REUBEN J. GARCIA v. CITY OF NEW HOPE, et al.
No. 19-1836
United States Court of Appeals, Eighth Circuit
January 5, 2021
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1836
___________________________
Reuben J. Garcia
lllllllllllllllllllllPlaintiff - Appellant
v.
City of New Hope; Officer Anthony Gust, all in their individual and official
capacities; Officer Kaitlyn Baker, all in their individual and official capacities;
Officer Nadine Jacobs, all in their individual and official capacities; Officer Adam
Johnson, all in their individual and official capacities
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: May 13, 2020
Filed: January 5, 2021
____________
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
____________
SMITH, Chief
Officer Kaitlyn Baker conducted a traffic stop of Reuben J. Garcia’s vehicle
after he extended his middle finger at her as he drove past her. Officers Anthony
Gust, Nadine Jacobs, and Adam Johnson later arrived at the stop to assist Officer
Baker. Garcia refused to provide his license, and the officers handcuffed and detained
him for a short period of time. Officer Baker then issued Garcia a citation and allowed
him to leave.
Garcia later sued the officers and the City of New Hope (“City”) under
district court granted summary judgment to the officers and the City, finding that the
officers were entitled to qualified immunity because Officer Baker had probable
cause to conduct a traffic stop of Garcia’s vehicle, the officers did not use excessive
force during the stop, and Officer Baker did not retaliate against Garcia for exercising
his First Amendment rights. Garcia appeals. We affirm in part and reverse in part.
I. Background
On February 1, 2016, Officer Baker was on school patrol at Sonnesyn
Elementary in New Hope, Minnesota. That morning, Garcia drove by the school and
saw Officer Baker motion for him to stop his vehicle. He stopped. Officer Baker
shouted for him to slow down, but Garcia responded that he was going the speed
limit. Garcia then drove away. Officer Baker did not issue Garcia a citation.
Later, in the afternoon, Garcia again saw Officer Baker at the school. This time,
he extended his hand out of his car window and raised his middle finger at Officer
Baker as he drove past her. In
follow Garcia in her squad car. She activated her video camera. As she followed him,
the camera recorded her stating the “driver drove by flipping [her] off . . . . arguing
about speed when the children were out during the school crossing.” Ex. 3 at
00:30–00:44, Garcia v. City of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn.
Nov. 19, 2018), ECF No. 51-2(3). Officer Baker called for back up and activated her
emergency lights to pull over Garcia’s vehicle.
Officer Baker approached Garcia on his passenger side window. Using his
phone, Garcia began to video the traffic stop and then asked Officer Baker why she
pulled him over. She replied, “You drove by and you flicked me off and I’m curious
as to why you did that.” Id. at 01:07–01:11. Garcia asked if his actions were illegal,
and Officer Baker replied that there was a woman with her children at the school
patrol and that his actions constituted disorderly conduct.
Officer Baker then asked for Garcia’s license and insurance twice, but he
ignored her requests. Instead, he demanded that she call her supervisor because she
was violating his First Amendment rights. Officer Baker asked Garcia for his license
several more times. He replied that he would give her the license but repeatedly asked
her if she was going to shoot him. Garcia then again asked for Officer Baker’s
instead, asked for her name and badge number. Officer Baker responded that her
information would be on the citation.
Officers Gust and Jacobs arrived on the scene while Officer Baker was still
standing at Garcia’s passenger window. She then told him to get out his “g*d d**n
D.L.” Id. at 02:15–02:18. Officer Gust approached the vehicle as Officer Baker
continued to ask for Garcia’s license. Garcia still did not provide his license and
yelled that he was “protected by the First Amendment!” Ex. 2 at 01:20–01:23, Garcia
v. City of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn. Nov. 19, 2018), ECF
No. 51-2(2). Officer Baker walked around the vehicle to Garcia, yelling for Garcia
to get out of his vehicle. She opened the driver’s side door and demanded that Garcia
get out of the vehicle. Officer Baker then grabbed Garcia as he stepped out of the
vehicle, placed him against his vehicle, and handcuffed him. Officer Baker threw
Garcia’s wallet on the ground. Officer Gust helped Officer Baker hold Garcia against
the vehicle. Officer Johnson also arrived during this time, but he did not assist in
handcuffing Garcia.
The officers asked Garcia several times whether he had any weapons, but he
invoked his Fifth Amendment right to remain silent. The officers escorted Garcia to
Officer Baker’s squad car. At the squad car, Garcia admitted that he had a box cutter,
so Officer Gust patted him down. Officer Baker told Garcia that he was “being
detained . . . right now for disorderly conduct.” Ex. 3 at 03:36–03:41. Officer Gust
placed Garcia in Officer Baker’s squad car. After detaining Garcia, Officer Baker
then recounted the events with Garcia to the officers:
This morning, him and I got in a little—he stopped when I told him to
slow down going through the crosswalk, the kids are on the school
patrol. He said, “I’m only going 25.” Well, it’s 20. Drove by this
afternoon and flicked me off. The kids are out, there’s a mom there with
a kid waiting at the corner . . . . He flicked me off, I got in my
car . . . . Videotaping the whole time. “Don’t shoot me, don’t shoot me.”
He wants a supervisor.
Officer Baker also told the arriving officers that Garcia would not give her his
license and “that’s why he’s taking a timeout for right now.” Id. at 05:02–05:05.
Officer Johnson related that once he saw Garcia’s license plate, he realized that
Garcia had raised his middle finger at him before. After talking to the other officers,
Officer Baker retrieved Garcia’s wallet from the ground and returned to her squad car.
While in the car with Garcia, Officer Baker explained that he was being detained for
disorderly conduct and for not providing her his license. Officer Baker held Garcia
in the car for around seven minutes, and during that time, he continued to talk to her
about how the officers were dangerous and unprofessional. Officer Baker issued
Garcia a citation. Officer Gust then took Garcia out of the squad car and removed his
handcuffs. As Garcia left, he yelled “f**k you” at the officers. Id. at 12:56–12:58. He
then drove away in his vehicle.
Garcia’s citation listed charges for disorderly conduct and a license plate
violation.1 Officer Baker later explained that she had never pulled someone over for
giving her the middle finger. But, she explained that
his behavior began to escalate after their first encounter. As to the license plate
violation, Officer Baker noted in her incident report: “During the traffic stop, I
observed the license plate having a plastic cover over the entire plate and a red plate
frame obstructing the view of the month and year stickers.” Ex. 1 at 38, Garcia v. City
of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn. Nov. 19, 2018), ECF No.
51-1. She later clarified that she noticed the license plate during the crosswalk
encounter and mentioned the violation in the wrong portion of her incident report.
Officer Baker also stated that she did not inform Garcia of the license plate violation
because she could not have a conversation with him. Garcia denies that he had a
cover or frame over his license plate.
To defend against the charges, Garcia obtained counsel. His counsel advised
him that he would go to jail if he did not take a driving course and write a letter of
apology. Garcia apologized in writing and took the driving course. He also entered
into an “Agreement to Suspend Prosecution” (“Agreement”) on April 7, 2016,
pursuant to Minnesota Rule of Criminal Procedure 27.05. His charges were officially
dismissed on April 7, 2017. Also on April 7, 2016, Garcia filed a complaint with the
New Hope Police Department. After review, Chief of Police Tim Fournier concluded
that the complaint was not sustained because the traffic stop was justified.
Garcia then filed suit in Minnesota state court against Officers Baker, Johnson,
Gust, Jacobs, and the City (collectively “the defendants”). He alleged that they
violated his Fourth Amendment rights and committed battery by injuring his hand
state of origin of a license plate with any material whatever, including any clear or
colorless material that affects the plate’s visibility or reflectivity.”
when they handcuffed him. In addition, he sued Officer Baker and the City for
retaliating against him for exercising his First Amendment rights and for assault and
malicious prosecution. The defendants removed the case to federal court and filed a
motion for summary judgment, asserting that the officers were entitled to qualified
immunity on the Fourth and First Amendment claims and entitled to official immunity
on the state-law claims.
The district court first considered Garcia’s Fourth Amendment claim that the
officers unlawfully seized him during the traffic stop. It addressed the two possible
justifications offered by Officer Baker for stopping Garcia’s vehicle: disorderly
conduct and the license plate violation. As to the disorderly conduct, the district court
explained that because Officer Baker and Garcia had conflicting accounts of the
circumstances surrounding the stop, genuine issues of material fact existed as to
whether Officer Baker had a reasonable suspicion to stop Garcia based on his
disorderly conduct. These disputes precluded qualified immunity and thus summary
judgment on the disorderly conduct justification.
The district court also considered the license plate violation as a potential
justification for Officer Baker’s stop of Garcia. The court noted that a traffic violation
provides probable cause for a stop. Garcia disputed that his license plate was covered.
But, the district court determined that even if Officer Baker made a mistake, it was
a reasonable mistake. The court noted that the other officers saw the frame, the
license plate was not clearly discernible on the squad car video, and Garcia entered
into the Agreement instead of disputing the violation. Therefore, because Officer
Baker had probable cause to pull the vehicle over, the district court held that the stop
did not violate the Fourth Amendment.
As to the remaining claims, the district court first determined that the officers
did not use excessive force in handcuffing Garcia
officers’ commands, and such resistance would give a reasonable officer reason to
believe that his safety may be in danger. Therefore, the district court granted summary
judgment on the remaining Fourth Amendment claims against the officers. Moreover,
the district court granted qualified immunity to Officer Baker on the First Amendment
retaliation claim because Garcia failed to satisfy one of the elements of the claim: he
failed to show that Officer Baker lacked reasonable suspicion or probable cause to
conduct the traffic stop.
Finally, because Garcia failed to allege a constitutional violation against any
of the officers, the district court dismissed Garcia’s
the City. And, the district court granted the defendants official immunity on the state-
law claims. Therefore, the district court granted summary judgment in favor of the
defendants. Garcia appeals.
II. Discussion
Garcia argues that the district court erred in granting the officers’ qualified
immunity motion. “Qualified immunity protects law enforcement officers from
liability for civil damages so long as their conduct does not violate clearly established
constitutional or statutory rights of which a reasonable person would have known.”
Perry v. Woodruff Cnty. Sheriff Dep’t, 858 F.3d 1141, 1144 (8th Cir. 2017). Thus, the
officers are entitled to qualified immunity “unless: (1) [they] violated a constitutional
right, and (2) that constitutional right was clearly established so that a reasonable
officer would know of the right at the time of the alleged violation.” Thurairajah v.
City of Fort Smith, 925 F.3d 979, 982 (8th Cir. 2019). We review the district court’s
grant of qualified immunity de novo, viewing the record in the light most favorable
to Garcia and drawing inferences in Garcia’s favor. Williams v. Decker, 767 F.3d 734,
A. Fourth Amendment Seizure
Garcia first contends that Officer Baker was not entitled to qualified immunity
on his Fourth Amendment claim because she unlawfully stopped his vehicle. The
Fourth Amendment guarantees the right to be free from “unreasonable searches and
seizures.”
Amendment, it “must be supported by reasonable suspicion or probable cause.”
United States v. Hollins, 685 F.3d 703, 705–06 (8th Cir. 2012) (internal quotation
omitted).
Officer Baker provided two justifications for the stop: (1) disorderly conduct
and (2) the license plate violation. During the stop, Officer Baker emphasized
Garcia’s alleged disorderly conduct, including stating that she stopped him because
he “flicked [her] off.” Ex. 3 at 01:07–01:11. The district court declined to grant
qualified immunity to Officer Baker on the disorderly conduct violation, and Officer
Baker does not challenge the district court’s conclusion.2 Therefore, our analysis
focuses solely on Officer Baker’s second justification for stopping Garcia: the license
plate violation.
“A traffic stop is constitutionally reasonable where the police have probable
cause to believe that a traffic violation has occurred.” De La Rosa v. White, 852 F.3d
740, 743 (8th Cir. 2017) (internal quotation
traffic violation, even a minor one, gives an officer probable cause to stop the
violator,” and therefore, “any ulterior motivation on the officer’s part is irrelevant.”
Johnson v. Crooks, 326 F.3d 995, 998 (8th Cir. 2003) (internal quotation omitted).
“Whether probable cause exists depends upon the reasonable conclusion to be drawn
from the facts known to the officer at the time.” United States v. Demilia, 771 F.3d
1051, 1054 (8th Cir. 2014) (cleaned up).
Officer Baker had reasonable suspicion or probable cause to pull Garcia over for
disorderly conduct. Appellees’ Br. at 11–12. “Claims not raised in an initial brief are
waived . . . .” Mahaney v. Warren Cnty., 206 F.3d 770, 771 n.2 (8th Cir. 2000) (per
curiam).
Under Minnesota law, “[i]t is unlawful to cover any assigned letters and
numbers or the name of the state of origin of a license plate with any material
whatever, including any clear or colorless material that affects the plate’s visibility
or reflectivity.”
license plate was covered and had a “red plate frame obstructing the view of the
month and year stickers.” Ex. 1 at 38. If Garcia’s license plate was covered, he
committed a traffic violation, and Officer Baker had probable cause to stop Garcia.
However, Garcia avers that Officer Baker’s reliance on the traffic violation “is
meritless because [he] denies that his license plate was covered with an illegal cover
or frame during the subject incident.” Appellant’s Br. at 16. In response, Officer
Baker provides video evidence in an attempt to show that Garcia’s license plate was
illegally covered. As the Supreme Court explained, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007).
We cannot say that Garcia’s contention that his license plate was not covered
is “blatantly contradicted by the record.” See id. “Having reviewed the evidence
ourselves, we deem it inconclusive.” Johnson v. McCarver, 942 F.3d 405, 412 (8th
Cir. 2019). At oral argument, Officer Baker’s counsel pointed to the time frame where
the video most clearly shows Garcia’s license plate. See Ex. 3 at 02:56. But, even at
that moment, the video remains too blurry to establish whether Garcia’s license plate
was covered. “Accordingly, we conclude that this is one of those usual qualified
immunity cases in which viewing the facts in the light most favorable to the
nonmovant means adopting the plaintiff’s version of the facts.” Michael v. Trevena,
899 F.3d 528, 532 (8th Cir. 2018) (cleaned up). Viewing the record in the light most
favorable to Garcia, we assume that Garcia’s license plate was not unlawfully
covered.3
However, our analysis does not end here. Officer Baker argues that even if we
assume that Garcia’s license plate was not covered, she is still entitled to qualified
immunity because her belief that the license plate was covered was objectively
reasonable. “[Q]ualified immunity does not
plate] was in fact [covered]; rather, the key is [Officer Baker’s] objectively
reasonable beliefs under the circumstances.” Boude v. City of Raymore, 855 F.3d
930, 933 (8th Cir. 2017). As our circuit has explained, an officer does not violate the
Fourth Amendment—and therefore is entitled to qualified immunity—if she “act[s]
upon a mistake of fact that is objectively reasonable.” McKenney v. Harrison, 635
F.3d 354, 358 (8th Cir. 2011).
In Williams, the officer conducted an investigatory stop because he had a
reasonable suspicion that one of the plaintiffs was operating a vehicle while
intoxicated. 767 F.3d at 739–40. The plaintiffs alleged that the officer violated their
Fourth Amendment rights and insisted that a genuine dispute of material fact
precluded qualified immunity. Id. at 740. The officer reported that he saw the driver
where the officer “briefly questions the motorist about what occurred, and lets the
motorist depart without issuing a citation or expanding the investigation beyond the
question of a traffic violation.” Johnson, 326 F.3d at 998–99. But, here, the traffic
stop led to Officer Baker extensively questioning Garcia, handcuffing Garcia, and
issuing Garcia a citation. Therefore, whether Garcia committed a traffic violation is
material. See Huff v. Reichert, 744 F.3d 999, 1003–05 (7th Cir. 2014) (finding that
the dispute over whether or not the driver changed lanes without a signal was material
and denying an officer qualified immunity on the plaintiff’s unreasonable seizure
claim where the officer detained the plaintiffs and searched the vehicle).
drink from a paper bag containing alcohol, but the plaintiffs averred that the alcohol
was in the back seat. Id. However, we explained that even if the officer was mistaken,
his perception was objectively reasonable based on the totality of the
circumstances—alcohol “was being consumed in close proximity” of the driver, the
plaintiffs made furtive movements as the officers approached the vehicle, and “the
vehicle was parked at an angle across two parking spaces.” Id. at 739–40.
Similar to Williams, Officer Baker contends that the totality of the
circumstances surrounding Garcia’s traffic stop also shows that any mistaken
perception of the license plate was objectively reasonable. Officer Baker asserts the
same reasons that the district court relied upon: Officers Baker and Jacobs both
testified that they saw the cover with a frame on the license plate, Officer Baker’s
squad vehicle shows the license plate even if it “is not clearly discern[i]ble,” and
Garcia chose to enter into the Agreement rather than dispute the citation. Garcia v.
City of New Hope, No. 17-CV-03574, 2019 WL 1237122, at *6 (D. Minn. Mar. 18,
First, Officer Jacobs’s testimony that she saw the cover with a frame on the
license plate adds little to the mistake-of-fact analysis. “The issue is whether the
totality of the circumstances at the time of the stop supports the reasonableness of the
officer’s belief . . . .” United States v. Gaffney, 789 F.3d 866, 869 (8th Cir. 2015)
(emphasis added) (finding officer’s mistake of fact that the driver was speeding
objectively reasonable when the officer knew the area, saw the driver brake hard after
following him, and thought the driver was speeding). Officer Jacobs’s testimony
provides nothing to the analysis of Officer Baker’s perception of the license plate at
the time she stopped Garcia.4
license plate violation. In Officer Baker’s report, she noted that she observed the
license plate “[d]uring the traffic stop.” Ex. 1 at 38. Although she later corrected
Additionally, the blurriness of the video makes it unhelpful to Officer Baker.
It is true that we have found that an officer made a reasonable mistake about a license
plate violation where the license plate was not centered on the front bumper and “it
was dark outside, making it difficult for [the officer] to fully scan the vehicle for a
front license plate.” United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008). But
the blurry video does not show that Officer Baker’s view of the license plate
hindered. In fact, the video depicts a clear day and shows that Officer Baker—who
was right behind Garcia’s car—had a clear view of the license plate. Officer Jacobs’s
testimony and the blurry video are not enough to show that Officer Baker had an
objectively reasonable belief—based on the totality of the circumstances—that the
license plate was unlawfully covered.
However, Officer Baker’s last justification for the license plate violation—that
Garcia did not contest the citation—deserves further attention. Our circuit has
explained that a fact of conviction is enough to defeat a
was arrested without probable cause. Malady v. Crunk, 902 F.2d 10, 11–12 (8th Cir.
1990). And, in Carrick v. Freeman, we held that a plaintiff could not bring a
claim alleging he was stopped and arrested without probable cause because he “was
charged and convicted in state court for obstruction, resisting arrest, and improper
license plate display.” 709 F. App’x 409, 410 (8th Cir. 2018) (per curiam). The fact
that the plaintiff’s charges were later nolle prossed did not change this analysis. Id.
Here, Garcia entered into the Agreement, pursuant to Minnesota Rule of
Criminal Procedure 27.05. The rule explains that “[a] prosecution may be suspended
herself to say she meant to say the morning stop, a reasonable jury could read her
police report to say that she did not see the license plate until during the second stop
in the afternoon. And, probable cause is based on an officer’s observations “at the
time of the stop,” not observations after the stop has been initiated. Gaffney, 789 F.3d
for a specified time and then dismissed . . . if” (1) there is a written agreement signed
by the parties, (2) “the victim’s views are considered,” (3) “the court consents,” and
(4) “the court finds a substantial likelihood of conviction and that the benefits of
rehabilitation outweigh the harm to society from suspending prosecution.”
dismissed, and “the defendant cannot be prosecuted for it.”
Does a court finding of a “substantial likelihood of conviction” have the same
or similar effect of an actual conviction resulting as an admission that there was
probable cause? We think not. Minnesota case law explains that in a continuance for
dismissal, “[t]he district court does not make a finding of guilt, and the defendant
does not make an admission of guilt.” State v. Strok, 786 N.W.2d 297, 300 (Minn. Ct.
App. 2010) (internal quotation omitted). Further, the Agreement did not require
Garcia to stipulate to any facts regarding his charges even though the Agreement
provides an area to do so. Because the Agreement does not require an admission of
guilt or a finding of guilt, it is distinguishable from a conviction. The Agreement
alone does not defeat Garcia’s claim that Officer Baker stopped his vehicle without
probable cause.
In sum, the record contains a blurry and thus unhelpful video, the officers’
testimony that the license plate was unlawfully covered, and Garcia’s testimony that
it was not covered. The fact of the visibility of the license plate is genuinely disputed.
“We have stated that disputed factual issues and conflicting testimony should not be
resolved by the district court at the summary judgment stage.” Henderson v. City of
Woodbury, 909 F.3d 933, 940 (8th Cir. 2018) (cleaned up).
Further “[w]hich story is more plausible we cannot say because it is not our
function to remove the credibility assessment from the jury.” Atkinson v. City of
Mountain View, 709 F.3d 1201, 1211 (8th Cir. 2013) (internal quotation omitted)
(reversing the district court’s conclusion that the plaintiff’s Fourth Amendment claim
did not present a genuine dispute of material fact because—depending on who the
jury decided to credit—it could reasonably find that the police officer was either “an
overzealous police officer who, without identifying
official, used excessive force” or could find that the officer “was a responsible
professional who reasonably thought it necessary to use force against [the plaintiff]
to defuse a potentially dangerous dispute”).
Therefore, at this stage of the litigation, Officer Baker is not entitled qualified
immunity based on the absence of a Fourth Amendment violation because there is a
genuine dispute of material fact as to whether she had probable cause to conduct a
traffic stop of Garcia’s vehicle. See Coker v. Ark. State Police, 734 F.3d 838, 843 (8th
Cir. 2013) (reversing a grant of summary judgment because “[w]ithout the aid of
video or an understandable audio recording, it is impossible to determine what
happened . . . without weighing [the officer’s] version of [the facts] against [the
plaintiff’s] story”); see also Trevena, 899 F.3d at 533–34 (finding a genuinely
disputed material fact precluded summary judgment on an unlawful arrest claim
because the recordings were inconclusive and a jury could reasonably adopt either the
officers’ or the plaintiff’s version of the facts).
In addition, the defendants do not dispute that Garcia’s Fourth Amendment
right to be free from unreasonable seizure was clearly established at the time of the
traffic stop. “At the time of [Garcia’s] stop, the law clearly established that a traffic
stop must be supported by reasonable suspicion.” Duffie v. City of Lincoln, 834 F.3d
877, 884 (8th Cir. 2016) (finding clearly established prong satisfied where officers
conducted a traffic stop even though the plaintiff did not violate a traffic law).
Because (1) there is a genuine dispute of material fact as to whether Officer Baker
violated Garcia’s Fourth Amendment right to be free from an unreasonable seizure
and (2) the right is clearly established, Officer Baker is not entitled to qualified
immunity. Therefore, we reverse the district court’s grant of qualified immunity to
Officer Baker on the Fourth Amendment seizure claim.5
B. Fourth Amendment Excessive Force
Garcia next claims that the officers used excessive force when handcuffing
him. In deciding whether the use of force was excessive, “we consider whether it was
objectively reasonable under the circumstances, relying on the perspective of a
reasonable officer present at the scene rather than the 20/20 vision of hindsight.”
Perry, 858 F.3d at 1145 (cleaned up). This analysis “requires careful attention to the
facts and circumstances of each particular case” and focuses on “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting or attempting to evade arrest
by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Garcia argues that the use of handcuffs was objectively unreasonable because
he did not commit any crimes, was not a threat to the officers’ safety, and did not
resist arrest. It is well-established that an investigatory stop includes the right for an
officer “to use some degree of physical force or threat to effect the stop.”
El-Ghazzawy v. Berthiaume, 636 F.3d 452, 457 (8th Cir. 2011). “The use of
handcuffs is the use of force, and such force must be objectively reasonable under the
circumstances.” Id. (internal quotation omitted). Thus, although an officer may use
handcuffs to protect the officers and maintain the status quo during the stop, the use
his Fourth Amendment right to be free from an unreasonable seizure, the district court
correctly held that they are entitled to qualified immunity. See Ehlers v. City of Rapid
City, 846 F.3d 1002, 1010 (8th Cir. 2017) (“Generally, an assisting officer is entitled
to rely on the probable cause determination of the arresting officer and may receive
qualified immunity as long as the reliance is reasonable.”). Nothing in the record
indicates that the officers’ reliance on Officer Baker’s reasoning for conducting a
traffic stop was unreasonable.
of handcuffs “requires the officer to demonstrate that the facts available to the officer
would warrant a man of reasonable caution in the belief that the action taken was
appropriate.” Id. (cleaned up).
Garcia compares his case to El-Ghazzawy. In that case, we held that the use of
handcuffs within seconds of encountering the plaintiff was objectively unreasonable
because there was nothing in the dispatch to indicate the suspect was armed or
dangerous. Id. at 455, 457. In addition, the plaintiff was “calm and cooperative during
the entirety of the incident.” Id. at 458. But, this case is distinguishable from El-
Ghazzawy. It is undisputed that Garcia refused to comply with Officer Baker’s
multiple demands for license and insurance, refused to get out of his vehicle despite
being asked by Officer Baker, and was verbally combative from the beginning of the
stop.
An officer may use some force when a suspect fails to comply with demands.
See Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006). In Wertish, we held that
it was reasonable for an officer to handcuff the plaintiff after the plaintiff had been
driving erratically and refused to get out of his truck after the officer pulled him over.
Id. And, in Foster v. Metropolitan Airports Commission, we concluded that an
officer’s use of force to pull a suspect from his car and handcuff him was reasonable
after the suspect resisted the request to get out of a vehicle. 914 F.2d 1076, 1082 (8th
Similar to Wertish and Foster, Officer Baker did not use excessive force in
pulling Garcia out of his vehicle and handcuffing him. Despite Officer Baker’s
multiple requests for license and insurance, Garcia continued to ignore the requests.
Instead, he continued to argue with Officer Baker about the traffic stop. As Officer
Baker repeatedly asked for his license, Garcia began to yell at Officer Baker and kept
asking if Officer Baker planned to shoot him. And, as in Wertish and Foster, when
Officer Baker asked Garcia to step out of his vehicle, he continued to yell and did not
get out of his vehicle.
Officer Baker did not violate Garcia’s Fourth Amendment rights because the
alleged facts do not show she used force beyond what was reasonable for the
circumstances. Therefore, the district court properly granted her qualified immunity
on Garcia’s excessive force claim.
Further, the other officers are also entitled to qualified immunity. Before the
officers arrived, Officer Baker had requested help after having a combative encounter
with Garcia. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (“No settled
Fourth Amendment principle requires [an] officer to second-guess the earlier steps
already taken by his or her fellow officers . . . .”). Once the officers arrived, they
witnessed Garcia yelling at Officer Baker and refusing to comply with demands.
Moreover, Garcia does not allege how Officers Jacobs and Johnson violated his
Fourth Amendment right to be free from excessive force.
Garcia does allege that Officer Gust used excessive force in assisting Officer
Baker in handcuffing and detaining him. However, Officer Gust had the same lawful
reasons as Officer Baker to remove Garcia from his vehicle to have him handcuffed.
See Wertish, 433 F.3d at 1066. And, it was reasonable for Officer Gust to perform a
pat-down given that Garcia would
admitted that he had a box cutter. Gaffney, 789 F.3d at 870 (“A pat-down is
permissible if a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” (cleaned up)).
Based on the totality of the circumstances, the officers’ use of force in
handcuffing Garcia was objectively reasonable. Therefore, the officers did not violate
Garcia’s Fourth Amendment right to be free from excessive force, and the district
court did not err in granting the officers qualified immunity on Garcia’s excessive
force claim.
C. First Amendment Retaliation
Next, Garcia contends that Officer Baker retaliated against him for exercising
his First Amendment right when she pulled him over after he gave her the middle
finger. To establish a First Amendment retaliation claim under
satisfy the following four prong analysis:
(1) [Garcia] engaged in a protected activity; (2) [Officer Baker] took
adverse action against him that would chill a person of ordinary firmness
from continuing in the activity; (3) the adverse action was motivated at
least in part by [Garcia’s] exercise of the protected activity; and (4) lack
of probable cause or arguable probable cause.
Thurairajah, 925 F.3d at 984–85 (internal quotation omitted).
First, Garcia’s raising his middle finger at Officer Baker is a rude and offensive
gesture but nonetheless, under current precedent, is a constitutionally protected
speech activity. See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019)
(“Any reasonable officer would know that a citizen who raises [his] middle finger
engages in speech protected by the First Amendment.”); see also Thurairajah, 925
F.3d at 982, 985. As the Supreme Court has explained, “the First Amendment protects
a significant amount of verbal criticism and challenge directed at police officers.”
City of Houston v. Hill, 482 U.S. 451, 461 (1987). And, in Cohen v. California, the
Court held that the First Amendment protected a defendant’s right to wear a jacket
with the words “F**k the Draft” in a courthouse where women and children were
present. 403 U.S. 15, 16, 25–26 (1971).
As to the second prong, Officer Baker’s stopping Garcia, detaining him in a
police car, and issuing him a citation would chill an ordinary person from continuing
the activity. See Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003) (finding
that there was a question of fact as to whether receiving multiple parking tickets
would impermissibly chill activity); see also Hoyland v. McMenomy, 869 F.3d 644,
657 (8th Cir. 2017) (“[T]here can be little doubt that being arrested for exercising the
right to free speech would chill a person of ordinary firmness from exercising that
right in the future.” (internal quotation omitted)). Further, although “how plaintiff
acted might be evidence of what a reasonable person would have done,” “[t]he
question is not whether the plaintiff [him]self was deterred.” Garcia, 348 F.3d at 729.
Garcia continued to criticize Officer Baker throughout the encounter, but the prong
“is an objective one, not subjective.” Id. A jury could reasonably find that an ordinary
person would have been deterred after being stopped by a police officer, being
handcuffed, and receiving a citation.
“Under the third prong, a plaintiff must show that the retaliatory motive was
a substantial factor or but-for cause of the adverse action.” Peterson v. Kopp, 754
F.3d 594, 602 (8th Cir. 2014) (internal quotations
explained, although Officer Baker stated that she never pulled someone over solely
for giving her the middle finger, her statements during the traffic stop could suggest
otherwise. In response to Garcia’s asking why she pulled him over, Officer Baker
stated, “You drove by and you flicked me off and I’m curious as to why you did that.”
Ex. 3 at 01:07–01:11. A reasonable jury could find that Officer Baker was motivated
to conduct a traffic stop of Garcia’s vehicle because he gestured at her with his
middle finger. See Thurairajah, 925 F.3d at 985 (explaining that an officer’s affidavit
suggested that “the arrest was motivated, at least in part, by the [First Amendment
speech]”).
Finally, probable cause or arguable probable cause is fatal to a First
Amendment retaliation claim. Galarnyk v. Fraser, 687 F.3d 1070, 1076 (8th Cir.
2012). So, Garcia must show that the traffic stop was not supported by probable
cause. See id. As previously explained, Officer Baker did not appeal the district
court’s conclusion that a genuine dispute of material fact precluded it from finding
probable cause on the disorderly conduct citation. And, there is a genuine dispute of
material fact as to whether Officer Baker had probable cause to stop Garcia for
committing a license plate violation. Therefore, a reasonable jury could find that
Officer Baker lacked probable cause to pull Garcia’s vehicle over. All four prongs are
satisfied.
In addition, Officer Baker does not dispute that Garcia’s right to be free from
First Amendment retaliation was clearly established at the time of his arrest.6
“Criticism of law enforcement officers, even with profanity, is protected speech.”
Thurairajah, 925 F.3d at 985; see Cruise-Gulyas, 918 F.3d at 497 (“Any reasonable
officer would know that a citizen who raises [his] middle finger engages in speech
protected by the First Amendment.”); see also Cohen, 403 U.S. at 25–26.
Based upon the record before us, we hold that the district court erred in
granting qualified immunity to Officer Baker on Garcia’s First Amendment retaliation
claim.
D. Municipal Liability
Garcia argues that the City should be liable under
adequately train its officers on the concept of disorderly conduct and fighting words.
Garcia’s testimony that Officer Baker pulled him over because he raised his middle
finger at her and that there were no children present. Ex. 1 at 11–12.
“[A] municipality cannot be held liable on a respondeat superior theory,” or simply
because it employs an officer who committed a
at 1214 (internal quotation omitted). However, liability for the officer’s violation may
attach to the City “if the violation resulted from (1) an official municipal policy, (2)
an unofficial custom, or (3) a deliberately indifferent failure to train or supervise” the
officer. Id. (cleaned up). Of the three types, a municipality’s liability “is at its most
tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51,
61 (2011).
A failure to train claim requires evidence that “the municipality received notice
of a pattern of unconstitutional acts committed by its employees.” Atkinson, 709 F.3d
at 1216–17 (cleaned up). Accordingly, the claim fails when the plaintiff presents “no
evidence indicating the city had reason to believe, before the events giving rise to
th[e] case, that its
1217. Other than the event at issue here, Garcia cites to no facts that would have
given the City notice of a potential training inadequacy. Without notice, the City had
no reason to believe its officer training was deficient to the point of risking
constitutional injury to persons. Therefore, the district court properly granted
summary judgment to the City.
E. State-Law Claims
Finally, Garcia argues that the district court erred in granting the defendants’
official immunity on his state-law claims of assault, battery, and malicious
prosecution. “The common law doctrine of official immunity provides that a public
official who is charged by law with duties calling for the exercise of judgment or
discretion is not personally liable to an individual for damages unless the official is
guilty of a willful or malicious act.” Huttner v. State, 637 N.W.2d 278, 284 (Minn.
Ct. App. 2001) (internal quotation omitted). In deciding whether official immunity
is available, we consider “(1) whether the alleged acts are discretionary or ministerial;
and (2) whether the alleged acts, even though of the type covered by official
immunity, were malicious or willful and therefore stripped of the immunity’s
protection.” Dokman v. Cnty. of Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App.
First, the officers’ actions were discretionary. While “[a] ministerial act
involves merely the execution of a specific, absolute duty,” a discretionary act
requires an official to use judgment or discretion. Id. The Minnesota Supreme Court
has explained that police officers’ actions in responding to dispatch or making an
arrest are “precisely the type of discretionary decisions, often split-second and on
meager information, that we intended to protect from judicial second-guessing
through the doctrine of official immunity.” Kelly v. City of Minneapolis, 598 N.W.2d
Second, Garcia has presented no information to show that the officers acted
with malice. “Malice is defined as the intentional doing of a wrongful act without
legal justification or excuse, or, otherwise stated, the willful violation of a known
right.” Dokman, 637 N.W.2d at 296 (internal quotation omitted). In Dokman, the
plaintiff failed to show malice because there was no factual basis to support the claim
that officers shot at him because they were angry. Id. at 297. Similarly, Garcia stated
that Officer Baker pulled him over because she was curious as to why he flicked her
off. However, Officer Baker believed—perhaps mistakenly—that Garcia had
committed disorderly conduct, and Garcia provides no evidence of malice. Further,
Garcia cites no evidence as to how the other officers acted in malice.
Therefore, the district court correctly dismissed the state-law claims against the
officers based on official immunity. “Because the officers’ discretionary actions are
entitled to official immunity, the City has no vicarious liability.” Hayek v. City of St.
Paul, 488 F.3d 1049, 1057 (8th Cir. 2007). The district court properly granted
summary judgment to the defendants on Garcia’s state-law claims.
III. Conclusion
Accordingly, we affirm the district court’s grant of qualified immunity to the
officers on the excessive force claim, grant of summary judgment in favor of the City,
and grant of official immunity to the officers on the state-law claims. We reverse the
district court’s grant of qualified immunity to Officer Baker on the Fourth
Amendment seizure claim and the First Amendment retaliation claim and remand
further proceedings consistent with this opinion.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
I join the majority’s opinion in all respects except its conclusion that Officer
Baker is not entitled to qualified immunity on Garcia’s First Amendment retaliation
claim. Because I conclude that Garcia has not shown a violation of a clearly
established constitutional right, I would affirm the district court’s grant of qualified
immunity on this claim.
Garcia has not shown that his conduct, which included an offensive gesture
was, as a matter of law, protected speech. See Thurairajah v. City of Fort Smith, 925
F.3d 979, 984 (8th Cir. 2019) (providing the first element of a First Amendment
retaliation claim: that the plaintiff engaged in protected activity). Although critical
or offensive speech may be protected by the First Amendment, see City of Houston
v. Hill, 482 U.S. 451, 461-63 (1987), this right is not absolute. Indeed, the Supreme
Court has held that “‘fighting’ words,” which are those words “which by their very
utterance inflict injury or tend to incite an immediate breach of the peace,” are not
protected by the First Amendment. Chaplinksy v. New Hampshire, 315 U.S. 568, 572
(1942). In the context of speech directed toward law enforcement officers, critical
speech is generally afforded more protection. While “a properly trained officer may
reasonably be expected to ‘exercise a higher degree of restraint’ than the average
citizen, and thus be less likely to respond belligerently to ‘fighting words,’” there are
still limits to the speech an individual may hurl at an officer. See Lewis v. City of
New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring) (citation omitted).
Speech that is “likely to produce a clear and present danger of a serious substantive
evil that rises far above public inconvenience, annoyance, or unrest” does not enjoy
First Amendment protection, even when aimed at law enforcement officers. Hill, 482
U.S. at 461 (citation omitted).
In my view, Garcia’s conduct was prolonged and goes beyond that of
constitutionally protected speech. Garcia made the obscene gesture while driving
through a school zone in broad daylight while a crossing guard was present. He
extended his head and entire arm out of the car while raising his middle finger.
Further, Garcia’s aberrant and aggressive behavior, which included the obscene
gesture, occurred after a previous contentious encounter that morning with Officer
Baker at the same school crossing. Although an officer is expected to exercise more
restraint than the average citizen in responding to offensive or critical speech, I
believe the facts here demonstrate an escalation of offensive and aggressive behavior
that both disrupted and interfered with Officer Baker’s ability to monitor the school
crossing. This impact shows that Garcia’s conduct amounts to speech that “rises far
above public inconvenience, annoyance, or unrest” and is not protected by the First
Amendment. See Lewis, 405 U.S. at 135 (Powell, J., concurring).
Further, even if Garcia has shown the violation of a constitutional right, it was
not clearly established on February 1, 2016, that driving through a school zone during
school hours and in the presence of a crossing guard, leaning his entire head and arm
out the window of his vehicle to raise his middle finger, all following a confrontation
about Garcia’s rate of speed in the same location earlier that day, was protected by the
First Amendment. The majority relies on cases are factually distinct,
California, 403 U.S. 15 (1971); Thurairajah, 925 F.3d at 985, or are not from this
circuit, see Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019). Although we
held in Thurairajah that shouting “f**k you!” at an officer was protected speech, the
Court’s recognition of the clearly established right to be free from First Amendment
retaliation was stated at a high level of generality and did not involve the same kind
of conduct here, where Garcia demonstrated escalating aggressive and offensive
behavior. See 925 F.3d at 985. Cohen similarly lacked any evidence of escalating
behavior; the individual in that case engaged only in the passive action of wearing a
jacket bearing the words “F**k the Draft.” 403 U.S. at 16, 25-26. And although the
Sixth Circuit held in Cruise-Gulyas that a reasonable officer would know raising a
middle finger is protected speech, this case is of no precedential value to our Court,
post-dates the incident here, and involves a single interaction between the individual
and the officer, not two in one day, like Garcia. See 918 F.3d at 497. Finally, none
of the cases include a scenario where the offensive speech or conduct was offered in
a school zone during the school day. These cases simply do not describe the facts
confronting Officer Baker.
The Supreme Court has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (citation omitted). The dispositive inquiry for this court “is
‘whether the violative nature of particular conduct is clearly established,’” taking
into account “the specific context of the case, not [considering the determination] as
a broad general proposition.” Id. (citations omitted). When viewed with the proper
level of specificity, accounting for the specific circumstances of this incident, I cannot
conclude that it was clearly established that Garcia’s conduct was protected by the
First Amendment.
“Rulings declaring the violation of a ‘clearly established right’ require careful
attention, because ‘qualified immunity is important to “society as a whole,” and
because as “an immunity from suit,” qualified immunity “is effectively lost if a case
is erroneously permitted to go to trial.”’” Robinson v. Hawkins, 937 F.3d 1128, 1144
(8th Cir. 2019) (Colloton, J., dissenting) (citation omitted). Given the facts of this
case, I believe Garcia has failed to show a violation of a clearly established
constitutional right. Accordingly, I conclude Officer Baker is entitled to qualified
immunity on Garcia’s First Amendment claim.