Gary Jacobsen v. Michael Klinefelter

United States Court of Appeals

For the Eighth Circuit

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No. 19-3058

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Gary Jacobsen, Individually; Auto One, Inc., A Nebraska Corporation,

lllllllllllllllllllllPlaintiffs - Appellants,

v.

Michael Klinefelter, Individually and as a Cass County Deputy,

lllllllllllllllllllllDefendant - Appellee.

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: November 17, 2020

Filed: March 30, 2021

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Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

Gary Jacobsen refused to depart an automobile auction after a deputy sheriff

believed that he observed Jacobsen trespassing in a restricted area and directed him

to leave. When the deputy, Michael Klinefelter, grabbed Jacobsen’s arm to escort

him out of the building, Jacobsen shoved Klinefelter away. Klinefelter then warned

Jacobsen that he must leave or face an increased use of force, and the deputy

eventually deployed pepper spray against a defiant Jacobsen. Jacobsen seized the

spray canister from Klinefelter and a further altercation ensued. Officers eventually

subdued Jacobsen and led him out of the building in handcuffs.

Jacobsen later sued Klinefelter, alleging an unreasonable seizure under the

Fourth Amendment and state-law torts of battery and negligent infliction of emotional

distress. The district court1 granted summary judgment for Klinefelter, concluding

that he was entitled to qualified immunity on Jacobsen’s federal claim and official

immunity under Missouri law on the tort claims. We affirm.

I.

The Auto Dealers Exchange Services of America hosted an auction in Belton,

Missouri, on June 27, 2017. The auction sponsor contracted with the sheriff’s office

to provide security, and Klinefelter signed up to work the event. Klinefelter was

engaged in “extra-duty employment,” which is defined by the sheriff’s office as

“employment that is conditioned on the actual or potential use of law enforcement

powers.”

When Jacobsen entered the auction house, he encountered Klinefelter, and

there was a dispute about whether Jacobsen displayed a proper access badge.

Klinefelter eventually allowed Jacobsen to enter, but Jacobsen cursed at the deputy

as he walked past. Klinefelter then blocked Jacobsen’s path and explained that he

could have Jacobsen removed from the event.

Jacobsen asked to see a manager of the auction. Klinefelter accompanied

Jacobsen as he searched the premises for a person of authority. When Jacobsen

1

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

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walked up a ramp into an area that was marked “RESTRICTED AREA -

AUTHORIZED PERSONNEL ONLY,” Klinefelter grabbed Jacobsen and told him

he was trespassing. Jacobsen pulled away from Klinefelter, but Klinefelter started to

push Jacobsen down the ramp and directed him to leave.

Shortly thereafter, the situation escalated. When Jacobsen still refused to

depart, Klinefelter attempted to grab Jacobsen and escort him out. Jacobsen

responded by shoving Klinefelter off. According to Jacobsen’s testimony:

“[Klinefelter] had both his hands on my right arm trying to physically remove me; I

shoved him off because I had just had a vasectomy and I told him.” R. Doc. 41-13,

at 9 (emphasis added). Consistent with Jacobsen’s admission, a video recording of

the encounter shows Klinefelter lurching backward shortly before he raises a canister

of pepper spray. Exh. V, at 5:40-5:42.

Klinefelter then warned Jacobsen that he would use pepper spray if Jacobsen

did not leave. When Jacobsen refused to go, Klinefelter directed pepper spray at

Jacobsen’s face. Klinefelter testified that the spray malfunctioned and did not have

its intended effect. Jacobsen claims that Klinefelter then came forward and placed

the pepper spray canister against his face in an attempt to spray directly into his eyes.

Before Klinefelter could spray a second time, however, Jacobsen gained control of

the canister and fought with Klinefelter. Klinefelter struck Jacobsen in the head;

Jacobsen pinned Klinefelter against a wall.

A second deputy arrived to find Jacobsen resisting Klinefelter’s attempts to

subdue him. The two officers wrestled Jacobsen to the ground, placed him in

handcuffs, and escorted him from the building. Paramedics flushed Jacobsen’s eyes

with water at the scene, and he required no other medical treatment.

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The county prosecutor charged Jacobsen with assault of a law enforcement

officer, resisting arrest, and trespassing. The case was resolved through a plea

bargain in which Jacobsen pleaded guilty to a reduced charge of disturbing the peace.

Jacobsen then sued Klinefelter, alleging that the deputy used excessive force

against him, in violation of 42 U.S.C. § 1983 and the Fourth Amendment’s

proscription of unreasonable seizures. Jacobsen also asserted state-law claims of

battery and negligent infliction of emotional distress.

The district court granted summary judgment for Klinefelter. The court

concluded that Klinefelter did not violate a clearly established right of Jacobsen’s

under the Fourth Amendment and was therefore entitled to qualified immunity on the

excessive force claim. The court also determined that Klinefelter was entitled to

official immunity under Missouri law on Jacobsen’s tort claims, because there was

insufficient evidence that Klinefelter acted in bad faith or with malice. Jacobsen

appeals the dismissal of those claims.

II.

Taking the § 1983 claim first, the question is whether Klinefelter is entitled to

qualified immunity for his use of force against Jacobsen. To overcome a defense of

qualified immunity, Jacobsen must show that the evidence would support a finding

that Klinefelter violated Jacobsen’s rights under the Fourth Amendment, and that the

right was clearly established at the time of the incident. See Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

A right is clearly established if a reasonable officer would understand that his

conduct violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Existing authority must place “the constitutionality of the officer’s conduct ‘beyond

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debate.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

“The dispositive question is whether the violative nature of particular conduct

is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (internal

quotation marks omitted). “Such specificity is especially important in the Fourth

Amendment context, where . . . it is sometimes difficult for an officer to determine

how the relevant legal doctrine, here excessive force, will apply to the factual

situation the officer confronts.” Id. (internal quotation marks and brackets omitted).

“Use of excessive force is an area of the law in which the result depends very much

on the facts of each case, and thus police officers are entitled to qualified immunity

unless existing precedent squarely governs the specific facts at issue.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (internal quotation marks

omitted).

At the time of the disputed use of force, Klinefelter had probable cause to

believe that Jacobsen was trespassing. Although Jacobsen denies that he entered a

restricted space, he does not dispute that a sign marked the area up the ramp as a

“restricted area” for “authorized personnel only,” or that management told Klinefelter

that it was a restricted area. When Jacobsen went up the ramp, Klinefelter reasonably

believed that Jacobsen was trespassing. See Mo. Rev. Stat. § 569.140.

Jacobsen then resisted Klinefelter’s efforts to remove him from the premises.

Klinefelter sought to control Jacobsen by grabbing his arm to escort him out of the

building, but Jacobsen shoved him off. Even if Klinefelter was mistaken about

trespassing, Jacobsen had no right to resist the officer’s show of authority. See Mo.

Rev. Stat. § 575.150.4. Jacobsen’s physical resistance gave Klinefelter probable

cause to believe that Jacobsen committed another offense by unlawfully resisting

arrest or detention. See id. § 575.150.1(1); State v. Ajak, 543 S.W.3d 43, 48, 50-51

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(Mo. 2018). Jacobsen’s use of force also gave the deputy reasonable grounds to

believe that additional force was justified to remove Jacobsen from the premises.

Jacobsen nonetheless argues that Klinefelter used excessive force by applying

pepper spray to Jacobsen’s face and eye, punching Jacobsen on the side of his head,

and throwing him to the ground before handcuffing him. His argument features

Tatum v. Robinson, 858 F.3d 544 (8th Cir. 2017), which reiterated that the use of

force is least justified against a “non-resisting, non-fleeing individual suspected of a

completed, non-violent misdemeanor.” Id. at 549; see also Shekleton v.

Eichenberger, 677 F.3d 361, 366-67 (8th Cir. 2012); Johnson v. Carroll, 658 F.3d

819, 827-28 (8th Cir. 2011); Brown v. City of Golden Valley, 574 F.3d 491, 498 (8th

Cir. 2009). Tatum held that an officer used unreasonable force when he deployed

pepper spray in the face of an accused shoplifter when the arrestee refused promptly

to put his hands on a nearby clothes rack and argued angrily with the officer. 858

F.3d at 548, 550. Under those circumstances, it was not reasonable to use pepper

spray, even after the suspect was warned, because the suspect did not physically resist

the officer and only fourteen seconds had elapsed in the encounter. Id. at 549-50.

Tatum does not clearly establish that Klinefelter’s use of force was

unreasonable. Unlike the shoplifter in Tatum, Jacobsen shoved the deputy and

physically resisted the deputy’s efforts to remove him from the premises. Only after

Jacobsen used force against Klinefelter did the deputy deploy the pepper spray.

Jacobsen then seized the spray canister, and Klinefelter reasonably feared for his

safety. Jacobsen eventually pinned Klinefelter to a wall before the arrest was

completed. A reasonable officer could have believed that it was reasonable to strike

the resisting Jacobsen in the head and take him to the ground for handcuffing.

Jacobsen cites no authority in comparable circumstances that clearly establishes a

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right to be free from Klinefelter’s use of force. Accordingly, Klinefelter is entitled

to qualified immunity on Jacobsen’s claim under the Fourth Amendment.2

Jacobsen also challenges the district court’s dismissal of his claims under state

law alleging battery and negligent infliction of emotional distress. Under Missouri’s

doctrine of official immunity, “public officers acting within the scope of their

authority are not liable for injuries arising from their discretionary acts or omissions.”

Thompson v. Dill, 930 F.3d 1008, 1015 (8th Cir. 2019) (internal quotation omitted).

An officer’s decisions to use force and to make an arrest are discretionary. Boude v.

City of Raymore, 855 F.3d 930, 935 (8th Cir. 2017).

Even so, discretionary acts performed in bad faith or with malice are not

protected by official immunity. Thompson, 930 F.3d at 1015. An officer acts with

malice “when he wantonly does that which a man of reasonable intelligence would

know to be contrary to his duty and which he intends to be prejudicial or injurious to

another.” Boude, 855 F.3d at 935 (internal quotation omitted). Bad faith is a

“dishonest purpose, moral obliquity, conscious wrongdoing, [or] breach of a known

duty through some ulterior motive.” Id. (internal quotation omitted).

Jacobsen contends that Klinefelter’s use of force was a bad-faith or malicious

attempt “to teach Jacobsen a lesson,” because Klinefelter “subjectively thought

Jacobsen was not respecting his authority.” He cites Klinefelter’s personnel

2

Jacobsen argues that the district court’s order permitting his expert witness to

opine that Klinefelter’s use of force exceeded his authority under county policy to

perform “extra-duty employment” at the auction was “logically and factually

inconsistent with the grant of summary judgment.” This argument fails, because even

if the expert’s opinion has merit, county policy does not dictate what rights are clearly

established under the Fourth Amendment. See Cole v. Bone, 993 F.2d 1328, 1334

(8th Cir. 1993).

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evaluations over ten years as evidence that the deputy allegedly has a history of

getting frustrated, losing his temper, and acting rudely toward others.

The record is insufficient to show that Klinefelter acted with bad faith or

malice during the incident in question. Klinefelter gave Jacobsen time to look for a

manager, directed several times that Jacobsen leave the auction, warned Jacobsen in

advance that he would use pepper spray if the resistance continued, and used elevated

force only after Jacobsen used force of his own. Klinefelter also arranged promptly

for Jacobsen to receive medical attention after he was subdued. Reports of

Klinefelter’s behavior on unrelated occasions over the previous ten years do not

support an inference of bad faith or malice at the auction under these circumstances.

The district court properly applied official immunity to dismiss the state-law claims.

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The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring.

Even viewing the record in Jacobsen’s favor, our precedent supports the

conclusion that Klinefelter’s use of force was not “objectively unreasonable” in light

of the particular circumstances of this case. Graham v. Connor, 490 U.S. 386, 397

(1989); see Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017) (finding

no excessive use of force where the officer, after providing at least two warnings,

executed a spin takedown and tased an arrestee who “at least appeared to be

resisting”). Because there was no Fourth Amendment violation, I would not reach the

question of whether the particular right Jacobsen is asserting was clearly established

at the time of the incident.

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