Michael McReynolds v. Darrell Schmidli ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3772
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Michael McReynolds
lllllllllllllllllllllPlaintiff - Appellant
v.
Officer Darrell Schmidli; Officer Derek Gentile; City of Independence, Missouri
lllllllllllllllllllllDefendants - Appellees
Chief Tom Dailey; Chief Eric Onstott
lllllllllllllllllllllDefendants
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 4, 2021
Filed: July 13, 2021
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Michael McReynolds sustained significant injuries during the course of an
arrest on domestic violence and related charges. McReynolds has sued the arresting
officers, city officials, and the City of Independence, Missouri (the “City”), claiming
his constitutional rights were violated in a number of ways. McReynolds asserts the
arresting officers used excessive force to effectuate the arrest, knowingly pursued
false charges, prepared false reports, and offered false testimony in a prosecution for
interfering with police. McReynolds also asserts a claim against the City under
Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). The district court granted
summary judgment to the defendants on all claims and McReynolds appeals. We
affirm in part and reverse in part.
I. BACKGROUND
We recite the facts as determined by the district court, which appropriately
construed genuinely disputed facts in a light most favorable to McReynolds, the non-
moving party.1 During the early morning hours of June 12, 2012, Belynda Canania
called 911 about a domestic disturbance, reporting that McReynolds (her boyfriend)
was throwing furniture around their apartment. In the background during the call
McReynolds can be heard screaming at Canania. Both parties had been drinking.
Officers Darrell Schmidli and Derek Gentile were dispatched to the scene.
When Schmidli and Gentile exited their patrol cars and began approaching the house,
the officers heard a door close and saw a male matching the 911 description (later
identified as McReynolds) coming towards the driveway. McReynolds explained that
after the argument with Canania, he left the house to smoke a cigarette.
1
Defendants initially argued the facts set forth in their summary judgment
briefing should control because McReynolds failed to comply with Western District
of Mo. Local Rule 56.1(b)(1), which states that an opposing party must admit or
controvert each of the movant’s statement of facts. McReynolds instead submitted
his own statement of facts. Counsel for defendants, however, conceded at oral
argument that we must construe the facts as determined by the district court.
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Parts of the incident that followed were caught on a dashcam mounted on
Schmidli’s vehicle. Video shows the two officers increasing their pace and then
jogging towards the house. While the officers ran out of the view of the dashcam
recorder, Schmidli’s microphone captured the entire incident. Approximately three
to four seconds after Schmidli and Gentile begin to jog, Schmidli is heard to say,
“stop right there, don’t move, get on the ground.” McReynolds stopped and turned
around, but was slow to get to the ground. McReynolds asserts any delay was a result
of his intoxication, not knowing who was ordering him to the ground, and being in
the bright light of the flashlights. Schmidli then more loudly commanded
McReynolds to get on the ground. McReynolds dropped to his knees and put his
hands in the air. Two seconds passed and Schmidli once again loudly commanded
McReynolds to get “all the way on your stomach!” McReynolds immediately
responded, “On my stomach?” Without any further direction, Schmidli tackled
McReynolds from behind. With a running start, Schmidli thrust his knee into
McReynolds’ back and his arm into McReynolds’ neck, driving McReynolds’ face
into the pavement with great force. The force of the tackle broke McReynolds’ jaw
in multiple places.
Having subdued McReynolds, the officers then handcuffed him. McReynolds,
bleeding profusely from his face and mouth, immediately complained that the officers
had broken his jaw. McReynolds was transported to a local hospital where it was
confirmed that he suffered multiple fractures of the jaw. The doctor released
McReynolds to Schmidli’s custody with a recommendation that McReynolds contact
a physician for follow-up treatment.
After McReynolds was released to Schmidli’s custody, he was transported to
the Independence Police Department and booked on charges of domestic violence
assault and interfering with the police. The Independence City Prosecutor’s Office
ultimately declined to prosecute McReynolds on the domestic violence charge but
prosecuted him on the interfering charge. McReynolds was convicted following a
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bench trial. McReynolds appealed and, pursuant to Missouri law, was given a de
novo jury trial, which resulted in an acquittal.
McReynolds underwent multiple surgeries to repair his jaw. Follow-up
procedures ultimately involved extraction of a tooth as well as insertion of metal
plates and screws. McReynolds’ recovery was complicated by an infection that
required repeated packing of the wound. He suffered damage to a major nerve, which
has caused a permanent loss of feeling and sensation to a portion of his lower jaw.
McReynolds was unable to work for four months during his recovery.
McReynolds commenced this action in the Missouri courts, and the defendants
removed to federal court. McReynolds’ complaint contains three counts: (1) an
excessive force claim against Schmidli and Gentile pursuant to 42 U.S.C. § 1983; (2)
a claim for false charges, reports, and testimony against Schmidli, Gentile, and two
other officers2 pursuant to 42 U.S.C. § 1983; and (3) a Monell claim against the City.
The defendants successfully moved for summary judgment. The district court
concluded that while Schmidli (but not Gentile) had violated McReynolds’
constitutional rights, he was entitled to qualified immunity on the excessive force
claim because the right was not clearly established. The court also concluded that
McReynolds failed to allege sufficient facts to support his due process claim and that
McReynolds failed to present evidence showing the City had a policy or custom
authorizing the use of unconstitutional excessive force or that the City failed to train
its officers on the appropriate use of force during arrests. McReynolds appeals the
district court’s grant of summary judgment on each of his three claims.
2
McReynolds does not appeal the grant of summary judgment in favor of the
two other officers.
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II. DISCUSSION
We review the district court’s grant of summary judgment de novo, “viewing
the record in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Chambers v. Pennycook, 641 F.3d 898,
904 (8th Cir. 2011). However, when opposing parties present two different versions
of the facts, “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). Summary judgment cannot be defeated by merely alleging the
existence of some factual dispute. “[T]he requirement is that there be no genuine
issue of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986)).
A. Excessive Force Claim
In determining whether qualified immunity shields a law enforcement officer
from liability under § 1983, “we ask whether ‘(1) the evidence, viewed in the light
most favorable to [McReynolds], establishes a violation of a constitutional or
statutory right, and (2) the right was clearly established at the time of [the] violation,
such that a reasonable offic[er] would have known that his actions were unlawful.’”
Cole ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020)
(quoting Rudley v. Little Rock Police Dep’t, 935 F.3d 651, 653 (8th Cir. 2019)).
“Where the record does not conclusively establish the lawfulness of an officer’s use
of force, summary judgment on the basis of qualified immunity is inappropriate.”
Banks v. Hawkins, - - F.3d - -, 2021 WL 2148516, at *4 (8th Cir. May 27, 2021)
(citing Nance v. Sammis, 586 F.3d 604, 612–13 (8th Cir. 2009)).
With respect to the first prong, when the evidence is viewed in a light most
favorable to McReynolds, the facts establish: The officers arrived, and without
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announcing who they were, ordered McReynolds to stop and get on the ground.
McReynolds did not initially know who they were. As soon as McReynolds realized
he was being ordered to the ground by the police, he complied by getting on his knees
and placing his hands in the air. By this time, no reasonable officer could view
McReynolds as a threat, or that he was a flight risk. Schmidli then ordered
McReynolds to get on his stomach. When McReynolds sought clarification, rather
than give further clear instruction, Schmidli tackled McReynolds from behind with
significant force, slamming him face-first into the pavement.
At the moment McReynolds was tackled, he was compliant and neither a threat
nor a flight risk. We have previously explained that the use of significant force
against such a suspect is not objectively reasonable. See Karels v. Storz, 906 F.3d
740, 744–47 (8th Cir. 2018) (concluding the use of a take-down against a suspect
who was reportedly drunk and argumentative and was not an immediate threat to
anyone’s safety or a flight risk was not objectively reasonable); Rokusek v. Jansen,
899 F.3d 544, 547–48 (8th Cir. 2018) (despite refusal to comply with the initial three
commands, throwing an unarmed, nonviolent offender who was arrested for driving
while impaired face-first to the ground while his arms were immobilized was not
objectively reasonable); Neal v. Ficcadenti, 895 F.3d 576, 580–82 (8th Cir. 2018)
(finding the use of an arm-bar takedown established a violation of a constitutional
right when the suspect was compliant, did not pose a safety risk, and was not resisting
arrest, even though he had initially failed to follow the officer’s commands).
The officers argue their use of force was reasonable in this case because
McReynolds was noncompliant. They focus on McReynolds’ purported delays in
complying with their initial command to stop and get on the ground, and then once
on the ground, McReynolds’ failure to immediately get on his stomach. McReynolds’
alleged initial and brief noncompliance is immaterial to the excessive force analysis
because, as soon as he realized it was police officers yelling at him, he fully complied
with the officers’ orders to stop and get on the ground. This alleged noncompliance
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ended well before the tackle. As to the purported second incident of noncompliance,
prior to using force officers must allow a reasonable opportunity to comply with their
commands. See Smith v. Kansas City Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009)
(finding an officer used excessive force where plaintiff was forcibly removed from
his home before having the opportunity to comply with commands). Whether a
reasonable officer could have viewed McReynolds’ alleged delay in getting on his
stomach as noncompliant is, at most, a jury question. Karels, 906 F.3d at 745–46
(affirming the denial of qualified immunity in a take-down case when there were
genuine disputes of material fact as to whether arrestee’s actions could be interpreted
as noncompliant). McReynolds has shown a violation of the constitutional right to
be free from excessive force by law enforcement.
We turn to the second prong of whether the right was clearly established at the
time of the incident. “To be clearly established, ‘[t]he contours of the right must be
sufficiently clear that a reasonable offic[er] would understand that what he is doing
violates that right.’” Banks, at *4 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). While we may look to precedent to define the right at issue, we have
explained that a plaintiff is not required “to point to a nearly identical case on the
facts for the right to be clearly established.” Id. at *5.
Relying primarily on Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019) (en banc),
the district court determined that McReynolds’ right to be free from excessive force
under these circumstances was not clearly established. We find Kelsay
distinguishable from the present case and not controlling here because, as the district
court noted, McReynolds has alleged facts from which a jury could conclude that he
was not resisting arrest and was fully compliant. In Kelsay, unlike here, an officer
directed Kelsay to “get back here” as he ran up behind her and grabbed her arm.
Kelsay initially stopped and turned to face the officer but, after the officer released
her arm, Kelsay continued to walk away from the officer. That Kelsay continued to
walk away from the officer, openly disregarding a direct and lawful command, was
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significant to the majority’s decision. The predicate fact present in Kelsay and
missing here was direct defiance by the subject of the officer’s command. Here,
McReynolds was on his knees with his hands raised at the time that he was tackled.
McReynolds did not ignore the officers’ commands and he was not walking away
from them.
Kelsay and this case are similar with respect to the end result—a violent
takedown by a police officer that resulted in broken bones. But, because we find the
events preceding the takedown in this case fundamentally dissimilar to those in
Kelsay, we look to other precedent. This incident happened in June 2012. As we
held in Neal, “[i]n June 2012, the state of the law would have given a reasonable
officer fair warning that using physical force against a suspect who was not resisting
or threatening anyone was unlawful.” 895 F.3d at 582. In a case decided a few
months before this incident, we reversed the district court’s grant of qualified
immunity to an officer that performed a “leg sweep” takedown of a suspect. Montoya
v. City of Flandreau, 669 F.3d 867, 873 (8th Cir. 2012). We explained that “the
contours of the right at issue were sufficiently clear to inform a reasonable officer in
Officer Hooper’s position it was unlawful for him to perform a ‘leg sweep’ and throw
to the ground a nonviolent, suspected misdemeanant who was not threatening anyone,
was not actively resisting arrest, and was not attempting to flee.” Id.; see also
Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012) (determining the
officer’s deployment of his taser gun was not reasonable against an unarmed
suspected misdemeanant, who did not resist arrest, did not threaten the officer, did not
attempt to flee, and did not behave aggressively); Shannon v. Koehler, 616 F.3d 855,
863 (8th Cir. 2010) (finding it was not reasonable for officer to use more than de
minimis force against person suspected of committing a non-serious crime, was not
threatening anyone, and was not resisting arrest).
Applying the requisite amount of specificity, we conclude that a reasonable
officer would have had fair warning that, in June 2012, he could not violently
takedown a person who was not threatening anyone, not actively resisting arrest, and
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not attempting to flee. The district court erred in granting qualified immunity to
Schmidli.
Because “[a]n officer may be held liable only for his or her own use of
excessive force,” we must review each officer’s actions separately. Smith v. City of
Minneapolis, 754 F.3d 541, 547–48 (8th Cir. 2014) (citation omitted). McReynolds
relies on Gentile’s report in asserting that a jury question exists as to Gentile’s role
in the takedown. Specifically, Gentile stated in his report that “Officer Schmidli and
I then pushed him to the ground, Officer Schmidli landing on top of him and I with
a wrist lock on his left wrist.” Gentile’s written declaration under oath, however, is
more plain about his role in the takedown: “Officer Schmidli then pushed the suspect
to the ground, landing on top of him, and I was able to get the suspect in a wrist
lock.” And, while McReynolds did state in his deposition that “[t]hey just ran straight
up and tackled me,” his testimony clearly places the focus on Schmidli:
Q: Do you know which officer it was that tackled you?
A: Schmidli.
Q: Do you know whether he was the one yelling at you as well?
A: He was the one.
Q: When you say tackled, so we are clear on the record, what do you
mean by that?
A: I guess it was more of a forceful knee to the back and forearm to
the back of my head driving me into the ground. I don’t know
what you would call that. I don’t know what you would call it.
Some type of tackle move, tactic. I don’t know. It was a knee to
the back, middle of my back and forearm to the back of my head
driving me into the ground.
Even in a light most favorable to McReynolds, the record shows that Gentile’s
involvement was a wrist lock and that the source of the excessive force was Schmidli.
Under these facts, Gentile is entitled to qualified immunity because there is
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insufficient evidence that he used excessive force or significantly contributed to the
driving force that caused the injury.
We reverse the district court’s grant of summary judgment on the basis of
qualified immunity to Schmidli because it was clearly established at the time of the
incident that the level of force Schmidli asserted against McReynolds, who was not
resisting, was not a threat, and was not a flight risk, was unreasonable and in violation
of McReynolds’ constitutional rights. We affirm the district court’s grant of summary
judgment on the basis of qualified immunity to Gentile.
B. False Reports and Summons Claim
Although McReynolds’ due process claim was initially broader, on appeal he
only argues that the officers violated his right to due process of law when they filed
false police reports and served a false summons, which led to a false prosecution. We
construe McReynolds’ claim as an alleged violation of his substantive due process
rights.3 Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012) (explaining the
deliberate manufacture of false evidence contravenes the Due Process Clause).
A false evidence claim requires proof that the officers deliberately fabricated
evidence in order to frame McReynolds. See Mitchell v. Dakota Cty. Soc. Servs., 959
F.3d 887, 899 (8th Cir. 2020). McReynolds has failed to provide evidence sufficient
to survive summary judgment because he has not provided any evidence that any
inaccuracy in the officers’ reports was fabricated in order to frame him. Nor can any
3
To the extent that McReynolds intended to assert a claim for false arrest, he
conceded below that the officers had arguable probable cause to arrest him for
domestic violence. See Arnott v. Mataya, 995 F.2d 121, 124 n.3 (8th Cir. 1993)
(noting an arresting officer can avoid liability for false arrest if he has probable cause
to carry out an arrest). The district court properly granted the defendant officers
summary judgment on that claim.
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reasonable inference be drawn from McReynolds’ version of the facts that would
allow a finder of fact to conclude that Schmidli and Gentile deliberately lied with the
intention of framing him. The defendant officers are therefore entitled to summary
judgment on McReynolds’ substantive due process claim.
C. Monell Claim
Finally, McReynolds argues the City has an unofficial custom authorizing
officers to use excessive force in effectuating arrests, and this custom resulted in his
injuries. This claim is without merit because while an unofficial custom resulting in
a constitutional violation can be the basis for municipal liability under § 1983, see
Monell, 436 U.S. at 690–91, McReynolds must prove “the existence of a continuing,
widespread, persistent pattern of unconstitutional misconduct by the governmental
entity’s employees,” Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017). The only
evidence that McReynolds asserts in support of this claim is his June 2012 arrest and
a 2008 DUI arrest during which Schmidli allegedly used excessive force. Even
assuming officers used excessive force in effectuating both arrests, these two
incidents do not constitute a pattern of widespread and pervasive unconstitutional
conduct. See Brewington v. Keener, 902 F.3d 796, 802 (8th Cir. 2018) (holding that
two instances of excessive force are not a pattern of widespread and pervasive
conduct); Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998) (noting two specific
complaints and various rumors about an officer were not sufficient to establish a
policy or custom of condoning unconstitutional conduct). Without more, the City
was entitled to summary judgment on the Monell claim.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of summary
judgment in favor of Schmidli on the excessive force claim, and affirm on all other
claims.
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