*1 below-guidelines might sentence Cunningham’s prescription run afoul of primary, all of the defendant’s

consider sentencing argu-

potentially meritorious

ments, but this is not such a case.

Here, gave qualitative consid- judge sentencing arguments

eration Poetz’s rejecting request her for home con-

before prison sentence imposing

finement and guidelines range. applicable

well below the weight with disagrees

That Poetz evidence not make

judge gave her does below-guidelines sentence unreason- Haskins,

able. See United States v. (7th Cir.2007) (“Although disagrees

Haskins with the district court’s

assessment of the circumstances surround-

ing weight the offense and the amount of situation, that given family

to be to his any way

does not in undermine the fact gave meaningful the court consider- 3553(a) factors,

ation to the section as re-

quired properly for us to calcu- uphold (citations

lated sentence.” and internal omitted)).

quotation marks

Affirmed COOK;

Cook, Appellants, VILLA;

CITY OF BELLA Chief of Locke, Jr.,

Police Edward in his capacity, Appellees.

individual

No. 08-2712. Appeals,

United States Court of

Eighth Circuit. April

Submitted: 2009.

Filed: Oct. 2009.

Rehearing Rehearing En Banc Dec.

Denied 2009.* * Wollman, Judge Judge Murphy, Judge Bye, Judge participate Gruender did not in the Judge Melloy Judge Shepherd would consideration or decision of this matter. grant petition rehearing en banc. *4 claim, assault and bat-

state law indecent trial, tery. During jury at the close evidence, granted all the district court judgment as a matter of law on the Cooks’ liability municipal claim. The then remaining found for Chief Locke on the Locke, claim that Chief in violation of the Amendment, improperly Fourth touched Diane. The now seven er- Cooks assert rors. affirm. We

I. BACKGROUND Background A. Factual 26, 2005, August On Diane and her hus band, Michael, friends, joined two Eliza (Walkmaster) beth Walkmaster and Bren Schock, Louis, MO, argued, W. Bevis St. *5 Markley (Markley), da to celebrate Diane’s appellant. for car; birthday. Diane drove her mother’s Gunn, Louis, argued, F. Priscilla St. MO picked up Diane and Michael Walkmaster (Jessica Liss, brief), appellee. L. on the for Markley; and and the four arrived at (K.C.’s) BENTON, Bar at RILEY, approxi KC.’s and Grill Before and SHEPHERD, Judges. mately p.m.2 Circuit 7:00 Diane claims she had two bar, beers while seated at the and then she RILEY, Judge. Circuit had a third beer with dinner. Michael (Diane) Diane Cook and Michael Cook only that Pepsi evening, drank but he did (Michael) Cooks), (collectively, filed suit medications, prescription take including against Locke Chief Police Edward Jr. inhaler, Vicodin, and Robaxin. Walkmas (Chief Locke) City and Bella Villa Russians, ter consumed two white and (City) (collectively, Appellees) for Markley consumed four to six rum and rights federal civil violations. The Cooks Cokes and considered herself to be supplemental included state law claims “drunk.” against prosecu Chief Locke for malicious Diane, midnight,” little before Mi- “[A] battery, tion and indecent assault and and chael, Walkmaster, Markley and decided City against theory respondeat on a Walkmaster, to leave KC.’s because who superior. voluntarily The Cooks dismissed diagnosed had been with a terminal brain superior their state law respondeat claims tumor, feeling Upon was not leaving well. City. Appellees filed motion K.C.’s, drove, Diane Walkmaster was seat- summary for judgment on the Cooks’ re seat, passenger ed in the front maining grant claims. The district court1 in passenger was seated the rear seat be- in judgment part, leaving only ed Walkmaster, Markley hind sat three claims for the to consider. The pursue remaining Cooks did not the one rear Diane. seat behind After passenger Sr., Diane, Stephen Limbaugh, 1. The Honorable N. where she waited about two hours for Judge Michael, United States District for the Eastern and Walkmaster to arrive. Missouri, District of now retired. Markley deposition 2. stated in her that Mark- K.C.’s, ley's dropped Markley husband off car’s front trip opened patrol passen- home Locke gas, for followed

stopping door, purchase cigarettes, vehicle, 'a money, ger side reached home. drove towards Walkmaster’s Diane get cigarette instructed Diane to rid of the driving in Bella Villa usually avoids Diane smoking. she was Chief Locke asserts he “reputation” for has a because preliminary asked Diane to blow into a occasion, trap.” On this being “speed breath test device and to submit to three hurry get in a claims she was Diane tests, sobriety field but Diane refused. At home, so Diane decided to Walkmaster Michael, point, straining who was this Bella through drive Villa. vehicle, see out the back window of the Bayless on Ave- proceeded Diane west opened passenger the rear side door about nue, stopped light at a near the entrance could out of the ten inches so he see door. car Highway patrol and noticed a Diane “asserts when Chief Locke pulled behind her. The officer was had requested preliminary her to blow into a Locke, Diane nor Mi- whom neither Chief device[,] by holding breath test he did so met. Locke claims chael had ever demanding his fist closed and that she Bayless monitoring traffic at 3955 he was it, explaining blow all without either vehicle, driving Avenue when he saw testing that he had alcohol device in a[n] lane, yellow the double the fast cross over why his hand or he wanted her to blow times. Diane denies street lines three into his hand.” Diane maintains she asked crossing over the street lines. Chief Locke, “Why,” and Chief Locke re- lights car’s Locke activated his you I sponded, “Because told to. That’s sirens, Highway Diane over on pulled “Well, why.” replied, I don’t under- parked behind the vehicle 55. Chief *6 stand,” answered, and Chief Locke “You driving, approached the driver’s Diane was a single have failed to maintain lane for a vehicle, and asked Diane for side of argued, full Diane then mile.” and insurance card. her driver’s license starters, you For haven’t been behind license, produced Diane her driver’s but mile, second, me for a full and for I don’t in her could not locate the insurance card hand, you your know what have in Diane searched for a mother’s car. After from, it came what it’s for.... where time, stated, Locke “Don’t period of Chief even, know, you any- You haven’t said card.” worry about the Chief [insurance] that, know, you stumbling, I’m I’m thing if Locke then asked Diane she had been alcohol, you stinking know. Don’t drinking. “sarcastically” replied Diane you do some kind of roadside test or “working was on 32 ounces of Diet she sobriety test or—You haven’t looked understood Pepsi,” although Diane Chief my eyes anything. whether Diane had inquiring Locke was “I responded, Locke asserts Diane claims Chief Locke consumed alcohol. Chief Diane slurred her words and smelled I and I can can do whatever want choose slurring want, alcohol. Diane denies her words I give you to whatever test so either if and states she does not know she jail you you’re going blow this or to like alcohol. smelled “[f]ine,” Diane said and Chief DWI.” Locke instructed Diane to turn around and asked Diane to exit her Chief Locke her hands behind her back because she put complied, following and Diane vehicle driving was under arrest for while intoxi- patrol of his car. Chief Locke to the front complied by putting Diane her cated. swaying Diane was and Chief Locke states back, and when Chief balance, hands behind her lost her but Diane states almost her, exclaimed, Locke handcuffed she walking “very steadily.” Chief she was dude, said, and “Yo what’s the Diane con- vehicle “Fine. see who’s drunk.” We’ll and, touching her onto “You can’t be her problem?” Locke then slammed tends Chief respond- Diane patrol thataway.” hood of his car. Michael described Chief “Damn, Danno, sarcastically, stating, headlights.” ed like deer in “[a] Locke looked easy.” take it Walkmaster also exited vehicle or yelling crying. was Chief Locke states, when he saw Chief get dered to back into the Walkmaster onto the hood of the Locke “slam[ ] [Diane] vehicle, complied. and Walkmaster Mi car, car,” get out he started get chael did not back the vehicle be “Mike, don’t do Markley responded, him, “I’ll talk cause Chief Locke told back down. At it.” Michael decided to sit you reports in a minute.” Diane opened had also Chief point, this Walkmaster Michael, crying yelling, “She Locke marched her towards her door and was any- said, car,” didn’t do anything. fucking She back in the and in didn’t do “Get you doing?” motion, are thing. pulled What the same out his taser and simultaneously tased Michael.3 made the “Danno says after she remark,” be- Locke thrust knee Michael describes these events as fol- legs, and while Diane was still tween her lows: car, hood of the leaning on the know, thing The next I [Chief Locke] her, begin- stroke began paw us, walking started towards so I took moving down to ning at Diane’s waist and step cigarette my one back. I had a buttocks. Diane testified Chief Locke right flip hand. I looked down to onto and “rubbing down butt [her] I him say something, ashes and heard thighs, then] around [her] [and inner/outer what, you you but know I couldn’t tell the front.” Diane could hear Mi- around know, what because the next think I I’m yelling, chael and but she told Walkmaster laying ground doing on the a fish. them, It okay.” “I’ll take care of it. will be only step Michael maintains he took one Locke then slid his Diane claims Chief toward Chief Locke and Chief Locke never began hands under her sweater and get told him to in the back car. “working up up from [her] his hands waist *7 slamming Locke denies Diane Chief to sides towards breasts.” Mi- [her] [her] patrol onto the hood of his car or conduct- stepped point chael out of the car at that ing any of pat kind down or search of yelling and was at Chief Locke. Diane Instead, person. Diane’s Locke tes- Chief than a passed claims less minute from the a tified he did not have time to conduct began

time Chief Locke to touch her to the because, search of Diane as he started to stepped time Michael out of the vehicle. handcuffs, place left into Diane’s hand that Michael testified when he saw Chief passenger opened. rear side door Chief Locke slide his hands down Diane’s but- getting Locke did not know who was out of legs, tocks and in between her Michael car, and Chief Locke ordered the indi- declared, “Oh, hell no!” get and started to stay vidual to the car and close the door. again. out of the car Michael saw Chief Locke that he at- begin Locke to slide his hands under Di- Chief contends as jacket, arrest, stepped tempted place ane’s so Michael out of the Diane under Mi- police 3. This was not the first occasion when Mi- Another officer officer. police During chael was tased officer. thought pushing Michael the first officer. deposition, his Michael testified that about type The second officer used the same years four before he was tased when he prong as Chief used Michael. taser Locke on tripped yard, falling and fell in his front handcuffed, Chief began yelling Once Michael was exited the vehicle and chael Locke, going not to ar- back of the “[Y]ou’re at Locke took Michael to the Chief wife, wife, my you’re touching not my get rest car and told him to in the car. patrol arresting my not wife.” Chief you’re got Michael in the car Chief Locke relates get says yelled he Michael Locke without further incident. Michael con- Locke could con- in the car so Chief back immediately get tends he was not able to Diane. Locke ex- handcuffing tinue Chief patrol into the back of the car because he Di- handcuffing finished that as he plains a back which makes it diffi- has condition ane, Locke and Michael ran toward Chief him sideways. cult for to bend When an- in an at- Locke’s shoulder pushed Chief scene, at the other officer arrived away to move Chief Locke from tempt charges put Chief Locke his hand on Mi- Diane. Locke continued hold Chief him pushing chael’s head and started into hand, pulled left out onto Diane with his car, which resulted in Chief Locke hand, right with his and darted the taser slamming Michael’s head into the door and Michael in the chest. cutting the left side of Michael’s head. reports that after Michael Chief officer, County second St. Louis ground, Locke walked fell to the Chief officer, Locke, arrived to who assist Chief patrol placed Diane car and her had called for after assistance he tased passenger front seat. Chief Locke Michael. attempted contends he tased Michael and Locke and the second officer Diane because Michael’s quickly to secure ditch, looked for the taser darts in the concern, posed big safety they actions as Markley they told Walkmaster highway, standing were on side of would need to call to pick someone them on approached and Michael Chief Locke’s up. Markley’s picked up. husband them gun shoving side before Chief Locke on Chief Locke asked Diane if she would Diane claims that after the shoulder. impounded rather have the vehicle or pri- Michael, Locke tased Chief Locke vately discussion, towed. After some car, the trunk slammed on Chief Locke decided the car would be im- Michael, placed walked over to and then pounded. patrol Chief Locke exited the patrol Diane in the car. arrived, truck car when the tow and Diane placed Diane in While Chief Locke got asserts that when Chief Locke back car, patrol Michael removed the darts car, into the he reached his hand from them in a ditch. his chest and threw palm up under her buttocks with his up, Chief Locke contends Michael stood grinned at Diane and looked back and immediately again, ran at him and made grinned at Michael. *8 contact with Locke’s shoulder. Chief station, Upon police arrival at the Chief grab Chief Locke states he was able to Locke for failing cited Diane to maintain a car, him put against Michael and but single driving lane and for while intoxicat- attempted to push back as Chief court, trial in ed. Diane went to state was began Locke to handcuff Michael. Mi- offenses, guilty on both found and was merely attempting chael he was declares years probation. to two Mi- sentenced grabbed up to stand when Chief Locke for interfering police chael was cited with a him against him and threw the side of resisting officer and arrest. Michael’s Diane’s mother’s vehicle. Michael claims charges were dismissed because the con- Chief Locke then handcuffed Michael and giving charges rise to the occurred pushed against him the side of the duct again car, city splitting right eye open. Michael’s outside Bella Villa’s limits. touching against Chief improper claim of History

B. Procedural Locke, for and returned a verdict Chief 17, 2006, filed suit the Cooks On October for a new Diane filed motion Locke. City, and the assert- Locke against Chief trial, which the district court denied. alleged I claims: Count ing separate five Michael’s Diane’s and Locke violated Chief appeal, claiming the dis- The Cooks now and Fourteenth the Fourth rights under (1) dismissing in trict court: erred subjected Amendments when Chief (2) claims, in erred excessive force Cooks’ touching and used ex- improper judgment for Appellees’ motion granting Michael; alleged II force on Count cessive City’s law as to the munici- as a matter of Locke’s con- City was for Chief liable (3) analysis in pal liability, erred its under theories of mu- violations stitutional (4) challenge, abused its Batson Cooks’ liability; alleged City III nicipal Count denying in the Cooks’ motion for discretion under liable for Chief Locke’s conduct of a witness show- a new trial on the basis theory respondeat superior; IV Count (5) jury, to the ing inadmissible exhibit indecent as- asserted state law claims of in refusing its discretion the Cooks’ abused battery against and assault and sault (6) instruction, jury abused its proposed Locke; asserted a state law and Count V denying in the Cooks’ counsel’s discretion prosecution malicious in request to make certain statements clos- instituting charges against Mi- Locke for (7) abused its discretion ing argument, 9, 2007, the Cooks August chael. On motion for a new denying the Cooks’ respondeat superior moved to dismiss the Appellees’ improp- trial after counsel made state law claims Counts IV closing argument. er statements V, granted court and the district 10, 2007. Cooks’ motion on December II. DISCUSSION a motion for Appellees filed A. Excessive Force Claims judgment on November 2007. The dis- court, 8, 2008, Ap- April granted trict on argue the court mis The Cooks district pellees’ part, dismissing motion in Mi- takenly granted Appellees’ motion for claim and Diane’s chael’s excessive force summary judgment on the Cooks’ Fourth process substantive due claim. The dis- “This Amendment excessive force claims. permitted proceed trict Diane to court grant reviews a district court’s court (1) I alleging trial on three claims: Count novo, summary judgment viewing de improperly Chief Locke touched Diane favorably non-moving most to the evidence (2) Amendment; violation of the Fourth Ark. party.” Davenport v. Univ. Bd. alleging Count II should be liable Trustees, 1112-13 Cir. violations; constitutional Chief Locke’s omitted). 2009) (citation “To defeat a mo (3) alleging Count IV Diane’s state law summary judgment, party may tion for battery. Di- claim of indecent assault and upon allegations, pro not but must rest pursue remaining state law ane did not probative evidence sufficient to dem duce claim. genuine onstrate a issue material [of fact] began April A trial on 2008. At (citation omitted). for trial.” Id. at 1113 evidence, Appellees the close of all the *9 [42 “To state claim under law, as a matter of judgment moved for 1983, allege § must the plaintiff U.S.C.] granted Appellees the district court right of a the Consti violation secured dismissing municipal the part, motion States, tution and laws of the United liability against City. the deprivation constitutional must show that the then considered Diane’s

849 unnecessary peace of a person acting was committed under seem the Atkins, of state law.” v. chambers, color West 487 judge’s violates the Fourth 48, 2250, 42, 108 S.Ct. 101 L.Ed.2d 40 U.S. (quoting Amendment.” Id. Johnson v. “ (citations omitted). (1988) right ‘The (2d Glick, Cir.1973)) 1028, 481 F.2d 1033 clearly be free from excessive force is a (internal omitted). marks right established under the Fourth prohibition against Amendment’s unrea 1. Michael’s Claims ” person.’ sonable seizures of the Moore Viewing the facts in light most Indehar, 756, v. 759 Cir. Cooks, favorable to the stepped Michael 2008) (quoting Wright, Guite v. out of the vehicle to confront Chief Locke (8th Cir.1998)). “A 750 section 1983 when Michael saw what he believed to be supported police action is when a officer inappropriately touching Chief Locke Di (ci right.” violates this constitutional Id. began yelling ane. Michael at Chief Locke omitted). tation step and took one forward. employed by The force an offi car, get instructed Michael to back into the excessive, cer is not and thus not violative simultaneously and Chief Locke tased Mi Amendment, the Fourth if it was “ob placing chael. After Diane in the front of jectively particular reasonable under the car, picked Chief Locke circumstances.” Greiner of up ground off the and slammed Michael Champlin, 27 1354 Cir. against Diane’s mother’s car. Chief Locke 1994) (citation omitted). “Determining get then instructed Michael to in the patrol particu whether the force used to effect a car, but difficulty when Michael had get lar seizure is ‘reasonable’ under vehicle, ting in the Locke pushed requires Fourth Amendment a careful car, hitting Michael into the Michael’s head balancing quality ‘nature of the on the door.4 intrusion on the individual’s Fourth In evaluating Appellees’ motion for sum- against Amendment interests’ the coun mary tervailing government judgment, interests at stake.” the district court conclud- Connor, 386, 396, ed, conduct, Graham U.S. tasering Locke’s “[Chief] (1989) (quot S.Ct. L.Ed.2d 443 causing Michael’s head to strike the Garner, 1, 8, ing Tennessee v. 471 U.S. vehicles, subject objectively reason- [was] (1985)) (in L.Ed.2d 1 105 S.Ct. able as matter of law.” The court con- omitted). ternal marks This reasonable tinued, “In being addition to alone and analysis requires ness us to evaluate the by presumably outnumbered intoxicated circumstances, totality of including suspects, Diane’s sarcastic comments and crime, severity danger of the the sus noncompliance, coupled with Michael’s others, pect poses to the officer or and wayward exiting behavior in the vehicle suspect actively whether the resisting opposing Locke’s arrest search and/or (citation or attempting arrest to flee. Id. respond could lead a reasonable officer to omitted). right It is clear “the to make in the manner described of Locke.” [Chief] investigatory stop necessarily an arrest or agree. We it right carries with to use some de arrest, During the course of the gree physical coercion or threat thereof (citation omitted). pushed Michael claims Chief Locke Mi to effect it.” Id. “Not shove, every push may if it chael even later the side Diane’s mother’s pages 4. The dissent criticizes this tion of the events is contained on non-summarized, descrip- through opinion. events. A detailed 8 of this *10 850 Reeder, dissent, Hickey v. quoting also

car, eye. Michael cutting Michael’s 754, Cir.1993), asserts 12 F.3d 757 of a cut to the back asserts he sustained painful that use a taser “inflicts a of forced Michael head when Chief Locke his blow,” “inflicted frightening and when before us car. The record into the reason, supports the legitimate without injuries these pictures contains of objective compo- Eighth Amendment’s marks on Mi- puncture two which reveal Hickey is phrase nent.” The salient from where the taser darts en- chael’s chest legitimate “inflicted without reason.” The most, tered, and, Michael’s scrape at a jail presented circumstances to the officials granting eyebrow. In its memorandum Hickey vastly were different than the summary judgment on Michael’s excessive presented circumstances to Chief claim, court noted the force the district In when he decided to use his taser. by injury sustained any significant lack of jail shot an inmate with a Hickey, official physical injury. permanent Michael and no sweep gun stun after the inmate refused question in open “It remains an cell, posed and the inmate no threat an excessive force this circuit whether contrast, In jail officials. Id. at 758. inju minimum level of requires some prison Chief Locke was not in a secure 825, ry.” Namanny, v. 219 F.3d Hunter alone, facility, highway, but was on a state omitted). (8th Cir.2000) (citations 831 ar- midnight. at While Chief Locke was lack, However, degree, minor of or driver, resting uncooperative an during an arrest is rele injury sustained hysterically and Walkmaster were shout- of considering the reasonableness vant stepped at then ing Chief Locke. Michael Greiner, 27 the force used. See F.3d vehicle, step out of the and took a toward 1355; Krueger, see also v. 433 Wertish Chief Locke. (8th Cir.2006) 1062, (concluding 1067 Hickey, recognized this court “relatively scrapes minor and bruises” “summary applications of force are consti- “less-than-permanent ag combined with a security tutionally permissible prison when gravation prior of a condition shoulder order, safety or other inmates of injuries”

were de minimis which did not officers, placed jeopardy.” or has been force); support finding of excessive cases). (collecting Id. at 759 The same Paul, Crumley City v. 324 F.3d St. un- applications true for of force evaluated (8th Cir.2003) (explaining “a de mini- See, e.g., der the Fourth Amendment. injury mus use of force or is insufficient to City Valley, 574 F.3d Brown Golden support finding of a constitutional viola Cir.2009) (explaining, “[a] tion”); Comm’n, Airports Foster v. Metro. safety justify can threat to officer’s (8th Cir.1990) (noting involving relatively use of force in cases “allegations pain being as a result of suspects minor crimes and who are not handcuffed, without some evidence of more actively attempting resisting arrest injury, are sufficient to permanent [not] flee,” holding safety but insufficient con- force”). support claim of excessive woman, [a] present cerns were when who Similarly, injuries officers, sustained Mi frightened by police called a the rea measuring chael are relevant operator and was tased when she dis- of the force used Chief obeyed sonableness the officer’s demands to terminate arrest, call); During Locke. the course of his Lawyer Council (8th Cir.2004) only scrapes Bluffs, Michael sustained minor puncture (finding taser marks which did not no excessive force and the officer’s two objectively when the offi- require medical treatment. action reasonable *11 of a deployed pepper spray preexisting any inside back condition or oth- cer after the officer reached stopped vehicle problem proximately er neck or back to unlock the door his arm the window by caused Chief Locke. roll the window began up the driver Locke was responding to a arm); Draper Reyn- the officer’s onto rapidly escalating situation when he used (11th Cir.2004) olds, against force Michael. midnight, Around when an officer (finding no excessive force Chief Locke was outnumbered four to one driver, truck and the driv- stopped

tased a experiencing yelling and was and non-com er, step had been instructed to behind who pliance from three of four individuals when hostile, vehicle, belligerent, “was his car step Michael exited the and took a officer, uncooperative,” yelled toward Locke. “The ‘reasonable five commands to comply refused to with particular ness’ of a use of force must be certain from his vehi- retrieve documents cle). judged perspective from the of a reason Draper the Eleventh Circuit rea- soned, scene, gun a taser is an on “being struck able officer rather than with single ... unpleasant experience [but] Graham, hindsight.” vision of 20/20 causing a one-time gun use of the taser (citation 490 U.S. at 109 S.Ct. 1865 any ... inflict shocking did not serious omitted). We must allow “for the fact that injury.” explained, Id. And the court “The police officers are often forced to make single gun may use of the taser well have split-second judgments circumstances —in physical struggle and serious prevented tense, uncertain, that are rapidly harm to either truck [the driver] [the evolving the amount of force that is —about Id. officer].” necessary in a particular situation.” Id. at complaint allege

Michael’s does not a 397, 109 S.Ct. 1865. Under the circum aggravation of his permanent preexisting stances, Chief Locke’s use of force condition, back nor did Cooks’s Memo- objectively Michael was reasonable and in Opposition randum to Defendants’ Mo- does not amount to a violation of the Summary Judgment, ap- tion for or their Hayek Fourth Amendment. See this court. Michael pellate briefs before Paul, St. Cir. deposition testified he went to 2007) (“If allegations undisputed general practitioner days see a three after facts do not amount to a constitutional physician the incident. Michael told his he violation, necessity there is no for further experienced pain” “stiffness and in his inquiries concerning qualified immunity.” shoulder, physician and his had Michael (citation omitted)); see also Pearson v. undergo x-rays and a CT scan. When — Callahan, -, 808, 172 U.S. 129 S.Ct. results, asked about the test Michael testi- (2009). L.Ed.2d 565 fied, “Everything looking came back Well, good.... there was some stuff in 2. Diane’s Claims there, but it wasn’t from [Chief Locke].” The Cooks also contend the dis asked, your pre- Michael was “Other than trict court in dismissing erred Diane’s ... existing problems anything was there excessive force claims on your knowledge?” new to Michael an- court, judgment. The district its swered, asked, “No.” Michael was also granting partial summary memorandum you making “Are neck or judgment, expressly never addressed an injuries back ... as a result of Chief excessive force claim Diane. asserted responded, Locke’s arrest?” Michael admission, likely This is because the com By Cooks’ “No.” his own Michael de- claiming any permanent aggravation plaint directly to a claim nies failed assert *12 included complaint as if the Diane. motions Cooks’ involving excessive force inap- may Chief Locke complaint by a claim Diane for excessive force— Diane in a sexual touched propriately written consent to liti- express constitute the Fourth manner in violation the claim. gate Amendment, court which the district insuffi Appellees’ Even if conduct were necessarily objective- was not concluded consent to constitute written cient reasonable, go permitting the issue ly 15(b) provides complaint, amend the Rule jury. ato by consent. See implied for amendment allege complaint did The Cooks’ 15(b)(2) (“When an not Fed.R.Civ.P. issue Diane’s head onto a ve- “slammed” by the by pleadings raised the is tried Appellees separate hicle on two occasions. consent, implied or it must parties’ express includ- complaint the as construed Cooks’ respects in all as if raised the be treated force ing a claim for excessive 15(b) provides While Rule pleadings.”). in their this claim Diane and discussed pleading with methods to amend a parties stating, judgment, motion for trial, there any during time or after and is alleges in I that “Diane Cook also Count directly applicable to this situation fore not used excessive force effec- Chief Locke the parties where the intended to amend tuating her arrest in violation of her trial, rights Amendment when Chief the Federal Rules complaint Fourth before head down onto the Locke ‘slammed’ her pleading recognize do instances when car.” hood of his may implied be amended the consent 15(b), parties. Under Fed.R.Civ.P. to amend While the Cooks never moved “[ajmendments par are allowed when the claim, to include such a complaint their an unpleaded ties have had actual notice of force Cooks included Diane’s excessive given adequate and have been issue opposition claim in their memorandum summary judg- resulting Appellees’ opportunity surprise motion for to cure ment, parenthetical and drafted a in the Kim v. change pleadings.” from the argued, “Diane Cook’s excessive force Co., Nash Finch specifically pled claim is not the ‘Count Cir.1997) Armstrong (quoting Nielson the claim is portion complaint, I’ but Co., Rubber Cir. supported by allegations the factual earlier 1978)). Thereafter, complaint.”

in the both case, had notice of Appellees In this Appellees addressed Di- Cooks and claim, Diane’s additional excessive force if it been ane’s excessive force claim as had Appellees responded to Diane’s pled complaint. in the properly pled in expressly as if the claim had been Federal Rule of Civil Procedure 15 de- complaint. upon the Cooks’ Based party the methods a must use to scribes here, com- presented facts we assume the 15(a) ex- pleading. amend Fed.R.Civ.P. amended, plaint expressly either pleading may that a be amended plains a claim impliedly, to include trial, once as a matter of course before Although force. charging excessive receipt responsive pleading, before of a claim in district court failed to discuss this cases, may party all other “[i]n memorandum, the district court never- its only opposing with pleading amend its Diane’s excessive force theless dismissed party’s written consent or the court’s summary judgment claim on in its order to amend leave.” The Cooks never moved ... ... motion However, stating, “Defendants’ complaint. Appellees’ their con- RE- IN ALL subsequent their GRANTED OTHER drafting duct—in each of therefore SPECTS.” We consider this is- clude Chief Locke’s use of force against appeal. sue on objectively Diane was reasonable under circumstances, and we decline to fur- Construing light the facts in the most qualified ther conduct a immunity analysis. Diane, Locke threw Di- favorable *13 Hayek, See F.3d at against separate ane a vehicle on two occa- 488 1054. place The first occurrence took af-

sions. put ter Chief Locke asked Diane to Municipal Liability B. hands her back behind so Chief Locke could handcuff Diane. Locke When Chief After the district court partially Diane, exclaimed, handcuffed she “Fine. granted Appellees’ motion for drunk.” We’ll see who’s Chief Locke then judgment, only two issues remained for slammed her head and chest on the hood (1) trial: whether Chief Locke improperly patrol car. Diane asserts she re- Diane, touched violating her Fourth “Damn, sponded sarcastically, stating, (2) rights; Amendment whether the Danno, easy.” take it a short After time City was liable for Chief Locke’s constitu vehicle, of passed, stepped Michael out tional violations. At the close of all the Locke tased Diane Chief Michael. evidence, the district granted Appel court Michael, claims after Chief Locke tased judgment lees’ motion for aas matter of Chief Locke slammed Diane onto the law as to the issue of municipal liability. car, Michael, trunk of her walked over The Cooks contend the district court placed thereafter Diane in and soon erred. We review the district court’s deci car. Diane never she sus- grant judgment sion to as a matter of law injury of any being tained as result de novo. City Springfield, See Miller v. vehicles, against thrown these and she ad- (8th (citation 612, Cir.1998) 614 any not request mits she did medical omitted). “Judgment as a matter of law is attention. proper party fully when ‘a has been heard Chief Locke was alone and unassisted on an issue and there no legally suffi by other officers when he was confronted evidentiary cient basis for a reasonable rapidly escalating with a confrontation in- ” jury party to find for that on that issue.’ volving occupants four of a vehicle. Diane 50(a)(1)). (quoting Id. Fed.R.Civ.P. sarcastic, noncompliant yelling shouting Walkmaster were Chief was not found liable Locke, at and Michael stepped out of any constitutional violation. Absent a step the vehicle and took a toward Chief tense, violation, constitutional there can evolving Locke. Under these cir- be no cumstances, a municipal liability. reasonable officer on the City See Sanders v. may scene responded have the same 523, Minneapolis, 474 F.3d 527 Cir. manner as Locke. 2007) (citations omitted) (“Without a con stitutional violation the individual offi any injury Diane did not sustain cers, § there can [42 be no 1983 or U.S.C.] allegedly being from thrown Serv., Dept. Monell Soc. 436 [v. U.S. See, Greiner, e.g., two vehicles. at F.3d 2018, (1978) 98 S.Ct. 56 L.Ed.2d 611 ] Generally, 1355. allegations of officer’s Thus, failure to train municipal liability.”). force, use of a de minimis amount of with whether, we need not consider at the close out resulting injury, are insufficient to evidence, of all the a legally there was support finding of a constitutional viola 1007; evidentiary sufficient basis for a reason Crumley, tion. See 324 F.3d at Fos ter, jury at 1082. We therefore con- able to find the liable. of the three- Challenge findings step in the third ty Batson C. test, by Snyder, required as part Batson on Diane’s During selection 1207. This court has consis- 128 S.Ct. touching improper Amendment Fourth find- specific no factual tently concluded peremp their claim, used one of Appellees En- necessary. Xpress U.S. ings are 13. Juror to strike Juror tory challenges Trans., Inc., 320 F.3d ters. v. J.B. Hunt African-American on last 13 was the held, Cir.2003), court this challenged the strike and Diane jury panel, case, of this the circumstances Kentucky, 476 U.S. “Under under Batson (1986), a full Batson adequately 90 L.Ed.2d record discloses 106 S.Ct. ju prospective challenges against forbids we find that the failure of analysis, and appeal, on race. On rors based analysis step judge *14 trial to articulate his failing in erred the district court claims clear three on the record did not constitute to her analysis Batson proper conduct a strongly urge did district error.” We challenge. rulings ar- courts to “make on-the-record underlying a de- ticulating reasoning the a Bat-

“In order to succeed on objection.” a Id. termination on Batson satisfy a three challenge, party a must son (citation omitted). Frontenac, v. part-test.” Doss Cir.1994) Batson, 1313, (citing 1316 Similarly, Roper, in Smulls 1712). First, 96, an at 106 S.Ct. 476 U.S. Cir.2008) (en banc) (citations 853, 860 prima must make a facie objecting party omitted), again explained, our court “feder- challenge was peremptory that a showing required explicit fact- al law has never Snyder of race. made on the basis challenge, a es- findings following Batson Louisiana, 472, -, 128 S.Ct. 552 U.S. prima a facie case is ac- pecially where (2008) (cita 1207, 1203, 175 170 L.Ed.2d presents knowledged prosecution and the omitted). Second, prima if a facie tions nondiscriminatory reasons on the specific made, party striking showing has been ruling A court’s on a Bat- record.... trial juror “must offer a race-neutral basis a factual determina- challenge son is itself juror question.” Id. striking for tion, upheld rul- repeatedly and we have Dretke, 545 (quoting Miller-El v. U.S. reasoning.” ings made without additional (2005) 277, 125 S.Ct. 162 L.Ed.2d 196 concluded, then “We do not read the We (Thomas, J., Third, dissenting)). the trial case ad- Supreme Court’s most recent object court must determine whether hold otherwise.” Id. dressing Batson to proven question has the ultimate ing party 1203). at (citing Snyder, 128 S.Ct. (citations Id. purposeful discrimination. omitted). finding “A court’s case, district court present In the the district selec purposeful discrimination three adequately completed each of the question a of fact which we process tion test. The district prongs of the Batson clear only findings if the were will reverse gave oppor- Diane’s counsel an court first (cita Doss, 14 at ly F.3d erroneous.” showing facie tunity prima to make omitted). findings judge’s tion “The trial made on the peremptory challenge was large regarding purposeful discrimination claimed the basis of race. Diane’s counsel ly credibility turn on determinations and holding a violation of the strike was great deference this are thus afforded the last Appellees Batson because struck (citing Bat appeal.” court on Id. jury panel African-American from a 1712). son, 476 at 98 n. 106 S.Ct. U.S. jurors adequately “the selected would not community.” The dis- reflect the entire specifically argues the dis court, plaintiff is a Cauca- noting trict trict court failed to make detailed credibili- female, PBT, explained, “I don’t think was ample legiti- sian seen there you’ve prima facie We made a case.” description by mate the witness of its However, the district court contin- agree. appearance and its use. “In prong stating,

ued to the second “We review district court’s caution, I will counsel abundance of cause denial of motion for a new trial for abuse nondiscriminatory to articulate reasons of discretion.” Co. Rottlund v. Pinnacle neutral making the Once a race [strike.]” (8th Cir.2006) Corp., explanation provided, the district (citation omitted). 60(b)(3), Under Rule gave court counsel an opportunity Diane’s terms, just motion may “[o]n the court respond, counsel declined. party legal representative relieve or its concluded, district court then “I believe order, from a final judgment, proceed that the reasons articulated counsel for ... ing by an misconduct opposing the defendants were neutral and non-dis- 60(b)(3) party.” prevail “To aon Rule criminatory, will so I overrule the Batson motion, the moving party ‘must establish challenge jury.” court to the The district party engaged that the adverse in fraud or analysis conducted a Bat- sufficient under other misconduct and that this Smulls, conduct son. See 535 F.3d at 860. *15 prevented the moving party fully from and ” D. Inadmissible Exhibit fairly presenting its case.’ E.F. Hutton Berns, & v.Co. 757 F.2d 216-17 The Cooks filed a motion for a Cir.1985) trial, new alleging, among charges, Stridiron, other (quoting Stridiron v. that trial during testimony, (3d Cir.1983)). F.2d 206-07 “The improperly waived a preliminary movant’s burden of is proof one of ‘clear (PBT) breath of test device front the convincing and evidence.’” Id. (quoting jury while the district court the was Co., Rozier Ford Motor process holding of the PBT inadmissible. (5th Cir.1978)). “It is within the trial The Cooks now the district court discretion court’s to determine whether grant erred in to a failing new trial under 60(b)(3) met, the Rule been test has and on 60(b)(3), permits Fed.R.Civ.P. such only the inquiry review is whether there relief opposing party engages when an (cita has been abuse of discretion.” Id. misconduct. omitted). tion the for a considering Cooks’ motion The district court did not err in denying trial, new the court explained district the the Cooks’ motion for a new trial. It was only PBT was excluded from evidence be- within the district court’s discretion to find Appellees cause failed to list the PBT as a conduct, Chief Locke’s whether intentional trial not exhibit and because the PBT de- inadvertent, or did prevent not the Cooks vice was The irrelevant. court acknowl- fully fairly from and presenting their case. edged the concern Cooks’ “that the exhibit permitted Because Locke was was by [Chief flourished in front of Locke] provide detailed of description the PBT jury the in violation of the ruling,” Court’s device, any showing improper of the device concluded, “Nonetheless, but error the merely duplicative was of other evidence harmless.” district court explained, The presented at trial. Although during questioning, [Chief was not allowed to the display Locke] Jury E. Instruction PBT, interrogated he specifically Diane also claims the district like, about what a PBT looks how it is court its when operated general the abused discretion the court implementa- and jury tion of the Had not proposed jury device. the declined use Diane’s in- torso; thereafter, plaintiffs touched of the quoted portion struction which car. the dis- buttocks the review “We Fourth Amendment. of jury instructions for abuse

trict court’s Second, conduct was unreason- Spiess, Boesing able, discretion.” omitted). Cir.2008) (citation

886, 890 Third, result, Di- plaintiff a direct as “ court broad dis- the district afford ‘[W]e damaged. ane Cook was choosing language the form and cretion in any If the above elements have not of jury ‘willreverse the of instructions’ proved by greater weight the been only if the erroneous instruction verdict evidence, your the then verdict must be ” Id. rights.’ substantial party’s affected a for the defendant. Li- Prods. Liab. (quoting Prempro In re the district court’s Diane asserts refusal (8th Cir.2008)). tig., 514 F.3d jury violated give Diane’s instruction “ the is limited to whether review ‘[0]ur rights “because without her substantial instructions, a whole and viewed taken as jury not have a clear instruction the did and applicable the evidence light in the of the case.” understanding point law, submitted fairly adequately disagree. provid- The have not Cooks We ” at jury.’ Id. [in case] issues infer- any reasonable ed evidence omitted) (internal (quoting marks 890-91 jurors not to indicate the did have ence Litig., In re Prod. Liab. Prempro case. in- understanding clear The 829). fairly given by district court structions court considered Diane’s district accurately submitted to and, instruction after substantial proposed touching in the context improper issue deliberation, explained, *16 an unreasonable Fourth Amendment of I searched the model forms recom- seizure, have the district court not did by Eighth the Circuit commit- mended in disallowing its Diane’s abuse discretion giving portions tee as the of all of or to proposed jury instruction. provisions

of a the as of constitution [sic] Closing Argument F. Restricted the and can part charge of case and, I’m to accordingly, going find none after the Immediately district give that it inappropriate determine is to jury in proposed court denied the Cooks’ reject I the instruction and will Amendment, on the Fourth the struction request for it to be offered. sought permission the court’s to Cooks Fourth Amendment and the discuss the Instead, the the district court instructed Rights closing argument. Bill of The jury, request. court denied the Cooks’ district plaintiff for Di- Your verdict must be argue The Cooks now the district court ane Cook defendant Chief “Regulation abused its discretion. Locke, her civil Edward Jr. on federal arguments the parties’ closing rests within rights touching dur- improper for trial discretion of the court will not be if ing following arrest all the ele- her of unless clear abuse discretion disturbed by been proved greater ments have Stores, is found.” v. Wal-Mart Williams weight of the evidence: (8th Cir.1990) Inc., 1364 Locke, First, defendant Chief Edward omitted). (citations body plaintiff Jr. stroked Diane Cook’s denying her In the over her clothes near the area of district court’s order trial, her for a legs, crotch and on stroked Cooks’ motion new district explained, skin under her shirt in the area of her court

857 jury required to the in- proper, nothing. is follow there’s been He has a them, by given structions the Court to perfectly clean and unblemished record por- of and the consideration statutes now we have this accusation involv- tions of are relevant the Constitution not this man’s ing reputation, this honorable fact, closing argument. arguing person serving who is the community. portions quite of the Constitution could statement, object The Cooks did not to this jury easily confuse when the nor Cooks did discuss statement in required only by follow the given law closing their rebuttal argument. the Court to them. The statement Appellees’ made coun- Discussing the Fourth Amend closing argument sel in was a false state- Rights ment of during closing and the Bill Multiple ment. complaints had been filed argument in a Fourth Amendment viola against Chief Locke at the time of the tion may permissi case be reasonable and trial, Cooks’ several of which mis- ble in certain situations. This discussion conduct similar to Cooks’ incident. jury. Permitting could be beneficial to the Villa, See Cavataio v. Bella 570 of that discussion or not is within the broad (8th Cir.2009); 1015 F.3d Schmidt v. City range judge’s of a That distinct discretion. Villa, Cir.2009); Bella 564 F.3d judicial is the definition discretion: the Locke, Copeland No. 07-CV-2089 realm of decisions within which a reasoned (E.D.Mo.2009). judge questions expressly decides not con trolled fixed rules law. “This court examines the dis We conclude the district court did not trict ruling closing arguments court’s on abuse its when it discretion refused for an abuse of discretion because of its permit party argue law not discussed superior vantage in to judge preju jury. the court’s instructions Cf. City Omaha, dice.” Billingsley v. Mabry, United States v. 248- (8th Cir.2002) (citations F.3d omit (8th Cir.1993) abrogation on other ted). Generally, trial new “[a] should be grounds recognized in United States granted where the improper conduct of (8th Cir.2000) Sheppard, 219 in closing argument *17 counsel ‘plainly [is] (finding prosecutor’s a of the discussion ” clearly injurious.’ unwarranted and Id. in argument law closing was not error Hilke, (quoting 804 F.2d Griffin when prosecutor’s the “were comments (8th Cir.1986)). However, “[a] failure consistent with the court’s instructions on object to to during statements made clos subject”). the ing argument objection.” waives such (citations omitted). “Only Id. in extraordi Closing G. False in Ar- Statements situations, nary prevent in to ‘plain order a gument miscarriage justice,’ of will a reviewing argue The Cooks the district court court reverse a judgment upon based er abused in its discretion Cooks’ denying the objected rors not to at trial.” Lange v. motion for a new trial on of the basis Schultz, (8th Cir.1980) 627 F.2d Appellees’ material counsel’s misstatement (quoting Disposal, Wichmann v. United during closing argument. Appel of fact Inc., Cir.1977)). stated, lees’ counsel object Because the Cooks failed to There no to the complaints have been other Locke], Appellees’ statements made involving during closing his im- involving [Chief properly patting argument, down touch- and the do not people or Cooks assert ing something woman im- doing extraordinary [sic] circumstances which would told Michael the car. Chief Locke reversal, the beside we affirm district support to that Locke would talk Michael a new trial. denial of court’s where he a minute. Michael remained III. CONCLUSION was, smoking a Chief Locke cigarette. Diane where Michael was then walked the judgment of district affirm the

We one toward standing. step Michael took court. Locke told Michael Chief Locke. Chief SHEPHERD, concurring Judge, Circuit and, car” at the “[g]et fucking in the back dissenting in part. part time, tasered Michael. same Chief Locke taser never saw the taser. The Michael in the balance of the Although I concur in the chest and shoul- darts hit Michael I with ma- majority’s opinion, disagree the At that ground. der. fell to the Michael that, the facts jority’s when determination Diane informed Chief Locke point, are consid- all inferences reasonable problems, including medical Michael had to Mi- most favorable light ered the attack, injured severely heart history of on required chael—as review district ’ back, neck surgeries. two grant summary judgment court’s —Chief against force Michael was Locke’s use of Diane, Chief Locke handcuffing After did not amount objectively reasonable and Michael, the returned to who remained on There- to a Fourth Amendment violation. pulled up Michael ground. Chief Locke fore, II. I from Part respectfully dissent (Michael weighed 112 ground off the opinion, the majority’s affirming A.1 of time) body pounds at the and slammed his force claim dismissal of Michael’s excessive then into the side car. Chief Locke ground. on that holding Michael. both handcuffed While majority acknowledges, hands, As the re- “[w]e of Michael’s took Mi- grant court’s view de novo district neck pushed chael him viewing all facts and judgment, car, open splitting the side of the the skin light in the most reasonable inferences eye. then right above his Chief Locke nonmoving favorable to [Michael] [as] car. Michael back to walked v. Nat’l Union Fire Ins. party.” Merriam get Chief Locke told Michael into Pittsburgh, Co. began forcing patrol ear and him into Cir.2009). view, my majority’s car. Diane told Chief Locke that Michael underlying facts Michael’s statement of the injuries. had neck and back incomplete light excessive claim is force him a minute to give asked Chief Locke to neglects of the standard of review it get into the vehicle because was difficult all facts and inferences “view[] reasonable sideways to into get for Michael to bend *18 Michael, light as in the most favorable to” Instead, Locke the car. Chief took Mi- must. id. we See by pushed chael head back of his and vehicle, causing into the it to head alleged by Mi-

Based on the facts as strike the of the door frame. This side chael, Locke Michael witnessed Chief in a cut on the back of Michael’s resulted touching way Diane in a that Michael be- pushed head. Locke then Michael Chief to inappropriate. lieved be When Chief seat, into Michael fell into the the back moving began Locke his hands underneath of assessing seat. In the reasonableness area, Diane’s shirt toward her breast Mi- conduct, on fac- we stated, “focus[] Chief Locke’s Michael chael exited vehicle. at severity ‘the of the crime ‘To, tors such as dude, problem? You can’t what’s issue, imme- suspect poses an Michael whether touching thataway.” be When or comments, safety to the of officers standing diate threat made those he was

859 factor, others, suspect] regard is active- to the With second [the whether facts, Michael, in construed favor of do not attempting or to evade ly resisting arrest ” suggest posed that Michael an immediate Storlie, v. 495 by Ngo flight.’ arrest safety. threat to Mi- Chief Locke’s After Cir.2007) Gra- (quoting 602 F.3d yelled chael exited the car and at Chief Connor, 386, 396, 109 ham U.S. Locke, Chief Locke Michael told that Chief (1989)). 1865, 104 L.Ed.2d 443 S.Ct. talk to in would Michael a minute. offense, of the to the seriousness As Michael, According complied he with the resisting Locke arrested Michael Chief command and stood there waiting. Chief interfering an officer. Al- arrest and with him, Locke came toward took Michael resisting arrest could though offense step in Chief Locke’s direction. There is certainly pose a risk to an offi- arresting no indication that Michael was in engaging “ facts, cer, in here the viewed favor of a ‘dramatic’ move.” threatening See id. Michael, Thus, that meaning- indicate he was not at 9. the facts not do indicate that posed Michael an only immediate threat fully engaged in this offense. The safety. Chief Locke’s The fact that Mi- Michael, by other instance resistance chael had been insolent or frustrated does yelling stop than Michael at Locke to Chief change not this conclusion. way Mi- touching Michael’s wife in that be Mi- inappropriate, chael believed to factor, Finally, as to the nothing third with Chief comply chael’s failure the record that demonstrates Michael was get that Locke’s command back actively resisting or attempting arrest However, given the car. the simultaneous Rather, flee. Michael was generally com- that nature of the issuance of command pliant. taser, application of the Michael’s addition, observes, majority In as the comply failure to cannot be deemed resis- injuries “the sustained Michael are rel regard yelling With to Michael’s

tance. measuring evant the reasonableness of Locke, “a officer would reasonable the force Locke.” used Ante at discharge simply his Taser because of not However, out, majority 850. as the points Gerrish, insolence.” Parker open an cir question remains this “[i]t (1st Cir.2008). facts, viewed in the cuit whether an excessive force claim re Michael, light most favorable to support some minimum quires injury.” level Id. resistance, the conclusion that Michael’s if Namanny, Hunter v. (quoting any, (8th Cir.2000) (citations omitted)). was de minimis such he was not 825, 831 engaging in a serious offense which itself analyzing Eighth Amendment exces claim,5 justify the use of force. sive force this court stated that a would standard, prohibition solely objective 5. "The Fourth Amendment's force claim under a person Paul, unreasonable seizures Hayek v. City St. applies to that 'arise[] excessive-force claims (8th Cir.2007), Eighth Amendment excessive investigatory in the context of an arrest objective force claims involve both an citizen,’ Eighth stop of a while the free Dormire, subjective component, Irving v. pun Amendment's ban on cruel and unusual *19 441, (8th Cir.2008). [Eighth “In F.3d 446 applies ishment to claims excessive-force claims, excessive force the sub Amendment] brought by serving their convicted criminals jective inquiry is the whether force was used Spain, sentences.” Wilson v. good in a effort maintain restore faith to or (8th Cir.2000) (citation omitted) (quoting 715 discipline maliciously sadistically or for Connor, 386, 394, Graham v. 490 U.S. 109 very causing (quo purpose the of harm.” Id. (1989)). L.Ed.2d While S.Ct. 443 omitted). analyze we a Fourth Amendment excessive tation the matter for force claim and remand frightening sive painful a taser “inflicts whether, blow, temporarily paralyzes specific in the which a of determination body, rendering of the large case, muscles of it would have been context this n victim Reeder, 12 Hickey v. helpless.” a that to officer the con- clear reasonable Cir.1993). Indeed, Mi- 754, 757 F.3d clearly a established duct at issue violated ground by the knocked to the chael was majority right. Because constitutional marks) (which where puncture left taser otherwise, I respectfully dissent concludes Locke Mi- pulled until Chief he remained majority’s opinion. Part of the from II.A.1 Hickey de- feet. The Court chael his “exact- being of tasered as pain scribed the ... marks

ly the of torment without sort

which, legitimate rea- if inflicted without

son, ob- Amendment’s supports Eighth Id.; v. component.” accord Orem

jective Cir.2008). F.3d

Rephann, 523

Therefore, must that Michael assuming of showing a of minimum level make some America, UNITED of STATES for injury in to make out order Plaintiff-Appellee, force, pain puncture excessive are marks inflicted the taser sufficient so. to do Jay CHRISTENSEN, Jr., Clark sum, light Defendant-Appellant. In the facts in the construed that the most show favorable Michael No. 08-3103. not degree force him was used reasonable, and, turn, consti objectively Appeals, Court of United States Fourth tuted violation Amendment Eighth Circuit. right free from excessive force. be 10, 2009. Submitted: Feb. judgment his motion for and be that, court, fore this Chief Locke asserted Sept. 2009. Filed: if a constitu even Michael demonstrated violation, entitled tional was alleged qualified immunity because his clearly

conduct did not violate established that light

law.6 In of its determination not out a

Michael did make constitutional

violation, the district court did not address use of force violated

whether Chief Locke’s right. clearly established constitutional I reverse the district

Accordingly, would Locke’s grant

court’s of Chief motion

summary judgment as to Michael’s exces- 491, 496, (8th Cir.2009). following Supreme "Qualified immunity

6. involves the (1) may has exercise their two-step inquiry: whether the facts shown Court held courts deciding two plaintiff a violation of discretion in make out (2) immunity analysis statutory right, prongs qualified constitutional right clearly Calla- should be addressed first. Pearson v. whether that established - -, 808, 818, han, 129 S.Ct. of the defendant’s miscon- U.S. time (2009). Valley, duct.” Golden L.Ed.2d 565 Brown