Kayla Robinson v. Angela Hawkins

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1823

___________________________

Kayla Robinson

Plaintiff - Appellee

v.

Angela Hawkins, individually and in her official capacity; Kelli Swinton,

individually and in her official capacity

Defendants - Appellants

St. Louis Board of Police Commissioners; Richard Gray, In his official capacities

as a member of the St. Louis Board of Police Commissioners; Bettye

Battle-Turner, In her official capacities as a member of the St. Louis Board of

Police Commissioners; Thomas J. Irwin, In his official capacities as a member of

the St. Louis Board of Police Commissioners; Erwin Switzer, In his official

capacities as a member of the St. Louis Board of Police Commissioners; Francis G.

Slay, In his official capacities as a member of the St. Louis Board of Police Commissioners

Defendants

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Submitted: January 16, 2019

Filed: September 5, 2019

____________

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

____________

ERICKSON, Circuit Judge.

Kayla Robinson sued Officers Angela Hawkins and Kelli Swinton for civil

conspiracy and Officer Hawkins for excessive force and performing an unreasonable

search.1 The officers moved for summary judgment, and the district court denied their

motion. The officers now appeal that denial. Because Robinson has not stated facts

sufficient to support a finding of civil conspiracy or excessive force, we reverse the

district court in part. We affirm that portion of the district court’s opinion denying

Officer Hawkins summary judgment on the unreasonable search claim.

I. Background

We view the facts in a light most favorable to Kayla Robinson, the non-moving

party to the summary judgment. On October 19, 2012, St. Louis Metropolitan Police

Department (SLMPD) Officers Angela Hawkins and Joseph Speiss were among a

group of officers conducting a police checkpoint. At approximately 10:30 p.m.,

Robinson’s boyfriend—who was driving Robinson’s car while she sat in the front

passenger seat—made an illegal U-turn, apparently to avoid the checkpoint. Officers

from the checkpoint then conducted a traffic stop on Robinson’s car.

As Officer Hawkins approached the stopped car she saw Robinson’s boyfriend

hand something to Robinson, and Robinson “taking her hands out of the front of her

waistband.” Robinson v. City of St. Louis, Mo., No. 4:17-CV-156-PLC, 2018 WL

1695534, at *3 (E.D. Mo. Apr. 6, 2018). Officer Hawkins suspected that Robinson

and her boyfriend had exchanged drugs or a weapon. Once she reached the car,

Officer Hawkins asked Robinson to show her hands and step outside. Robinson

complied. Officer Hawkins then handcuffed Robinson and performed a pat-down

search which failed to reveal the presence of any contraband. Officer Hawkins then

asked Robinson what she had placed in her waistband, and Robinson admitted to

1

Robinson also sued other parties not subject to this appeal.

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having attempted to hide some marijuana. Officer Hawkins told Robinson to retrieve

the marijuana, but Robinson asked to be brought to the police station to retrieve the

marijuana there. Officer Hawkins refused, citing officer safety concerns.

Officer Hawkins moved Robinson to a nearby parking lot behind a tractor-

trailer, intending to complete the search for the drugs that Robinson had admitted were

in her possession. While being moved, Robinson continued to object to the search in

the parking lot and asked to be taken to the station. According to Robinson Officer

Hawkins said, “Bitch, no, we’re doing this right now” and yelled at her repeatedly in

response to her desire to be taken to the station, calling her a “f*cking dope fiend.”

Hawkins requested rubber glovers over the radio. Sgt. Mark McMurry, another

SLMPD officer, drove up “alongside the trailer” and delivered a pair of gloves. Once

in location Robinson retrieved the marijuana. Officer Hawkins remained convinced

that Robinson was likely hiding other contraband. While there is some dispute as to

what was said and done, Robinson asserts Officer Hawkins grabbed her by the arms

and pushed her face-first into the trailer yelling, “Bitch, this isn’t all that you have.

You’re not freaking out over a bag of marijuana.”

Officer Hawkins turned Robinson around and pushed her back against the

trailer. Pictures of Robinson’s clothes from that evening show some staining,

reportedly caused by the encounter. Robinson claims Officer Hawkins then

unfastened her pants, pulled down her underwear, and “touched . . . Robinson’s

vagina, anus, and inside her vagina lips.” Robinson claims that shortly thereafter,

Officer Hawkins planted a baggie containing drugs on the ground in front of

Robinson.2

2

Though the district court’s order and the briefing both mention the alleged

drugs in passing (as “dope”), neither comments on their significance. It is unclear

whether any drugs were in fact recovered. Taking the facts in the light most

favorable to Robinson, Robinson had no drugs, and Officer Hawkins knew she had

no drugs.

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Robinson also claims she “could still see the man [i.e., the male officer] that was

watching” during the search. Security footage confirmed the presence of a male

officer in the lot during at least a portion of the search. Officer Hawkins did not

dispute Robinson’s assertion “that there were at least two male officers in the parking

lot while [Officer Hawkins] searched [Robinson].” Robinson described the experience

as feeling “like [she] was being raped in public.”

Officer Hawkins walked Robinson back to the patrol car and shortly thereafter

Officer Swinton arrived at the scene of the stop. Officer Swinton observed that

Robinson was “hysterical.” According to Officer Swinton it appeared that Robinson

was “having a panic attack.”

Robinson was transported to the police station, where she attempted to write a

statement describing Officer Hawkins’s behavior. While Robinson was writing her

statement, Officer Swinton allegedly attempted to pressure her into claiming the

“dope” belonged to her boyfriend. Robinson asked for a lawyer and Officer Swinton

cursed at her in reply. Robinson claims Officer Swinton then read her statement,

laughed, balled it up, and did not include the statement in the final incident report. At

her deposition, Officer Swinton explained she did not include the statement in

Robinson’s incident report because it was unsigned. There is, however, no SLMPD

policy requiring statements to be signed. Officer Swinton also described Officer

Hawkins as a “mentor.”

The day after her encounter with police, Robinson visited an emergency room

and was treated for shoulder pain, neck pain, and cuts and bruising on her wrists, all

of which she attributed to her encounter with the officers. Following treatment, she

was prescribed an anti-inflammatory drug, a pain-killer, and a muscle relaxant.

Officer Swinton later drafted her own incident report for the evening, even

though she had not been at the scene during most of the relevant events. The officers

concede that Officer Swinton’s report is riddled with inaccuracies and omissions. For

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example, the report did not mention the presence of Officers Spiess and McMurry, the

pat-down search in the street, Robinson’s request to be searched at the station, Officer

Hawkins’s request for gloves, the strip-search in the parking lot, the unfastening and

lowering of Robinson’s pants, or Robinson’s distress.

No charges were brought against Robinson. Robinson subsequently sued

Officers Hawkins and Swinton in both their individual and official capacities under

42 U.S.C. § 1983 for violating her constitutional rights. Robinson alleged Officers

Swinton and Hawkins conspired to produce a false police report. She also alleged

Officer Hawkins used excessive force and performed an unreasonable search, in

violation of the Fourth Amendment. Officers Hawkins and Swinton moved for

summary judgment on the basis of qualified immunity.

The district court construed Robinson’s complaint as alleging that Officers

Swinton and Hawkins had conspired to deny her access to the courts. The district

court then granted summary judgment to the officers on the official capacity claims

but denied summary judgment on the individual capacity claims. The court

determined a reasonable jury could conclude that Officer Hawkins had used excessive

force and performed an unreasonable search and that Officers Hawkins and Swinton

had conspired to deny Robinson access to the courts.

On appeal, Officers Hawkins and Swinton argue Robinson’s complaint does not

allege that they conspired to violate her constitutional rights, and they deny the

existence of a constitutional right to an accurate police report. Officer Hawkins also

denies having used excessive force or performed an unreasonable search.

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II. Discussion

A. Conspiracy

Count VI of Robinson’s complaint alleges that the officers “unlawfully

conspired with each other to violate [her] constitutional rights” and that she “was

deprived of her rights guaranteed in the United States Constitution.” The district court

construed the conspiracy count as a conspiracy by the officers to deprive Robinson of

her right access to the courts. While we have recognized that this type of construction

may be appropriate, see S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep’t Bd.

of Police Comm’rs, 725 F.3d 843, 848–49 (8th Cir. 2013) (cleaned up) (construing

plaintiff’s claim that defendants “had violated her Fourteenth Amendment rights to

due process, property, equal protection under the law, and equal justice by conspiring

together . . . to undertake a course of conduct that violated [plaintiff’s] civil rights” as

alleging deprivation of access to the courts), we believe that such a construction is

unavailing to save Robinson’s conspiracy claim in this case.

In order to prove a conspiracy under § 1983, the plaintiff must show for a

particular defendant: (1) a conspiracy between the defendant and at least one other

person; (2) an overt act in furtherance of the conspiracy; (3) a resulting injury to the

plaintiff; and (4) the deprivation of a constitutional right or privilege. Askew v.

Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (internal citations omitted). Even though

the question of a conspiracy to deprive a person of their constitutional rights is usually

a jury question, a court may resolve a conspiracy claim on summary judgment where

it is “convinced that the evidence presented is insufficient to support any reasonable

inference of a conspiracy.” White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008)

(internal quotations omitted).

This is such a case. Robinson has scant evidence from which a reasonable jury

could infer that Officers Hawkins and Swinton conspired to deprive Robinson of her

constitutional rights. The evidence Robinson points to included: Officer Swinton

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called Officer Hawkins “a mentor”; that Swinton’s report included multiple material

inaccuracies; that it was unusual for a person who had not witnessed either the stop

or the search to prepare a report; and that Swinton was rude and disrespectful while

Robinson drafted her statement. Taking Robinson’s claims about Officer Swinton’s

treatment as true, we agree that Officer Swinton acted unprofessionally in yelling and

cursing at Robinson while she drafted her statement. The multiple inaccuracies in

Officer Swinton’s report are concerning. These shortcomings reflect poorly on Officer

Swinton’s credibility. Nonetheless, they do not establish the existence of an

agreement between Officers Hawkins and Swinton. That Officers Hawkins and

Swinton enjoyed a close professional relationship is insufficient, standing alone, to

support a reasonable inference of a conspiracy.

We find the district court erred in denying Officers Hawkins and Swinton

summary judgment on the conspiracy claim.

B. Fourth Amendment Claims

“We review de novo a district court’s denial of summary judgment on the basis

of qualified immunity.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.

2009).

Ordinarily, we lack jurisdiction to hear an immediate appeal from a

district court’s order denying summary judgment, because such an order

is not a final decision. We do, however, have limited authority to review

the denial of qualified immunity through an interlocutory appeal under

the collateral order doctrine. Jurisdiction over an interlocutory appeal

from the denial of qualified immunity extends only to abstract issues of

law, not to determinations that the evidence is sufficient to permit a

particular finding of fact after trial.

Shannon v. Koehler, 616 F.3d 855, 860–61 (8th Cir. 2010) (cleaned up). “Qualified

immunity shields a government official from liability and the burdens of litigation in

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a § 1983 action for damages unless the official’s conduct violated a clearly established

constitutional or statutory right of which a reasonable official would have known.”

Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant asserts qualified immunity

at the summary judgment stage, the plaintiff must produce evidence sufficient to create

a genuine issue of fact regarding whether the defendant violated clearly established

law.” Id. (citing Johnson v. Fankell, 520 U.S. 911, 915 (1997)).

“The obvious function of the qualified immunity rule is to excuse an officer who

makes a reasonable mistake in the exercise of his official duties.” Edwards v. Baer,

863 F.2d 606, 607 (8th Cir. 1988). Therefore, the “clearly established” analysis

“focus[es] . . . on whether the officer had fair notice that her conduct was unlawful .

. . at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam). Though “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right . . . [t]his

is not to say that an official action is protected by qualified immunity unless the very

action in question has previously been held unlawful.” Koehler, 616 F.3d at 864

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

1. Excessive Force

“The right to be free from excessive force in the context of an arrest is clearly

established under the Fourth Amendment.” McCrystal, 708 F.3d at 1005. However,

“[n]ot every push or shove, even if it may later seem unnecessary in the peace of a

judge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S.

386, 396 (1989)) (citation omitted). “Police officers undoubtedly have a right to use

some degree of physical force, or threat thereof, to effect a lawful seizure, and

reasonable applications of force may well cause pain or minor injuries with some

frequency.” Chambers, 641 F.3d at 907 (citation omitted). “A de minimis use of force

is insufficient to support a claim, and it may well be that most plaintiffs showing only

de minimis injury can show only a corresponding de minimis use of force.” Id. at 906.

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We conclude that Officer Hawkins is entitled to qualified immunity because it

is not clearly established that the amount of force Hawkins used against Robinson is

excessive. While we have previously stated that “the use of force against a suspect

who was not threatening and not resisting may be unlawful,” Shannon v. Koehler, 616

F.3d 855, 864 (8th Cir. 2010), that general proposition does not answer whether a

particular use of force is de minimis (and therefore insufficient to support a claim).

In Crumley v. City of St. Paul, we held that a police officer did not violate a suspect’s

clearly established rights when he “struck or pushed [the suspect] approximately five

times and then spun her around and handcuffed her,” and where the suspect suffered

bleeding wrists as a result of being handcuffed. 324 F.3d 1003, 1006–08 (8th Cir.

2003) (“[W]e conclude no reasonable jury could have found the police officer used

excessive force by pushing or shoving Crumley to effect the arrest.).3 The amount of

force used in Crumley was comparable to that alleged here, where Robinson was

shoved up against a trailer and handcuffed. The injuries Robinson sustained as a result

of the force were fairly minor, including some pain and bleeding from the wrists as a

result of being handcuffed and pain in her shoulders from being pushed against the

trailer. While a de minimis injury does not preclude a claim of excessive force, the

nature of any injuries suffered may still inform our understanding of the force used.

Chambers, 641 F.3d at 906; see also id. at 907 (citation omitted) (“Handcuffing

inevitably involves some use of force, and it almost inevitably will result in some

irritation, minor injury, or discomfort where the handcuffs are applied.”). Given the

3

Crumley was decided at a time when we had not yet determined whether

alleging more than de minimis injury was required to support an excessive force

claim. Our reasoning in Crumley shifted between holding that the absence of an

injury “suggest[ed]” that “the force used here was reasonable,” and that the injuries

themselves were “too minor to support an excessive force claim.” Id. at 1008

(emphasis added). While we eventually held in Chambers that it was possible for the

use of excessive force to result in only a de minimis injury, we explained that the

“degree of injury” was still “certainly relevant insofar as it tends to show the amount

and type of force used.” 641 F.3d at 906. Accordingly, much of the reasoning in

Crumley is not clearly overridden by our decision in Chambers.

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general rule that “[n]ot every push or shove . . . violates the Fourth Amendment” and

in the absence of a case clearly holding that shoving a suspect against a vehicle and

tightening their handcuffs in circumstances like this amounts to more than de minimis

force, we conclude that Officer Hawkins’s use of force did not violate a “clearly

established” right.

2. Unreasonable Search

a. Violation of a Constitutional Right

The Fourth Amendment protects against unreasonable searches and seizures.

Strip searches raise special considerations, as “the need for the particular search [must

be balanced] against the invasion of personal rights that the search entails.” Franklin

v. Lockhart, 769 F.2d 509, 510–11 (8th Cir. 1985) (alteration in original) (quoting Bell

v. Wolfish, 441 U.S. 520, 559 (1979)). Such a search must be “reasonable in its scope,

manner, and location.” United States v. Williams, 477 F.3d 974, 975 (8th Cir. 2007).

In regards to scope and manner, “evidence [of] . . . touch[ing,] . . . prodd[ing,] . . . or

[the use of] physical force . . . . are important considerations in weighing the level of

insult to personal privacy visited upon the victim of a search.” United States v.

Oyekan, 786 F.2d 832, 838 (8th Cir. 1986) (internal quotation omitted). Accordingly,

searches involving “penetration or public exposure of genitals” are considered more

intrusive than those not involving such means. Williams, 477 F.3d at 976.

In Williams, officers transported a suspect to a police station parking lot after

a pat-down search revealed the presence of potential contraband. Id. at 975. An

officer then searched the suspect in the lot—opening his pants, reaching inside his

underwear with a gloved hand, and retrieving a large amount of drugs from near his

genitals. Id. The lot was enclosed by a brick building and a chain-link fence topped

with barbed wire. Id. We held that the officers had not acted unreasonably in

searching the suspect outdoors, declining “to adopt a bright-line rule that when a

detainee has been secured, and travel to a station-house is possible, an on-street

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intimate inspection is an unconstitutional, unreasonable search.” Id. at 977 (cleaned

up). We found that the lot, though outdoors, was “partially secluded” and that the

suspect’s genitals “remained obscured from the view of passers-by.” Id. We also

distinguished the search as less intrusive than those “involv[ing] . . . penetration or

public exposure of genitals.” Id. at 976.

The district court found that “a reasonable jury could find that the strip search

was justified” by Robinson’s admission that she was carrying marijuana. However,

the district court also found that

[t]here are genuine issues of fact . . . regarding whether and at what

distance a male officer watched the search; whether Defendant Hawkins

used abusive language and excessive force during the search; and

whether Plaintiff’s pants and/or underpants were lowered further than

necessary for Plaintiff to retrieve the marijuana hidden inside.

Upon review, we agree with the district court that issues of material fact remain as to

whether Officer Hawkins’s search was indeed reasonable.

Taking the facts in the light most favorable to Robinson, a reasonable jury could

conclude that the search was unreasonable in both scope and manner. Robinson

alleges that Officer Hawkins pulled down her underwear while she was pushed against

an oily tractor-trailer in an open-air parking lot, touched the inside and outside of her

vagina and her anus as a male officer watched, and yelled insults and expletives at her

during the search. Furthermore, Officer Hawkins’s own testimony reasonably

supported the presence of contraband under Robinson’s garments (rather than inside

her genitals), and she had already retrieved the marijuana from Robinson’s underwear

when she proceeded to push Robinson against the trailer and expose and probe

Robinson’s genitals.

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We cannot say that Officer Hawkins’s search was reasonable as a matter of law,

and we conclude that questions of material fact exist as to whether Officer Hawkins

violated Robinson’s constitutional rights.

b. Clearly Established Right

We have long prohibited officers from unduly invading personal rights during

a strip search. See Franklin, 769 F.2d at 510–11. Specifically, clearly established law

holds that strip searches are to be conducted by an officer of the same sex as the

suspect “in an area as removed from public view as possible without compromising

legitimate security concerns” and to “be performed in a hygienic fashion and not in a

degrading, humiliating or abusive fashion.” Richmond v. City of Brooklyn Ctr., 490

F.3d 1002, 1008 (8th Cir. 2007).

In Richmond, male officers strip searched a male suspect in his motel room. Id.

at 1005. While the suspect was bent over, an officer noticed a tissue protruding from

the suspect’s anus and removed it with a gloved hand. Id. Though we did not

consider the reasonableness of the strip search itself, we held the search had not

violated clearly established law because the suspect had been searched in the privacy

of his hotel room by male officers and there was no “evidence of insulting,

intimidating or humiliating comments or jokes by the officers.” Id. at 1009.

In contrast, Robinson claims a male officer was watching while Officer

Hawkins conducted the strip search, and Officer Hawkins acknowledges that “a male

should not be present for a female search.” Robinson claims the search was

“conducted in [an] unsanitary parking lot,” and Officer Hawkins has also

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acknowledged that the parking lot was not sanitary.4 Finally, Robinson claims Officer

Hawkins cursed and yelled at her.

The other officer at the scene was not of the same sex as Robinson. An oily

tractor-trailer in an open-air parking lot is not hygienic. And Robinson’s claim that

Officer Hawkins called her a “bitch” and a “f*cking dope fiend,” is “evidence of

insulting, intimidating or humiliating comments or jokes.” See Richmond, 490 F.3d

at 1009.

As of October 19, 2012, the law spoke directly and clearly to the issues raised

with respect to Officer Hawkins’s search. Therefore, we conclude that the law was

sufficiently clear to inform Officer Hawkins her search of Robinson was unlawful both

in scope and manner.

The district court did not err in denying Officer Hawkins qualified immunity on

Robinson’s unreasonable search claim.

4

Though Officer Hawkins admitted in her deposition that the parking lot was

not sanitary, she argues on appeal that the “fact [that the area was unsanitary] has no

consequence if none of [Robinson’s] private areas were touching them.” Relatedly,

she also argues that because the Richmond suspect’s hotel room was likely dirtier

than the parking lot, she did not have fair notice of “hygienic’s” meaning. However,

the cleanliness of the search’s setting matters. See, e.g., Rodriques v. Furtado, 950

F.2d 805, 810, 811 (1st Cir. 1991) (emphasizing the cleanliness of the “atmosphere”

and “setting” of the area where an intimate search is conducted). A suspect’s own

hotel room and a public, open-air parking lot occupied by foreign objects—including

oily machinery—are readily distinguishable.

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III. Conclusion

The judgment of the district court is reversed as to the conspiracy and excessive

force claims and affirmed as to the unreasonable search claim. We remand for further

proceedings consistent with this opinion.

SMITH, Chief Judge, concurring in part and dissenting in part.

I concur in Part II.A of the panel opinion, and in Part II.B.2, which affirms the

district court’s denial of qualified immunity as to Robinson’s unreasonable search

claim. I write separately to express why I would also affirm the district court’s denial

of qualified immunity on Robinson’s excessive force claim based on Robinson’s

allegation that Officer Hawkins twice slammed her against the trailer while performing

the strip search.5

In her complaint, Robinson alleges that Officer Hawkins performed an

unreasonable search (Count I), as she “had no legal cause to justify her strip search

and body cavity search of [Robinson].” Am. Compl. at ¶ 80, Robinson v. City of St.

Louis, No. 4:17-cv-00156 (E.D. Mo. Feb. 2, 2017), ECF No. 18. Additionally,

Robinson alleges that Officer Hawkins used excessive force (Count II) by “forc[ing]

[Robinson] to bend over . . . in public and in front of a male police officer, pull[ing]

[Robinson’s] pants down, and put[ting] her fingers inside [Robinson’s] vagina”;

“slamm[ing] [Robinson] into a parked tractor trailer while [Robinson] was in

handcuffs”; and “tighten[ing] [Robinson’s] handcuffs to an extent that [Robinson’s]

skin was cut.” Id. at ¶ 87. The district court rejected Robinson’s assertion that the

search was unjustified. The court concluded that “a reasonable jury could find that the

5

However, to the extent Robinson claims Officer Hawkins used force

independent of the search—i.e., in dragging her into the lot or handcuffing her—I

concur in the court’s analysis as outlined in Part II.B.1 of this opinion.

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strip search was justified” by Robinson’s admission that she was carrying marijuana.

Robinson, 2018 WL 1695534, at *7. The district court denied qualified immunity as

to Count I relying mainly on the facts Robinson alleged under Count II, explaining

that

[t]here are genuine issues of fact . . . regarding whether and at what

distance a male officer watched the search; whether Defendant Hawkins

used abusive language and excessive force during the search; and

whether Plaintiff’s pants and/or underpants were lowered further than

necessary for Plaintiff to retrieve the marijuana hidden inside.

Id. (emphasis added).

The search conducted in this case was unreasonable in part due to the force used

in conducting it. Strip searches can certainly be lawful. However, “[a] strip search

conducted in a professional manner is more reasonable than one that is not,” Harris

v. Miller, 818 F.3d 49, 59–60 (2d Cir. 2016) (per curiam), and such searches must be

reasonable in “scope, manner, and location.” Williams, 477 F.3d at 975. Specifically,

in regards to scope and manner, “evidence [of] . . . touch[ing,] . . . prodd[ing,] . . . or

[the use of] physical force . . . .[is an] important consideration[] in weighing the level

of insult to personal privacy visited upon the victim of a search.” Oyekan, 786 F.2d

at 838 (emphasis added) (internal quotation omitted). The Eleventh Circuit has

included use of force in its review of the reasonableness of strip searches. See United

States v. Vega-Barvo, 729 F.2d 1341, 1346 (11th Cir. 1984) (“[W]e have isolated three

factors which contribute to the personal indignity endured by the person searched: (1)

physical contact between the searcher and the person searched; (2) exposure of

intimate body parts; and (3) use of force.” (emphasis added)). And, “[u]nnecessary

force” may contribute to a search’s unreasonableness. See Evans v. Stephens, 407 F.3d

1272, 1281 (11th Cir. 2005) (en banc). I agree with the district court’s conclusion that

Officer Hawkins’s use of force during the search creates an issue of material fact as

to the search’s overall reasonableness.

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I also agree with the district court’s conclusion that Officer Hawkins used

excessive force. The majority holds that “it is not clearly established that the amount

of force [Officer] Hawkins used against Robinson is excessive.” I dissent from that

portion of the panel opinion. Existing precedent put Officer Hawkins on notice that

her use of force in the context of a strip search was unlawful.

“[F]orce 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. And, “[l]ong before [October 19, 2012], this court

(among others) had announced that the use of force against a suspect who was not

threatening and not resisting may be unlawful.” Koehler, 616 F.3d at 864. Specifically,

“[i]t was [also] clearly established [by October 19, 2012] that when a person is

subdued and restrained with handcuffs, a gratuitous and completely unnecessary act

of violence is unreasonable and violates the Fourth Amendment.” Blazek v. City of

Iowa City, 761 F.3d 920, 925 (8th Cir. 2014) (internal quotation omitted) (finding

plaintiff had a clearly established right not to be “jerked” onto his bed where plaintiff

was “handcuffed and under control,” not resisting or posing a threat to the officers,

and not suspected of a serious crime).

The court concludes that Crumley precludes finding that Officer Hawkins

violated Robinson’s clearly established rights. However, Blazek, rather than Crumley,

is the better precedent for the instant facts. In Blazek, the officer was on notice that

“jerk[ing]” the handcuffed and compliant plaintiff constituted “a gratuitous and

completely unnecessary act of violence,” in violation of the Fourth Amendment. 761

F.3d at 925 (internal quotation omitted). Blazek put Officer Hawkins on notice that

pushing a handcuffed and compliant Robinson against a trailer was unlawful.

Robinson’s relatively minor injuries do not distinguish this case from Blazek. See id.

at 926 (describing plaintiff’s injuries as “significant”). In Chambers, we explained that

while a plaintiff’s injuries may be relevant in determining whether the force used was

excessive, “there is no uniform requirement that a plaintiff show more than de minimis

injury to establish an application of excessive force.” 641 F.3d at 907. Though a

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suspect’s degree of injury may be relevant to assessing the degree of force used, the

force itself, and the reasonableness of that force in light of the circumstances, is the

critical inquiry. Id. It is the degree of force in light of the circumstances, not the degree

of injury, that determines lawfulness or unlawfulness of a particular use of force. See

id. Significantly, Crumley involved a plaintiff who resisted the arresting officer. 324

F.3d at 1008. Here, by contrast, it is undisputed that Robinson did not resist Officer

Hawkins at any point during their encounter and that she was already handcuffed

when Officer Hawkins twice shoved her against the trailer.

On this record, I also would not characterize Officer Hawkins’s forceful pushing

of Robinson against the trailer as a de minimis use of force. We have characterized de

minimis uses of force as those incidental contacts between officers and suspects during

the course of a seizure or arrest, since “[t]he right to make an arrest or investigatory

stop necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it.” Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019 (8th

Cir. 2009) (quoting Graham, 490 U.S. at 396). The force inquiry cannot be completely

divorced from its “context,” i.e., “whether the force used to effect a particular seizure

is reasonable.” Waters v. Madson, 921 F.3d 725, 740 (8th Cir. 2019) (internal

quotations omitted).

The de minimis force and reasonableness inquiries are not necessarily

antagonistic. See Chambers, 641 F.3d at 907 (“The dispositive question is whether the

officer’s conduct was objectively reasonable under the circumstances, as judged from

the perspective of a reasonable officer on the scene at the time the force was

applied.”); LaCross v. City of Duluth, 713 F.3d 1155, 1159 (8th Cir. 2013) (“[A]n

officer is not entitled to qualified immunity if his use of force is excessive in the

circumstances, even if the injury inflicted was minor.” (emphasis added)). That is

because “force unjustified by any legitimate need would be unlawful.” Hemphill v.

Hale, No. 4:09-cv-2123, 2011 WL 4014371, at *4 (E.D. Mo. Sept. 9, 2011), aff’d, 677

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F.3d 799 (8th Cir. 2012) (per curiam).6 Qualified immunity appropriately protects

officers from suit and liability for inadvertent harm caused by negligent acts as they

enforce the law. Those putting their lives on the line for the safety of the public

deserve no less. But it provides no litigation shield for unnecessary, intentional acts

violative of clearly established rights.

Robinson’s allegation that Officer Hawkins used excessive force in slamming

her against the trailer to effect a search is distinct from her claim that Officer Hawkins

used excessive force in applying her handcuffs or otherwise effecting her seizure.

Officer Hawkins’s tightening of Robinson’s handcuffs may be characterized as de

minimis. But, her alleged slamming of Robinson against the trailer should not be.

Robinson had already submitted when Officer Hawkins allegedly shoved her against

the trailer. The shoving did not further Officer Hawkins’s legitimate purpose of

arresting Robinson or effecting a lawful search.

I would permit the excessive force claim to proceed as well as the unreasonable

search claim.

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

Officer Hawkins unquestionably had probable cause to search appellee

Robinson’s person for contraband at the time of her arrest. Indeed, Robinson admitted

before the search that she had concealed drugs inside the front of her waistband before

the arrest. Yet without identifying any decision of the Supreme Court or this court

6

See also Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981) (deeming “any

force” unlawful where the person in custody has already “quietly submit[ted]”). That

a particular use of force may be deemed de minimis in some contexts does not

legitimize an otherwise illegitimate use of force. Cf. Hemphill, 677 F.3d at 801

(explaining that while “officers undoubtedly have a right to use some degree of

physical force . . . to effect a lawful seizure,” they “do not have the right to use any

degree of physical force” to coerce consent to a search (internal quotation omitted)).

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holding unreasonable the scope and manner of a search of a suspect’s person for

contraband, the court holds that Hawkins violated a clearly established right of

Robinson’s under the Fourth Amendment. Proper application of the doctrine of

qualified immunity calls for a contrary conclusion, so I would reverse the district

court’s order on Robinson’s unreasonable search claim.

During the disputed search, Hawkins wore sanitary rubber gloves on her hands.

The search took place in a parking lot behind a tractor-trailer and out of public view.

The only third party who witnessed the search was a male police officer at an alleged

distance of twenty feet. R. Doc. 55-1, at 45. Robinson asserts that Hawkins called her

“Bitch” and a “f***ing dope fiend” before the search. Id. at 39. During the search for

contraband, Hawkins allegedly pulled down Robinson’s pants and touched her vagina,

inside her vaginal lips, and the area below her anus. R. Doc. 68-2, at 22. Robinson

also asserts that Hawkins used unreasonable force in conducting the search, but this

court properly concludes that allegedly shoving Robinson against the tractor-trailer

did not violate a clearly established right.

The first significant problem with the court’s qualified-immunity analysis is that

it relies on dicta rather than holdings of the Supreme Court or this court. Clearly

established law must be derived from holdings, not from dicta. See Morrow v.

Meachum, 917 F.3d 870, 875-76 (5th Cir. 2019) (collecting authorities). To support

its ruling that Hawkins’s conduct violated a clearly established right, the court relies

almost entirely on a decision of this court holding that a search did not violate clearly

established rights. See Richmond v. City of Brooklyn Center, 490 F.3d 1002, 1008

(8th Cir. 2007). The court cites dicta from Richmond as the source of “clearly

established law.” Yet Richmond could not place the Fourth Amendment issue beyond

debate, because the decision did not even hold that the search in that case was

unconstitutional. Id. at 1007 & n.4.

The second major difficulty is that the dicta from Richmond—even assuming

that they could clearly establish a constitutional right—do not address the particular

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circumstances of this case. In considering a defense of qualified immunity, the law

must not be examined at a high level of generality: “The dispositive question is

whether the violative nature of particular conduct is clearly established.” Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation omitted).

“[S]pecificity is especially important in the Fourth Amendment context, where the

Court has recognized that it is sometimes difficult for an officer to determine how the

relevant legal doctrine . . . will apply to the factual situation the officer confronts.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (first alteration in

original) (internal quotation omitted).

The discussion from Richmond does not address facts comparable to those

presented here. The decision could not place the constitutionality of Hawkins’s search

“beyond debate,” such that only a “plainly incompetent” officer or a knowing

lawbreaker could have conducted the search. See id. (internal quotation omitted). The

court’s other principal authority, United States v. Williams, 477 F.3d 974 (8th Cir.

2007), highlights the fact-intensive nature of the reasonableness inquiry in this

context. Williams expressly declined “to adopt a bright-line rule that when a detainee

ha[s] been secured, and travel to a station-house [is] possible, an on-street intimate

inspection [is] an unconstitutional, unreasonable search.” Id. at 977 (alterations in

original) (internal quotation omitted).

The court first cites a statement from Richmond that “strip searches should be

conducted in an area as removed from public view as possible without compromising

legitimate security concerns.” 490 F.3d at 1008. The principal authority cited in

Richmond, however, was a decision holding that a visual body cavity search of

inmates conducted within view of four to five other inmates was reasonable. See

Franklin v. Lockhart, 883 F.2d 654, 655-57 (8th Cir. 1989). The only cited authority

that found a constitutional violation was far afield from the facts of this case: the

Tenth Circuit held unreasonable a strip search of an arrestee conducted in a police

station’s public lobby area where “ten to twelve people were milling about.” Hill v.

Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984). Here, the district court correctly

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deemed it undisputed that Hawkins conducted the search in an area “that shielded

[Robinson] from public view.” R. Doc. 84, at 14.

The only witness to Hawkins’s search of Robinson was a male police officer.

Under Robinson’s version of the facts, he was present at a distance of twenty feet.

The relevant precedents gave no fair warning that this court would hold the manner

of searching unconstitutional based on the male officer’s observations. In Timm v.

Gunter, 917 F.2d 1093 (8th Cir. 1990), this court held that it was reasonable for

female guards to conduct intermittent visual surveillance of male inmates for security

purposes while they used showers and bathrooms or slept without clothing. Id. at

1102. We held in Story v. Foote, 782 F.3d 968 (8th Cir. 2015), that officials did not

violate a clearly established right under the Fourth Amendment by conducting a body-

cavity inspection of a male subject while a female officer could view the search

through a video feed on a security camera. Id. at 971-72. The law thus did not place

Hawkins on clear notice that it was unreasonable for a male officer to observe her

search of Robinson from a distance in case Hawkins needed assistance. Accord

Burton v. Spokane Police Dep’t, 383 F. App’x 671, 673 (9th Cir. 2010).

The court next cites dictum from Richmond that a “strip search” should be

conducted in a “hygienic fashion.” 490 F.3d at 1008. Based on this phrase, the court

concludes that Hawkins violated a clearly established right by conducting the search

of Robinson in an “unsanitary parking lot” after pushing her against an “oily tractor-

trailer” and then pulling her off. See R. Doc. 55-1, at 48. In explaining its reference

to hygiene, however, Richmond cited only a decision holding that officers acted

unreasonably when they wore a single pair of gloves to conduct body-cavity searches

of multiple inmates. Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986). Hawkins

did nothing of the sort; she requested a fresh set of sanitary gloves to search

Robinson’s private areas. There is no evidence that anything unsanitary from the

parking lot entered Robinson’s body. Richmond’s dictum declaring it unreasonable

to employ a soiled glove to search a suspect’s body cavities did not give fair warning

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that a search conducted with a sanitary glove would be declared unreasonable based

on the condition of the surrounding area.

The court also invokes Richmond’s dictum that a “strip search” should not be

conducted in a “degrading, humiliating or abusive fashion.” 490 F.3d at 1008. To

explain this statement, however, Richmond cited a decision holding it unreasonable

to subject a prisoner to sexual comments about his anatomy and rub his buttocks with

a night stick during strip searches. See Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th

Cir. 1995). Richmond also adverted to the Supreme Court’s statement in Bell v.

Wolfish, 441 U.S. 520 (1979), that “on occasion a security guard may conduct the

[body-cavity] search in an abusive fashion,” and that “[s]uch an abuse cannot be

condoned.” Id. at 560. The Wolfish Court was referring to a district court’s finding

that “[t]here have been insultingly suggestive remarks and banal but terrifying

expressions of aggressions like those of guards threatening in the time of nakedness

to ‘put [a] foot up [the] ass’ or merely to ‘kick the ass’ of the humbled prisoner.”

United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977).

By contrast, Hawkins’s alleged name-calling and use of profanity was not

sexually suggestive or particular to the intimate search. Hawkins did not misuse a

baton or threaten physical abuse of Robinson’s private areas. Hawkins did not have

fair warning that she was forbidden to proceed with a search after allegedly uttering

the quoted expletives. While the cited language may offend the sensibilities of a

reviewing judge in chambers, the court cites no authority holding that use of foul

language during the rough-and-tumble of street interaction between officer and

suspect renders a subsequent search unreasonable.

Other points raised by the court do not bolster its conclusion. That Robinson

had relinquished some marijuana from her underwear did not make it unreasonable for

Hawkins to search for more. If anything, confirmation that Robinson hid some drugs

under her garments bolstered probable cause to believe that she secreted other

contraband inside her clothing or body. That Robinson preferred to be searched at a

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police station is immaterial. There is no clearly established law that a suspect is

entitled to choose the venue for a search supported by probable cause. The

inflammatory statement that Robinson felt like she was “being raped in public” adds

nothing to the analysis. As a factual matter, it is undisputed that she was shielded

from public view. As a legal matter, the Fourth Amendment reasonableness standard

is objective and does not turn the subjective feelings of the person searched.

Rulings declaring the violation of a “clearly established right” require careful

attention, because “qualified immunity is important to ‘society as a whole,’ and

because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is

erroneously permitted to go to trial.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per

curiam) (internal quotation marks and citation omitted). For the reasons discussed, the

district court’s decision denying qualified immunity to Hawkins on Robinson’s

unreasonable search claim should be reversed. Any disputed facts are not material to

the legal conclusion. I concur in Parts II.A and II.B.1 of the opinion of the court and

would reverse the district court’s order on all three points raised.

______________________________

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