*1 III. Conclusion proof not used as of prior conviction includ- or otherwise conspiracy heroin foregoing, we affirm the Based on the Hernandez, 712 See ed in the indictment. judgment of the district court. Although alleges Thomas at 409. scheme, victims, and controlled common demon-
substance, record does not the two offenses. continuity between
strate
Thus, the
See in err deter- court did district Eugene BOISE, Sr.; T.E.R., DE Carl sepa- conviction was mining prior that the friend, child next Anne minor his conspira- from the heroin rate and distinct Hubbard; A.N.D., liese a minor child cy- by her next friend Marie Per Sheena ry, Plaintiffs-Appellants for us to hold may appear incongruent It crack distribution is rele- that Thomas’s INTERNATIONAL, calculating his offense vant conduct for TASER INC., for co- Defendant. prior that his conviction level and not relevant conduct. possession caine is Lively, County, Missouri; Bret St. Louis However, court did not consid- the district Officer, capac Police in his individual calculating in his prior er the conviction Percich, Officer, ity; Joseph Police level, history cat- only the criminal offense capacity, individual Defendants- Hernandez, some egory. In we shed Appellees. inconsistency: any perceived No. 13-2742. prior con- the issue is whether When Appeals, States United Court the base duct should increase offense Eighth Circuit. level, uncharged it often involves con- go unpunished. that otherwise duct will April Submitted: 2014. prior the issue whether a But when is July Filed: “prior was a sentence” for conviction history prior con- purposes, criminal question punished;
duct has been punishment
the extent of incremental
impose sentencing the offense of con-
viction.
Hernandez, at 410. court
district included evidence level,
crack distribution the offense “uncharged conduct will go unpunished.”
otherwise id. This despite
is true earlier conviction Thomas’s not con- possession
for cocaine —conduct conspiracy. Consequently,
nected to this
Thomas’s conduct has not been double criminal
counted the calculation
history score and level. offense *2 a claim under the Americans with (ADA) against Act St. Louis
Disabilities County, Lively and Missouri.1 Officers summary judgment Percich moved immunity, and St. qualified the basis *3 County summary judg- Louis moved for ment, claiming no ADA violation occurred exigent unexpected due to and circum- granted stances. The district court2 both motions, and we affirm.
I. schizophrenia, from De Boise suffered experience which caused him to serious evening the psychotic episodes. On 7, 2008, July De Boise became delusional and left naked. The next morn- his home ing, neighbors reported seeing De Boise roaming neighborhood, beating the houses stick, That claiming and to be God. night, De Boise returned home still naked claim he and delusional. He continued to Burton, Christopher argued, Pasa- John God, demanded that his mother wor- (W. dena, Schock, Louis, CA Bevis Saint him, ship to the held her head down Williamson, Pasadena, MO and Peter M. Eventually, floor. De Boise headed to the CA, brief), Plaintiffs-Appellants. for home, back of the and his mother left the Kaenel, Lorena Merklin von As- Victoria from a neighbor’s house and called 911 Counselor, County argued, sistant Saint phone. department The St. Louis Police (Michael Louis, Shuman, A. Associate MO describing the call as a dispatched officers Counselor, Louis, MO, County on the St. OBS,” meaning “violent brief), Defendants-Appellees. for disturbed, emotionally violently, acted physical against people or used WOLLMAN, BYE, and Before property. SHEPHERD, Judges. Circuit Arthur Officer Williams arrived on the SHEPHERD, Judge. Circuit first, scene and De Boise’s mother immedi- him ately informed of her son’s behavior minor Appellants, the father and chil- Boise, physical aggression her.3 toward Offi- dren of the deceased Samuel De coming from § cer Williams heard a noise brought against a U.S.C. 1983 action the house and then De Boise Lively Joseph Officers Bret Percich of observed County Department exiting claiming Louis Police the home naked and to be St. brought against parties dispute other claims 3.While voluntarily. Appellees that were dismissed Boise’s mother informed the officers that her her, undisputed had tried to kill it is son Alderman, Terry I. United 2. The Honorable Boise had terrified officers were informed De Magistrate Judge States Eastern Dis- his mother and held his mother's head Missouri, trict of to whom the case was re- floor. disposition by ferred for final consent of the 636(c). parties pursuant § to 28 U.S.C. suddenly target. re-entered the toward the Once the darts make De Boise God. house, upon contact, tearing down the screen door an completed electrical circuit is officers were called entry. Additional automatically cycles and the device five unit. along the scene with an ambulance current, of electrical immobilizing seconds subject. J.A. 440. home, De Boise was still
While arrived on the scene: more officers five After the first discharge, taser De Boise Percich, Joseph Lively, Bret Mike Officers struggle continued to ignore the offi- Kaemmerer, Maechling, and Jacob Chris ground, cers’ demands to remain on the Money. De Boise’s mother informed and Officer Percich followed with a second that she had a firearm in the house cycle.4 five-second After the cy- first two schizophrenic. and that De Boise was Of- cles, Officer Percich did not believe extremely Percich heard loud noises ficer officers could handcuff De Boise due safely *4 home, including coming from the scream- position to the of his hands and taser wires heavy ing, glass breaking, and furniture carrying charge. the electrical De Boise being thrown. De Boise then exited the again demands, up despite stood and referring house still naked and to himself Percich a applied cycle, Officer third caus- Percich took command of as God. Officer ing De Boise to fall ground to the face at De gun the scene and aimed his taser Money down. Officers Percich and ap- he exited the home. Officer Boise as proached to handcuff De Boise when De Maechling instructed De Boise to walk out swung Boise rose to his knees and his grass on the and lie face down on the applied arms around. Officer Percich then ground. complied. De Boise Officer Per- cycle a fourth taser and De fell Boise began ap- cich holstered his taser and ground tangled with the wires around proach De Boise to handcuff him. De legs. attempted De Boise to rise feet, immediately jumped Boise to his again, and Officer Percich delivered two fist, clenching his glaring and Officer cycles, taser of ap- more last Maechling Percich’s direction. Officer peared to be ineffective. De Boise arose continued to instruct De Boise to lie on officers, to his feet and walked toward the but De Boise Be- grass, comply. did not taser, Lively subject- fired his and Officer lieving posed that De Boise threat to the cycle. ing De Boise to another five-second officers, De Officer Percich instructed ground De Boise fell to the but rose to his Boise several times to lie down. When assuming a stance as again, feet this time refused, yelled Boise Officer Percich out getting ready charge if he were “taser, taser, taser” and fired his Taser attempt to run. Model X-26 ECD in barb mode. The penetrated darts De Boise’s chest and Lively delivered another taser Officer taser delivered a five-second electrical cycle, after which Officers Percich and immediately shock. De fell to the Boise Money attempted to handcuff De Boise. ground on his back with his arms and fists De Boise kicked at the and Officer clenched to his chest. Lively cartridge took the out of taser leg applied and the taser on De Boise’s trigger pulled, an X-26 Taser
When twice, deployed two darts with wires attached are this time drive stun mode.5 Offi- Importantly, dispute applies 4. do not the taser and the taser so as from tasings. subject’s body. of the initial two reasonableness make direct contact with the mode, only When the taser is in drive stun incapacitate and does not Deploying causes discomfort the taser in drive stun mode cartridge subject. means an officer removes 896 II. Money were then able
cers Percich
to the
arms and shoulders
De Boise’s
hold
“Qualified immunity
gov
shields
in-
and EMT
paramedic
ground while
§
liability
officials from
ernment
a sedative. While
jected De Boise with
the official’s conduct violates
action unless
De Boise
gurney,
to a
being transferred
constitutional or stat
established
to re-
Attempts
arrest.
went into cardiac
utory right
person
of which a reasonable
unsuccessful,
he
City
De Boise were
Brown v.
vive
would have known.”
Valley,
at
upon
dead
his arrival
Golden
Cir.
pronounced
2009).
order
We review district court’s
hospital.
novo,
summary
granting
judgment de
suit, alleging excessive
Appellants filed
viewing
the facts
most favorable
Lively and Percich
against
Officers
nonmoving party
giving
§
1983 and violations
under
U.S.C.
nonmoving party the benefit of all reason
County.
Louis
Offi-
against
the ADA
St.
Gage,
Carpenter
able inferences.
Lively
moved for sum-
cers Percich
(8th Cir.2012),
cert. de
mary judgment on the excessive-force
—nied,
,
U.S.
133 S.Ct.
—
qualified immunity.
St.
claim based
(2013).
L.Ed.2d 728
County
summary
also moved for
Louis
question
quali
To determine the
the ADA violation claim.
judgment on
immunity,
following
in the
engage
fied
granted the officers’ mo-
The district court
*5
“(1)
the facts
two-part
inquiry:
tion,
objectively,
finding the use of force
plaintiff
make out a violation
shown
of the fact that De
reasonable
statutory right,
of a constitutional or
comply
failed to
with the
repeatedly
Boise
(2)
right
clearly
whether that
was
estab
officers’
to submit and contin-
commands
lished at the time of the defendant’s al
actively
ued to
resist arrest. The court
Brown,
leged misconduct.”
574 F.3d at
undisputed
it
that De Boise contin-
found
496. Courts have discretion
decide
get up despite
ued to
the officers’ instruc-
part
inquiry
of the
address first.
down,
to lie
walked toward the offi-
tions
Callahan,
223, 236,
v.
Pearson
555 U.S.
cers, and kicked and flailed his arms when
(2009).
808,
129 S.Ct.
172
565
L.Ed.2d
attempted
to arrest him. The
inquiry.
begin
with second
court further determined that even if the Though the outcome of this encounter was
officers’ actions amounted
excessive
tragic, and even if the reasonableness of
force in violation De Boise’s Fourth
questionable, Ap
the officers’ actions was
rights, the law at the time of
Amendment
pellants cannot defeat the officers’ defense
the incident
not have
a rea-
placed
would
qualified immunity
are able
unless
multiple
sonable officer on notice that
tas-
to show that a reasonable officer would
ings
under the circumstances violated
have been on notice that the officers’ con
clearly
right.
established
clearly
right.
duct
violated
established
granted
The district court also
St. Louis
whether an
determining
“When
County’s
summary judgment,
motion for
clearly
action was a
established constitu
that
ADA oc-
finding
no violation of the
violation,
tional
we look to the state of
curred because the officers were faced
incident,”
law at the time of the
Shekleton
(8th
circum-
unexpected
exigent
361,
with
Eichenberger,
v.
677 F.3d
366
Cir.2012);
stances to which no reasonable accommo-
being
the relevant
time here
8,
made until after the scene
July
“
pertinent
inquiry
dations could be
2008. The
clear to a reason-
safely
appeal
was
secured. This
followed.
‘whether would be
(2002) (“[A] general
was unlawful
constitutional rule al-
able officer that his conduct
”
at 367 ready
may
in the
he confronted.’
Id.
identified in the decisional law
situation
Katz,
194,
v.
(quoting
apply
clarity
Saucier
533 U.S.
obvious
specific
150 L.Ed.2d
S.Ct.
in question,
though
very
conduct
even
(2001)). Particularly,
the contours of De
in question
previously
action
has [not]
free from excessive
right
(second
Boise’s
to be
been held unlawful.”
alteration in
that a
sufficiently
must be so
clear
force
(internal
original)
quotation marks omit-
officer would know that
reasonable
ted)).
claim,
support
Appel-
In
of their
circumstances
multiple tasings under the
Fiorino,
rely
lants
on Oliver v.
586 F.3d
right.
a violation of that
See Roberts
were
(11th Cir.2009).
Oliver,
In
the Elev-
Omaha,
City
enth
that
multiple
Circuit concluded
.2013).
Cir
ill
tasings
mentally
subject
of a
was exces-
subject’s clearly
sive
and violated the
determined that
Although we have
right.
established
899 training de non-compliance failure to utilize such ued with their officers’ demands. accommoda nied De Boise of reasonable unexpected rapidly Due to the evolv- the ADA. The ADA tions in violation of circumstances, ing the officers were not provides qualified that “no individual with required “to hesitate to pos- consider other shall, disability by a reason of such disabil sible actions in the making course of such ity ... be denied the benefits of the ser Hainze, split-second decisions.” 207 F.3d vices, programs, public or activities of a Moreover, at 801-02. the “use of force” on entity, subjected by or be to discrimination De Boise was “not reason of [De § entity.” 42 12132. To such U.S.C. disability, Boise’s] but because of ob- [his] context, an ADA claim in a prevail on this jectively verifiable misconduct.” Bates ex “that he plaintiff must demonstrate Va., Cnty., rel. Johns v. Chesterfield disability qualified individual with denied (4th 367, Cir.2000). F.3d Accordingly, in, of, participation or the benefits contemplate any the facts before us do not services, programs, public or activities of violation of the ADA. entity disability.” because of his Gorman (8th Cir.1998). Bartch, IV. inquiry have said that into whether We affirm Accordingly, we the district reasonably accommodated the indi grant summary judgment court’s “highly fact-specific vidual is and varies County. individual officers and St. Louis depending on the circumstances of each case, including exigent circumstances BYE, Judge, dissenting. Circuit presented by activity safety criminal disagree I the officers are entitled to concerns” and that “we will not second qualified immunity tasing ... for guess judgments, where death of [an officer’s] presented exigent Instead, an officer is with jury De Boise. I believe should Bahl v. unexpected Cnty. circumstances.” determine officers violated De Ramsey, 695 F.3d 784-85 Cir. Boise’s Fourth Amendment to be Tennessee, 2012); see also Tucker v. by continuing free from excessive force (6th Cir.2009) (“[W]e rely F.3d attempting to hand- tase Boise without expect law enforcement officers to re respectfully cuff him. I therefore dissent fluidly changing spond situations and affirming from Part II of the decision Imposing encounter. individuals district court. stringent requirement under the ADA is analyzes only The court the second expectation, with that im inconsistent prong qualified immunity analysis. of the pedes ability perform their their Ark., Cnty., v. Faulkner See Fourte duties.”); Richards, 207 Hainze v. (8th Cir.2014) (noting two- (5th Cir.2000) (“Title 795, 801 II does not qualified immunity). The part test apply respons to an officer’s on-the-street court concludes the state of the law 2008 reported es to disturbances or other simi placed would not have an officer on notice incidents, lar whether or those calls limit the use of his taser. I he must disabilities, subjects involve mental placed believe the law an officer on notice to the officer’s prior securing scene *8 continuously suspect he could not tase ensuring there is no threat to reasonably when safer alternatives were life.”). human available to constrain De Boise order to here, in- Important the officers received an arrest. effectuate formation that De Boise had assaulted his First, in the construing the facts aggres- mother and observed De Boise’s Boise, I would find a sive and irrational behavior and his contin- most favorable to Brown, 574 F.3d pres- searches and seizures.” showing has been made sufficient know the officers violated at 499. A reasonable officer would jury ent to a whether rights continu- De Boise’s constitutional force can be used to effect only reasonable eventual death. him until his ing to tase Although tasing suspect an arrest. can scope unlimited in is not The use of a taser in certain circum- be reasonable force suspect, even one who dealing when with stances, tasing “significant rises to a level disobeyed De Boise actively resisting. is Harrison, McKenney of force.” made some threaten- officers’ orders (8th Cir.2011) J., 354, (Murphy, However, De Boise was not ing moves. concurring). Even without a ease decided did weapon, or concealed carrying a visible materially fundamentally on or similar officers, and make at the was not advances facts, a officer in 2008 would reasonable conclude, juryA could with six naked. requires have known “the use of tasers scene, it an at the armed officers justification for their use to be sufficient continuously use of force to unreasonable are, long Id. There have reasonable.” rather handcuff him tase De Boise than been, In tasing suspects. limits on officers debi- during period the time De Boise was (8th Reeder, 754, Hickey v. during and after each tase. Partic- litated Cir.1993), Eighth an Amendment we found not have shod ularly because De Boise did jailor applied gun, violation where a a stun any weapon, jury feet or other could pres- and there were six or seven officers conclude the officers were unreasonable ent, to “take but the officers failed advan- make further effort to handcuff De tage incapacitation of [the inmate’s] Boise, swinging even if he were his arms perceived neutralize threat their kicking legs. noted, safety.” also as relevant to the We Second, I would find the officers were Eighth analysis, Amendment the officers put continuously on notice in 2008 that “remove, isolate, failed to or restrain” the tasing suspect until his death was unlaw case, In inmate. Id. this the officers were ful. To determine whether an action was a attempted have notice should violation, clearly established constitutional handcuff De Boise as a safer alternative to to the state of the law at the time look fifty De Boise of elec- tasing seconds incident, inquiry of the and the correct just trical shock over two minutes whether it is clear to a reasonable officer It to a time. would be clear reasonable that his conduct was unlawful. Shekleton failing officer that to seize De Boise with (8th Eichenberger, 366-67 reasonable force was unlawful. Cir.2012). require The test does not pro- Because the officers’ actions are not materially “there be a case with or funda by qualified immunity, tected I would re- facts,” mentally City similar Brown v. jury mand this case for trial where a can Valley, 574 F.3d Golden Cir. “ determine whether was reasonable 2009), merely but rather ‘it until officers continued to tase De Boise would clear to a reasonable officer that be seemingly taking death without his conduct unlawful in the situation ” opportunities available to handcuff and re- (quoting he confronted.’ Id. Saucier v. strain De Boise. Katz, 202, 121 533 U.S. S.Ct. (2001)).
L.Ed.2d 272
“The to be free from excessive the context of an arrest is
established under the Fourth Amend- prohibition against
ment’s unreasonable