was prescribed anti-

anxiety medication.” See supra p. 8. If the implication is that these symptoms

constitute a greater than de minimis injury while Hollingsworth’s tasing, which

resulted in her extreme pain and required a visit to the hospital for muscle relaxants

to treat her leg spasms, does not, I cannot agree.

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weapon designed for the particular purpose of causing excruciating pain without

permanent injury was somehow in a category apart from the more traditional “pushes

and shoves,” such that the Taser did not fit within the regular de minimis injury

framework. See Hickey, 12 F.3d at 757 (describing the effects of a Taser as “torment

without marks”); see also McKenney v. Harrison, 635 F.3d 354, 361, 364 (8th Cir.

2011) (Murphy, J., concurring) (referring to the “unique nature of this type of

weapon” and warning that “[t]he Supreme Court refused to let ‘police technology .

. . erode the privacy guaranteed by the Fourth Amendment’ in Kyllo v. United States,

[533 U.S. 27, 34 (2001)], and the particular factual circumstances in which a taser has

been used must be examined in the context of Fourth Amendment protections against

excessive force.”).

In addition to the protections provided under the Fourth Amendment, a

reasonable officer in 2009 could also have taken guidance from our decisions

regarding use of a Taser in the prison context under the Eighth Amendment to

understand that using a Taser on an individual in Hollingsworth’s situation was

unreasonable. See Hickey v. Reeder, 12 F.3d 754, 756, 759 (8th Cir. 1993)

(concluding that the use of a Taser on a prisoner who refused to sweep his cell was

“an exaggerated and grossly disproportionate response to his misconduct” and ruling

that “[w]e have not found, and hope never to find, a case upholding the use of this

type of force on a nonviolent inmate to enforce a housekeeping order.”); see also

Smith v. Conway County, Ark., 759 F.3d 853, 859 (8th Cir. 2014) (holding that the

use of a Taser on a prisoner who refused to get up from his bunk was not a

“constitutionally permissible option” (citing Brown, 574 F.3d at 497–98 (denying

qualified immunity when the plaintiff’s “principal offense . . . was to disobey the

commands to terminate her call to the 911 operator”))).

While I find this court’s decision in LaCross to be at odds with much of our

precedent outlined here, I recognize that its factual similarity to the case at hand,

combined with the plaintiff’s failure to plead specialized injury, forecloses the

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conclusion that Hollingsworth suffered greater than de minimis injuries. Thus, I

concur in the decision of the court.

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