David KENYON, Plaintiff/Appellee, v. Clayton EDWARDS, individually, Defendant/Appellant, Lt. Jim Hale, individually; Jeremiah Ervin, individually; Dan Jarry, individually, originally sued as "Van Jarry," Defendants, 462 F.3d 802

BEAM, Circuit Judge. Clayton Edwards, a deputy sheriff for White County, Arkansas, brings this interlocutory appeal of the district court’s denial of his motion for

summary judgment based on qualified immunity. David Kenyon (Kenyon) sued Edwards and three White County deputy sheriffs: Lieutenant Jim Hale, Sheriff Jeremiah Ervin, and Sheriff Dan Jarry. I. BACKGROUND We recount the facts in the light most favorable to Kenyon, the party asserting the injury in this qualified immunity case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). On September 13, 2003, Edwards responded to a report of an altercation at a demolition derby being held at the White County fairgrounds in Searcy, Arkansas.

Edwards arrived to see an irritated Stephen Kenyon being restrained by a member of a large crowd that had gathered near the derby pits. Edwards noticed that Stephen looked as though he had been in a fight. Edwards asked what was going on, and Stephen replied, “He hit my mother.” Edwards could tell Stephen was indicating that his mother was Shirley Cox, and so Edwards went over to her. Edwards described Cox’s nose as being flat against her face, and that she was bleeding profusely from her nostrils.

He noted that he was among a crowd of between one-hundred and two-hundred people, and described the environment as an “atmosphere of hostility” where weapons of opportunity, such as crowbars and hammers, were readily available. At first, Cox did not respond to Edwards’ questions about what had happened because she was in pain. Edwards told Cox that an ambulance was on the way. Eventually, Cox told Edwards that it was David Kenyon who had hit her. Edwards learned that David Kenyon was Cox’s ex-husband, and realized he had a domestic battery situation on his hands.

Edwards addressed the crowd around him and asked if there were any witnesses to the events. He also asked where David Kenyon was. No one answered at first, but then someone called out, “There he is.” The crowd parted, leaving Kenyon in the middle. Edwards and the other officers on the scene approached Kenyon, and Edwards put his hand on Kenyon’s elbow and asked his name. When Kenyon answered, Edwards told him he was under arrest. Kenyon raised his arms in an inquiring gesture and asked, “For what?” Edwards then grabbed Kenyon’s wrist and took his arm behind his back.

Though precisely what happened next is in dispute, we must, as we have said, credit Kenyon’s version of the facts for purposes of the qualified immunity analysis. Under that version, Edwards threw Kenyon onto the hood of a nearby car and pulled Kenyon’s arms up high behind his back in order to handcuff him. Kenyon told Edwards that he was hurting his arms, but Edwards persisted until Kenyon was handcuffed. Kenyon resisted because his arms were in pain from the handcuffing, and the officers told Kenyon to stop resisting. Kenyon claims he suffered a torn rotator cuff, requiring surgery, and continues to have pain.

Kenyon’s suit against the four police officers ended with a jury finding in favor of the officers, save Edwards. The jury was unable to reach a verdict on the excessive force claim against Edwards, and the court declared a mistrial. After the court scheduled a new trial, Edwards moved for

summary judgment based in part on qualified immunity. The district court accepted Kenyon’s version of the facts as true for purposes of qualified immunity, and found that on those facts, Edwards’ actions violated Kenyon’s constitutional rights. But the court said it was impossible at the

summary judgment stage to answer whether it would be clear to a reasonable officer that Edwards’ conduct was unlawful in the situation he faced-that is, whether the constitutional right at issue was clearly established-because it found that a material question of fact remained. The court did not explain at that point what fact remained in dispute, but elsewhere in its opinion, the court stated a material question of fact remained as to whether the force Edwards used was objectively reasonable under the circumstances. II. DISCUSSION A district court’s order denying

summary judgment is generally not appealable. Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.2006). However, this court has limited authority to review the denial of

summary judgment based on qualified immunity to the extent the appellant seeks review of purely legal determinations. Id. Edwards does not seek review of any factual determinations, but argues, in essence, that Kenyon has failed to show that Edwards used excessive force in his arrest, and that even if Edwards did, Kenyon’s right to be free from such force under these circumstances was not clearly established. We find that Edwards is entitled to

summary judgment based on qualified immunity. A. The Qualified Immunity Analysis Saucier provides the marching orders for courts considering qualified immunity claims. Under Saucier, courts presented with a motion for

summary judgment on the basis of qualified immunity undertake a two-step inquiry. The threshold question asks “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” 533 U.S. at 201, 121 S.Ct. 2151.

If, on the facts as alleged, no constitutional violation could be shown were the allegations established, the inquiry ends, and the defendant is entitled to qualified immunity. “On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id.

The second question must be asked in a “particularized” sense: “ ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Id. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). That is, the essential question at step two is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. B.

No Constitutional Violation Edwards first argues that because Kern yon has failed to point to the violation of an “objective law enforcement standard” during the arrest, Kenyon has failed to show that reasonable officers would disagree on the proper course of action in the situation. Thus, Edwards says, there is nothing for a jury to decide. This somewhat convoluted argument challenges the district court’s finding that the facts as alleged by Kenyon show that Edwards used excessive force during the arrest, violating Kenyon’s Fourth Amendment right to be free from unreasonable seizure.

Excessive force claims are analyzed under the Fourth Amendment’s reasonableness standard. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether the amount of force used is reasonable, courts must balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (internal quotations and citation omitted).

This analysis requires “careful attention to the facts and circumstances of each particular case, including 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 arrest or attempting to evade arrest by flight.” Id. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.

Finally, judges must allow for the fact that police officers often make split-second decisions about the amount of force necessary in tense, uncertain, and rapidly changing circumstances. Id. at 396-97, 109 S.Ct. 1865. Taking the facts as alleged by and in the light most favorable to Kenyon, Edwards threw Kenyon onto the hood of a car and pulled his arms up high behind his back in an “unnatural” manner in an attempt to arrest and handcuff Kenyon for domestic battery and public intoxication. Kenyon kept asking why he was being arrested, as he continued to resist, albeit because of the pain from the handcuffing.

The encounter took place amidst a large crowd of people in an atmosphere of hostility where weapons of opportunity were available. Based on all of the factors in Graham, Edwards did not use excessive force. Though the encounter apparently resulted in injury to Kenyon’s rotator cuff, we believe under the circumstances that Edwards’ use of force was reasonable in order to bring a potentially volatile situation under control. C.

Right Not Clearly Established Even if it could be said, on the facts as alleged, that Edwards’ use of force was unreasonable, and thus unlawful, it would not necessarily have been clear to a reasonable officer that the amount of force used was problematic. That is, it could not be said that the right to be free from the kind of force Edwards used in the situation was clearly established. Because an outstanding issue of material fact remained as to whether Edwards used excessive force, the district court did not analyze whether a reasonable officer would know that the force used was unlawful.

But in Saucier, the Supreme Court rejected this approach. The Court reversed the Ninth Circuit, which had upheld the district court’s denial of

summary judgment based on qualified immunity because an issue of material fact remained on the excessive force claim. The Ninth Circuit viewed the question of whether an officer was reasonable in believing his actions were lawful in light of clearly established law, and the question of reasonableness on the merits of the Fourth Amendment claim, as the same inquiry.

However, the Supreme Court made clear the importance of proceeding in order through both steps-determining whether the facts alleged showed a constitutional violation, and then whether a reasonable officer would believe his actions were unlawful in light of clearly established law. This, the Court noted, allows for the elaboration of and advancement toward an understanding of the law from case to case. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. The Court said: [t]he approach the Court of Appeals adopted-to deny

summary judgment any time a material issue of fact remains on the excessive force claim-could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many insubstantial claims on

summary judgment. If the law did not put the officer on notice that his conduct would be clearly unlawful,

summary judgment based on qualified immunity is appropriate. Id. at 202, 121 S.Ct. 2151 (internal quotation and citations omitted). Thus, on the facts alleged by Kenyon, we do not believe the state of the law at the time of this incident was such that it would be clear to a reasonable officer that Edwards’ conduct was unlawful in the situation he confronted at the derby. Kuha v. City of Minnetonka, 365 F.3d 590, 601-02 (8th Cir.2003).

Though it is clearly established that the Fourth Amendment bars the use of excessive force generally, we must keep in mind that the right must be clearly established “in a more particularized ... sense” such that the “contours of the right” make it clear to officers what the law is in a given circumstance. Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (internal quotations omitted). Kenyon points principally to Goff v. Bise, 173 F.3d 1068 (8th Cir.1999), Kopec v. Tate, 361 F.3d 772 (3d Cir.), cert. denied, 543 U.S. 956, 125 S.Ct. 453, 160 L.Ed.2d 317 (2004), and Kostrzewa v.

City of Troy, 247 F.3d 633 (6th Cir.2001), to argue that the right to be free from the force Edwards used in the situation he faced was clearly established. But these cases do not present facts akin to those faced by Edwards in his confrontation with Kenyon. In Goff, we affirmed the denial of qualified immunity where a police officer and town mayor arrested the plaintiff, tightly cuffed him, threw him to the ground, and choked him to unconsciousness in a situation where personal animosity may have motivated the arrest and where the plaintiff did not pose a threat.

In Kopec, a police officer handcuffed the plaintiff so tightly that he began to faint and writhed in pain on the ground for about ten minutes after the plaintiff refused to provide the officer personal information, following the officer’s demand that the plaintiff and his girlfriend desist their frolicking trespass onto a frozen pond. The court in Kopec held that the officer’s failure to respond promptly to the plaintiffs painful pleas in what were “rather benign circumstances” where the officer did not face a “dangerous situation” constituted excessive force. 361 F.3d at 777.

In Kostrzewa, the court denied qualified immunity where the plaintiff was stopped for a routine traffic violation, tightly handcuffed, and then battered about the back of a squad car by the intentionally reckless driving of the arresting officers. In Kukla v. Hulm, 310 F.3d 1046 (8th Cir.2002), the court upheld the denial of qualified immunity where officers arrested plaintiff for refusing to sign a ticket for failure to produce a trucker log -book, and in the process forced him against his truck, twisted his arm high behind his back injuring his collar bone, and broke his wrist with the handcuffs.

The court found that the minor infraction and lack of a safety threat merited denial of immunity. In none of these- cases did the officers face the charged and potentially dangerous atmosphere that Edwards faced in arresting Kenyon, where physical violence had already occurred and á large crowd with access to weapons of opportunity stood nearby. Based on the state of the law and given the facts as alleged by Kenyon, we do not find that a reasonable officer would have believed that the force Edwards used was unlawful. III.

CONCLUSION • Because, given the facts as alleged by Kenyon, we believe no constitutional violation occurred and, alternatively, that a reasonable officer would not believe the force used here to be excessive, we find that Edwards is entitled to qualified immunity. We therefore reverse and remand. . The record indicates that Kenyon admitted that Edwards had probable cause to arrest Kenyon for both domestic battery and public intoxication.