Derek Westwater v. Kevin Church

United States Court of Appeals

For the Eighth Circuit

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No. 22-1685

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Derek Westwater

lllllllllllllllllllllPlaintiff - Appellant

v.

Kevin Church

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court

for the Southern District of Iowa - Central

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Submitted: October 19, 2022

Filed: February 23, 2023

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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.

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LOKEN, Circuit Judge.

Derek Westwater fled when Keokuk, Iowa, police officer Zeth Baum stopped

him based on an outstanding warrant for fifth-degree theft. Apprehended a few

minutes later, Westwater was placed in Captain Kevin Church’s squad car. At the

nearby police station, Westwater briefly refused to obey Church’s command to exit

the squad car and proceed to the station for booking. When the handcuffed

Westwater finally exited the car and stood up, Church struck him with his fist on the

back of the head and neck. Westwater brought this action for excessive force under

42 U.S.C. § 1983 and asserted pendent Iowa state law claims for tortious assault and

battery. The district court granted summary judgment dismissing both claims on the

ground that the force used was objectively reasonable. Alternatively, the court ruled

that Church was entitled to qualified immunity on the federal § 1983 claim because

any constitutional violation was not clearly established. Westwater appeals.

Reviewing the grant of summary judgment de novo, we conclude that genuine issues

of disputed facts preclude a determination, on this summary judgment record, of

whether the alleged unlawful use of excessive force was objectively reasonable and,

if not, whether the violation was clearly established at the time of the incident in

question. Accordingly, we reverse the dismissal of all claims, including Westwater’s

pendent state law claims.

I. Background

Officer Baum stopped Westwater, driving a motorcycle, on May 1, 2018.

Westwater approached Baum, refusing Baum’s directions to stay by the motorcycle

and keep his hands raised. When Baum drew his taser, Westwater fled into nearby

woods, running three or four blocks. Officers Steve Dray and Andrew Whitaker

apprehended Westwater when he exited the woods, handcuffed him, and placed him

in the back of Captain Church’s squad car on the passenger side. In 2015, Westwater

had pleaded guilty to assaulting Officer Hymes, punching him multiple times in the

face and head in an altercation. Church, normally on duty with Hymes, was not

present but knew of the prior assault.

Church drove Westwater to the police station. During the drive, Westwater

claims he only asked Church to roll down the window, and Church replied it was

broken. Church claims Westwater threatened “to beat [Church’s] mother f*****g ass

as he beat Officer Hymes’ ass.” Upon arriving at the police station, Church opened

the squad car door next to Westwater and told him to exit. Westwater instead sat in

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the car for 30-45 seconds. Westwater, recently released after serving a prison

sentence, says he sat in resignation, processing the fact that he was going back to jail.

Church repeated his order to exit. According to Church, Westwater told

Church to “get the F away from me” before starting to get out of the vehicle. Telling

Church to “not f***ing touch me,” Westwater stood up, hunched over with both feet

on the ground. Church testified he believed Westwater was looking for a way to

“create just enough distance to where he could run.” Church further testified that,

when he came closer, Westwater “lunged back” and said “I’m going to f***ing head-

butt you.” Church then “grabbed a hold of [Westwater’s] head” with both hands and

pulled them together. Westwater yelled “I’m going to f*** you up.” Church testified

that he took two swings (not with full force) at the back of Westwater’s neck with his

fist, making contact once.

Westwater told a different story. After Church repeated his order to get out of

the squad car, Westwater announced “I can walk,” and started to exit the vehicle.

Though claiming the incident was “a blur” he can’t fully remember, he testified that

shortly after exiting the squad car Church struck him in the back of the head with his

fist at least five times, while Westwater tried to escape back into the squad car.

Westwater testified that he never threatened to head-butt Church, that he had to bend

his body and lower his head to exit the squad car handcuffed, and that there was no

way he could have run, being blocked by Church and the squad car on all sides.

A security camera recorded the scene before and after the use of force but

failed to capture the physical struggle. Church immediately called for assistance.

Two nearby firefighters heard the commotion and came to assist Church, the only

police officer present. Other officers came from the police station and brought

Westwater in for booking. He later pleaded guilty to criminal harassment for threats

made against Church after being placed in a holding cell.

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Westwater initially asserted various state and federal claims against Church and

other officials. The district court dismissed all claims except his § 1983 excessive

force and Iowa assault and battery claims against Church. Church moved for

summary judgment, arguing the force used was objectively reasonable and he is

entitled to qualified immunity. The district court granted the motion. Construing the

facts favorably for Westwater, the non-moving party, the court held that the force

used was reasonable because Church could reasonably view Westwater as a threat,

based on his prior assault of Officer Hymes, and a flight risk, based on his earlier

attempt to escape from Officer Baum. After Westwater’s initial refusal to exit the car,

Church could reasonably interpret Westwater’s motions as preparing to assault

Church with a head-butt. The court also held that a reasonable official in Church’s

shoes would not have believed that the excessive force alleged by Westwater “under

the above-described circumstances” violated his clearly established rights.

II. Discussion

Qualified immunity shields police officers from liability for civil damages

when their conduct “does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” White v. Pauly, 580 U.S.

78-79 (2017) (per curiam) (quotation omitted). To survive summary judgment

dismissing his § 1983 claim, Westwater must proffer facts showing that (1) a statutory

or constitutional right was violated; and (2) the right was “clearly established.”

Hansen v. Black, 872 F.3d 554, 557-58 (8th Cir. 2017).

A. Reasonable Force. The Fourth Amendment includes the right “to be secure

. . . against unreasonable . . . seizures.” Citizen claims that a police officer “used

excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’

of his person . . . are properly analyzed under the Fourth Amendment’s ‘objective

reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). Though

Westwater was already detained when the alleged excessive force was used in this

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case, the objective reasonableness standard applies to his claim. Cf. Kingsley v.

Hendrickson, 576 U.S. 389 (2015).

“[D]etermining whether the force used to effect a particular seizure is

‘reasonable’ requires balancing of the individual’s Fourth Amendment interests

against the relevant governmental interests.” County of L.A. v. Mendez, 581 U.S.

420, 427 (2017) (quotation omitted). The inquiry is based on the totality of the

relevant circumstances, including “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officer or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396. We analyze these factors from “the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Id.

As the district court recognized, when the issue of unreasonable force is raised

in a motion for summary judgment, a court must construe the facts in favor of

Westwater, the non-moving party. Frederick v. Motsinger, 873 F.3d 641, 644 (8th

Cir. 2017). Thus, when “opposing parties tell two different stories,” the court must

view material disputed facts “in a light most favorable to the non-moving party -- as

long as those facts are not so ‘blatantly contradicted by the record . . . that no

reasonable jury could believe’ them.” Reed v. City of St. Charles, 561 F.3d 788, 790

(8th Cir. 2009), quoting Scott v. Harris, 550 U.S. 372, 380 (2007). Here, there is

conflicting testimony as to the amount of force used and whether Westwater posed

an immediate threat to Church or a risk of flight. The security camera did not capture

the use of force, and the conversation in the squad car was not recorded. Therefore,

Westwater’s version of the incident is not “blatantly contradicted by the record,” and

a reasonable fact-finder could find it credible after trial.1

1

It is worth noting again, because many of our cases have obscured the point

by referring to what a reasonable jury could find, that the question whether force used

was objectively reasonable or constitutionally excessive is a question of law, at the

summary judgment stage and after trial. See Brossart v. Janke, 859 F.3d 616, 624

(8th Cir. 2017); Davis v. White, 794 F.3d 1008, 1013 (8th Cir. 2015).

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Westwater argues Church used objectively unreasonable force when he struck

Westwater in the back of the head “at least five times.” Church testified he swung

twice and struck Westwater only once. He argues that the force used was de minimis

and therefore objectively reasonable. Our cases distinguish between de minimis

force, which is not actionable under the Fourth Amendment, and de minimis injury,

which is actionable unless it establishes de minimis use of force. See Chambers v.

Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). Five strikes to the back of the head

with a closed fist is more force than other situations where we have rejected the

defense of de minimis force, and Westwater presented evidence of more than de

minimis injury. See Montoya v. City of Flandreau, 669 F.3d 867, 871 (8th Cir. 2012)

(sweeping a leg to trip someone). We agree with the district court that Church did not

warrant summary judgment on this ground.

The critical factor in this excessive force case, as in most others, is whether

Westwater, a handcuffed detainee, posed a realistic threat to the safety of Church or

a risk of flight that justified the degree of force used. “The use of force is least

justified against a nonviolent misdemeanant who does not flee or actively resist arrest

and poses little threat to officers or the public.” Kohorst v. Smith, 968 F.3d 871, 876

(8th Cir. 2020). Westwater denied threatening Church in the brief ride to the police

station. Though he delayed obeying Church’s order to exit the car, he denied

threatening to head-butt Church as he exited, explaining that he had to bend over to

exit the car while handcuffed. Westwater testified it was not physically possible for

him to flee past Church when he exited the squad car. See McDaniel v. Neal, 44

F.4th 1085, 1090 (8th Cir. 2022) (severe force unjustified where arrestee could no

longer escape). Westwater claims that at the time Church struck him he was fully

compliant and nonviolent.

On the other hand, Church testified that Westwater made repeated threats to

Church’s safety during the ride to the police station, including a specific reference to

Westwater’s prior assault of Church’s colleague, Hymes. Westwater threatened to

head-butt Church as he exited the squad car and then moved his head as if preparing

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to do so. Church also knew Westwater had just been arrested after fleeing from

Officer Baum, which supported his concern about Westwater fleeing again rather than

proceeding to the police station to be jailed.

This is a close case on a question of law -- whether, on this summary judgment

record, the force used by Church was objectively reasonable, as the district court

concluded. If a reasonable fact-finder were to credit Church’s testimony, the answer

would be clear. Westwater was not fully compliant when Church used the force at

issue. See Hosea v. City of St. Paul, 867 F.3d 949, 958-59 (8th Cir. 2017). He had

repeatedly threatened Church’s safety and was capable of carrying out that threat as

he exited the squad car. And he posed at least some risk of flight. Prior knowledge

of violent behavior, particularly towards law enforcement officers, is a relevant factor

in deciding whether to use force. See Wenzel v. City of Bourbon, 899 F.3d 598, 602

(8th Cir. 2018). And Westwater’s testimony does not clearly refute Church’s version

of the split-second incident; his recall of the critical time period, which was not

recorded by the security camera, was “a blur.”

But we may not simply credit Church’s testimony at the summary judgment

stage. Westwater’s contrary testimony, though a “blur” to some extent, would if

credited by a reasonable fact-finder (i) eliminate the alleged oral threats to Church’s

safety, (ii) innocently explain Westwater’s head movements in exiting the squad car,

and (iii) discredit Church’s concern there was a risk of flight, perhaps creating an

inference that Church used force to retaliate for Westwater’s prior assault of Officer

Hymes. Therefore, on this summary judgment record, we decline to affirm the district

court’s reasonable-use-of-force conclusion and turn to the second prong of the

qualified immunity inquiry, whether it was clearly established on May 1, 2018, that

the force Church used was constitutionally excessive.

B. Clearly Established. Qualified immunity “gives ample room for mistaken

judgments by protecting all but the plainly incompetent or those who knowingly

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violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991). Our standard for

applying this principle is well established:

For a right to be clearly established, the contours of the right must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right. A plaintiff must identify either

controlling authority or a robust consensus of cases of persuasive

authority that placed the statutory or constitutional question beyond

debate at the time of the alleged violation.

Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (en banc) (citations omitted).

When the Fourth Amendment issue is the use of excessive force, the Supreme Court

has made it clear that specificity is required. “[P]olice 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) (quotation omitted).

Westwater must “identify a case that put [Church] on notice that his specific conduct

was unlawful.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021).

In deciding this issue, the district court must “view the evidence at summary

judgment in the light most favorable to [Westwater] with respect to the central facts

of this case.” Tolan v. Cotton, 572 U.S. 650, 657 (2014). As our sharply divided en

banc decision in Kelsay illustrates, controlling Supreme Court and Eighth Circuit

precedents prior to May 2018 drew fine lines in determining when police officers’ use

of non-deadly force was objectively reasonable in making an arrest or other seizure.

Our cases clearly established that it was objectively unreasonable to use more than

de minimis force to seize a non-threatening misdemeanant who was not fleeing,

resisting arrest, or ignoring officer commands. See Kelsay, 933 F.3d at 985 (Smith,

C.J., dissenting), and pre-2018 cases cited; Blazek v. City of Iowa City, 761 F.3d 920

(8th Cir. 2014).

Blazek did not involve the use of force against a person who the officer knew

had committed a prior violent assault against another officer and had attempted to

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escape from a third officer just minutes earlier. And, when they arrived at the police

station, Westwater refused to comply with Church’s order to exit the squad car, a

display of passive resistance that justified use of some force to pull Westwater from

the car and take him into the station. See Wertish v. Krueger, 433 F.3d 1062, 1066

(8th Cir. 2006). Nor was the degree of force Church allegedly used clearly excessive

in light of our prior excessive force decisions. Cf. Murphy v. Engelhart, 933 F.3d

1027, 1028-29 (8th Cir. 2019); Wertish, 433 F.3d at 1065. Church is entitled to

qualified immunity if the facts establish that his action “falls within the zone

described as the ‘sometimes hazy border between excessive and acceptable force.’”

Shelton v. Stevens, 964 F.3d 747, 753 (8th Cir. 2020), quoting Saucier v. Katz, 533

U.S. 194, 206 (2001). Our decision in Kelsay makes clear that, in excessive force

cases, the clearly established inquiry requires careful scrutiny of the particular

conduct and circumstances at issue. 933 F.3d at 980-82.

Though the ultimate clearly established issue is a question of law, the district

court in ruling on Church’s motion for summary judgment viewed the facts in the

light most favorable to Westwater, and “we ordinarily lack jurisdiction to decide

‘which facts a party may, or may not, be able to prove at trial.’” Id. at 979, quoting

Johnson v. Jones, 515 U.S. 304, 313 (1995). As previously explained, the facts

viewed most favorably to Westwater -- primarily his deposition testimony -- would

establish that Westwater did not threaten Church as they drove to the police station,

did not threaten to head-butt Church as Westwater voluntarily exited the squad car

after passively resisting a command to exit for 30 to 45 seconds, and could not flee.

If credited by a reasonable factfinder, our pre-2018 excessive force cases establish

that Church is not entitled to qualified immunity because Westwater was a non-

threatening misdemeanant who was not fleeing, resisting arrest, or significantly

ignoring officer commands. In these circumstances, summary judgment should not

be granted on either qualified immunity issue, whether the force used was reasonable

and, if not, whether the violation was clearly established. Though qualified immunity

should be determined prior to trial when feasible, the issues of law in this case cannot

be determined without findings on these central fact issues.

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C. State Law Claims. This leaves Westwater’s remaining state law claims of

tortuous assault and battery. Iowa law justifies police force where “the peace officer

reasonably believes [such force] to be necessary to effect the arrest or to defend any

person from bodily harm.” Iowa Code § 804.8. Iowa courts apply an objective

reasonableness standard. Parrish v. Dingman, 912 F.3d 464, 469 (8th Cir. 2019). As

Church more or less concedes, because we have declined to affirm the district court’s

grant of summary judgment dismissing Westwater’s § 1983 federal claims, we must

reverse the district court’s dismissal of Westwater’s state law claims and remand to

the district court for further consideration of this issue under Iowa law.

The judgment of the district court is reversed and the case is remanded for

further proceedings not inconsistent with this opinion.

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