Andrea Martinez v. Ronnet Sasse

United States Court of Appeals

For the Eighth Circuit

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No. 21-1704

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Andrea Comfort Martinez,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Ronnet Sasse, in her individual capacity,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court

for the Western District of Missouri - St. Joseph

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Submitted: November 17, 2021

Filed: June 16, 2022

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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.

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COLLOTON, Circuit Judge.

Andrea Martinez sued Ronnet Sasse, a law enforcement officer employed by

the United States Immigration and Customs Enforcement agency (ICE). Martinez

claims that Sasse violated her rights under the Fourth Amendment by effecting a

seizure through the use of excessive force. Sasse moved for judgment on the

pleadings, and argued that she was entitled to qualified immunity. The district court

denied the motion, reasoning that Martinez’s allegations stated a claim for the

violation of a clearly established right. We respectfully disagree, and therefore

reverse the order.

I.

According to the complaint, which we accept as true at this procedural

juncture, Martinez is an attorney who was representing a woman, Kenia Bautista-

Mayorga, and her young son, N.B.M., in immigration proceedings. After Bautista-

Mayorga was arrested during a traffic stop, N.B.M. moved to live with Bautista-

Mayorga’s domestic partner, Luis Alfredo Diaz Inestroza, in Texas.

In June 2018, as Bautista-Mayorga’s removal from the United States appeared

imminent, Martinez spoke with ICE officials to coordinate reuniting N.B.M. with his

mother for deportation. ICE officials told Martinez to bring the boy to an ICE facility

parking lot at 3:30 a.m. on June 26, 2018. The officials said that the mother would

be waiting in an ICE van to take the child.

At the appointed time, Martinez, Diaz Inestroza, and the child arrived in the

parking lot of the ICE facility. A Netflix film crew accompanied the Martinez group

to produce a documentary about the family’s experience. There was no ICE van in

the parking lot. At about 3:40 a.m., Sasse called Martinez and told her that Diaz

Inestroza and N.B.M. must come inside the facility to reunite the boy with his mother.

Martinez responded that they preferred to remain outside.

Just after the phone call, Sasse and another ICE officer, Everett Chase, turned

on the lights in the ICE facility and stood outside near the entrance. Martinez left

Diaz Inestroza and N.B.M. at her car and approached the officers to ask about

reuniting the boy with his mother. Chase and Sasse informed Martinez that Diaz

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Inestroza and the boy would have to come inside the facility. Martinez walked back

to her car and began to tell Diaz Inestroza what she had learned.

Chase followed Martinez to her car and stood nearby as Martinez spoke to Diaz

Inestroza. Chase then interrupted Martinez, grabbed Diaz Inestroza’s arm, and

walked him toward the entrance of the ICE facility. Diaz Inestroza was carrying the

boy in his arms. Martinez asked Chase to let Diaz Inestroza depart and allow her to

take N.B.M. into the building. Chase ignored her and continued to walk Diaz

Inestroza and the boy toward the facility.

Sasse was holding open the front door of the facility. Chase pushed Diaz

Inestroza and N.B.M. into the facility and walked in behind them. Martinez tried to

follow Chase into the building. The complaint alleges that without warning, Chase

purposefully backed into Martinez to prevent her from entering the facility. Sasse

and Chase then allegedly pushed Martinez back and locked the doors to the facility.

As a result of the push, Martinez fell and suffered a fractured right foot, a concussion,

lacerations, bleeding, and torn pants. Seconds later, Chase reappeared, unlocked the

doors, and instructed Martinez to enter the facility.

Martinez sued Sasse, alleging that the officer used excessive force to seize

Martinez, in violation of the Fourth Amendment. See Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). Sasse moved for

judgment on the pleadings based on qualified immunity. The district court denied the

motion, reasoning that it was clearly established at the time of the incident that under

the allegations in the complaint, Sasse had violated Martinez’s rights under the Fourth

Amendment by using excessive force. Sasse appeals, and we have jurisdiction to

consider her interlocutory appeal of the district court’s denial of qualified immunity.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We review the district court’s

decision de novo.

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II.

A public official like Sasse may assert qualified immunity as a defense to a

claim in a civil rights action. To overcome the defense in this case, Martinez must

show that Sasse violated a constitutional right, and that the unlawfulness of her

conduct was clearly established at the time. District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018); see Pearson v. Callahan, 555 U.S. 223, 238 n.1 (2009); Harlow v.

Fitzgerald, 457 U.S. 800, 818 & n.30 (1982). For a right to be “clearly established,”

the law must be “sufficiently clear” at the time of the officer’s conduct “that every

reasonable official would understand that what [s]he is doing is unlawful.” Wesby,

138 S. Ct. at 589 (internal quotation omitted). Clearly established law must not be

defined at a “high level of generality”; rather, the “violative nature of particular

conduct” must be clearly established. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

Although the claim here alleges use of excessive force, the parties dispute the

threshold question whether Sasse seized Martinez at all within the meaning of the

Fourth Amendment. Martinez argues that Sasse effected a seizure when she pushed

Martinez to the ground before locking the doors to the ICE facility. Sasse maintains,

however, that when an officer’s use of force is designed only to repel a person from

entering a facility, there is no seizure. On that view, Martinez may have a tort claim

against Sasse for assault or battery if the officer used unjustified force, but Sasse did

not violate the Fourth Amendment.

As of June 2018, the Supreme Court had explained that a seizure occurs “when

the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Sasse

maintains that her alleged push of Martinez did not “restrain” the lawyer, but served

instead to “repel” her from entering the federal facility. She cites Meggs v. City of

Berkeley, 246 F. App’x 402 (9th Cir. 2007), which involved the use of force by

officers who had formed a “skirmish line” around a fire that was set by protestors on

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a city street. See Meggs v. City of Berkeley, No. C 01-4033, 2005 WL 483445, at *1

(N.D. Cal. Mar. 2, 2005). When one protestor approached the skirmish line, an

officer twice pushed him back with a police baton. Id. at *2. When a second

protestor thrice advanced toward the line, officers pushed him back using batons and

administered a “chop strike” to his right arm while directing him to stay back. Id.

The Ninth Circuit concluded that the use of force “to repel” the protestors from the

skirmish line was not properly analyzed under the Fourth Amendment, because it did

not occur in the course of a “seizure.” 246 F. App’x at 403.

Martinez responds that a seizure occurs where an officer restrains a person

even briefly. She relies on Torres v. Madrid, 141 S. Ct. 989 (2021), which held that

police seized a suspect for the instant that police bullets struck her, even though the

suspect temporarily eluded capture thereafter. Id. at 993-94, 999. Torres, however,

was decided after the encounter at issue here, so cannot be clearly established law for

purposes of this case. In any event, Torres involved force used to apprehend a

suspect, and did not address whether force used only to repel constitutes a seizure.

Martinez invokes Atkinson v. City of Mountain View, 709 F.3d 1201 (8th Cir.

2013), where a police officer “bull rushed” a citizen, slammed him backward into the

side of a pickup truck, and then handcuffed him. Id. at 1205. This court ruled that

the evidence was sufficient to establish that a seizure occurred at the moment the

police officer charged into the citizen. Id. at 1209. In Atkinson, however, there was

no doubt that the officer applied force to apprehend the citizen, as the man was

handcuffed and arrested promptly after the initial use of force. The “bull rush” was

not performed to repel the citizen, and the decision did not provide clear guidance on

whether force used only for that purpose constitutes a seizure.

Martinez points out that Atkinson favorably cited Acevedo v. Canterbury, 457

F.3d 721 (7th Cir. 2006), where a police officer punched a man in the face and

knocked him to the ground at a parking lot for towed cars. Id. at 722-23. Although

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the man was able to stand up and walk to his car after the assault, the Seventh Circuit

held that the officer’s blow constituted a seizure because it briefly immobilized the

recipient. Id. at 724.

While Acevedo may lend support to Martinez’s theory, it does not demonstrate

clearly established law as of 2018 that Sasse’s push to repel Martinez from the ICE

facility was a seizure. Acevedo is not a decision of the Supreme Court, or of this

court, but of a sister circuit. Although this court in Atkinson cited Acevedo for the

proposition that force causing a man to reel backwards and fall constitutes a seizure,

Atkinson addressed only force used to apprehend an arrestee. The Seventh Circuit’s

conclusion in Acevedo is in tension with the Ninth Circuit’s ruling in Meggs that

baton strikes and other blows that halted the forward progress of protestors did not

amount to seizures. Martinez’s citations thus fall short of showing a “robust

consensus of authority” clearly establishing that the use of force to repel is a seizure

under the Fourth Amendment. See L.G. ex rel. M.G. v. Columbia Pub. Schs., 990

F.3d 1145, 1150 (8th Cir. 2021).

After Atkinson, moreover, this court addressed a similar question in a case

about the use of tear gas to disperse news reporters from a street near the site of

“public unrest and protests.” Quraishi v. St. Charles County, 986 F.3d 831, 834 (8th

Cir. 2021). The court held that as of August 2014, it was not clearly established that

the tear-gassing by police was a seizure, because “the reporters’ freedom to move was

not terminated or restricted,” and they were simply “dispersed.” Id. at 840. As with

the force used to repel Martinez in this case, the force in Quraishi was not employed

to apprehend a subject. If there is a constitutional distinction between force used for

repulsion that momentarily restricts forward movement and force used for dispersion

that impels retreat, the distinction is not so readily apparent that every reasonable

officer would have understood it.

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For these reasons, we conclude that Martinez has not adequately pleaded that

Sasse violated a clearly established right, because it was not clearly established as of

June 2018 that Sasse’s alleged push was a seizure under the Fourth Amendment.

Accordingly, Sasse is entitled to qualified immunity. The order of the district court

is reversed, and the case is remanded with directions to dismiss the Fourth

Amendment claim against Sasse.

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