Landon Michael v. Joshua Trevena

United States Court of Appeals

For the Eighth Circuit

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No. 17-1946

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Landon L. Michael

lllllllllllllllllllllPlaintiff - Appellant

v.

Joshua Trevena; Ryan Chaffee, in their individual capacities as officers of the

Watford City Police Department

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court

for the District of North Dakota - Bismarck

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Submitted: March 13, 2018

Filed: August, 7, 2018

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Before GRUENDER, BEAM, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Landon Michael filed suit against Watford City, North Dakota, police officers

Joshua Trevena and Ryan Chaffee, alleging unlawful arrest and excessive force after

the officers were called to help resolve a family dispute. The district court granted

the officers summary judgment based on qualified immunity. Michael appeals.

I.

Michael was in possession of a set of keys to a truck his mother had rented. He

refused to return them without speaking to his mother, but she refused to talk with

him. The police were called. Officer Trevena arrived first, and officer Chaffee soon

afterward. Both officers wore microphones that recorded much of what happened

next. Both officers also drove police vehicles equipped with dashboard cameras.

Trevena’s vehicle was positioned such that the camera was facing away from the front

yard where Michael was sitting. Chaffee’s vehicle was positioned with its dash cam

pointing at the yard, but its view was almost completely obscured by a large tree.

Michael was sitting in a chair on the lawn of his cousin’s home, and his mother

and sister (who was in the driver’s seat) were sitting in a vehicle parked nearby.

Michael went to speak to his mother but, as he approached, Michael’s sister started

the vehicle and began to drive away. Michael returned to the lawn chair, out of view

of either officer’s dash cam. He claimed that his sister had run over his foot on

purpose. As recorded by the officers’ microphones, the exchange went as follows:

TREVENA: You intentionally put your foot under the vehicle.

MICHAEL: No, I . . . I did not intentionally do that.

TREVENA: Yeah, ya did.

MICHAEL: I did not in . . . you know I didn’t; you are accusing me of

nothin’ just to provoke me and I did not do no such thing.

TREVENA: Yeah, ya did.

MICHAEL: I did no such thing. She just ran over my foot.

TREVENA: You were standing that far away . . . .

MICHAEL: She just ran over my foot, sir. She ran over my foot. You

can be a witness against me in court.

TREVENA: Okay, she ran over your foot?

MICHAEL: You can be a witness against me in court.

TREVENA: Okay, did she intentionally run over your foot?

MICHAEL: Yes.

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TREVENA: I am going to arrest you for providing a false statement to

a peace officer right now.

Both officers then moved in to arrest Michael.

Trevena ordered Michael to stand up, but he remained seated. The officers say

Michael tensed up his body and gripped the chair, which Michael denies. Michael

says Trevena grabbed his right arm and throat, which Trevena denies. Everyone

agrees that Chaffee took out his police baton and placed it between Michael’s left arm

and chest. Chaffee then used the baton as a lever to get Michael out of the lawn chair,

and broke Michael’s arm. Michael was transported to the hospital. Trevena and

Chaffee filed charges against Michael for making a false report, citing the exchange

reproduced above. The North Dakota authorities declined to prosecute.

Michael filed this 42 U.S.C. § 1983 case against Trevena and Chaffee for

excessive force and unlawful arrest.1 The district court granted both officers

summary judgment on the basis of qualified immunity, and Michael appeals.

II.

We review grants of summary judgment de novo. Gilmore v. City of

Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016).

1

Michael also contests the district court’s denial of his Rule 59(e) motion to

alter or amend the judgment to include a ruling on a claim against Trevena for

unlawful investigatory detention. The district court concluded that Michael had

failed to adequately plead unlawful investigatory detention as a separate claim, and

had not timely moved to amend his complaint before moving for summary judgment.

Reviewing for an abuse of discretion, see Webb v. Exxon Mobil Corp., 856 F.3d

1150, 1160 (8th Cir. 2017), we affirm that ruling.

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“[O]fficers are entitled to qualified immunity under § 1983 unless (1) they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). In

this case, neither party disputes the clearly-established prong of the qualified

immunity analysis. Thus, the only question for us to resolve is whether, viewing the

record in the light most favorable to Michael, Trevena and Chaffee violated Michael’s

constitutional rights.

The Supreme Court has explained:

The first step in assessing the constitutionality of [the officers’] actions

is to determine the relevant facts. As this case was decided on summary

judgment, there have not yet been factual findings by a judge or jury,

and [Michael’s] version of events (unsurprisingly) differs substantially

from [the officers’] version. When things are in such a posture, courts

are required to view the facts and draw reasonable inferences in the light

most favorable to the party opposing the [summary judgment] motion.

In qualified immunity cases, this usually means adopting . . . the

plaintiff’s version of the facts.

Scott v. Harris, 550 U.S. 372, 378 (2007) (cleaned up). But that does not mean we

are bound to credit the plaintiff’s version of events, come what may. Id. at 379–80.

“At the summary judgment stage, facts must be viewed in the light most favorable to

the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Id. at 380.

Therefore, “[w]hen 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.” Id.

Applying those rules here, we conclude that neither party’s version of events

is “blatantly contradicted by the record” because the dash cam video of the incident

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reveals very little. Owing to the tree and the way the dash cam frames the front yard,

the following events are missing from the video: (1) Michael’s sister running over his

foot (intentionally or otherwise); (2) Michael sitting in the lawn chair once he returns

to the front lawn; (3) the officers approaching Michael; (4) Michael’s posture and

physical reaction to the officers; (5) the officers’ actions to remove Michael from the

lawn chair; and (6) the breaking of Michael’s arm. Although the officers’ audio

recordings make it fairly clear who said what during the events, the recordings are

insufficient to conclusively resolve whether Trevena and Chaffee violated Michael’s

constitutional rights. The officers’ argument that the dash cam footage is dispositive

of the case is wholly unsupported by the record. Accordingly, we conclude that this

is one of those “usual” qualified immunity cases in which viewing the facts in the

light most favorable to the nonmovant “means adopting . . . the plaintiff’s version of

the facts.” Id. at 378.

We turn now to Michael’s two claims. On the excessive force claim, “[t]he test

is whether the amount of force used was objectively reasonable under the particular

circumstances.” Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting

Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). Objective

reasonableness is “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). The assessment “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.” Id. Applying

these factors, we have previously “denied police qualified immunity in an

excessive-force case where . . . (1) the arrestee’s ‘alleged misconduct was neither

violent nor serious,’ (2) ‘there was little evidence to indicate that the arrestee posed

a physical threat to anyone,’ and (3) ‘there was a factual dispute as to whether the

arrestee was “actively” resisting arrest.’” Atkinson v. City of Mountain View, 709

F.3d 1201, 1213 (8th Cir. 2013) (cleaned up) (quoting Gainor v. Rogers, 973 F.2d

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1379, 1388 (8th Cir. 1992)). We have also held “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.” Brown, 574 F.3d at 499.

Accepting Michael’s version of events as true, Trevena and Chaffee’s use of

force was objectively unreasonable. The officers allegedly suspected Michael of

making a false statement—a nonviolent misdemeanor. See N.D. Cent. Code

§ 12.1-11-03(1). Michael was neither fleeing nor actively resisting arrest and, sitting

in a lawn chair, he posed no threat to the security of the officers or the public.

Accordingly, none of the Graham factors cuts in favor of a forceful arrest being

reasonable. See Graham, 490 U.S. at 396; Atkinson, 709 F.3d at 1213. Under

Michael’s version of the facts, he was a nonviolent misdemeanant who neither fled

nor actively resisted arrest, and posed no threat to the officers or other members of

the public. See Brown, 574 F.3d at 499. Under these circumstances, it is objectively

unreasonable to make an arrest by grabbing the suspect by the throat (Trevena), or

using a baton with sufficient force to break the suspect’s arm (Chaffee). Accordingly,

neither officer is entitled to qualified immunity on Michael’s excessive force claim.

On the unlawful arrest claim, the district court granted the officers summary

judgment based on its finding that “Michael’s report of his sister intentionally

running over his foot was clearly false.” Neither the dash cam video nor audio

recordings can sustain that conclusion. The recordings are at best inconclusive and,

in finding otherwise, the district court resolved fact disputes in the officers’ favor,

which is impermissible at summary judgment in any civil case, including a § 1983

suit involving the doctrine of qualified immunity. Tolan v. Cotton, 134 S. Ct. 1861,

1866–68 (2014).

Like the district court, the dissent believes that the dash cam video clearly

shows Michael intentionally put his foot under the tire of his sister’s vehicle (a

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minivan). We have watched the same video and we disagree.2 The video shows

Michael walking quickly to the passenger side of the van. Michael’s sister begins to

drive away. We do not see Michael taking any steps backwards; his feet move but

he remains immediately beside the van. As the van turns toward Michael and away

from the curb, Michael’s right foot moves under the rolling van. The van’s rear

tire—presumably the tire Michael says ran over his foot—is not visible because the

van blocks the dash cam’s view as it turns into the street. Though a jury could

reasonably conclude that Michael put his foot under his sister’s van on purpose, it

could also reasonably conclude that Michael’s sister deliberately turned the van

toward him, and succeeded in running over his foot. Thus, this remains one of those

“usual” qualified immunity cases in which viewing the facts in the light most

favorable to the nonmovant “means adopting . . . the plaintiff’s version of the facts.”

Scott, 550 U.S. at 378. Here, that means assuming, for the purpose of summary

judgment, that Michael’s sister intentionally ran over his foot.

“A warrantless arrest is consistent with the Fourth Amendment if it is

supported by probable cause.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008).

“Probable cause exists when the totality of the circumstances shows that a prudent

person would believe that the arrestee has committed a crime.” Id. Officers are

entitled to qualified immunity even if they “reasonably but mistakenly conclude that

probable cause is present.” Anderson v. Creighton, 483 U.S. 635, 641 (1987). This

standard provides “‘ample room for mistaken judgments’ by protecting ‘all but the

plainly incompetent or those who knowingly violate the law.’” Hunter v. Bryant, 502

U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)).3

2

The fact that a panel of this court cannot unanimously agree on precisely what

the video shows may further support our conclusion that there is a genuine dispute

of material fact.

3

This circuit often refers to this standard using the shorthand “arguable

probable cause.” See Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000).

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The officers claim they believed that Michael violated N.D. Cent. Code

§ 12.1-11-03(1), which makes it a crime to “[g]ive[] false information or a false report

to a law enforcement officer which that person knows to be false, and the information

or report may interfere with an investigation or may materially mislead a law

enforcement officer.” (Emphasis added). Though the parties cite no North Dakota

cases interpreting this provision, we think the plain language of the statute is clear

enough for our purposes: the information or report in question must be false, and of

a nature that it may interfere with an investigation or materially mislead a law

enforcement officer.

Viewing the facts in the light most favorable to Michael, it was objectively

unreasonable to believe there was probable cause to arrest him for violating N.D.

Cent. Code § 12.1-11-03(1). The officers arrested Michael for stating that his sister

ran over his foot on purpose. Putting aside that Michael’s accusation seems to us a

matter of opinion (that, by definition, cannot be true or false), there was no basis to

believe the accusation “may interfere with an investigation or may materially mislead

a law enforcement officer.”4 Michael’s exchange with Trevena makes clear that

Trevena first decided Michael was lying, and then asked a question to induce Michael

to repeat the accusation: “Okay, she ran over your foot?” When Michael’s response

evaded the question (“You can be a witness against me in court”), Trevena repeated

his query: “Okay, did she intentionally run over your foot?” When Michael said

“yes,” Trevena and Chaffee arrested him. Where an officer has already concluded

4

The dissent asserts that the statute’s ambiguity makes the officers’ belief they

had probable to arrest Michael reasonable because Michael’s statements “may have

led officers to investigate or even arrest his sister.” But probable cause is evaluated

under the totality of the circumstances in a particular case, based on what the record

shows the officers knew and did. See Anderson, 483 U.S. at 641 (noting that the

inquiry focuses on “the information that the [arresting] officers possessed”). To

suggest that Michael’s statements may have interfered with an investigation or misled

an officer is to ignore what actually happened in this case.

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that a suspect’s statement is a lie, it is unreasonable to think that, by repeating the

statement, the suspect may interfere with an investigation into whether the statement

is, in fact, a lie. Equally unreasonable is the notion that repeating a statement, which

the officer has already decided is false, might materially mislead a law enforcement

officer into believing the statement is true. Thus, the officers’ belief, mistaken or

otherwise, that they had probable cause to arrest Michael for violating N.D. Cent.

Code § 12.1-11-03(1) was unreasonable. Accordingly, neither Trevena nor Chaffee

is entitled to qualified immunity.

III.

We reverse the district court’s grant of summary judgment to the officers, and

remand for further proceedings consistent with this opinion.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

I agree that the district court erred in granting qualified immunity on Michael’s

excessive-force claims. As the court explains, because a tree partially obscures the

only video of the arrest, there remain genuine questions of material fact concerning

the extent to which Michael resisted arrest and the degree of force the officers

employed. See ante at 5-6. Thus, I join that portion of the court’s opinion. But, for

two reasons, I respectfully dissent from the reversal of summary judgment as to

Michael’s unlawful-arrest claims.

First, the court misconstrues the record in “assuming, for the purpose of

summary judgment, that Michael’s sister intentionally ran over his foot.” Ante at 6.

While we generally must view the facts and draw all reasonable inferences in a light

most favorable to the nonmoving party, the Supreme Court has made clear that we

cannot accept allegations that are contradicted by reliable video evidence. See Scott

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v. Harris, 550 U.S. 372, 380-81 (2007). Having reviewed the video here, I simply

disagree that “[t]he recordings are at best inconclusive” as to whether Michael’s sister

intentionally ran over his foot. Ante at 6. Officer Chaffee’s dash-camera video

clearly shows that, as Michael’s sister begins to drive off, he takes three backward

steps away from the van before suddenly extending his right foot under the vehicle’s

rear, passenger-side tire. This video disproves Michael’s claim that his sister

intentionally ran over his foot. Indeed, Michael moved into the path of the vehicle

so quickly that it would have been impossible for her to deliberately speed up or fail

to stop, even if she could have seen his foot under the rear tire of the forward-moving

vehicle. Thus, I do not accept the court’s characterization of Michael’s report to

officers as “a matter of opinion (that, by definition, cannot be true or false).” Ante at

8. The video conclusively demonstrates that Michael deliberately put his foot under

the vehicle, that his sister could not have intended to run it over, and that he made a

false report to officers on both scores.

Second, and more problematically, the court misapplies the arguable probable

cause standard in light of relevant statutory ambiguity. See Walker v. City of Pine

Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (“Because the qualified immunity privilege

extends to a police officer who is wrong, so long as he is reasonable, the governing

standard for a Fourth Amendment unlawful arrest claim is not probable cause in fact

but arguable probable cause . . . that is, whether the officer should have known that

the arrest violated plaintiff’s clearly established right.” (internal quotation marks

omitted)). North Dakota’s false-report statute makes it a crime to “[g]ive[] false

information or a false report to a law enforcement officer which that person knows

to be false, and the information or report may interfere with an investigation or may

materially mislead a law enforcement officer.” N.D. Cent. Code § 12.1-11-03(1)

(emphasis added). As this case demonstrates, the final clause of this provision allows

for several plausible interpretations: (1) that the false information or report must, in

fact, interfere or mislead—as Michael suggests; (2) that the false information or

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report must, under the circumstances, be capable of interfering or misleading, in light

of the officer’s subjective knowledge as to the validity of the information or

report—the standard adopted by the court; or (3) that the false information or report

is of the type that may interfere or mislead given its relation to an officer’s law

enforcement duties—as the officers contend.

The officers’ interpretation strikes me as the most natural reading of statute, as

the alternatives each require a deviation from the text. See Johnson v. Dept. of

Transp., 683 N.W.2d 886, 889 (N.D. 2004) (explaining that North Dakota statutes are

to be interpreted by looking at the “plain language of the statute and giv[ing] every

word of the statute its ordinary meaning”). For example, the final clause of the

provision refers generally to “a law enforcement officer,” not specifically to the

officer who received the false report, which suggests a more objective standard than

that adopted by the court. Nor is there any language in the provision indicating that

the false report must actually interfere or mislead. Nevertheless, resolving this

statutory ambiguity is not our task today. Instead, we must determine whether a

reasonable officer could conclude that Michael’s false report—that he did not

deliberately put his foot under the vehicle and that his sister intentionally ran over his

foot—was sufficient to constitute a violation of the statute.

Given that there is no North Dakota caselaw clarifying the ambiguous “may”

provision and that the officers’ interpretation is at the very least reasonable, their

arrest of Michael did not violate clearly established law. See Lawyer v. City of

Council Bluffs, 361 F.3d 1099, 1108 (8th Cir. 2004) (emphasizing that “[p]olice

officers are not expected to parse code language as though they were participating in

a law school seminar” and concluding that a challenged arrest “did not violate clearly

established law” where a reasonable officer could believe that the plaintiff-arrestee’s

conduct violated an ambiguous provision, even if a state court later concluded that

it did not); see also Gorra v. Hanson, 880 F.2d 95, 98 (8th Cir. 1989) (“Because the

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law had not been construed at the time of the arrest, and because the troopers’

interpretation was not inconsistent with common understanding, we cannot say that

[their] interpretation of the statute was unreasonable.”). Under the officers’

reasonable reading of statute, both of Michael’s statements would qualify as a false

report because they may have led officers to investigate or even arrest his sister.

Therefore, the officers had at least arguable probable cause to arrest Michael.

Accordingly, I concur in the court’s reversal of summary judgment as to

Michael’s excessive-force claims but dissent from its reversal of summary judgment

as to his wrongful-arrest claims.

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