Troy Rokusek v. Cody Jansen

United States Court of Appeals

For the Eighth Circuit

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No. 17-3203

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Troy Rokusek

lllllllllllllllllllllPlaintiff - Appellee

v.

Cody Jansen, individually

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the District of South Dakota - Sioux Falls

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Submitted: June 15, 2018

Filed: August 8, 2018

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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

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GRUENDER, Circuit Judge.

South Dakota State Trooper Cody Jansen appeals the district court’s1 denial of

summary judgment on Troy Rokusek’s claim under 42 U.S.C. § 1983. The district

court determined that Trooper Jansen was not entitled to qualified immunity because

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The Honorable Lawrence L. Piersol, United States District Judge for the

District of South Dakota.

the evidence, construed in Rokusek’s favor, showed that Jansen violated his clearly

established right to be free from excessive force. We affirm.

On the night of April 14, 2015, Jansen arrested Rokusek for driving while

impaired and transported him to a garage at the courthouse in Clay County, South

Dakota. Once there, Jansen removed the handcuffs from Rokusek, who consented to

having his blood drawn. Though a medical technician was in the garage to perform

the blood draw, Rokusek preferred a more sanitary environment and withdrew his

consent. Jansen ordered Rokusek to stand so that he could handcuff him again before

obtaining a warrant to draw blood. Despite Jansen’s three requests, Rokusek refused

to comply. Jansen, who was 6’4” and weighed at least 180 pounds at the time of the

incident, pulled Rokusek, who was 5’6” and weighed 135 pounds, to a standing

position. He then placed him in a “double-chicken-wing hold” by putting his arms

around Rokusek’s arms and interlocking them behind Rokusek’s back. As is evident

from a video recording of the incident, the hold immobilized the much smaller

Rokusek. The two remained in this position until Jansen suddenly threw Rokusek

face-first to the ground. Because his arms were immobilized, Rokusek was unable

to brace his fall and lost two teeth.

We review de novo the district court’s denial of qualified immunity on

summary judgment, viewing the record in the light most favorable to Rokusek and

drawing all reasonable inferences in his favor. See Shannon v. Koehler, 616 F.3d

855, 861-62 (8th Cir. 2010). To overcome Trooper Jansen’s claim of qualified

immunity, Rokusek must show the violation of a constitutional right that was clearly

established at the time of the violation. See Gilmore v. City of Minneapolis, 837 F.3d

827, 832 (8th Cir. 2016). “To establish a constitutional violation under the Fourth

Amendment’s right to be free from excessive force, the test is whether the amount of

force used was objectively reasonable under the particular circumstances.” Brown

v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). A right is clearly

established if “every reasonable official would have understood that what he is doing

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violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation

marks omitted).

Trooper Jansen argues that the district court did not consider his point of view

in evaluating the reasonableness of his actions. While reasonableness is an objective

standard, it must account “for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.”

Graham v. Connor, 490 U.S. 386, 396-97 (1989). An officer need not “pursue the

most prudent course of conduct as judged by 20/20 hindsight vision.” Retz v. Seaton,

741 F.3d 913, 918 (8th Cir. 2014). With these principles in mind, we consider several

factors, including the severity of the suspect’s crime, whether the suspect was

threatening the officers or others, and whether the suspect was actively resisting or

fleeing. Graham, 490 U.S. at 396.

Under these factors, Jansen’s use of force was not objectively reasonable under

the circumstances. Rokusek was an unarmed, nonviolent offender. He was not

threatening Jansen or the technician, and he was not actively resisting or fleeing.

Nonetheless, the much larger Jansen lifted him off the ground and slammed his head

into the floor, causing him to lose two teeth. Though Jansen testified that Rokusek

pushed back against him while he was in the double-chicken-wing hold, the video

makes clear that any contact was slight.

Jansen argues that we sanctioned a comparable takedown under similar

circumstances in Vester v. Hallock, 864 F.3d 884 (8th Cir. 2017). But in finding that

the officer in Vester had not used excessive force, we relied on “the very real

possibility that [the suspect] still had a concealed knife on his person.” Id. at 887.

Rokusek posed no such danger. The situation Jansen faced also differed from that in

Ehlers v. City of Rapid City, 846 F.3d 1002, 1007, 1011 (8th Cir. 2017), where an

officer took a fleeing arrestee to the ground after he ignored repeated warnings to put

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his hands behind his back. While Rokusek had disobeyed Jansen’s three prior orders

to stand up, he has denied that he continued to ignore Jansen’s commands. Jansen

had him fully under control. Construing the evidence in Rokusek’s favor, Jansen

used more than “the force necessary” to handcuff Rokusek. See id. at 1011.

We now turn to the second prong of the qualified immunity test: whether the

right was clearly established at the time of the violation. Jansen correctly emphasizes

that Rokusek bears the burden of showing that the law was clearly established. See

Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013). The Supreme Court has warned

that we must not “define clearly established law at a high level of generality,” and a

right’s contours must be “sufficiently clear” so that “every reasonable official would

have understood that what he is doing violates that right.” al-Kidd, 563 U.S. at 741-

42 (internal quotation marks omitted). But as the Court has explained, “[A] general

constitutional rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741

(2002).

Here, several cases establish that every reasonable official would have

understood that he could not throw Rokusek—a nonviolent, nonthreatening

misdemeanant who was not actively resisting—face-first to the ground. See Small v.

McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya v. City of Flandreau, 669

F.3d 867, 873 (8th Cir. 2012); see also Brown, 574 F.3d at 499; Rohrbough v. Hall,

586 F.3d 582, 586-87 (8th Cir. 2009). While none of these cases involve a fact

pattern precisely like the one at issue here, there is no requirement that Rokusek must

find a case where “the very action in question has previously been held unlawful,” see

Rohrbough, 586 F.3d at 587, so long as “existing precedent [has] placed the statutory

or constitutional question beyond debate,” al-Kidd, 563 U.S. at 741. Jansen had “fair

warning” that he should not have thrown a nonviolent, nonthreatening suspect who

was not actively resisting face-first to the ground. See Hope, 536 U.S. at 741.

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Accordingly, we affirm the district court’s order denying Jansen summary

judgment on the basis of qualified immunity.

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