Jerica Moore-Jones, Individually and as Parent and Next Friend of Dela Moore v. Anthony Todd Quick, Trooper, individually and in his official capacity
No. 18-1045
United States Court of Appeals For the Eighth Circuit
Submitted: September 26, 2018 Filed: November 28, 2018
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Jerica Jena Moore-Jones sued Arkansas State Police trooper Anthony Todd Quick under
Quick pulled right behind Moore-Jones, turned on his emergency lights at 8:23:27 p.m., sirens at 8:23:35 p.m., and spotlight at 8:23:38 p.m. She decelerated to about 14 miles per hour and pulled onto the right shoulder, past a car that had yielded. The shoulder was narrow, the area unlit and dark. She then pulled back on the road, accelerating to 35-38 miles per hour, her speed for the rest of the pursuit. The posted speed limit was 55 miles per hour. At 8:24:16 p.m., she continued past the last exit before the nearest city a mile-and-a-half away. At 8:24:18 p.m., in the paved area after the exit, Quick began a Precision Immobilization Technique (PIT) maneuver. Quick struck her right-rear fender with his left-front bumper, causing her car to spin into a ditch, hitting a cement culvert. Moore-Jones and her daughter visited the hospital that night and were treated and released. She was cited for expired tags and failure to yield to an emergency vehicle, both misdemeanors.
Moore-Jones and her minor daughter sued Quick for excessive force and assault and battery. Quick sought summary judgment, invoking qualified and statutory immunity. The district court denied his motion. Quick appeals.
This court reviews de novo a denial of summary judgment on the basis of qualified immunity, viewing the record most favorably to the non-moving party. Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir. 2017). Quick is entitled to qualified immunity unless his “conduct violated a clearly established constitutional or statutory right of which a reasonable officer would have known.” Cravener v. Shuster, 885 F.3d 1135, 1138 (8th Cir. 2018). To overcome qualified immunity, Moore-Jones must prove: “(1) the facts, viewed in the light most favorable to [her], demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly
Moore-Jones claims that Quick‘s PIT maneuver violated her Fourth Amendment right to be free from excessive force. See Wilson, 901 F.3d at 989. For a right to be clearly established, its contours must be “sufficiently definite that any reasonable official in the defendant‘s shoes would have understood that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam), quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014). Failing to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment” is often fatal to a claim outside of obvious cases. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam). See id., citing United States v. Lanier, 520 U.S. 259, 271 (1997) (explaining a “general constitutional rule” can give fair warning where it applies “with obvious clarity to the specific conduct in question“). A case need not be “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam), quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
The right to be free from a PIT maneuver in these circumstances was not sufficiently definite. The district court relied on the clearly established law that “force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.” Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009). See Wilson, 901 F.3d at 990-91 (collecting cases). This general rule, however, does not apply with obvious clarity to the specific conduct here, where Moore-Jones refused commands to stop. See, e.g., Ehlers v. City of Rapid City, 846 F.3d 1002, 1012 (8th Cir. 2017) (finding the Brown lines of cases “inapposite” where a suspect ignored two commands) (analyzing law as of 2010). From a reasonable officer‘s perspective, she refused to comply with commands to pull over. In November 2015, Quick was
Quick decided to use a PIT maneuver from the right side of Moore-Jones‘s car, avoiding the dangers to her and other drivers from her car potentially spinning into the parallel interstate. He waited until after the last exit before the nearest city, which had space on the right shoulder for the maneuver.
The issue is whether existing precedent put the reasonableness of his decision “beyond debate.” See Mullenix, 136 S. Ct. at 308, quoting al-Kidd, 563 U.S. at 741. Moore-Jones identifies one case, Marshall v. West, 559 F. Supp. 2d 1224 (M.D. Ala. 2008). There, a PIT maneuver constituted excessive force against a non-violent misdemeanant who failed to pull over during a daylight pursuit, but did not pose an immediate risk to the officers or bystanders. Marshall, 559 F. Supp. 2d at 1240. However, Marshall turned on the fact that the defendants—plain-clothed officers driving an unmarked car with a malfunctioning emergency light—“failed to adequately identify themselves to Plaintiff as law enforcement officers.” Id. See Atkinson v. City of Mtn. View, 709 F.3d 1201, 1213 (8th Cir. 2013) (an officer‘s failure to identify himself is evidence that a suspect is not “actively resisting arrest [or] attempting to evade arrest by flight“), quoting Graham v. Connor, 490 U.S. 386, 396 (1989). The Marshall case implies that after adequately identifying himself, an officer might be justified in using a PIT maneuver on a non-compliant motorist. Here, it is undisputed that Quick, in a marked police car, had engaged his emergency lights, sirens, and spotlight.
The circumstances here are somewhere between the Marshall case and the other cases above. Taken together, they suggest Quick‘s actions were in the “hazy border between excessive and acceptable force.” Mullenix, 136 S. Ct. at 312, quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam). The district court erred in concluding Moore-Jones‘s right was clearly established. Quick is entitled to qualified immunity.
This also resolves Moore-Jones‘s state-law, excessive-force claims. See Baldridge v. Cordes, 85 S.W.3d 511, 514-15 (Ark. 2002) (noting Arkansas officers and employees have immunity similar to federal qualified immunity for non-malicious acts or omissions within the scope of their employment).
This dismissal of the excessive-force claims does not resolve the claims of common law assault and battery. See Arkansas State Med. Bd. v. Byers, 521 S.W.3d 459, 463-65 (Ark. 2017) (under immunity statute for state employees, analyzing
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The judgment is reversed, and the case remanded for proceedings consistent with this opinion.