David Kasiah v. Gilbert Carter ( 2019 )


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  •                United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-3588
    ___________________________
    David Kasiah
    lllllllllllllllllllllPlaintiff - Appellant
    v.
    Crowd Systems, Inc.
    lllllllllllllllllllllDefendant
    Gilbert Carter; Kansas City Board of Police Commissioners
    lllllllllllllllllllllDefendants - Appellees
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: September 27, 2018
    Filed: February 14, 2019
    ____________
    Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
    ____________
    MELLOY, Circuit Judge.
    A concertgoer who was injured when an off-duty police officer lifted him over
    a five-foot barrier and dropped him on his neck asks us to reverse the district court’s1
    order granting summary judgment to the officer and the board of police
    commissioners on his 
    42 U.S.C. § 1983
     claims. We affirm.
    I. Background
    A. Appellant’s Injury
    Except where noted, the following facts are undisputed or presented in a light
    most favorable to the appellant. On September 27, 2013, Appellant David Kasiah
    attended the Buzz Beach Ball concert in Kansas City, Missouri. While there, he
    engaged in several acts of “crowd surfing.” According to Kasiah, crowd surfing
    involved being hoisted onto fellow concertgoers’ shoulders at the back of the venue
    and then being passed hand to hand overhead by them and others toward the stage.
    Some time after one these crowd-surfing episodes, Kasiah was dancing behind a
    woman when he “bumped into her.” The woman became upset and began yelling at
    him. Kasiah tried to ignore her, and, after a few seconds, they resumed their separate
    dancing. Kasiah then crowd surfed again, whereupon he returned and started dancing
    behind the woman. He bumped into her a second time, and she responded by yelling
    much more fiercely. After about thirty seconds of yelling, the woman turned to the
    man she was with and appeared to voice her frustration. She then ran off to talk to
    security personnel, and the man and Kasiah exchanged “looks.”2
    1
    The Honorable Beth Phillips, United States District Judge for the Western
    District of Missouri.
    2
    In a deposition, Kasiah explained that the look the man gave him was a look
    that seemed to say, “Sorry about [the woman] freaking out about this. . . . [S]he’s
    making me do this.” Elsewhere, Kasiah called the look the man gave a “stare.”
    Kasiah explained that the exchanged looks were all that ever happened between him
    and the man—the man made no threatening gestures to Kasiah, nor did he clench his
    fist or square up to Kasiah in a boxer stance.
    -2-
    While all of this was going on, Appellee Gilbert Carter, an off-duty police
    officer for the Kansas City Police Department (“KCPD”), was working as a security
    guard for Crowd Systems, Inc. (“CSI”), the company providing security for the event.
    He was standing behind an approximately five-foot tall metal barrier separating the
    crowd from the stage. A CSI employee approached Carter and explained that it
    looked like a fight might break out between Kasiah and another man. Carter then
    stepped onto a step approximately two feet off the ground, which put the top of the
    barrier at his waist. From there, Carter watched Kasiah and the other man for a
    moment and called his colleague, Detective Kevin White, over to help him. White
    was also an off-duty KCPD police officer working for CSI.
    As White drew near, Carter spoke to one of the patrons who reported that
    Kasiah had been causing trouble all day. Carter then saw what he believed to be a
    “disturbance in the crowd” caused by the two men and motioned for Kasiah to come
    to him. Kasiah walked toward Carter, who lunged to grab Kasiah as Kasiah got close
    enough. Kasiah avoided the grab and stepped or leaned back, away from Carter. The
    crowd suddenly surged forward, and Kasiah was pushed toward Carter. Carter then
    grabbed Kasiah by the shirt and the arm, made a slight adjustment to his grip, and
    proceeded, with White’s assistance, to pull Kasiah up and over the barrier.3 Kasiah
    3
    Lifting someone over the barrier to remove him from a concert was,
    apparently, not an uncommon practice among CSI security guards. White recalls
    doing it “all the time” when he worked at other events. Officers did it, he explained,
    to remove people whom CSI identified as needing to leave for any given reason. He
    said that it “may not be the easiest way” to remove a person from an event or “the
    smartest thing to do” alone, but he did recall doing it with help previously and
    “[n]ever [having] any issues.”
    In this instance, Carter and White pulled Kasiah up, dragging his torso along
    the barrier somewhat. They then grabbed Kasiah’s legs. Kasiah’s body appears to
    have never been more than a foot above the barrier. Nevertheless, at one point his
    legs were higher in the air than his head.
    -3-
    was approximately five feet, eleven inches tall and weighed around 160 pounds.
    Carter was a “large,” five-foot-four-inch, “stocky,” wide-shouldered man. White had
    “a smaller-build,” was approximately five feet, five inches tall, and appeared to be in
    his “late 40s [or] early 50s.”
    As Carter and White pulled Kasiah over the barrier, White began to lose his
    grip. Kasiah was basically perpendicular to the barrier at the time and not resisting.
    Without White’s help to support Kasiah’s lower body, Carter lost his balance and
    began to fall from the platform. Carter then “pushed, turned, or ‘threw’” Kasiah away
    from him. Both men fell to the ground. Kasiah landed on his head and shoulder and
    fractured two vertebrae in his neck. Carter landed next to Kasiah or slightly on top
    of Kasiah’s lower body. Kasiah cried out that there was something wrong with his
    neck, so Carter and White ensured that Kasiah received immediate medical attention.
    Carter later charged Kasiah with disorderly conduct.
    B. Procedural History
    Two years later, Kasiah brought suit against CSI and Carter in Missouri state
    court for assault and battery, general negligence, vicarious liability, negligent hiring,
    training, and retention, and punitive damages. Nearly a year later, he amended his
    petition to add Appellee Kansas City Board of Police Commissioners (“the Board”)
    as a party. He also added claims under 
    42 U.S.C. § 1983
     for wrongful arrest and
    excessive force in violation of the Fourteenth Amendment and the Missouri
    constitution. The defendants removed the case to the district court, whereupon
    several things happened. First, Kasiah settled his claim against CSI. Second, the
    district court dismissed some of Kasiah’s claims and disposed of others through
    summary judgment—these included all but the wrongful arrest, excessive force,
    assault and battery, and general negligence claims. None of the dismissals or prior
    summary judgment orders are before us on appeal. Third, the parties completed
    discovery. Finally, Carter and the Board filed motions for summary judgment on the
    -4-
    remaining claims, arguing that Carter was entitled to qualified immunity and that the
    Board could not be held derivatively liable for his alleged excessive use of force.
    The district court granted summary judgment in two orders. Relevant to this
    appeal, the district court concluded that Carter: (1) did not use excessive force in
    violation of clearly established constitutional law; and (2) was immune from the state-
    law tort claims under the doctrine of official immunity. Regarding the claims against
    the Board, the district court stated that Kasiah agreed summary judgment for the
    wrongful arrest claim was appropriate.4 The district court also held that the Board
    was not derivatively liable on the excessive force claim because Carter did not use
    excessive force. Alternatively, the district court held that “[e]ven if Carter’s use of
    force was unconstitutional, [the Board was] entitled to summary judgment” because
    the violation did not result from an official policy or the Board’s failure to train or
    supervise Carter. Kasiah timely filed a notice of appeal.
    II. Discussion
    Kasiah argues that the district court erred when it granted summary judgment
    in favor of Carter and the Board on his claims that: (1) Carter used excessive force
    in violation of the Fourth Amendment; (2) Carter committed assault and battery and
    was generally negligent under Missouri law; and (3) the Board was derivatively liable
    as a municipality for Carter’s use of excessive force. We review a grant of summary
    judgment de novo, viewing the facts in the light most favorable to the nonmoving
    party. See Eggers v. Wells Fargo Bank, N.A., 
    899 F.3d 629
    , 632 (8th Cir. 2018).
    4
    On appeal, Kasiah does not dispute that he so agreed. Nor does he now argue
    that the district court’s decision on the wrongful arrest claim was somehow
    inappropriate.
    -5-
    A. Excessive Force
    Kasiah first asserts that Carter used excessive force against him in violation of
    the Fourth Amendment. The district court analyzed whether any of three “distinct
    ‘uses of force’” constituted excessive force. These uses of force were: (1) Carter
    grabbing Kasiah; (2) Carter lifting Kasiah over the barrier; and (3) Carter “throwing”
    Kasiah to the ground. The district court concluded that none of the uses of force were
    unconstitutionally excessive. For the reasons discussed below, we agree.
    The Fourth Amendment, as applied to the states by the Fourteenth Amendment,
    protects individuals from “unreasonable searches and seizures” by government
    officials. U.S. Const. amend. IV. An officer who uses excessive force “in the course
    of an arrest, investigatory stop, or other ‘seizure’ of a free citizen” acts unreasonably,
    making his use of force unconstitutional. Graham v. Connor, 
    490 U.S. 386
    , 395
    (1989). To determine whether an officer has used excessive force, a court must
    consider, “based on the perspective of a reasonable officer on the scene, ‘whether the
    officer[’s] actions are “objectively reasonable” in light of the facts and circumstances
    confronting [him].’” Wenzel v. City of Bourbon, 
    899 F.3d 598
    , 601–02 (8th Cir.
    2018) (quoting Ellison v. Lesher, 
    796 F.3d 910
    , 916 (8th Cir. 2015)). The court
    “evaluate[s] the objective reasonableness of the use of force by looking at the
    particular circumstances of each case, including ‘the severity of the crime at issue,
    whether the suspect pose[d] an immediate threat to the safety of the officer or others,
    and whether he [wa]s actively resisting arrest or attempting to evade arrest by flight.’”
    Neal v. Ficcadenti, 
    895 F.3d 576
    , 580–81 (8th Cir. 2018) (second and third alterations
    in original) (quoting Wertish v. Krueger, 
    433 F.3d 1062
    , 1066 (8th Cir. 2006)). The
    court does not consider the question of whether an officer used excessive force “as
    ‘judged . . . with the 20/20 vision of hindsight.’” Id. at 580 (quoting Hollingsworth,
    800 F.3d at 989).
    -6-
    Here, we conclude that no reasonable jury could find that Carter’s uses of force
    were objectively unreasonable. Regarding the first use of force, the grab, the district
    court noted that it had previously determined Carter had probable cause to arrest
    Kasiah for disorderly conduct. Kasiah has not appealed nor does he dispute that
    determination. The district court therefore concluded, and we agree, that it was
    reasonable for Carter to grab Kasiah. An officer must be permitted to grab the
    arrestee and put him in handcuffs when effectuating an arrest. See Graham, 
    490 U.S. at 396
     (“[T]he right to make an arrest or investigatory stop necessarily carries with
    it the right to use some degree of physical coercion . . . to effect it.”). That conclusion
    is strengthened by the fact that Kasiah points to no evidence in the record to support
    a claim that the grab was anything more than what Graham permits.
    The second use of force, the lift, was also objectively reasonable. An officer
    effectuating an arrest need not take action devoid of all risk of harm to the arrestee
    when moving or attempting to move that arrestee to another location. See, e.g.,
    Boude v. City of Raymore, 
    855 F.3d 930
    , 933–34 (8th Cir. 2017) (holding that an
    officer who physically removed a non-compliant, intoxicated woman from her vehicle
    acted in an objectively reasonable manner); Ryan v. Armstrong, 
    850 F.3d 419
    ,
    427–28 (8th Cir. 2017) (concluding that the efforts made by officers to remove a
    severely mentally agitated detainee from his cell were objectively reasonable).
    Indeed, an officer need not even “pursue the most prudent course of conduct” when
    doing so. Church v. Anderson, 
    898 F.3d 830
    , 833 (8th Cir. 2018) (quoting Retz v.
    Seaton, 
    741 F.3d 913
    , 918 (8th Cir. 2014)); see also Aipperspach v. McInerney, 
    766 F.3d 803
    , 806 (8th Cir. 2014) (noting that “[w]e are hesitant to second-guess the
    ‘split-second judgments’ of officers working in ‘tense, uncertain, and rapidly
    evolving situation[s]’” (citation omitted)). What matters is that the officer acted
    reasonably “in light of the facts and circumstances confronting [him].” Graham, 
    490 U.S. at 397
    .
    -7-
    Here, Carter acted reasonably. Having apprehended Kasiah, the natural next
    move for Carter was to remove Kasiah from the concert. Lifting him over the barrier,
    while potentially risky, was a quick solution and had been done on previous
    occasions. Indeed, lifting Kasiah helped Carter avoid any difficulty or delay he
    would have faced had he attempted to get Kasiah, a person he had probable cause to
    believe was guilty of disorderly conduct, through a noisy crowd at a noisy rock
    concert and to an exit. Moreover, Carter, a “large,” “stocky,” wide-shouldered man,
    was physically capable of lifting the non-resisting, 160-pound Kasiah up and over a
    five-foot barrier, especially where White was available to assist him. Given these
    facts, the prevalence of the practice among CSI security guards without incident, and
    our well-settled case law that “an officer need not pursue the most prudent course of
    conduct,” Church, 898 F.3d at 833 (citation omitted), we hold that it was objectively
    reasonable for Carter to lift Kasiah over the barrier.
    The final use of force, the throw, was also objectively reasonable. The parties
    agree that White lost his grip on Kasiah’s legs as Kasiah was coming over the barrier.
    They also agree that this resulted in Carter losing his balance, causing Carter and
    Kasiah to fall toward the ground. It was only then, they stipulate, that Carter “pushed,
    turned or ‘threw’” Kasiah away from him. “Throwing” Kasiah, therefore, was the
    result of Carter’s fall, not some malicious act on the part of Carter.
    In his brief, however, Kasiah disagrees as to the meaning of his stipulation. He
    argues that the record shows that Carter intentionally5 threw Kasiah, apparently
    5
    What Kasiah means by the word “intentionally” is unclear. From the way he
    uses it in his brief, Kasiah seems to be referring to something more than merely
    intending for a certain result to occur. Carter obviously intended to throw Kasiah off
    of him in that sense; that fact is not in dispute. What Kasiah appears to be talking
    about when he uses the word “intentionally” is something more akin to malice—as
    in, Carter threw Kasiah, intending harm to Kasiah. Such a claim, however, is
    unsupported by the record.
    -8-
    believing that Carter’s state of mind makes the throw objectively unreasonable. The
    test we apply, however, is an objective one. See Wenzel, 899 F.3d at 601–02. We
    are to ask whether a reasonable officer in Carter’s position would have thrown Kasiah
    off of him as the two were falling to the ground, not whether Carter subjectively
    intended to harm Kasiah. See Graham, 
    490 U.S. at 397
     (“An officer’s evil intentions
    will not make a Fourth Amendment violation out of an objectively reasonable use of
    force; nor will an officer’s good intentions make an objectively unreasonable use of
    force constitutional.”). And we conclude that the answer is “yes.” A reasonable
    officer in Carter’s position would have been concerned with preventing injury to
    himself and the suspect as they fell on top of each other. Redirecting the suspect so
    that he would not fall on the officer, therefore, would be a natural thing to do. Thus,
    despite Kasiah’s argument that Carter intentionally threw him, a fact which Carter
    does not dispute, we do not agree that Carter’s throw was objectively unreasonable
    and therefore excessive force.
    In any event, even if we could find a constitutional violation in any of these
    uses of force, Kasiah has failed to meet his burden of showing that Carter violated a
    right that was clearly established. See Church, 898 F.3d at 832 (explaining that the
    burden of showing the violation of a clearly established right for qualified immunity
    purposes is on the plaintiff). We therefore conclude that Carter is entitled to qualified
    immunity on Kasiah’s excessive force claims.
    B. State Tort Claims
    Kasiah next asserts that the district court erred in granting Carter summary
    judgment on Kasiah’s assault and battery and general negligence claims. The district
    court reasoned that summary judgment for Carter was appropriate because he was
    immune from those claims based on the Missouri doctrine of official immunity. We
    agree.
    -9-
    The Missouri doctrine of official immunity “protects public employees from
    liability for alleged acts of negligence committed during the course of their official
    duties for the performance of discretionary acts.” Southers v. City of Farmington, 
    263 S.W.3d 603
    , 610 (Mo. 2008) (en banc). This protection is available unless the
    employees’ “conduct is willfully wrong or done with malice or corruption.” 
    Id.
     The
    doctrine also applies when plaintiffs bring suit for certain intentional torts like assault
    and battery. See, e.g., Boude, 855 F.3d at 934–35 (upholding a grant of summary
    judgment based on official immunity for negligence and battery claims); DaVee v.
    Mathis, 
    812 S.W.2d 816
    , 827 (Mo. Ct. App. 1991) (holding that the doctrine of
    official immunity applied to an assault charge made against police officers). A police
    officer who decides to use force against a person “has the benefit of official
    immunity,” Boude, 855 F.3d at 935 (quoting Fonesca v. Collins, 
    884 S.W.2d 63
    , 66
    (Mo. Ct. App. 1994)), because “[a]n ‘officer’s decision to use force in the
    performance of his duties is discretionary,’” 
    id.
     (quoting Davis v. White, 
    794 F.3d 1008
    , 1013 (8th Cir. 2015)).
    Here, we hold that the official immunity doctrine applies. Carter is a police
    officer. The parties do not dispute that he had probable cause to arrest Kasiah for
    disorderly conduct. Carter decided to use force to remove Kasiah from the concert,
    which is a discretionary act under Missouri law. Boude, 855 F.3d at 935. Therefore,
    in general, Carter is immune from liability for the Missouri state tort claims Kasiah
    brought against him.
    Kasiah argues, however, that Carter acted with malice, so official immunity
    should not apply. To support his argument, Kasiah points to the facts that “Carter did
    not observe a fight or any other altercation” and that “Kasiah complied with [Carter’s]
    direction to approach.” Kasiah does not explain, however, how these facts, in light
    of all the other facts, could support a conclusion that Carter acted with malice.
    Moreover, nothing in the record supports such a claim. We hold that Carter did not
    act with malice. The doctrine of official immunity applies.
    -10-
    C. Derivative Liability
    Lastly, Kasiah argues that the Board should be held derivatively liable as a
    municipality for Carter’s actions. The district court concluded that the Board could
    not be held liable because Carter had not violated the Constitution and, alternatively,
    “the constitutional violation was not the result of official policy or a deliberate[ly]
    indifferent failure to train or supervise.” We agree with the district court’s first
    conclusion and need not address the second.
    The Board cannot be held liable for Carter’s actions because Carter did not
    violate the Constitution. We have repeatedly said that “‘there must be an
    unconstitutional act by a municipal employee’ before a municipality can be held
    liable.” Webb v. City of Maplewood, 
    889 F.3d 483
    , 487 (8th Cir. 2018) (quoting
    Russell v. Hennepin Cty., 
    420 F.3d 841
    , 846 (8th Cir. 2005)). Where we conclude
    that Carter committed no unconstitutional act, the Board cannot be held liable.
    III. Conclusion
    Accordingly, we affirm the district court’s judgment.
    ______________________________
    -11-
    

Document Info

Docket Number: 17-3588

Judges: Smith, Melloy, Stras

Filed Date: 2/14/2019

Precedential Status: Precedential

Modified Date: 3/1/2024