David Kasiah v. Gilbert Carter

United States Court of Appeals

For the Eighth Circuit

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No. 17-3588

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David Kasiah

lllllllllllllllllllllPlaintiff - Appellant

v.

Crowd Systems, Inc.

lllllllllllllllllllllDefendant

Gilbert Carter; Kansas City Board of Police Commissioners

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: September 27, 2018

Filed: February 14, 2019

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Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.

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MELLOY, Circuit Judge.

A concertgoer who was injured when an off-duty police officer lifted him over

a five-foot barrier and dropped him on his neck asks us to reverse the district court’s1

order granting summary judgment to the officer and the board of police

commissioners on his 42 U.S.C. § 1983 claims. We affirm.

I. Background

A. Appellant’s Injury

Except where noted, the following facts are undisputed or presented in a light

most favorable to the appellant. On September 27, 2013, Appellant David Kasiah

attended the Buzz Beach Ball concert in Kansas City, Missouri. While there, he

engaged in several acts of “crowd surfing.” According to Kasiah, crowd surfing

involved being hoisted onto fellow concertgoers’ shoulders at the back of the venue

and then being passed hand to hand overhead by them and others toward the stage.

Some time after one these crowd-surfing episodes, Kasiah was dancing behind a

woman when he “bumped into her.” The woman became upset and began yelling at

him. Kasiah tried to ignore her, and, after a few seconds, they resumed their separate

dancing. Kasiah then crowd surfed again, whereupon he returned and started dancing

behind the woman. He bumped into her a second time, and she responded by yelling

much more fiercely. After about thirty seconds of yelling, the woman turned to the

man she was with and appeared to voice her frustration. She then ran off to talk to

security personnel, and the man and Kasiah exchanged “looks.”2

1

The Honorable Beth Phillips, United States District Judge for the Western

District of Missouri.

2

In a deposition, Kasiah explained that the look the man gave him was a look

that seemed to say, “Sorry about [the woman] freaking out about this. . . . [S]he’s

making me do this.” Elsewhere, Kasiah called the look the man gave a “stare.”

Kasiah explained that the exchanged looks were all that ever happened between him

and the man—the man made no threatening gestures to Kasiah, nor did he clench his

fist or square up to Kasiah in a boxer stance.

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While all of this was going on, Appellee Gilbert Carter, an off-duty police

officer for the Kansas City Police Department (“KCPD”), was working as a security

guard for Crowd Systems, Inc. (“CSI”), the company providing security for the event.

He was standing behind an approximately five-foot tall metal barrier separating the

crowd from the stage. A CSI employee approached Carter and explained that it

looked like a fight might break out between Kasiah and another man. Carter then

stepped onto a step approximately two feet off the ground, which put the top of the

barrier at his waist. From there, Carter watched Kasiah and the other man for a

moment and called his colleague, Detective Kevin White, over to help him. White

was also an off-duty KCPD police officer working for CSI.

As White drew near, Carter spoke to one of the patrons who reported that

Kasiah had been causing trouble all day. Carter then saw what he believed to be a

“disturbance in the crowd” caused by the two men and motioned for Kasiah to come

to him. Kasiah walked toward Carter, who lunged to grab Kasiah as Kasiah got close

enough. Kasiah avoided the grab and stepped or leaned back, away from Carter. The

crowd suddenly surged forward, and Kasiah was pushed toward Carter. Carter then

grabbed Kasiah by the shirt and the arm, made a slight adjustment to his grip, and

proceeded, with White’s assistance, to pull Kasiah up and over the barrier.3 Kasiah

3

Lifting someone over the barrier to remove him from a concert was,

apparently, not an uncommon practice among CSI security guards. White recalls

doing it “all the time” when he worked at other events. Officers did it, he explained,

to remove people whom CSI identified as needing to leave for any given reason. He

said that it “may not be the easiest way” to remove a person from an event or “the

smartest thing to do” alone, but he did recall doing it with help previously and

“[n]ever [having] any issues.”

In this instance, Carter and White pulled Kasiah up, dragging his torso along

the barrier somewhat. They then grabbed Kasiah’s legs. Kasiah’s body appears to

have never been more than a foot above the barrier. Nevertheless, at one point his

legs were higher in the air than his head.

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was approximately five feet, eleven inches tall and weighed around 160 pounds.

Carter was a “large,” five-foot-four-inch, “stocky,” wide-shouldered man. White had

“a smaller-build,” was approximately five feet, five inches tall, and appeared to be in

his “late 40s [or] early 50s.”

As Carter and White pulled Kasiah over the barrier, White began to lose his

grip. Kasiah was basically perpendicular to the barrier at the time and not resisting.

Without White’s help to support Kasiah’s lower body, Carter lost his balance and

began to fall from the platform. Carter then “pushed, turned, or ‘threw’” Kasiah away

from him. Both men fell to the ground. Kasiah landed on his head and shoulder and

fractured two vertebrae in his neck. Carter landed next to Kasiah or slightly on top

of Kasiah’s lower body. Kasiah cried out that there was something wrong with his

neck, so Carter and White ensured that Kasiah received immediate medical attention.

Carter later charged Kasiah with disorderly conduct.

B. Procedural History

Two years later, Kasiah brought suit against CSI and Carter in Missouri state

court for assault and battery, general negligence, vicarious liability, negligent hiring,

training, and retention, and punitive damages. Nearly a year later, he amended his

petition to add Appellee Kansas City Board of Police Commissioners (“the Board”)

as a party. He also added claims under 42 U.S.C. § 1983 for wrongful arrest and

excessive force in violation of the Fourteenth Amendment and the Missouri

constitution. The defendants removed the case to the district court, whereupon

several things happened. First, Kasiah settled his claim against CSI. Second, the

district court dismissed some of Kasiah’s claims and disposed of others through

summary judgment—these included all but the wrongful arrest, excessive force,

assault and battery, and general negligence claims. None of the dismissals or prior

summary judgment orders are before us on appeal. Third, the parties completed

discovery. Finally, Carter and the Board filed motions for summary judgment on the

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remaining claims, arguing that Carter was entitled to qualified immunity and that the

Board could not be held derivatively liable for his alleged excessive use of force.

The district court granted summary judgment in two orders. Relevant to this

appeal, the district court concluded that Carter: (1) did not use excessive force in

violation of clearly established constitutional law; and (2) was immune from the state-

law tort claims under the doctrine of official immunity. Regarding the claims against

the Board, the district court stated that Kasiah agreed summary judgment for the

wrongful arrest claim was appropriate.4 The district court also held that the Board

was not derivatively liable on the excessive force claim because Carter did not use

excessive force. Alternatively, the district court held that “[e]ven if Carter’s use of

force was unconstitutional, [the Board was] entitled to summary judgment” because

the violation did not result from an official policy or the Board’s failure to train or

supervise Carter. Kasiah timely filed a notice of appeal.

II. Discussion

Kasiah argues that the district court erred when it granted summary judgment

in favor of Carter and the Board on his claims that: (1) Carter used excessive force

in violation of the Fourth Amendment; (2) Carter committed assault and battery and

was generally negligent under Missouri law; and (3) the Board was derivatively liable

as a municipality for Carter’s use of excessive force. We review a grant of summary

judgment de novo, viewing the facts in the light most favorable to the nonmoving

party. See Eggers v. Wells Fargo Bank, N.A., 899 F.3d 629, 632 (8th Cir. 2018).

4

On appeal, Kasiah does not dispute that he so agreed. Nor does he now argue

that the district court’s decision on the wrongful arrest claim was somehow

inappropriate.

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A. Excessive Force

Kasiah first asserts that Carter used excessive force against him in violation of

the Fourth Amendment. The district court analyzed whether any of three “distinct

‘uses of force’” constituted excessive force. These uses of force were: (1) Carter

grabbing Kasiah; (2) Carter lifting Kasiah over the barrier; and (3) Carter “throwing”

Kasiah to the ground. The district court concluded that none of the uses of force were

unconstitutionally excessive. For the reasons discussed below, we agree.

The Fourth Amendment, as applied to the states by the Fourteenth Amendment,

protects individuals from “unreasonable searches and seizures” by government

officials. U.S. Const. amend. IV. An officer who uses excessive force “in the course

of an arrest, investigatory stop, or other ‘seizure’ of a free citizen” acts unreasonably,

making his use of force unconstitutional. Graham v. Connor, 490 U.S. 386, 395

(1989). To determine whether an officer has used excessive force, a court must

consider, “based on the perspective of a reasonable officer on the scene, ‘whether the

officer[’s] actions are “objectively reasonable” in light of the facts and circumstances

confronting [him].’” Wenzel v. City of Bourbon, 899 F.3d 598, 601–02 (8th Cir.

2018) (quoting Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015)). The court

“evaluate[s] the objective reasonableness of the use of force by looking at the

particular circumstances of each case, including ‘the severity of the crime at issue,

whether the suspect pose[d] an immediate threat to the safety of the officer or others,

and whether he [wa]s actively resisting arrest or attempting to evade arrest by flight.’”

Neal v. Ficcadenti, 895 F.3d 576, 580–81 (8th Cir. 2018) (second and third alterations

in original) (quoting Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006)). The

court does not consider the question of whether an officer used excessive force “as

‘judged . . . with the 20/20 vision of hindsight.’” Id. at 580 (quoting Hollingsworth,

800 F.3d at 989).

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Here, we conclude that no reasonable jury could find that Carter’s uses of force

were objectively unreasonable. Regarding the first use of force, the grab, the district

court noted that it had previously determined Carter had probable cause to arrest

Kasiah for disorderly conduct. Kasiah has not appealed nor does he dispute that

determination. The district court therefore concluded, and we agree, that it was

reasonable for Carter to grab Kasiah. An officer must be permitted to grab the

arrestee and put him in handcuffs when effectuating an arrest. See Graham, 490 U.S.

at 396 (“[T]he right to make an arrest or investigatory stop necessarily carries with

it the right to use some degree of physical coercion . . . to effect it.”). That conclusion

is strengthened by the fact that Kasiah points to no evidence in the record to support

a claim that the grab was anything more than what Graham permits.

The second use of force, the lift, was also objectively reasonable. An officer

effectuating an arrest need not take action devoid of all risk of harm to the arrestee

when moving or attempting to move that arrestee to another location. See, e.g.,

Boude v. City of Raymore, 855 F.3d 930, 933–34 (8th Cir. 2017) (holding that an

officer who physically removed a non-compliant, intoxicated woman from her vehicle

acted in an objectively reasonable manner); Ryan v. Armstrong, 850 F.3d 419,

427–28 (8th Cir. 2017) (concluding that the efforts made by officers to remove a

severely mentally agitated detainee from his cell were objectively reasonable).

Indeed, an officer need not even “pursue the most prudent course of conduct” when

doing so. Church v. Anderson, 898 F.3d 830, 833 (8th Cir. 2018) (quoting Retz v.

Seaton, 741 F.3d 913, 918 (8th Cir. 2014)); see also Aipperspach v. McInerney, 766

F.3d 803, 806 (8th Cir. 2014) (noting that “[w]e are hesitant to second-guess the

‘split-second judgments’ of officers working in ‘tense, uncertain, and rapidly

evolving situation[s]’” (citation omitted)). What matters is that the officer acted

reasonably “in light of the facts and circumstances confronting [him].” Graham, 490

U.S. at 397.

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Here, Carter acted reasonably. Having apprehended Kasiah, the natural next

move for Carter was to remove Kasiah from the concert. Lifting him over the barrier,

while potentially risky, was a quick solution and had been done on previous

occasions. Indeed, lifting Kasiah helped Carter avoid any difficulty or delay he

would have faced had he attempted to get Kasiah, a person he had probable cause to

believe was guilty of disorderly conduct, through a noisy crowd at a noisy rock

concert and to an exit. Moreover, Carter, a “large,” “stocky,” wide-shouldered man,

was physically capable of lifting the non-resisting, 160-pound Kasiah up and over a

five-foot barrier, especially where White was available to assist him. Given these

facts, the prevalence of the practice among CSI security guards without incident, and

our well-settled case law that “an officer need not pursue the most prudent course of

conduct,” Church, 898 F.3d at 833 (citation omitted), we hold that it was objectively

reasonable for Carter to lift Kasiah over the barrier.

The final use of force, the throw, was also objectively reasonable. The parties

agree that White lost his grip on Kasiah’s legs as Kasiah was coming over the barrier.

They also agree that this resulted in Carter losing his balance, causing Carter and

Kasiah to fall toward the ground. It was only then, they stipulate, that Carter “pushed,

turned or ‘threw’” Kasiah away from him. “Throwing” Kasiah, therefore, was the

result of Carter’s fall, not some malicious act on the part of Carter.

In his brief, however, Kasiah disagrees as to the meaning of his stipulation. He

argues that the record shows that Carter intentionally5 threw Kasiah, apparently

5

What Kasiah means by the word “intentionally” is unclear. From the way he

uses it in his brief, Kasiah seems to be referring to something more than merely

intending for a certain result to occur. Carter obviously intended to throw Kasiah off

of him in that sense; that fact is not in dispute. What Kasiah appears to be talking

about when he uses the word “intentionally” is something more akin to malice—as

in, Carter threw Kasiah, intending harm to Kasiah. Such a claim, however, is

unsupported by the record.

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believing that Carter’s state of mind makes the throw objectively unreasonable. The

test we apply, however, is an objective one. See Wenzel, 899 F.3d at 601–02. We

are to ask whether a reasonable officer in Carter’s position would have thrown Kasiah

off of him as the two were falling to the ground, not whether Carter subjectively

intended to harm Kasiah. See Graham, 490 U.S. at 397 (“An officer’s evil intentions

will not make a Fourth Amendment violation out of an objectively reasonable use of

force; nor will an officer’s good intentions make an objectively unreasonable use of

force constitutional.”). And we conclude that the answer is “yes.” A reasonable

officer in Carter’s position would have been concerned with preventing injury to

himself and the suspect as they fell on top of each other. Redirecting the suspect so

that he would not fall on the officer, therefore, would be a natural thing to do. Thus,

despite Kasiah’s argument that Carter intentionally threw him, a fact which Carter

does not dispute, we do not agree that Carter’s throw was objectively unreasonable

and therefore excessive force.

In any event, even if we could find a constitutional violation in any of these

uses of force, Kasiah has failed to meet his burden of showing that Carter violated a

right that was clearly established. See Church, 898 F.3d at 832 (explaining that the

burden of showing the violation of a clearly established right for qualified immunity

purposes is on the plaintiff). We therefore conclude that Carter is entitled to qualified

immunity on Kasiah’s excessive force claims.

B. State Tort Claims

Kasiah next asserts that the district court erred in granting Carter summary

judgment on Kasiah’s assault and battery and general negligence claims. The district

court reasoned that summary judgment for Carter was appropriate because he was

immune from those claims based on the Missouri doctrine of official immunity. We

agree.

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The Missouri doctrine of official immunity “protects public employees from

liability for alleged acts of negligence committed during the course of their official

duties for the performance of discretionary acts.” Southers v. City of Farmington, 263

S.W.3d 603, 610 (Mo. 2008) (en banc). This protection is available unless the

employees’ “conduct is willfully wrong or done with malice or corruption.” Id. The

doctrine also applies when plaintiffs bring suit for certain intentional torts like assault

and battery. See, e.g., Boude, 855 F.3d at 934–35 (upholding a grant of summary

judgment based on official immunity for negligence and battery claims); DaVee v.

Mathis, 812 S.W.2d 816, 827 (Mo. Ct. App. 1991) (holding that the doctrine of

official immunity applied to an assault charge made against police officers). A police

officer who decides to use force against a person “has the benefit of official

immunity,” Boude, 855 F.3d at 935 (quoting Fonesca v. Collins, 884 S.W.2d 63, 66

(Mo. Ct. App. 1994)), because “[a]n ‘officer’s decision to use force in the

performance of his duties is discretionary,’” id. (quoting Davis v. White, 794 F.3d

1008, 1013 (8th Cir. 2015)).

Here, we hold that the official immunity doctrine applies. Carter is a police

officer. The parties do not dispute that he had probable cause to arrest Kasiah for

disorderly conduct. Carter decided to use force to remove Kasiah from the concert,

which is a discretionary act under Missouri law. Boude, 855 F.3d at 935. Therefore,

in general, Carter is immune from liability for the Missouri state tort claims Kasiah

brought against him.

Kasiah argues, however, that Carter acted with malice, so official immunity

should not apply. To support his argument, Kasiah points to the facts that “Carter did

not observe a fight or any other altercation” and that “Kasiah complied with [Carter’s]

direction to approach.” Kasiah does not explain, however, how these facts, in light

of all the other facts, could support a conclusion that Carter acted with malice.

Moreover, nothing in the record supports such a claim. We hold that Carter did not

act with malice. The doctrine of official immunity applies.

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C. Derivative Liability

Lastly, Kasiah argues that the Board should be held derivatively liable as a

municipality for Carter’s actions. The district court concluded that the Board could

not be held liable because Carter had not violated the Constitution and, alternatively,

“the constitutional violation was not the result of official policy or a deliberate[ly]

indifferent failure to train or supervise.” We agree with the district court’s first

conclusion and need not address the second.

The Board cannot be held liable for Carter’s actions because Carter did not

violate the Constitution. We have repeatedly said that “‘there must be an

unconstitutional act by a municipal employee’ before a municipality can be held

liable.” Webb v. City of Maplewood, 889 F.3d 483, 487 (8th Cir. 2018) (quoting

Russell v. Hennepin Cty., 420 F.3d 841, 846 (8th Cir. 2005)). Where we conclude

that Carter committed no unconstitutional act, the Board cannot be held liable.

III. Conclusion

Accordingly, we affirm the district court’s judgment.

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