Norris Perry v. Margo Wolfe

United States Court of Appeals

For the Eighth Circuit

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No. 16-3229

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Norris Perry

lllllllllllllllllllll Plaintiff - Appellee

v.

Woodruff County Sheriff Department, By and through Stacy Barker and Freddie

Hudson; Stacy Barker; Freddie Hudson, In His Individual and Official Capacity;

McCroy Police Department; James R. Jackson; McCroy, City of; Doyle Fowler,

McCroy Mayor, In His Individual and Official Capacity; Charles Dallas, Woodruff

County Judge, In His Individual and Official Capacity; Woodruff County,

Arkansas; Rowland Clark, Deputy Sheriff, In His Individual and Official Capacity

lllllllllllllllllllll Defendants

Margo Wolfe, Police Officer, In Her Individual and Official Capacity

lllllllllllllllllllll Defendant - Appellant

Bruce Golden, Sheriff's Deputy/Police Officer, Individually and in His Official

Capacity; Clark, LT, Individually and in His/Her Official Capacity; John Does, 1 -

5, Individually and in their Official Capacity

lllllllllllllllllllll Defendants

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Appeal from United States District Court

for the Eastern District of Arkansas - Helena

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Submitted: April 7, 2017

Filed: June 5, 2017

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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

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GRUENDER, Circuit Judge.

Norris Perry sued multiple defendants employed by Woodruff County,

Arkansas and the City of McCrory for an arrest that occurred on August 30, 2009.

Perry alleged excessive-force, illegal-arrest, and illegal-search claims under 42 U.S.C.

§ 1983 and related tort claims under Arkansas law. The district court1 denied

summary judgment to a number of defendants who took part in the incident, including

City of McCrory Police Officer Margo Wolfe. Wolfe appealed, claiming that the

district court erred when it concluded that she was not entitled to qualified immunity.

For the reasons discussed below, we affirm.

I. BACKGROUND

On the night of August 30, 2009, Perry drove to his local carwash to clean his

truck. Wolfe, who was off-duty and at her apartment, saw Perry from her back steps

and called dispatch to investigate, as she believed that he was acting suspiciously.

Woodruff County Deputy Sheriff Bruce Golden responded, arrived at the carwash,

and parked behind Perry’s truck. Perry approached Golden and asked if everything

was alright. When Golden responded affirmatively, Perry returned to cleaning his

truck. As Perry prepared to leave the carwash, Golden approached and asked Perry

for his license and registration. Perry obliged without incident, and Golden checked

for outstanding warrants. After finding no outstanding warrants, Golden returned

Perry’s documents but directed him to wait to talk with another officer. Perry

questioned Golden about why another officer needed to talk to him but complied with

the order.

1

The Honorable Brian S. Miller, Chief Judge, United States District Court for

the Eastern District of Arkansas.

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Shortly thereafter, City of McCrory Police Lieutenant Booker Pennington,

Woodruff County Deputy Sheriff Rowland Clark, and Wolfe arrived on scene. Clark

asked Golden if he had searched Perry for weapons. Golden conducted a pat-down

and recovered a multi-tool knife in Perry’s possession. Clark then approached Perry

and instructed him to “spread eagle” for another pat-down. Perry complied but

questioned the justification for the search. Perry testified that he did not act

aggressively towards Clark or threaten Clark’s safety. Perry also testified that,

without any provocation, Clark stepped behind Perry, wrapped his arm around Perry’s

neck, lifted Perry off his feet, and knocked Perry to the ground, face first. Wolfe was

twenty feet away, and she testified that she saw Perry turn in an aggressive manner

as if he were about to swing at Clark. After witnessing Clark take Perry to the

ground, she ran over, secured Perry’s right hand, and forced her knee into his back

to subdue him. Golden proceeded to handcuff Perry. Pennington, who was Wolfe’s

superior, told the other officers that Perry was not a threat, but when Pennington tried

to remove the handcuffs, Clark stopped him and said that he had no authority to do

so because “this [was] a county thing now.” Perry testified that throughout the

episode, he cried out for help and asked officers why he was being arrested but did

not threaten the officers’ safety or resist arrest. Perry was then charged with a number

of crimes including possessing a weapon, resisting arrest, and disorderly conduct. All

charges eventually were dismissed.

As a result of the incident, Perry suffered lacerated tendons in his knees, a

bulged disc in his neck, constant back problems, nerve damage, and post-traumatic

stress disorder. He brought this suit against Wolfe and other defendants, stating

federal and state law claims. The district court denied summary judgment and

allowed the majority of Perry’s claims to proceed. Wolfe appealed, claiming that the

district court erred in ruling that she was not entitled to qualified immunity.

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II. DISCUSSION

Under the collateral order doctrine, we have authority to hear an interlocutory

appeal of a denial of qualified immunity. Ehlers v. City of Rapid City, 846 F.3d 1002,

1008 (8th Cir. 2017). We are limited, however, to reviewing questions of law, not

factual disputes, and thus, “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.” Id.

(alterations and quotation omitted).

Qualified immunity protects law enforcement officers from liability for civil

damages so long as their conduct does not violate clearly established constitutional

or statutory rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). An officer loses the shield of qualified

immunity if (1) the facts alleged, taken in the light most favorable to the plaintiff,

show the officer’s conduct violated a constitutional or statutory right; and (2) that

right was clearly established at the time of the purported misconduct. Saucier v. Katz,

533 U.S. 194, 201 (2001); Ehlers, 846 F.3d at 1008. A constitutional or statutory

right is clearly established when the contours of the right are “sufficiently clear [such]

that a reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). While “general statements of law

are not inherently incapable of giving fair and clear warning to officers,” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (quotation omitted), the Supreme Court has

cautioned lower courts against defining clearly established rights “at a high level of

generality,” see id. (quotation omitted).

A. Fourth Amendment Violation

First, we determine whether Wolfe’s conduct violated Perry’s Fourth

Amendment right to be free from the use of excessive force. In determining whether

a particular use of force was excessive, we consider whether it was objectively

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reasonable under the circumstances, “rely[ing] on the perspective of a reasonable

officer present at the scene rather than the ‘20/20 vision of hindsight.’” Carpenter

v. Gage, 686 F.3d 644, 649 (8th Cir. 2012) (quoting Graham v. Connor, 490 U.S.

386, 396 (1989)). The proper application of this standard “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, 490 U.S. at 396.

Viewing the evidence in the light most favorable to Perry, we conclude that the

district court did not err in holding that Wolfe violated Perry’s Fourth Amendment

right to be free from excessive force because her use of force was objectively

unreasonable as a matter of law. Perry did not commit any crimes on the night of

August 30, 2009. While Perry questioned the justification for the pat-down and his

subsequent arrest, he did not act aggressively or threaten Clark’s safety. Instead,

Clark threw Perry to the ground without provocation, and Wolfe viewed this entire

interaction before assisting in subduing Perry. At no time did Perry struggle, resist

arrest, or threaten the safety of any of the officers. Wolfe’s supervisor, Pennington,

even attempted to prevent the arrest and remove Perry’s handcuffs because he

believed that Perry was not a threat. In similar circumstances, we denied qualified

immunity to an officer who assisted in subduing and handcuffing a non-resisting

plaintiff because the assisting officer “was present for the entire encounter and saw

that [the] plaintiff—wearing only a bathrobe—posed no threat to the safety of the

officers or others and did not attempt to resist arrest.” Smith v. Kansas City Police

Dep’t, 586 F.3d 576, 582 (8th Cir. 2009). These facts are analogous to the present

case and demonstrate that Wolfe’s actions restraining Perry’s arm and forcing her

knee into his back violated his Fourth Amendment right to be free from excessive

force.

Wolfe argues that she is entitled to qualified immunity because she merely

heard a scuffle between Perry and Clark before coming to Clark’s aid. In these

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circumstances, she claims, it was entirely reasonable for her to fear for Clark’s safety

and use force against Perry. Unfortunately for Wolfe, the record does not support her

contention. To the contrary, Wolfe testified that she witnessed the entire interaction

between Clark and Perry. Viewing the facts in the light most favorable to Perry then

compels us to credit Perry’s allegations that he was not threatening Clark’s safety or

otherwise resisting arrest. Thus, the record demonstrates that Wolfe observed the

entire encounter and understood that Perry did not pose a threat to Clark or other

officers. As a result, Wolfe cannot claim that it was reasonable for her to restrain

Perry’s arm and force her knee into his back.2 See id. We therefore conclude that

Wolfe’s actions constituted a Fourth Amendment violation because she joined Clark’s

excessive use of force even when she knew that Perry did not commit a crime,

threaten Clark’s safety, or resist arrest.3

B. Clearly Established Law

Next, we assess whether Perry’s right to be free from the use of excessive force

was clearly established in August 2009, the date of the incident. In Smith, we found

that, by 2006, it was clearly established that an assisting officer who knew that a

suspect was not resisting or threatening the officers violated that suspect’s Fourth

Amendment rights by subduing and handcuffing him. See 586 F.3d at 582. Thus, it

follows that at the time of the incident here, Perry’s Fourth Amendment right to be

free from excessive force was also clearly established.

2

We acknowledge that different factual circumstances could lead to a different

conclusion, even if a suspect were not resisting arrest or otherwise acting in a way

warranting the use of force. See, e.g., Ehlers, 846 F.3d at 1010 (listing cases where

an assisting officer is entitled to rely on the probable cause determination of an

arresting officer). If Wolfe had only heard a scuffle and then turned to see Clark

struggling with Perry, qualified immunity may well be appropriate. Wolfe testified,

however, that she was present for and viewed the entire incident.

3

The district court denied Clark qualified immunity, and he did not appeal the

district court’s decision.

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Wolfe raises a two-fold challenge to our conclusion about the clearly

established nature of the Fourth Amendment violation. She first claims that under

White v. Pauly, 137 S. Ct. 548 (2017), it was not clearly established that she was

prohibited from relying on Clark’s judgments about the need to use force against

Perry. Next, she asserts that Perry’s claim founders on Chambers v. Pennycook, 641

F.3d 898 (8th Cir. 2011), because Perry only alleged de minimis injuries and under

Pennycook, such injuries could not serve as the basis for excessive-force claims until

2011. Both her arguments are unavailing.

In White, the Supreme Court held that “[c]learly established federal law does

not prohibit a reasonable officer who arrives late to an ongoing police action . . . from

assuming that proper procedures . . . have already been followed. No settled Fourth

Amendment principle requires that officer to second-guess the earlier steps already

taken by his or her fellow officers.” 137 S. Ct. at 552. White is inapplicable to our

case because it addresses a wholly different set of facts. As noted above, Wolfe was

on the scene at the time of the incident and testified that she viewed the entire

interaction between Perry and Clark. As a result, Smith governs this case, and Perry’s

Fourth Amendment right to be free from excessive force was clearly established.

Wolfe responds that even if she used excessive force against Perry, he suffered

only de minimis injuries as a result of her conduct. In Pennycook, decided in 2011,

we held for the first time “that a citizen may prove an unreasonable seizure based on

an excessive use of force without necessarily showing more than de minimis injury.”

641 F.3d at 901. While it is true that a de minimis injury could not serve as the basis

for an excessive-force claim in August 2009, the record indicates that Perry suffered

more than de minimis injuries such that Pennycook does not apply.

During his deposition testimony, Perry noted that as a result of the incident, he

suffered lacerated tendons in his knee, a bulged disc in the neck, constant back

problems, nerve damage, and post-traumatic stress disorder. Perry also testified that

when Wolfe restrained him and placed her knee in the middle of his back, he felt a

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sharp pain in his back and ribs. In a subsequent affidavit, Perry further explained that

his injuries were collectively caused by “the forced take-down by Rowland Clark,

assisted by Margo Wolfe and Bruce Golden.” Wolfe asserts, however, that Perry’s

affidavit directly contradicts his earlier deposition testimony because his deposition

testimony suggests that Wolfe only caused de minimis injuries while his affidavit

alleges more serious injuries. Therefore, Wolfe contends the later affidavit

constitutes a forbidden attempt to manufacture a “sham issue of fact.” Herring v.

Can. Life Assurance Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quotation omitted).

We disagree.

Viewing the record in a light most favorable to Perry suggests that the affidavit

was a clarification or explanation of the prior testimony and not a direct contradiction.

See id. at 1030-31 (“[T]here are narrow circumstances in which a subsequent affidavit

is appropriate, such as to explain certain aspects of the deposition testimony or where

the prior testimony reflects confusion on the part of the witness.” (quotation

omitted)). More importantly, however, insofar as there is any inconsistency between

Perry’s deposition testimony and his later affidavit, our precedents dictate that this

constitutes a genuine issue of material fact. Id. at 1031 (citing Kim v. Ingersoll Rand

Co., 921 F.2d 197, 199 (8th Cir. 1990) (apparent discrepancy in plaintiff’s trial

testimony and his earlier deposition testimony created a credibility question for the

jury)). As a result, viewing the record in the light most favorable to Perry, the injuries

he suffered were more serious than de minimis ones. Accordingly, Pennycook does

not control this case, and we conclude that Perry’s Fourth Amendment right to be free

from excessive force was clearly established in August 2009 such that Wolfe was not

entitled to qualified immunity.

III. CONCLUSION

We affirm the district court’s denial of Wolfe’s motion for summary judgment.

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