Johnson v. Carroll

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2889

___________

Victoria Johnson, *

*

Appellant, *

*

v. *

*

James Steven Carroll, Badge 1005; * Appeal from the United States

Chad Chul Hofius, Badge 3055; * District Court for the

Mathew Alan Kipke, Badge 3717; * District of Minnesota.

Paul John Schweiger, Badge 6410, *

in their individual and official *

capacities as Minneapolis Police *

Officers; and The City of Minneapolis, *

a government entity and political *

subdivision of the State of Minnesota, *

*

Appellees. *

___________

Submitted: March 16, 2011

Filed: October 7, 2011

___________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Victoria Johnson filed suit against four Minneapolis police officers and the

City of Minneapolis (City). Her claim against the officers under 42 U.S.C. § 1983

alleged that they used excessive, unreasonable force against her, in violation of the

Fourth and Fourteenth Amendments. Her claim against the City alleged a violation

of the Minnesota Government Data Practices Act (DPA). Her state-law claim alleged

that the officers and the City were liable for battery and negligence. The district court

granted summary judgment in favor of the officers and the City on all claims, holding

that the officers had not violated Johnson’s constitutional right, that Johnson failed

to allege any damages for her DPA claim, that the battery claims against the officers

were untimely, and that the City and the officers were entitled to official immunity

from her state law claims.

Johnson appeals. We affirm the dismissal of the battery claims against the

officers and the dismissal of the § 1983 claim against Carroll. We vacate the

remainder of the judgment and remand for further proceedings.

I. Background

This case arose from an incident that occurred at approximately 6:30 p.m. on

December 20, 2006, between four Minneapolis police officers, Johnson, and her

nephew, Joseph McClennon. At that time, Johnson, age 39, was living with her three

children, her niece, her nephew McClennon, and another nephew.

As might be expected, the parties have significantly different accounts of what

occurred. According to Johnson, as she was preparing to depart for her Bible study

group that evening, she was told by her son Blake that “Mom, the police are outside

harassing Joseph.” Johnson left the house and stood in her front yard, where she

witnessed Officer John Schweiger question McClennon, pat him down, remove items

from his pockets, and place him in the back of Schweiger’s squad car. A second

squad car arrived, occupied by Officers Chad Hofius and Mathew Kipke. Johnson

asked Hofius and Kipke about what was happening, to which one of the officers

replied, “you are ignorant,” and the other said that Johnson was acting “childish.”

-2-

Schweiger released McClennon from the squad car and threw an earlier-prepared

drug paraphernalia citation at him, which McClennon bent down to pick up.

As McClennon began walking towards Johnson and her home, she told him to

return to Schweiger’s car to “get his stuff” that had been left on the hood. Johnson

observed McClennon return to the car, where Schweiger swung at McClennon with

a flashlight. When McClennon pushed the flashlight away, Schweiger grabbed him,

pulled him into the street towards the second squad car, and attempted to take him to

the ground. Although McClennon was not struggling, Hofius and Kipke approached

to assist with the arrest. Johnson ran past the officers and jumped onto McClennon,

bear-hugging him face-to-face, telling him to get to the ground, and trying to protect

him from the officers in a non-resistant manner. Without first ordering Johnson to

remove herself from McClennon, either Hofius or Kipke pulled her away from

McClennon and threw her to the ground, “very hard, very forcefully.” Johnson arose

and again bear-hugged McClennon, this time from behind. The same officer pulled

Johnson off McClennon and again threw her to the ground, “very hard,” “very much”

harder than the first time, injuring her left knee. An officer then tased McClennon,

who fell to the ground. Johnson crawled over to McClennon as he lay there still

shaking from being tased and again blanketed him with her body. With no warning

or request that Johnson remove herself, Schweiger then maced her in the face,

whereupon she “backed up off” McClennon so that the officers could remove the

taser prongs from his body. Thereafter, Johnson crawled to the curb, where she was

able to arise only by grasping a tree for support. A group of bystanders, including her

two sons, stood there on the sidewalk. According to McClennon, there were “a lot

of people,” “a bunch of both, men and women,” asking questions of the officers and

loudly protesting what was happening to him and Johnson. Schweiger arrested

McClennon and placed him in the back of the Schweiger’s squad car. Hofius arrested

Johnson, handcuffed her, and took her to jail.

-3-

At the jail, Johnson was provided with a wheelchair and attended to by a nurse.

After being held for 72 hours, Johnson was released. She was initially charged with

obstructing legal process but was never prosecuted. She visited a clinic to receive

pain medication for her knee injury, which was later diagnosed as an anterior cruciate

ligament (ACL) tear and small effusion with no other meniscal damage. Johnson

underwent surgery on the knee in May 2007, following which she underwent ten

weeks of physical therapy.

According to Schweiger’s account of the incident, as he and Officer James

Carroll, a passenger in Schweiger’s squad car, drove near Johnson’s home they

noticed McClennon standing next to a parked car. When McClennon saw the squad

car he turned and walked away, refusing to answer Schweiger’s question regarding

what he was doing and unwilling to take his hands out of his pockets despite

Schweiger’s repeated requests that he do so. Schweiger escorted McClennon to the

squad car, performed a pat-down, found a pipe that he thought smelled of marijuana,

and placed McClennon in the back seat of the car. After Schweiger issued

McClennon a citation for possession of drug paraphernalia, he was released and

brushed against Schweiger. When McClennon realized that he had left his

belongings on the hood of the squad car, he returned to the car and began swinging

at Schweiger. Schweiger, Hofius, and Kipke brought McClennon under control after

taking him to the ground and tasing him. Johnson ran past the officers and jumped

onto McClennon’s back to prevent the officers from arresting him as he lay on the

ground. She failed to follow verbal orders to move, resulting in her being maced and

physically removed from McClennon. Both were arrested and taken to jail. During

the incident, Carroll was keeping a crowd of anti-police bystanders, which had grown

from eight to twenty persons, away from the scene by ordering them to stay back and

by threatening to use his mace. Schweiger described the crowd as “quite large and

very hostile” and that it “became even more belligerent,” yelling at the officers “F**k

the police” and “Get the f**k out of here.”

-4-

In March 2007, Johnson sent notice of her claim to the City, pursuant to

Minnesota Statute § 466.05. In March 2008, she requested that the City provide her

with access to the police records from the December 20, 2006, incident pursuant to

the DPA. In April 2008, the City provided her with a copy of the public police report.

Johnson made another request on November 14, 2008. She filed this suit on

December 19, 2008, with service on the City. The City responded to her second data

request on February 10, 2009. Schweiger, Carroll, and Kipke were served on

February 25, 2009, and Hofius on March 25, 2009. The City and the officers moved

for summary judgment on all claims, asserting qualified immunity on Johnson’s

§ 1983 constitutional claim, a lack of damages on her DPA claim, and statute of

limitations and official immunity defenses on her state-law claims.

II. Discussion

Johnson asserts that the district court erred in finding that the officers had not

violated her clearly established constitutional right to be free from excessive,

unreasonable force. She contends that the district court erred by failing to determine

whether she was entitled to costs and disbursements on her DPA claim. Finally, she

asserts that because the officers acted maliciously or willfully in violating state law,

they and the City were not entitled to official immunity.

We review de novo the district court’s grant of summary judgment. Hayek v.

City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007). “Summary judgment is proper

if, after viewing the evidence and drawing all reasonable inferences in the light most

favorable to the nonmovant, no genuine issues of material fact exist and the movant

is entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56.

-5-

A. Section 1983 Claim

Section 1983 provides redress against any “person who, under color of any

statute . . . subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “The very

purpose of § 1983 was to interpose the federal courts between the States and the

people, as guardians of the people’s federal rights—to protect the people from

unconstitutional action under color of state law, ‘whether that action be executive,

legislative, or judicial.’” Mitchum v. Foster, 407 U.S. 225, 242 (1972).

“Qualified immunity shields government officials from liability in a § 1983

action unless the official’s conduct violates a clearly established constitutional or

statutory right of which a reasonable person would have known.” Brown v. City of

Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). “Qualified immunity involves the

following two-step inquiry: (1) whether the facts shown by the plaintiff make out a

violation of a constitutional or statutory right, and (2) whether that right was clearly

established at the time of the defendant’s alleged misconduct.” Id. at 496. “The

judges of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case

at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

1.

Our initial inquiry is whether the facts alleged support Johnson’s contention

that the officers violated her Fourth Amendment right to be free from excessive force

during the course of her arrest. “Claims of excessive force are evaluated under the

reasonableness standard of the Fourth Amendment.” McKenney v. Harrison, 635

F.3d 354, 359 (8th Cir. 2011). “Fourth Amendment jurisprudence has long

-6-

recognized that the 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.”

Brown, 574 F.3d at 496. “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.” Id.

“We determine whether a use of force was reasonable by balancing ‘the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.’” McKenney, 635 F.3d at 359

(citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “The ‘reasonableness’ of a

particular use of force must be 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). In reviewing whether the use of force was reasonable, “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. “Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers violates the Fourth Amendment.”

Graham, 490 U.S. at 396 (internal citation omitted). In circumstances that are “tense,

uncertain, and rapidly evolving,” whether the use of force was reasonable must

embody an allowance for the fact that police officers are often forced to make

split-second judgments about the amount of force that is necessary in a particular

situation. Graham, 490 U.S. at 396-97.

As we recently observed, the degree of injury suffered in an excessive-force

case “is certainly relevant insofar as it tends to show the amount and type of force

used.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011); Rohrbough v.

Hall, 586 F.3d 582, 586 (8th Cir. 2009) (“A court may also evaluate the extent of the

[plaintiff’s] injuries.”).

-7-

The district court appears to have credited the officers’ characterization of the

crowd and determined that the circumstances were “tense, uncertain, and rapidly

evolving,” thus justifying the officers’ use of force against Johnson. Graham,

490 U.S. at 397. The district found that “plaintiff’s repeated interference with the

arrest endangered the Officers and herself.” D. Ct. Order of July 29, 2010, at 9. It

found that her injuries “stem[med] from her repeated attempts to interfere with the

arrest,” and that the officers’ actions were objectively reasonable as a matter of law

because Johnson “voluntarily interfered with the arrest, despite repeated efforts to

prevent her from doing so.” Id. The district court concluded that “[r]easonable

officers would have believed her actions could have escalated their encounter with

the crowd and McClennon.” Id. The officers’ descriptions of the bystanders and the

circumstances surrounding the incident are conflicting, however, and it is unclear

whether any increase in the number of bystanders was in response to Schweiger’s

conduct towards McClennon or the officers’ conduct towards Johnson. It is disputed

whether the incident was initially escalated by Schweiger’s striking McClennon with

a flashlight or whether McClennon took multiple swings at Schweiger and then

continued to actively resist the officers.1

Johnson posed at most a minimal safety threat to the officers and was not

actively resisting arrest or attempting to flee. The officers knew from their patdown

that McClennon was unarmed. While there is no dispute that Johnson’s attempts to

1

Johnson contends that there is clearly established law recognizing her right to

intervene in the defense of another from excessive, unreasonable police force.

Appellant’s Br. at 78. She did not state such a claim in her complaint, however, and

thus we do not address whether such a right exists or was clearly established at the

time of the incident.

Johnson also alleges violations of McClennon’s Fourth Amendment right to

be free from arrest without probable cause, Appellant’s Br. at 60, and from excessive

force during the course of his arrest, id. at 71. We agree with the district court that

Johnson has no standing to pursue McClennon’s claims, which he has alleged in his

own suit against these officers and the City.

-8-

protect her nephew interfered with the officers’ attempt to arrest McClennon, there

is a dispute regarding the number of times she did so. According to Johnson, the

officers were easily able to twice remove her by pushing her to the ground, and that

she “backed up off” McClennon after they sprayed mace into her face. When viewed

in the light most favorable to her, the record supports Johnson’s claim that she was

attempting to protect her nephew’s physical well being by interjecting her body

between him and the officers. There is no evidence that Johnson actively pushed the

officers away from McClennon, threatened them, or took any other action against

them. Johnson asserts that the officers gave her no verbal commands to remove

herself from McClennon. J.A. at A-II-56 (“[The officers] weren’t say[ing] anything,

but [I could] hear everything. But no one was saying anything.”); id. at A-II-56 to 57

(“Q. Did [the officer] say anything to you before he sprayed you? A. No, he did

not.”). Johnson claims that they pushed her to the ground “very purposeful[ly] and

meant to hurt [her]” and that it resulted in her knee being injured. Id. at A-II-65.

Johnson could not be guilty of failing to obey the officers’ verbal commands because,

according to her, there were none given.

Viewing the evidence and drawing all reasonable inferences in the light most

favorable to Johnson, we cannot say that the officers’ use of force was objectively

reasonable as a matter of law. Johnson’s attempts to interfere with McClennon’s

arrest did not amount to a severe or violent offense, as demonstrated by her arrest on

a charge of obstructing legal process, a misdemeanor punishable by imprisonment for

not more than 90 days, a fine of not more than $1,000, or both. Minn. Stat. § 609.50,

subdiv. 2(3). Thus, we conclude that there are genuine issues of material fact

regarding whether the officers used excessive force against Johnson. While a jury

may credit the officers’ assertions and disbelieve Johnson at trial, “it is not our

function to remove the credibility assessment from the jury.” Kukla v. Hulm, 310

F.3d 1046, 1050 (8th Cir. 2002).

-9-

2.

Because the district court found that no violation of a constitutional right had

occurred, it was unnecessary for it to determine whether any such right was clearly

established, which is a legal question for us to determine. Brown, 574 F.3d at 499.

This inquiry turns on the “objective legal reasonableness of the action, assessed in

light of the legal rules that were clearly established at the time it was taken.” Pearson,

555 U.S. at 244. “A right is clearly established if its contours are sufficiently clear

that a reasonable official would understand that what he is doing violates that right.

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

very action in question has previously been held unlawful.” Brown, 574 F.3d at 499

(internal quotation marks omitted).

The Fourth Amendment’s prohibition against unreasonable searches and

seizures clearly established the right to be free from excessive force in the context of

an arrest. Id. “Moreover, it is clearly established 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.” Id.; see also Graham, 490 U.S.

at 396. “Although earlier cases need not involve fundamentally or materially similar

facts, the earlier cases must give officials fair warning that their alleged treatment of

the plaintiff was unconstitutional.” Meloy v. Bachmeier, 302 F.3d 845, 848 (8th Cir.

2002) (internal quotation marks omitted). At the time of this incident, the law was

sufficiently clear to inform a reasonable officer that it was unlawful to throw to the

ground and mace a nonviolent, suspected misdemeanant who was not fleeing or

herself resisting arrest, who posed little or no threat to anyone’s safety, who never

received verbal commands to remove herself, and whose only action was to engage

in a protective maneuver.

The district court did not examine Johnson’s claims against each officer

individually. Johnson has no recollection of Carroll being present during the incident

-10-

and agreed that he “did not do anything to [her].” Carroll stated that his attention was

focused on controlling the growing crowd, that he did not see any force used against

Johnson by the officers, and that he assisted Hofius only with handcuffing Johnson.

Because Johnson admits that Carroll did not use excessive force against her, we

affirm the district court’s dismissal of the § 1983 claim against him.2

B. Minnesota Government Data Practices Act

The DPA “establishes a presumption that government data are public and are

accessible by the public for both inspection and copying” unless federal or state law

provides that the data are not public. Minn. Stat. § 13.01, subdiv. 3. Minnesota

Statute § 13.08 provides civil remedies for violations of the DPA, including an action

for damages under subdivision 1 and an action to compel compliance under

subdivision 4. Under subdivision 1, a person who suffers any damage as a result of

a violation of the DPA may bring “an action against the responsible authority or

government entity to cover any damages sustained, plus costs and reasonable attorney

fees.” Subdivision 4 provides that “any aggrieved person seeking to enforce the

person’s rights under this chapter or obtain access to data may bring an action in

district court to compel compliance with this chapter and may recover costs and

disbursements, including reasonable attorney’s fees, as determined by the court.” See

Wiegel v. City of St. Paul, 639 N.W.2d 378, 384-86 (Minn. 2002).

We agree with the district court’s conclusion that because Johnson did not

allege any damages, she failed to state a claim under subdivision 1. The district court

failed, however, to consider whether Johnson could recover her costs and

disbursements in her December 19, 2008, action to compel compliance under

2

Johnson contends that “Carroll, the least culpable is still culpable under clearly

established law for failing to intervene.” Appellant’s Br. at 75. Having failed to state

such a claim in her complaint, we do not address whether such a right exists or was

clearly established at the time of the incident.

-11-

subdivision 4. We disagree with the government’s contention that this issue is moot,

and thus we remand for a ruling on whether Johnson is entitled to any costs or

disbursements under that section of the statute.

C. Common Law Battery and Negligence Claims

1. Battery Claims Against Individual Officers

Under Minnesota law, a party must commence an action for battery within two

years. Minn. Stat. § 541.07. A civil action is commenced against the defendant when

the summons is served upon that defendant. Minn. R. Civ. P. 3.01. If state law

requires service to commence an action, state law, and not Federal Rule of Civil

Procedure 3, governs for the purposes of the state statute of limitations. Anderson v.

Unisys Corp., 47 F.3d 302, 309 (8th Cir. 1995).

The district court dismissed Johnson’s common law battery claims against the

officers as untimely because the two-year statute of limitations period expired on

December 19, 2008, and the officers were not served until February and March 2009.

Johnson contends that “service is timely and proper for each appealed claim,” but she

has failed to explain how her battery claims against the officers were commenced

within the statute of limitations, and we therefore agree that the district court properly

dismissed those claims.

2. Official Immunity

The district court also held that the officers were entitled to official immunity

for all state law claims and the City was thus not liable. We review de novo the

district court’s ruling on the question of immunity. See Wiederholt v. City of

Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). “[U]nder Minnesota law a public

official is entitled to official immunity from state law claims when that official is

-12-

charged by law with duties that require the exercise of judgment or discretion.”

Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990). Police officers are generally

classified as “discretionary officers” and are entitled to official immunity. Id. at 42.

An exception to that immunity “exists if the officer acted maliciously or willfully.”

Id. “Malice in the context of official immunity means intentionally committing an act

that the official has reason to believe is legally prohibited.” Kelly v. City of

Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999). “[V]icarious official immunity

protects the government entity from suit based on the official immunity of its

employee,” Wiederholt, 581 N.W.2d at 316, and thus generally the claim against the

government entity “has been dismissed without any explanation” once an employee

is determined to be protected by official immunity. Pletan v. Gaines, 494 N.W.2d 38,

42 (Minn. 1992).

We conclude that Johnson presented sufficient evidence to preclude summary

judgment on the basis of official immunity on the alleged state tort claims. As set

forth above, there is a factual dispute regarding whether the officers used excessive

force during the arrest. Accepting Johnson’s account as true, a jury could find that

the officers are not entitled to official immunity because they willfully violated her

right to be free from excessive force. See Brown, 574 F.3d at 500-01.

III. Conclusion

We affirm the dismissal of the battery claims against the officers and the

dismissal of the § 1983 claim against Carroll. We vacate the remainder of the

judgment and remand the case to the district court for further proceedings.

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

I concur in the portions of the Court’s opinion affirming the grant of summary

judgment with respect to the § 1983 claim against Carroll and the dismissal of the

-13-

battery claims, and vacating and remanding with respect to the Minnesota Data

Practices Act claim. However, I respectfully dissent from the portion of the Court’s

opinion vacating the grant of summary judgment with respect to the § 1983 claim

against the remaining officers and the remaining state-law claims. I would hold that,

taking Johnson’s account of the officers’ actions as true, the officers used reasonable

force at each step of their graduated response to her repeated interference with their

arrest of McClennon.

According to Johnson herself, Officer Schweiger had grabbed McClennon and

was attempting to take him to the ground when Johnson jumped onto McClennon for

the first time, “bear-hugging” him. While the Court repeatedly faults the officers for

not pausing in the midst of their physical encounter with the arrestee to request that

Johnson remove herself, a “reasonable officer on the scene,” Graham v. Connor, 490

U.S. 386, 396 (1989), might well conclude that such a verbal warning would be futile

in light of Johnson’s manic action.3 Moreover, a reasonable officer coping with

Johnson’s intrusion into the arrest scene “in circumstances that [we]re tense,

uncertain, and rapidly evolving,” id. at 397, certainly could conclude that other

bystanders might decide to follow suit if Johnson’s actions were not deterred quickly

and convincingly.4 It was, therefore, not unreasonable for the officers to employ

3

The officers claim that they verbally instructed Johnson to remove herself, but

we construe the facts in the light most favorable to Johnson in determining whether

a constitutional right was violated. See Dodd v. Jones, 623 F.3d 563, 566 (8th Cir.

2010).

4

The Court attempts to minimize the tense and uncertain nature of the

circumstances in which the officers acted, noting that descriptions of the bystanders

are “conflicting” and that the number of bystanders may have increased only after the

officers’ use of force against Johnson. Ante at 8. Even construing the record in the

light most favorable to Johnson, however, those facts are sufficient to establish the

potential for escalating crowd resistance when Johnson initially intervened.

McClennon testified that just before Johnson first bear-hugged him, “there were lots

of people” outside watching the incident and questioning the officers’ actions.

-14-

some degree of force to remove Johnson from the midst of their struggle with

McClennon.

The degree of force used to remove Johnson from McClennon the first time

was not excessive. There is no evidence that Johnson was subjected to any type of

force other than what would be necessary to disengage her bear-hug hold and separate

her from the arrestee. To be sure, pulling Johnson away from McClennon with

sufficient force that she went to the ground may seem “unnecessary in the peace of

a judge’s chambers,” but it is not unreasonable in the context of a split-second

judgment by a police officer on the scene. Id. at 396 (quoting Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973)). This conclusion is supported by the fact that

Johnson sustained no injury during that first removal. See Chambers v. Pennycook,

641 F.3d 898, 906 (8th Cir. 2011) (“The degree of injury is certainly relevant insofar

as it tends to show the amount and type of force used.” ).

When Johnson immediately “rushed back over,” as she described it, and bear-

hugged McClennon again, the officers had little choice but to physically remove her

Officer Schweiger testified to the presence of “about eight” adults, Officer Carroll to

“between six and eight guys,” and Officer Kipke to “people all over the place yelling

and screaming,” all at the point in time when Schweiger attempted to take McClennon

to the ground, just prior to Johnson’s initial interference.

Johnson presented no contrary evidence regarding the state of the crowd at the

time of her initial interference. Although she stated at one point in her deposition that

“[t]here was no one outside then but me,” it was in response to a question about “the

people outside involved in this incident, so we were talking about the three police

officers and your son and your niece.” Johnson’s answers in context refer to whether

her own children and niece were outside, not to the crowd in general. Therefore, even

construing the record in the light most favorable to Johnson, at minimum six people

were observing the struggle with McClennon when Johnson intervened. A

reasonable officer could conclude that those six or more people were no more

sympathetic than Johnson was to the officers’ attempt to subdue McClennon.

-15-

for a second time. While Johnson asserts that she was pulled apart from McClennon

and thrown down “very much” harder than the first time, her quick return to the fray

would have demonstrated to a reasonable officer that the initial degree of force had

not been sufficient to deter her, or potentially others, from interfering with

McClennon’s arrest. As a result, it was reasonable for the officers to use increased

force to separate her from the arrestee for the second time. See Darrah v. City of Oak

Park, 255 F.3d 301, 304, 307 (6th Cir. 2001) (holding, where the plaintiff twice

grabbed the ankle of an officer attempting to arrest another, that a blow to the

plaintiff’s mouth necessitating stitches was a reasonable use of force after the

officer’s “first attempt at shaking her loose was only temporarily effective”).

Unfortunately, the second physical removal of Johnson resulted in damage to

the anterior cruciate ligament in her left knee. Nevertheless, “[t]he degree of injury

should not be dispositive, because the nature of the force applied cannot be correlated

perfectly with the type of injury inflicted.” Chambers, 641 F.3d at 906. That rule is

particularly applicable in this case because Johnson’s knee injury is not of a type that

correlates well with the strength of the force applied.5 Notably, Johnson did not

describe any concomitant results that would correlate more closely with hitting the

ground with excessive force, such as abrasions, contusions, or temporarily being

5

This conclusion is confirmed by medical research. See, e.g., Chris J. Hass et

al., Knee Biomechanics during Landings: Comparison of Pre- and Postpubescent

Females, 37 Med. & Sci. Sports & Exercise 100, 104-105 (2005) (finding that an

anterior cruciate ligament tear correlates with landing on one’s foot while having a

stiff, straight leg, rather than with force); David Koon & Frank Bassett, Anterior

Cruciate Ligament Rupture, 97 S. Med. J. 755 (2004) (“Most ACL tears occur by a

low-energy, noncontact mechanism involving a sudden deceleration with a rotational

maneuver, such as cutting.” (emphasis added)); Letha Y. Griffin et al., Noncontact

Anterior Cruciate Ligament Injuries: Risk Factors and Prevention Strategies, 8 J.

Am. Acad. Orthop. Surg. 141, 142 (2000) (reporting that seventy percent of ACL

injuries result from activities such as awkward landings and decelerating while

pivoting).

-16-

unable to catch her breath. In a broader sense, she does not assert that she was struck,

kicked, had her arm bent behind her back, or was subjected to any other type of force

inconsistent with a simple attempt to end her physical interference with the arrestee.

Instead, the record shows that the officers took only the physical action necessary to

disengage her bear-hug hold and deposit her at a safe distance from McClennon,

whom the officers were attempting to tase.6 In short, while Johnson’s injury was a

traumatic and undeserved result, a reasonable degree of force needed to separate

Johnson from the arrestee does not become unreasonable merely because her knee

was twisted.

Finally, when Johnson proved the officers’ first two efforts futile by returning

for the third time to blanket McClennon with her body, it was reasonable for the

officers to resort to a more potent level of force to remove her and deter further

interference. Rather than wait for her or another bystander to interfere for a fourth

time, it was reasonable for the officers to use mace to ensure compliance. See Reed

v. City of St. Charles, 561 F.3d 788, 790-91 (8th Cir. 2009) (affirming grant of

summary judgment based on qualified immunity where officers sprayed mace in an

arrestee’s face after his repeated refusal to cooperate with the officers).

6

The Court emphasizes that “Johnson posed at most a minimal safety threat to

the officers and was not actively resisting arrest or attempting to flee.” Ante at 8.

Presumably this is an attempt to invoke the list in Graham of circumstances relevant

to the reasonableness of the force applied. See 490 U.S. at 396 (“[P]roper application

[of the reasonableness test] 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.”). However,

Graham cites those particular circumstances as illustrative examples, not an

exhaustive list. Here, Johnson certainly was “actively resisting arrest,” albeit not her

own, and continued to do so three times despite the officers’ graduated efforts to gain

control of the situation. Although actively resisting another’s arrest was not

specifically listed in Graham, this appears to be precisely the sort of circumstance

that Graham envisioned as justifying the use of a greater level of force.

-17-

Because the officers used only a reasonable amount of force each time Johnson

physically interfered with the arrest of McClennon, I would hold that Johnson fails

to allege a violation of her constitutional right to be free from excessive force. The

same analysis demonstrates that, under an objective inquiry, the officers’ actions were

legally reasonable, entitling them to official immunity from Johnson’s remaining

state-law claims as well. See State ex rel. Beaulieu v. City of Mounds View, 518

N.W.2d 567, 571 (Minn. 1994). Accordingly, I respectfully dissent from the portion

of the Court’s opinion and judgment vacating the grant of summary judgment with

respect to the § 1983 claim and the remaining state-law claims.

______________________________

-18-