Petition for Writ of Certiorari — Gregory Clark, Petitioner v. Austin Clark

APPENDIX A, EIGHTH CIRCUIT OPINION

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1324

___________________________

GREGORY CLARK

Plaintiff – Appellant,

v.

AUSTIN CLARK, DEPUTY

in his individual capacity only,

Defendant – Appellee.

____________

June 13, 2019

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Before SMITH, Chief Judge, COLLOTON, and

ERICKSON, Circuit Judges

____________

ERICKSON, Circuit Judge

App. 1

On January 25, 2016, Ste. Genevieve County

Deputies Austin Clark (“Deputy Clark”) and Matthew

Ballew responded to a 9-1-1 report of gunshots from

the vicinity of a rest area. When they arrived at the

rest stop to investigate, the officers encountered

Gregory Clark (“Gregory”) seated at a table adjacent

to the building. After calling in Gregory’s

identification, a brief, somewhat adversarial

discussion about Gregory’s race ensued. Gregory

drove away in his vehicle after the officers went inside

the building to continue their investigation. The

officers then followed Gregory for approximately 19

miles on the highway, at which point Gregory stopped

his vehicle on an exit ramp. After further discussion

and investigation, Gregory was allowed to leave.

Gregory filed this action against Deputy Clark,

alleging constitutional violations under the First

Amendment, Fourth Amendment, and the Equal

Protection Clause of the Fourteenth Amendment. The

district court1 granted summary judgment in favor of

Deputy Clark on all claims on the basis of qualified

immunity. We affirm.

I. Background

On the afternoon of January 25, 2016, the

principal of Bloomsdale Elementary School called 9-11 and reported gunshots coming from the direction of

the nearby woods. Approximately 12-15 minutes later,

Ste. Genevieve County Deputies Clark and Ballew

arrived at a rest area located about 150 yards from the

school.

The Honorable Audrey G. Fleissig, United States District Judge

for the Eastern District of Missouri.

1

App. 2

Appellant Gregory Clark was the only person at

the rest area at the time. Gregory was talking on his

phone at a table when Deputy Clark and another

officer approached him (not in uniform, but with

badges and sidearms). Assuming they were police

officers, Gregory voluntarily handed the officers his

driver’s license, his retired military identification, and

his concealed carry permit. Gregory informed the

officers that he was armed. The officers asked Gregory

whether he had heard “anything” or any “gunfire.”

Gregory said that he had not. The officers then asked

Gregory where he was going. He responded that he

was on his way to Chicago. Deputy Clark ran

Gregory’s identification, which came back clean.

When Gregory inquired as to the reason his

information had been run, Deputy Clark replied that

his “boss likes to know who he is talking to.” Gregory

followed up by asking if “[Deputy Clark would] have

done that to anyone else.” Gregory admits that his

question was directed at whether he was being

subjected to racial profiling. Deputy Clark responded

angrily by saying “don’t play the race card with me.”

Without any further discussion, Deputy Clark handed

the three cards back to Gregory and ended the

encounter.

The police officers searched for a suspect inside

the building, but found no one. When they came back

out of the building, they saw Gregory driving away.

The officers followed him onto the highway heading

northbound toward Chicago. Gregory noticed the

officers following him. He made a U-turn about two

miles later, trying to avoid them because he “didn’t

know what could happen” and “was in fear of [his]

life.” The officers continued to follow Gregory.

App. 3

As the officers were following Gregory, Deputy

Clark observed Gregory making “exaggerated

movements,” leaning toward the passenger seat and

center console. Because Gregory’s vehicle had heavily

tinted rear windows, it was difficult to see exactly

what Gregory was doing inside the car. After driving

approximately three to five more miles, Gregory

spotted several more police cars in the area so he

turned on his hazard lights and pulled off the highway

onto an exit ramp.

After stopping his vehicle, Gregory put both

hands outside the driver’s side window. Deputy Clark

and two other officers approached the vehicle with

guns drawn in the “low ready” position. Deputy Clark

then raised his gun and ordered Gregory out of the

vehicle. Gregory complied. Deputy Clark patted

Gregory down and another officer moved him away

from the vehicle. Deputy Clark began searching inside

the vehicle. Gregory told Deputy Clark that the gun

he had told them about at the rest area was in the

center console. When Deputy Clark retrieved the gun,

he noticed it was cold and missing two bullets.

Deputy Clark questioned Gregory about why

the gun was missing two bullets. Gregory indicated

that he had not fired the weapon in years and could

not explain the two missing rounds. During this

conversation, another officer examined the gun and

verified that it had not been fired recently. The gun’s

serial number was run by dispatch. When it came

back as stolen, Gregory was handcuffed. Further

inquiry revealed that Gregory was the person who had

mistakenly reported the gun as stolen when he had

merely misplaced it, at which point the officers

App. 4

remaining at the scene removed the handcuffs,

returned Gregory’s gun and told Gregory he was free

to leave.

Gregory sued Deputy Clark, alleging: (1) he was

unlawfully seized when Deputy Clark detained him at

the rest area while running his identification; (2) a

second unlawful seizure occurred when Deputy Clark

detained him on the highway; (3) Deputy Clark used

excessive force when he pointed his gun after he

voluntarily pulled over; (4) the vehicle search was

unconstitutional; (5) the theft of two bullets

constituted a substantive due process violation; (6) the

entire detention and inquiry at the rest area was

based solely on race and violated the equal protection

clause; and (7) the entire course of events that took

place after inquiring whether he was being singled out

because of his race was in retaliation for exercising his

First Amendment rights. Deputy Clark successfully

moved for summary judgment on all counts. Gregory

now appeals the district court’s ruling on claims (1),

(2), (3), (6) and (7).

II. Discussion

We review the grant of summary judgment on

the basis of qualified immunity de novo, viewing the

evidence in the light most favorable to the nonmoving

party. Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir.

2014). Qualified immunity protects government

officials “from liability for civil damages insofar as

their conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172

App. 5

L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)).

“[O]fficers are entitled to qualified immunity

under § 1983 unless (1) they violated a federal

statutory or constitutional right, and (2) the

unlawfulness of their conduct was clearly established

at the time.” District of Columbia v. Wesby, ––– U.S.

––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018)

(internal quotation marks omitted). “For a

constitutional right to be clearly established, its

contours ‘must be sufficiently clear that a reasonable

official would understand that what [the official] 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; but it is to say that in the light of preexisting law the unlawfulness must be apparent.”

Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153

L.Ed.2d 666 (2002) (internal citation omitted)

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

107 S. Ct. 3034, 97 L.Ed.2d 523 (1987)). See also

Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092,

89 L.Ed.2d 271 (1986) (“[Qualified immunity] provides

ample protection to all but the plainly incompetent or

those who knowingly violate the law.”).

For Gregory to establish a § 1983 claim for a

Fourth Amendment violation, he must demonstrate a

search or seizure occurred, and the search or seizure

was unreasonable. McCoy v. City of Monticello, 342

F.3d 842, 846 (8th Cir. 2003) (citing Hawkins v. City

of Farmington, 189 F.3d 695, 702 (8th Cir. 1999)).

“Reasonableness of a seizure is determined by the

totality of the circumstances and must be judged from

App. 6

the viewpoint of a reasonable officer on the scene,

irrespective of the officer’s underlying intent or

motivation.” Id. at 848 (citations omitted). If an officer

has reasonable suspicion that a crime has occurred

and a subject has committed it, the officer may detain

the subject while the officer investigates that crime.

Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20

L.Ed.2d 889 (1968).

A. Initial Encounter

The initial encounter at the rest stop presents

no colorable claim that Gregory’s Fourth Amendment

rights were violated. “[C]onsensual communications

between officers and citizens[ ] involv[e] no coercion or

restraint of liberty.” Warren v. City of Lincoln, Neb.,

864 F.2d 1436, 1438 (8th Cir. 1989). A consensual

encounter between an officer and a citizen does not

trigger the Fourth Amendment. United States v.

Stewart, 631 F.3d 453, 456 (8th Cir. 2011) (citing

Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,

115 L.Ed.2d 389 (1991)). Here, a consensual encounter

began with Gregory handing over his identification

cards without being asked to do so. This inferred

consent was never explicitly revoked. Gregory never

gave the officers reason to believe that he no longer

wished to engage in the contact. Gregory never asked

for the return of his identification cards or whether he

could leave. Gregory has not pointed to any physical

restraint, blocking action, or other show of authority

that would indicate he was not free to leave. Instead,

Gregory urges us to find he was detained based upon

Deputy Clark’s hostility and angry tone in stating

“don’t play the race card with me.” This alleged

hostility occurred after Deputy Clark had handed

App. 7

back Gregory’s identification cards. Given the timing

of when the statement was made–it was the officer’s

parting words–it is of little weight when analyzing the

totality of the circumstances surrounding the

encounter. Because the entire interaction was

consensual, there was no seizure.

Even if we assume arguendo that the encounter

was not consensual, the officers had a sufficient

reasonable and articulable suspicion that warranted

the intrusion. While a person’s mere presence in a

suspicious location does not, in and of itself, justify a

Terry stop, Johnson v. Phillips, 664 F.3d 232, 237 (8th

Cir. 2011), the court is to “determine whether the facts

collectively provide a basis for reasonable suspicion.”

Stewart, 631 F.3d at 457. Here, the officers were

aware that shots had been fired in the vicinity of the

rest area. Gregory was the only person visible outside

the rest area. Gregory volunteered that he had a

permit to carry a gun and that he actually had one in

his possession.2 Taken in aggregate, these facts would

give an objectively reasonable officer articulable

suspicion to conduct a Terry stop.

B. Second Encounter

Although a number of facts surrounding the

second highway encounter are disputed, Gregory

acknowledged that a “detention did not occur when

[he] first pulled over his car because he pulled over

voluntarily.” (Appellant’s Br. 34). The parties have

The officers likely could have immediately completed their

investigation of Gregory if they would have asked to inspect

Gregory’s gun at the rest area. The fact that they did not do so,

however, does not affect the reasonable suspicion analysis.

2

App. 8

debated extensively whether there was anything

unusual about the manner or speed in which Gregory

left the rest area, or whether there was excessive

movement inside Gregory’s truck while he was

driving, or whether Deputy Clark had the ability to

observe Gregory’s movement inside the truck.

Because Deputy Clark did not conduct a traffic stop of

Gregory’s vehicle, these disputed issues are

insignificant to the particular constitutional issue

before us, and resolution of all of them in Gregory’s

favor would not establish a constitutional violation.

The disputed seizure implicating the Fourth

Amendment occurred when officers, with guns drawn,

ordered Gregory out of his car after he stopped

voluntarily on the exit ramp.

To justify an investigative seizure under Terry

v. Ohio, a “police officer must be able to point to

specific and articulable facts which, taken together

with rational inferences from those facts, reasonably

warrant” the intrusion. 392 U.S. at 21, 88 S. Ct. 1868.

When Gregory stopped his vehicle, Deputy Clark

knew Gregory had a firearm, but was unsure whether

it had been fired recently. After searching the building

and grounds of the rest area and failing to find anyone

else present, Deputy Clark had reason to follow up

with Gregory about inspecting the gun that Gregory

told him he had in his possession. Gregory had

informed the officers that he was traveling to Chicago,

but inexplicably made a U-turn in the opposite

direction while being followed by police. Finally,

Gregory pulled over and put his hands outside the

driver’s side window. While this is entirely consistent

with Gregory’s perspective that he was complying for

his own safety, the act is also unusual and may be

App. 9

indicative of guilty conduct. At the time Gregory

stopped his vehicle, police officers had reasonable and

articulable suspicion that criminal activity might be

afoot.

During the investigative seizure, Deputy Clark

investigated the gun quickly and efficiently, and the

period of detention lasted no longer than necessary to

effectuate the investigation. While Gregory was

handcuffed when the officers received information

that the firearm had been reported stolen, they were

removed as soon as the officers learned that Gregory

was the person who had reported the firearm stolen.

Handcuffing was a reasonable precaution and did not

elevate the Terry stop to an arrest. United States v.

Martinez, 462 F.3d 903, 908 (8th Cir. 2006). The

seizure of Gregory on the highway exit ramp did not

run afoul of the Fourth Amendment and was

reasonably related in scope to the circumstances

which justified the interference.

C. Excessive Force

“The right to be free from excessive force in the

context of an arrest is a clearly established right under

the Fourth Amendment’s prohibition against

unreasonable seizures.” Ngo v. Storlie, 495 F.3d 597,

604 (8th Cir. 2007) (quoting Samuelson v. City of New

Ulm, 455 F.3d 871, 877 (8th Cir. 2006)). “In

determining whether a particular use of force was

excessive, we consider whether it was objectively

reasonable under the circumstances, ‘rely[ing] on the

perspective of a reasonable officer present at the scene

rather than the 20/20 vision of hindsight.’ ” Perry v.

Woodruff County Sheriff Dept., 858 F.3d 1141, 1145

(8th Cir. 2017) (internal quotation marks omitted)

App. 10

(quoting Carpenter v. Gage, 686 F.3d 644, 649 (8th

Cir. 2012)).

We have previously found police officers were

entitled to qualified immunity when they pointed a

gun at a suspect during a pursuit. See Edwards v.

Giles, 51 F.3d 155 (8th Cir. 1995). In Edwards, we held

that the pointing of a gun did not constitute an

assertion of authority for Fourth Amendment

purposes where the display did not cause the suspect

to submit to the police officer’s authority and,

therefore, no seizure occurred. 51 F.3d at 157. Here,

like in Edwards, Gregory submitted to Deputy Clark’s

authority before the gun was drawn.

Gregory relies on cases from this circuit and

other circuits that have found that pointing a gun may

constitute an unconstitutional display of force. E.g.,

Rochell v. City of Springdale Police Dep’t, No. 17-3608,

2019 WL 1859237 (8th Cir. Apr. 25, 2019); Wilson v.

Lamp, 901 F.3d 981 (8th Cir. 2018); Mlodzinski v.

Lewis, 648 F.3d 24, 38 (1st Cir. 2011); Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1192-93 (10th

Cir. 2001). Those cases are not analogous to the

circumstances confronting the officers in this case.

They involve incidents where guns were pointed at

suspects for unreasonably long periods of time, well

after the police had taken control of the situation. In

this case, Gregory signaled compliance by putting his

hands out the driver’s side window. A reasonable

officer was justified in believing the situation was not

fully under control until Gregory had been removed

from the vehicle, patted down, and restrained. When

Gregory stopped his vehicle, officers knew Gregory

had a weapon, were aware that he had been the only

App. 11

identified person present in an area where shots had

reportedly been fired, and had reason to believe he

might be a suspect attempting to evade capture. *980

Under these circumstances, pointing a firearm at

Gregory for a few seconds while removing him from

his vehicle did not constitute excessive force, and did

not violate the Fourth Amendment.

D. Equal Protection

To prove an equal protection claim in the

context of a police interaction, Gregory must prove

that the officer exercised his discretion to enforce a

law solely on the basis of race. Johnson v. Crooks, 326

F.3d 995, 999-1000 (8th Cir. 2003). This requires a

showing of both discriminatory purpose and

discriminatory effect. Id. (citing United States v.

Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134

L.Ed.2d 687 (1996)). “[E]ncounters with officers may

violate the Equal Protection Clause when initiated

solely based on racial considerations.” United States

v. Frazier, 408 F.3d 1102, 1108 (8th Cir. 2005) (citing

United States v. Woods, 213 F.3d 1021, 1022-23 (8th

Cir. 2000)). “When the claim is selective enforcement

of the traffic laws or a racially-motivated arrest, the

plaintiff must normally prove that similarly situated

individuals were not stopped or arrested in order to

show the requisite discriminatory effect and purpose.”

Johnson, 326 F.3d at 1000 (citing Chavez v. Ill. State

Police, 251 F.3d 612, 634-48 (7th Cir. 2001);

Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir.

2000)).

Gregory has not provided sufficient evidence to

raise a fact question about whether he was singled out

for investigation because of his race. He has presented

App. 12

no evidence to establish that similarly situated

individuals were not stopped or investigated. He has

not identified any “affirmative evidence from which a

jury could find that [Gregory] has carried his ...

burden of proving the pertinent motive.” Crawford-El

v. Britton, 523 U.S. 574, 600, 118 S. Ct. 1584, 140

L.Ed.2d 759 (1998) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 91 L.Ed.2d

202 (1986)). While the statement “don’t play the race

card with me” may have been hostile and

unprofessional, it does not, alone, carry the burden of

showing racial discrimination on Deputy Clark’s part–

particularly so when the alleged discriminatory acts

are consistent with legitimate police work.

E. First Amendment Retaliation

To properly state a claim for First Amendment

retaliation, Gregory is required to show “a causal

connection between a defendant’s retaliatory animus

and [his] subsequent injury.” Osborne v. Grussing,

477 F.3d 1002, 1005 (8th Cir. 2007) (quoting Hartman

v. Moore, 547 U.S. 250, 259, 126 S. Ct. 1695, 164

L.Ed.2d 441 (2006)). As discussed above, the initial

encounter was consensual and Deputy Clark had

sufficient reasonable and articulable suspicion to

conduct an investigative seizure of Gregory. In light of

Deputy Clark’s legitimate motive to investigate, Clark

has failed to draw the requisite causal connection to

state a First Amendment retaliation claim.

III. Conclusion

For the foregoing reasons, we affirm the district

court’s grant of summary judgment.

App. 13

SMITH, Chief Judge, concurring.

I concur in the court’s holding that the district

court properly granted summary judgment in favor of

Deputy Clark, as he lacked “fair notice” of his

conduct’s unlawfulness. See Kisela v. Hughes, –––

U.S. ––––, 138 S. Ct. 1148, 1158, 200 L.Ed.2d 449

(2018) (per curiam) (explaining that qualified

immunity protects officers lacking “fair notice” of their

conduct’s unconstitutionality). I write separately to

express my disagreement with the court’s conclusion

that Deputy Clark had reasonable suspicion to stop

Gregory after Gregory departed from the rest area.

While Deputy Clark may have had reasonable

suspicion to stop Gregory at the rest area had Gregory

not consented to a search, that reasonable suspicion

did not extend beyond that interaction.

“A seizure may be accomplished either by

physical restraint or by sufficient show of authority.

The Terry seizure requirement is fulfilled when it is

apparent from the circumstances that the individual

was not free to ignore the officer and proceed on his

way.” United States v. Palmer, 603 F.2d 1286, 1288–

89 (8th Cir. 1979) (cleaned up).

[I]n determining whether [a] seizure and

search were unreasonable, this court looks at

whether the officer’s action was justified at its

inception, and whether it was reasonably

related in scope to the circumstances which

justified the interference in the first place. The

search must be strictly tied to and justified by

the circumstances which rendered its initiation

permissible.

App. 14

Wilson v. Lamp, 901 F.3d 981, 986 (8th Cir. 2018)

(cleaned up).

The court identifies (1) Deputy Clark knowing

that Gregory had a gun and his desire to inspect that

gun, (2) Gregory making a U-turn on the highway and,

(3) Gregory pulling over and putting his hands out his

truck’s window as supporting Deputy Clark’s

reasonable suspicion.

However, Gregory’s U-turn and surrender are

particularly unsatisfactory bases for reasonable

suspicion. By leaving Gregory without instructions to

remain and moving to inspect the restrooms, Deputy

Clark objectively indicated that the encounter had

ended. Gregory left the rest area, reasonably believing

his interaction with Deputy Clark had ended.

Likewise, after the encounter had ended, Gregory

could legitimately avoid further interactions with

police. See Florida v. Royer, 460 U.S. 491, 498, 103 S.

Ct. 1319, 75 L.Ed.2d 229 (1983); see also Illinois v.

Wardlow, 528 U.S. 119, 131, 120 S. Ct. 673, 145

L.Ed.2d 570 (2000) (Stevens, J., concurring in part

and dissenting in part) (explaining that “[f]light to

escape police detection ... may have an entirely

innocent motivation”). Nevertheless, Deputy Clark

followed Gregory for 19 miles—including across an

overpass after Gregory made a U-turn. Shortly after

making the U-turn, Gregory noticed “police cars all

over the area,” Appellant’s Br. at 12, and observed

police cars “positioned” at an exit he was nearing,

Mem. & Order at 3, Gregory Clark v. Austin Clark,

No. 1:16-cv-00094-AGF, 2018 WL 513590 (E.D. Mo.

Jan. 23, 2018), ECF No. 62; see also Gregory Clark

Depo. at 138, Gregory Clark v. Austin Clark, No. 1:16App. 15

cv-00094-AGF (E.D. Mo. Oct. 23, 2017), ECF No. 49-5

(testifying that he pulled over after observing police

cars in front of him on the exit overpass while being

followed by Deputy Clark). Afraid, and sensing from

this “show of authority” that he “was not free to ...

proceed on his way,” Palmer, 603 F.2d at 1289,

Gregory eventually stopped at an exit. Many

reasonable people traveling between states would be

unnerved by having local police follow and surround

them on the highway. See United States v. Peters, 10

F.3d 1517, 1522 (10th Cir. 1993) (explaining that a

nervous reaction to being followed and stared at by an

officer after having already been searched and

released was insufficient to support finding

reasonable suspicion). This does not resemble a

typical stop by police for a driving violation.

Nervousness in this scenario could easily reflect a

cautious consciousness of an imminent confrontation

rather than a guilty conscience. Furthermore,

“[r]easonable suspicion cannot be manufactured by

the police themselves.” United States v. Yousif, 308

F.3d 820, 829 (8th Cir. 2002).

Without Deputy Clark’s interaction with

Gregory at the rest area, Gregory would have been

just another traveler. Therefore, for the stop at the

exit to have been reasonable, the circumstances at the

rest area must have “justified [Deputy Clark’s]

interference” with Clark, because a “search must be

strictly tied to and justified by the circumstances

which rendered its initiation permissible.” See Wilson,

901 F.3d at 986 (internal quotations removed). While

I agree that Deputy Clark likely had reasonable

suspicion for a stop at the rest area, the question is

close. Gregory was present near the crime scene, and,

App. 16

being armed, had had the ability to commit the crime.

However, as the court notes, Gregory cooperated with

police at the rest area, answering officers’ questions

and voluntarily providing them with his military

identification

and

concealed

carry

permit.

Furthermore, the caller from the school had not

provided a description of the alleged shooter, and

Gregory was not engaging in any suspicious activity

when approached by Deputy Clark. C.f. United States

v. Quinn, 812 F.3d 694 (8th Cir. 2016) (finding

reasonable suspicion where suspect was not only one

of the only people in proximity to the crime scene but

also matched a description of the perpetrator and

acted suspiciously when approached by police).

Considering the closeness of the reasonable suspicion

question at the rest stop, Deputy Clark’s argument

that Gregory’s behavior on the highway augmented

the suspicion he developed at the rest area is weak.

Gregory’s behavior on the highway was a natural

reaction to being followed and surrounded by police,

not behavior likely indicative of a guilty conscience or

criminal activity. With no relevant additional

information to suggest that Gregory had in fact been

the shooter at the rest area, Deputy Clark’s decision

to stop Gregory at the exit after following him for 19

miles was not “reasonably related in scope to the

circumstances which justified the interference in the

first place,” or “strictly tied” to those circumstances.

See Wilson, 901 F.3d at 986 (internal quotations

omitted).

Neither does Deputy Clark’s desire “to follow up

with Gregory about inspecting the gun,” justify the

stop. See supra Part II.B. The Fourth Amendment’s

protections are not so easily undermined by second

App. 17

thoughts. See United States v. Garcia, 23 F.3d 1331,

1335–36 (8th Cir. 1994) (finding officer lacked

reasonable suspicion for a second stop where officer

released suspects after deciding not to hold them

pending the arrival of backup).

Considering the totality of the circumstances, I

conclude that Deputy Clark lacked reasonable

suspicion for the exit stop and therefore violated

Gregory’s Fourth Amendment rights.

Nevertheless, that right was not established in

a “particularized sense,” as of January 2016. See

Mettler v. Whitledge, 165 F.3d 1197, 1203 (8th Cir.

1999). For the reasons stated by the court in Part II.B.

of this opinion, Deputy Clark could have reasonably

believed that he had the authority to conduct the stop

at the exit. Consequently, the district court properly

granted summary judgment in Deputy Clark’s favor.

App. 18

APPENDIX B, DISTRICT COURT OPINION

United States District Court

Eastern District of Missouri

Eastern Division

___________________________

No. 1:16-CV-00094 AGF

___________________________

GREGORY CLARK,

Plaintiff,

v.

AUSTIN CLARK, DEPUTY,

in his individual capacity only,

Defendant.

____________

January 23, 2018

____________

Audrey G. Fleissig, United States District Judge

MEMORANDUM AND ORDER

This action, brought by Plaintiff Gregory Clark

under 42 U.S.C. § 1983 against Defendant Austin

Clark in his individual capacity as deputy sheriff of

Ste. Genevieve County, Missouri, is before the Court

on Defendant’s motion for summary judgment.

Although this is a close case in some respects, for the

reasons set forth below, the motion will be granted as

to all claims.

App. 19

BACKGROUND

The record establishes the following for

purposes of the motion before the Court. In the early

afternoon of January 25, 2016, a 911 call was received

by the Ste. Genevieve County Sheriff’s Department

from the Bloomsdale Elementary School about

gunshots fired near the school coming from the area of

a nearby highway rest stop or adjacent woods.

Defendant and Detective Mathew Ballew were driving

in the vicinity of the rest stop when the police

dispatcher radioed them to investigate the complaint.

Specifically, they were advised, “There is a report of

shots fired near the rest stop, possibly in the wooded

area between the rest stop and the elementary school.”

The officers drove to the rest stop, arriving

there four to ten minutes after receiving the call. They

parked, and saw three vehicles and one person in the

parking area. The person was Plaintiff, who is

African–American. He was seated at a picnic table

near his pick-up truck at the end of the parking area

that was near the woodland. The officers approached

Plaintiff and asked him if he had heard any shots, and

Plaintiff responded that he had not. Plaintiff told the

officers that he was armed, and immediately gave the

officers, without being asked, his concealed carry

permit, his driver’s license, and his military

identification card. He told the officers that he was on

his way from Memphis to Chicago.

Defendant “ran” Plaintiff’s identification, that

is, he called the information in to the Sheriff’s

Department to check for warrants or criminal history,

and was told that Plaintiff was “clean.” This process

took one to two minutes. Plaintiff asked Defendant

App. 20

why he had “run” him and Defendant responded that

his boss liked to know to whom he was talking.

Plaintiff said words to the effect of, “If I were someone

else you wouldn’t have run me,” and testified that

Defendant responded, in an angry tone, “Don’t pull the

race card on me.”

Defendant and Ballew walked away to the

building in the rest area that contained a rest room.

When the officers were walking to the building,

Plaintiff went to the back of his vehicle, got out a

bottle of water, got into the vehicle, took his weapon

off his side and placed it in the center console. He then

drove out of the rest area onto the highway heading

north. The officers testified that they believed

Plaintiff left to avoid further questioning. They

returned to their car and followed Plaintiff, driving

close behind him. Defendant testified by deposition

that he observed Plaintiff moving about in the front

seat of the pick-up, for a “long duration,” moving

toward the passenger seat and center console. ECF

No. 42–2 at 28–29. Although Plaintiff does not deny

that he was moving in his truck, he maintains that his

back window was tinted, such that Defendant could

not have observed this. In support, Plaintiff submits a

photograph of the back window of the pick-up. The

Court is unable to discern from the photograph

whether someone driving behind the pick-up would

have been able to observe movement in the front seat.

But the Court does rely on this disputed fact in

reaching its determination below.

Approximately two miles north of the rest area,

Plaintiff exited and crossed over the highway, and

reentered the highway travelling south. Plaintiff

App. 21

testified that he did so to avoid the police. Defendant

called for other officers in marked patrol cars to come

and pull Plaintiff over. After driving about 19 miles,

with Defendant and Ballew following him, Plaintiff

neared an exit where other police cars were

positioned. Plaintiff testified as follows: “I decided to

pull over once I seen there were several police cars all

over the area, I decided to pull over on my own. No one

pulled me over.” ECF No. 42–1 at 22. Upon pulling

over, Plaintiff parked his pick-up truck on the exit

ramp and put both his hands out the window of his

vehicle.

Defendant and about four other officers

approached Plaintiff’s truck with guns drawn, and

told him to get out of the vehicle. Plaintiff did so.

Defendant’s bodycam recording shows that as he was

approaching Plaintiff’s vehicle, Defendant’s gun was

in a “low ready” position, but as he got closer, he raised

his arm so that the gun was pointed at Plaintiff.

Defendant and/or other officers searched Plaintiff and

ordered him to stand away from his vehicle. Plaintiff

testified that after he was patted down, Defendant

“immediately grabbed the keys” from Plaintiff’s

vehicle, went to the back of the truck, opened the

tailgate, and started searching the back of the truck.

EFC No. 42–1 at 25. Defendant asked Plaintiff where

his gun was located. Plaintiff stated that it was in the

console, and Defendant found it there. Defendant’s

bodycam recording reflects that Defendant asked

Plaintiff how many rounds he had in his gun and

Plaintiff responded that he didn’t know as he had not

fired the gun in years. Defendant determined that

Plaintiff’s gun was missing two bullets. When asked

about the two missing bullets, Plaintiff said he

App. 22

couldn’t explain it, and repeated that he had not fired

the gun in several years.

Defendant asserts that he did not search the

cargo area of the pick-up, and relies on footage from

his bodycam recording to support this assertion.

Based on its viewing of the recording, the Court

concludes that it refutes Plaintiff’s rendition of the

facts on this matter—the recording shows the

happenings during the time frame in which Plaintiff

alleges Defendant searched the cargo area, and it does

not depict such a search by Defendant, or any other

officer, then, or at any other time.

A deputy at the scene called the gun’s serial

number into dispatch and a report came back that the

gun was stolen. Plaintiff explained to the officers that

he had reported the gun as stolen when he had left the

military and it was lost in transit, but the gun was

found a few days later and he filed a follow-up report.

Plaintiff was then handcuffed on Defendant’s orders.

Defendant and Ballew left the scene, and a few

minutes later, the other officers at the scene received

confirmation that the gun had been reported as found,

and that it did belong to Plaintiff. At some point, an

officer smelled Plaintiff’s gun and determined it had

not been shot recently. Plaintiff was released.

Approximately 20 minutes elapsed from when

Plaintiff was patted down until he was released.

According to Plaintiff, when he got back in his vehicle,

he drove a few miles to a gas station, and there

checked his gun and determined that there were two

bullets less in the gun than had been there at the

beginning of the incident.

App. 23

In his seven-count amended complaint,

Plaintiff asserts claims for unconstitutional seizure in

detaining Plaintiff at the rest stop while running an

identification check on him, in that Plaintiff was not

free to leave because Defendant had Plaintiff’s permit,

license, and identification card (Count I);

unconstitutional seizure at the highway exit ramp

(Count II); excessive use of force in approaching

Plaintiff with a drawn gun at the exit ramp (Count

III)3 ; unconstitutional search of the cargo area of

Plaintiff’s vehicle at the exit ramp (Count IV); and

theft of two bullets, in violation of Plaintiff’s

substantive due process rights (Count V). Plaintiff

also asserts an equal protection claim, alleging that

Defendant’s first detention of Plaintiff at the rest area,

which led to the subsequent events, was based on

Plaintiff’s race (Count VI); and a First Amendment

free speech claim, alleging that Defendant called for

additional police cars, detained Plaintiff at the exit

ramp, used excessive force, conducted the cargo area

search, and stole the bullets all because Plaintiff

suggested at the rest stop that Defendant would not

have detained someone who was not African–

American (Count VII). In each count, Plaintiff seeks

compensatory and punitive damages.

ARGUMENTS OF THE PARTIES

In support of his motion for summary

judgment, Defendant argues that he is entitled to

qualified immunity on all counts. More specifically, he

argues that his conduct was objectively reasonable

under the circumstances when he ran Plaintiff’s

Plaintiff has withdrawn his claim that having him handcuffed

was also an unconstitutional use of force.

3

App. 24

identification information at the rest stop. Defendant

maintains that Plaintiff was “the author of his own

detention” by voluntarily giving Defendant the

permit, license, and identification that rendered him

unfree to leave. Defendant argues that, moreover,

Defendant had objectively reasonable grounds to

detain Plaintiff for the one minute it took to run the

identification information because “Plaintiff’s conduct

created reasonable suspicion that Plaintiff could have

or was about to commit a crime” in light of the “shots

fired” dispatch moments earlier. ECF No. 42 at 9.

Thus, according to Defendant, the encounter at the

rest area was a permissible investigatory stop under

Terry v. Ohio, 392 U.S. 1 (1968).

Defendant argues that the totality of

circumstances provided him not only reasonable

suspicion, but also probable cause that Plaintiff was

involved in the reported shots fired, thereby justifying

the detainment on the exit ramp. Defendant points to

the facts that Plaintiff was the only person visibly

present at the rest stop when Defendant and Ballew

arrived to investigate the shots fired call, Plaintiff was

armed, he was defensive about his information being

run, he immediately left the rest stop when the

deputies walked away to continue the investigation,

he appeared to be moving something in the passenger

seat or center console as he was driving, and he

changed directions on the highway.

Defendant next argues that he is entitled to

qualified immunity with respect to the excessive force

claim, as approaching Plaintiff’s vehicle with his gun

drawn was objectively reasonable under the

circumstances. With respect to Plaintiff’s remaining

App. 25

claims, Defendant argues that his bodycam recording

shows that he did not search the cargo area of Plaintiff

truck, and in any event, probable cause existed for this

search; the theft of two bullets, even if true, does not

state a substantive due process claim, which requires

conscience-shocking conduct; and Plaintiff has failed

to provide any evidence showing a discriminatory

purpose in Defendant’s conduct, or that any of

Defendant’s actions were motivated by Plaintiff’s

suggestion at the rest area that Defendant “ran”

Plaintiff’s information due to Plaintiff’s race.

In response to the motion for summary

judgment, Plaintiff essentially reasserts the facts and

claims in his amended complaint. With respect to

Count I, he argues that the circumstances did not

provide any articulable facts to support a reasonable

suspicion that Plaintiff had fired the shots near the

school that would have justified a Terry stop, and

running Plaintiff’s identification, however briefly that

took. With respect to Count II, Plaintiff argues that

Defendant had no reasonable grounds to stop and

detain Plaintiff at the exit ramp and that Defendant,

therefore, seized Plaintiff in violation of the Fourth

Amendment. Plaintiff maintains that none of the facts

relied on by Defendant (such as Plaintiff leaving the

rest area, changing direction on the highway, and

possessing a gun), separately or in combination, were

sufficient to give Defendant a reasonable belief that

Plaintiff committed a crime or was dangerous.4

In response to the motion for summary judgment, Plaintiff does

not argue that the duration of the stop exceeded the time

necessary to investigate the matter – he asserts that there was

no probable cause or reasonable suspicion for the stop. With

4

App. 26

Plaintiff maintains that approaching him with

a gun pointed at him was also unreasonable under the

circumstances, and thus constituted excessive force

under the Fourth Amendment. Plaintiff acknowledges

that the Eighth Circuit has not ruled directly on

whether pointing a gun at a person can be excessive

force, but he points to other circuits that have so held,

and argues that the lack of authority from the Eighth

Circuit does not mean that a clearly established right

is not involved, for purposes of qualified immunity.

Plaintiff argues that no reasonable officer could have

believed that pointing a gun at Plaintiff under the

circumstances presented here, was constitutional.

Plaintiff next addresses the claim that

Defendant’s search of the cargo area of the pick-up

truck was unconstitutional. He maintains that a fact

question is presented as to whether the search

occurred, and that no circumstances justified this

search. With respect to the substantive due process

claim involving the alleged theft of two bullets,

Plaintiff argues that the theft shocks the conscience

because it implied an attempt to frame Defendant for

the shots fired near the school, something he did not

do.

Plaintiff maintains that his equal protection

claim survives summary judgement because the

statement by Defendant at the rest stop, “don’t play

the race card with me,” said an angry tone, shows

respect to the duration, the Court notes that at least half the time

of the detention related to the report that the gun was stolen, and

the investigation and resolution of that report. Plaintiff has

abandoned his related claim that handcuffing him after receipt

of the report that the gun was stoles was excessive force.

App. 27

animus over race. Lastly, Plaintiff argues that his

criticism of Defendant at the rest step for “running”

Plaintiff’s identification (“If I were someone else you

wouldn’t have run me would you have was run me?”)

was protected speech, and the connection between

that criticism and Defendant’s subsequent actions

challenged in this case is a question for the jury.

DISCUSSION

Summary Judgment Standard

Federal Rules of Civil Procedure Rule 56(a)

provides that summary judgment shall be granted “if

the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to

judgment as a matter of law.” In ruling on a motion

for summary judgment, a court is required to view the

facts in the light most favorable to the non-moving

party. Sokol & Assocs., Inc. v. Techsonic Indus., Inc.,

495 F.3d 605, 610 (8th Cir. 2007). “[T]he burden of

demonstrating that there are no genuine issues of

material fact rests on the moving party,” and the court

must view “the evidence and the inferences that may

be reasonably drawn [therefrom] in the light most

favorable to the non-moving party.” Allard v. Baldwin,

779 F.3d 768, 771 (8th Cir. 2015). “The nonmoving

may not rely on allegations or denials, but must

demonstrate the existence of specific facts that create

a genuine issue for trial....The nonmoving party’s

allegations must be supported by sufficient probative

evidence that would permit a finding in his favor on

more than mere speculation.” Mann v. Yarnell, 497

F.3d 822, 825 (8th Cir. 2007) (citations omitted).

Qualified Immunity

App. 28

The doctrine of qualified immunity

shields officials from civil liability so long as

their conduct ‘does not violate clearly

established...constitutional rights of which a

reasonable person would have known. he

dispositive inquiry in determining whether a

right is clearly established is whether it would

be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.

The qualified immunity analysis thus is limited

to the facts that were knowable to the

defendant officers at the time they engaged in

the conduct in question. Facts an officer learns

after the incident ends—whether those facts

would support granting immunity or denying

it—are not relevant.

Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017)

(citations omitted).

[O]fficers are entitled to qualified

immunity under § 1983 unless (1) they violated

a federal statutory or constitutional right, and

(2) the unlawfulness of their conduct was

clearly established at the time. “Clearly

established” means that, at the time of the

officer’s conduct, the law was ‘sufficiently clear

that every reasonable official would understand

that what he is doing is unlawful. In other

words, existing law must have placed the

constitutionality of the officer’s conduct beyond

debate.

Dist. of Columbia, v. Wesby, –––S. Ct. ––––, 2018 WL

491521, at (Jan. 22, 2018) (citations omitted); see also

Solomon v. Petray, 795 F.3d 777, 786 (8th Cir. 2015).

App. 29

To be clearly established, a legal principle must

have a sufficiently clear foundation in thenexisting precedent. The rule must be settled

law, which means it is dictated by controlling

authority or a robust consensus of cases of

persuasive authority.... The clearly established

standard also requires that the legal principle

clearly prohibit the officer’s conduct in the

particular circumstances before him. The rule’s

contours must be so well defined that it is clear

to a reasonable officer that his conduct was

unlawful in the situation he confronted.

Wesby, 2018 WL 491521, at (citations omitted). “[I]f a

reasonable officer might not have known for certain

that the conduct was unlawful—then the officer is

immune from liability.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1867 (2017). “Once the predicate facts are

established, the reasonableness of the official’s

conduct under the circumstances is a question of law.”

Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001)

(citation omitted).

Encounter at Rest Area

The Court agrees with Defendant that that he

is entitled to qualified immunity on Plaintiff’s claim

that Plaintiff was subject to an unconstitutional

seizure at the rest area. The evidence, even when

viewed in the light most favorable to Plaintiff, does not

demonstrate the deprivation of a constitutional or

statutory right that was clearly established at the

time of the encounter. Plaintiff claims that he was

detained because he was not free to leave while

Defendant had Plaintiff’s identification items that

Plaintiff gave him.

App. 30

Although the Fourth Amendment

prevents police officers from seizing a person

without a reasonable suspicion of criminal

activity, scrutiny under the amendment is not

triggered by a consensual encounter between

an officer and a citizen. A seizure does not occur

simply because a police officer approaches an

individual and asks a few questions so long as

a reasonable person would feel free to disregard

the police and go about his business. Even when

officers have no basis for suspecting a

particular individual, they may generally ask

the individual questions and request to

examine his or her identification. Only when

the officer, by means of physical force or show

of authority, has in some way restrained the

liberty of a citizen may we conclude that a

seizure has occurred.

United States v. Stewart, 631 F.3d 453, 456 (8th Cir.

2011) (citations omitted). Under the undisputed facts

of this case, no clearly established rights of Plaintiff

were violated at the rest area. Rather it began as a

consensual encounter, during which time Plaintiff

volunteered his identification and concealed carry

permit. Given that Plaintiff admitted he was armed,

and was in the area from which there was a report of

shots fired, the officers reasonably could detain

Plaintiff for the minute or two it took to run an

identification check on him. Thus, Defendant did not

violate Plaintiff’s clearly established rights, nor would

it have been clear to a reasonable officer that what he

was doing was unlawful.

Detention at Exit Ramp

App. 31

As noted above, Plaintiff testified that it was

his own decision to exit the highway when he saw

police cars at the location, and that no one pulled him

over. Thus the Court concludes that no police stop

occurred until the officers approached Plaintiff’s

vehicle with guns drawn and ordered him to exit the

vehicle. The Court further concludes, that this

detention constituted an investigatory, or Terry stop.

An investigatory, or Terry, stop without a warrant is

valid

if police officers have a reasonable and

articulable suspicion that criminal activity may

be afoot. When justifying a particular stop,

police officers must be able to point to specific

and articulable facts which, taken together

with rational inferences from those facts,

reasonably warrant that intrusion. A Terry

stop may turn into an arrest if the stop lasts for

an unreasonably long time or if officers use

unreasonable force.

United States v. Navarrete–Barron, 192 F.3d 786, 790

(8th Cir. 1999) (citation omitted).

Under the circumstances of this case, the Court

concludes that a reasonable officer would not have

known for certain that detaining Plaintiff at this point

in time was unlawful. Although each separate factor

relied upon by Defendant, such as Plaintiff’s presence

at the rest stop, might not have provided Defendant

with a reasonable, articulable suspicion, see, e.g.,

Johnson v. Phillips, 664 F.3d 232, 237 (8th Cir. 2011)

(holding that it was clearly established that a person's

presence in a suspicious location does not, in and of

itself, provide law enforcement with a reasonable,

App. 32

articulable suspicion to justify a Terry stop), taking all

the factors present here together, a reasonable officer

might have concluded that detaining Plaintiff at the

exit ramp was not unlawful. See United States v.

Stewart, 631 F.3d 453, 457 (8th Cir. 2011) (“In

considering the reasonableness of an officer’s

suspicion, [a court] must determine whether the facts

collectively provide a basis for reasonable suspicion,

rather than determine whether each fact separately

establishes such a basis.”).

Again, it is undisputed that Plaintiff was the

only person the officers saw at the rest stop within

minutes of when they received the dispatch of shots

fired near the rest are. Plaintiff admitted he was

armed. When the officers went to check the building

with the restroom, Plaintiff left and got on the

highway. A few miles later, Plaintiff exited and got on

the highway driving the opposite direction from where

he had told the officers he was headed. After seeing

the officers were still following him, and increased

police presence, Plaintiff exited the highway, stopped

his car, and put his hands out the window. Although

Plaintiff has explained that he engaged in this conduct

simply to get away from the police, when assessing

qualified immunity, the Court must examine the facts

from the perspective of those knowable to the officer

at the time. Although a contrary conclusion might also

be reasonable, objectively viewing the facts, a

reasonable officer could conclude that Plaintiff’s

actions were very suspicious and perhaps even that

Plaintiff was ultimately surrendering. In sum,

although the events underlying this lawsuit were

understandably disturbing to Plaintiff, qualified

App. 33

immunity is available to Defendant on this claim as

well.

Approaching Plaintiff with a Gun Pointed at Him

As to whether Defendant is entitled to qualified

immunity on Plaintiff’s excessive force claim, “the

Fourth Amendment requires [a court] to ask, from the

perspective of a reasonable officer on the scene,

whether the officers’ actions are objectively

reasonable in light of the facts and circumstances

confronting them, without regard to their underlying

intent or motivation.” Franklin for Estate of Franklin

v. Peterson, 878 F.3d 631, 635 (8th Cir. 2017) (citation

omitted). The Court and the parties were unable to

identify Eighth Circuit precedent addressing the issue

directly of whether pointing a gun at an individual—

in and of itself—can violate the Fourth Amendment

under some circumstances, case law from other

circuits suggests that it can. See, e.g., Mlodzinski v.

Lewis, 648 F.3d 24, 38 (1st Cir. 2011); Robinson v.

Solano Cty., 278 F.3d 1007, 1013–15 (9th Cir. 2002)

(en banc).

However, even if this was “clearly established”

as a general rule, the rule’s contours were not so well

defined such that it would be clear to a reasonable

officer that Defendant’s conduct was unlawful in the

situation he confronted. Defendant knew Plaintiff had

a weapon on him, and even if Defendant did not see

Plaintiff’s movements in the front seat as Plaintiff was

driving, it would not have clear to a reasonable officer

that approaching Plaintiff with a gun pointed at him

was a violation of Plaintiff’s rights. See, e.g.,

Navarrete–Barron, 192 F.3d at 790. Thus, the Court

concludes, that viewing the evidence in the light most

App. 34

favorable to Plaintiff, Defendant is entitled to

qualified immunity on Plaintiff’s excessive force claim.

Remaining Claims

The Court will grant Defendant summary

judgment on Plaintiff’s remaining claims. As noted

above, the Court concludes that Defendant’s bodycam

recording establishes that Defendant did not search

the cargo area of Plaintiff’s truck at the exit ramp

when or as Plaintiff alleges. Plaintiff does not

challenge the accuracy of the recording, and, indeed,

it is the same recording on which Plaintiff relies for

establishing that Defendant’s approached Plaintiff

with a gun pointed at him.

The Court agrees with Defendant that even if

he took two bullets from Plaintiff’s gun, this would not

constitute a violation of Plaintiff’s substantive due

process rights.5 While Plaintiff claims that the theft

shocks the conscience because Defendant took the

bullets to frame Plaintiff with them, there is no

evidence of this being Defendant’s motive, and no

evidence to support the claim in general, especially in

light of Plaintiff’s statements at the exit ramp that he

did not know how many bullets were in his gun at the

time.

Lastly, as Defendant argues, Plaintiff has

presented insufficient evidence to support his Equal

Protection or First Amendment claims. Defendant’s

statement at the rest area, “don’t play the race card

Although it remains unclear whether Plaintiff is asserting a

property or liberty substantive due process claim, his opposition

brief appears to discuss a liberty interest. ECF No. 52 at 26.

5

App. 35

with me,” even if said in an angry tone, does not

provide sufficient evidentiary support to proceed with

this claim. See Johnson v. Crooks, 326 F.3d 995, 999–

1000 (8th Cir. 2003) (holding that a police officer was

entitled to summary judgment on a claim that a Terry

stop was racially motivated, where the plaintiff

offered no evidence, other than her own personal

opinion, that the stop was racially motivated; such a

claim normally requires proof that similarly situated

individuals were not stopped); Ratliff v. City of

Shannon Hills, 52 F. Supp. 3d 904, 913 (E.D. Ark.

2014) (granting qualified immunity to officers on the

plaintiff’s Equal Protection claim that she was

arrested because of her race, due to lack of evidence

that similarly-situated people were not stopped or

arrested). The First Amendment claim is even more

deficient in evidence. Thus, Defendant is entitled to

summary judgment on these three remaining claims.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that motion of

Defendant Austin Clark for summary judgment is

GRANTED.

App. 36

APPENDIX C, DENIAL OF REHEARING

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1324

___________________________

GREGORY CLARK,

Plaintiff – Appellant,

v.

AUSTIN CLARK, DEPUTY,

in his individual capacity only,

Defendant – Appellee.

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

JUDGE ORDER: Denying petition for en banc

rehearing filed by Appellant Gregory Clark. The

petition for panel rehearing is also denied. Judges

Gruender did not participate in the consideration or

decision of this matter.

July 16, 2019

App. 37