Kelly v. BenderKelly v. Bender
- Reporters:
- ,
- Before:
- Bowman, Wollman, Alsop
Michael Kelly brought this action under
I.
Kelly lived at 5513 Aurora in a ground floor apartment with sliding glass doors opening onto a porch and a 100-yard incline leading to the street. At 10:30 p.m. on January 14, 1991, Kelly was in his apartment with some friends and neighbors, including Bob Holmes, discussing gunshots that they had heard coming from the apartment complex across the streеt. At that time, uniformed patrol officers Bender and Moody arrived at 5415 Aurora on an unrelated matter. Holmes yelled from Kelly‘s porch to the officers in the street: “Are you here to arrest the аsshole that‘s doing the shooting?” The officers responded by asking Holmes to come down and talk to them about it.
Holmes did not have any shoes on, so Kelly volunteered to go. He walked out of the sliding glаss doors to his porch and down the hill. As he approached the street, Kelly asked the officers: “Are you here to arrest the asshole that‘s shooting off the gun?” The officers asked Kelly to cоme into the street so that they could talk to him. When he asked why, they ordered him into the street. Kelly responded that he had come to help and he was not trying to cause any trouble. When the offiсers again ordered him into the street, Kelly told them that he did not want any problems and thought he would just go home. He turned, took two steps, and started to run up the snow-covered hill.
The parties differ widely on what happened next. Kelly claims that he slipped and fell to the ground face down, whereupon the officers tackled him and, when he turned his head, Bender struck him on the forehead with a flashlight. Although he offered no resistance, the officers choked him and pushed his face into the snow and threatened while handcuffing him to break his thumb and pull his arm off.
The officers’ version is that they chased Kelly, whom Moody caught and pulled to the ground. When Kelly then rolled over onto his back, raised his legs, and attempted to kick Moody, Bender pushed Kelly‘s head back into the snow with a flashlight. As Kelly continued to rеsist, Moody applied pressure to his throat in order to force Kelly onto his stomach so that he could handcuff him. It is undisputed that Kelly received a cut on his forehead that required emergenсy room treatment.
The officers charged Kelly with disorderly conduct, interference with official acts, resisting a police officer, assault on a police officer, and public intoxication. Following a trial on February 25, 1991, the state court judge found Kelly not guilty on all counts. Kelly then filed the present action. His complaint included the Section 1983 claim, as well as pendent state claims. Defendants moved for summary judgment, the district court denied the motion, and defendants filed this appeal.
II.
Kelly initially contends that we lack jurisdiction over this appeal. A district court‘s order denying a motion for summary judgment is not ordinarily a final decision and thus not usually reviewable on appeal. See
A. Unlawful Arrest
An arresting officer is entitled to qualified immunity on an unlawful arrest claim if a reasonable officer could have believed probable cause existed for the аrrest. Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). “Actual probable cause ... is not necessary for an arrest to be objectively reasonable.” Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir.1989). In determining whether the officers are entitled to qualified immunity in the present case, the issue is whether they had “arguable” probable cause to arrest Kelly for one of the offenses charged. See id.; cf. Foster v. Metropolitan Airports Comm‘n, 914 F.2d 1076, 1080 (8th Cir.1990) (officer needed probable cause to believe plaintiff committed one of several offenses charged; immaterial that officer thought, perhaps mistakenly, that he had probable cause for other offenses charged).
The officers arrested Kelly for disorderly conduct, among other charges. Disorderly conduct is a simple misdemeanor which includes “[m]ak[ing] loud and raucous noise in the vicinity of any residence or public building which causes unreasonable distress to the occupants thereof.”
Kelly argues that the affidavit of Bob Holmes, which Kelly mistakenly did not file with the district court, established disputed facts regarding whether other tenants called from their balconies and whether the officers asked for “someone” to comе down and talk to them or specifically asked for the man who had yelled from Kelly‘s porch. Even if we choose to consider the affidavit, see
B. Excessive Force
The officers and Kelly gаve conflicting accounts of the circumstances surrounding his excessive force claim. The disputed facts are material because they affect the outcome of the issue whether a reasonable officer could have believed that the force used was necessary under the circumstances. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Fitzgerald v. Patrick, 927 F.2d 1037, 1039 (8th Cir.1991) (per curiam); Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991). In determining the reasonableness of the offiсers’ use of force, we must consider the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers and others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989).
Kelly alleges that he put up no resistance, yet the officers tackled him, hit him over the head with a flashlight, choked him, аnd shoved his face into the ground while arresting him for a simple misdemeanor. The officers claim that they used only the force necessary to overcome Kelly‘s resistance to their efforts to arrest him. Viewing these conflicting accounts in the light most favorable to Kelly, a genuine issue of fact exists as to the reasonableness of the force used in effecting Kelly‘s arrest. Thus, the district cоurt correctly denied summary judgment on this claim.
We reverse the district court‘s denial of summary judgment as to the unlawful arrest claim, affirm the district court‘s denial of summary judgment as to the excessive force claim, and remand the case to the district court for further proceedings consistent with this opinion.