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EXCESSIVE FORCE CASES AND INCIDENTS OF DEADLY POLICE FORCE IGNITE POSSIBILITIES FOR CHANGE IN EIGHTH CIRCUIT [section] 1983 LAW.

I. INTRODUCTION

Throughout history, and especially in recent years, the United States has faced challenges over the complicated relationship between police officers and the public. (2) These strained relationships have often lead to conflict, protest, and substantial criminal litigation. (3) Recent incidents of police violence, especially against people of color, have also sparked national conversations aiming to make constructive changes in local, state, and national governments. (4) These occurrences, which garner national media attention and deeply permeate our national conscience, have typically involved the use of deadly police force. (5) Uses of excessive force, as opposed to uses of deadly force, may affect a significantly larger population of suspects and arrestees on a more frequent basis. (6) Federal law provides for civil remedies for both these causes of action. (7) Since civil actions carry a lighter burden of proof, they may provide more obtainable remedies for individual victims of excessive force. (8) For this reason, examination of excessive force law in the Eighth Circuit, and by extension, the nation, is needed to foster understanding and create solutions to problems created by police officer's use of force. (9)

The federal law that provides for a civil remedy against a police officer for the use of excessive force is 42 U.S.C. [section] 1983, commonly referred to as a [section] 1983 action. (10) This comment will first examine the factual background of several significant Eighth Circuit excessive force cases. (11) Next, this comment will examine the legal nature of excessive force cases--exploring [section] 1983 actions, qualified immunity, excessive force, and the de minimis injury classification on both a nationwide level, then within the Eighth Circuit. (12) Finally, this comment will evaluate the weaknesses of excessive force law and will provide suggestions for changes to improve the law for both plaintiffs and defendants. (13)

II. A SNAPSHOT OF EIGHTH CIRCUIT CASES: FACTUAL BACKGROUNDS

A small sampling of Eighth Circuit cases with diverse factual patterns will help to illustrate the vastly different scenarios where [section] 1983 claims for excessive force are used. (14) Part A will discuss cases where the use of force was unjustifiable, and Part B will highlight cases where the use of excessive force was either reasonable or unclear. (15)

A. CASES WHERE USE OF FORCE WAS UNJUSTIFIABLE

1. Lollie v. Johnson (16)

On January 31, 2014, in St. Paul, Minnesota, Christopher Lollie was waiting to pick his children up from the bus stop. (17) It was cold, so Lollie took refuge inside the First National Bank Building, in an open seat within a skyway. (18) Several minutes later, a security officer asked Lollie why he was there, informed Lollie he was in a private seating area, and asked Lollie to leave. (19) When Lollie refused and claimed the seating was public, the security officer called police to report an "uncooperative male." (20) Lollie eventually left the seating area and encountered a police officer in a skyway. (21) "[I]n just over one minute, Lollie [was] stopped [by the police officer], told he [was] going to jail, restrained against a wall, allegedly choked, tased, and taken to the floor by Officers." (22) Lollie claimed he had done nothing wrong, that he was called in for trespassing only because he was black, and that he was not required to identify himself to police officers. (23) Officers on the scene believed Lollie was belligerent and viewed him as uncooperative and non-compliant. (24)

Lollie sued the officers and the City of St. Paul, asserting, among other things, excessive force under [section] 1983. (25) The police officers moved for summary judgment on all claims. (26) The district court concluded the rapid progression of the incident precluded the court from ruling, as a matter of law, that the force used was objectively reasonable. (27) The court also ruled a jury should decide which side of the story to believe. (28) Disputed issues of fact left for the jury included: whether the force used was excessive; whether Lollie gave the officers reason to fear for their safety; whether the officers had probable cause; and whether the use of force was willful or malicious. (29) Even in the face of what appears to be a clear violation of police authority, the court in Lollie's case decided that only a jury could make an accurate assessment of the credibility of the parties. (30)

2. Peterson v. Kopp (31)

Robert Peterson and his friend were hanging out at a bus stop in downtown St. Paul, Minnesota on April 25, 2011. (32) Three individuals joined Peterson and his friend, and the group began to smoke a hookah together. (33) Public Transit Officer Michael Kopp observed the group, and noticed they did not board several buses that pulled up to the stop. (34) Kopp asked the group to leave, but Peterson stayed behind. (35)

Peterson told Kopp the group was leaving and that Kopp did not "have to be rude." (36) Peterson also asked Kopp for his badge number. (37) Kopp responded, "[y]ou have no right to have my badge number[,]" to which Peterson replied, "I have every right." (38) Kopp grabbed Peterson's arm and pulled Peterson off the top of the bicycle lockers where Peterson was sitting. (39) Peterson protested Kopp's actions, stating "[y]ou can't handle me like that." (40) Kopp then pepper sprayed Peterson. (41) Peterson yelled "What the f***? What the f***? What did I do? I didn't do anything. Police brutality." (42) Kopp replied, "[y]ou want to see police brutality?" and "then pushed Peterson into the bicycle lockers, handcuffed him, and placed him in the back of the squad car." (43) Kopp never told Peterson he was under arrest and only issued a citation for misdemeanor trespass. (44)

Peterson sued Kopp for excessive force under 42 U.S.C. [section] 1983. (45) The district court granted the defendant's motion for summary judgment on the basis of qualified immunity. (46) The Eighth Circuit Court of Appeals affirmed. (47) The Eighth Circuit stated, based on the law at the time of the incident, that Kopp could have reasonably believed that his actions were permissible under the Constitution, so long as he did not cause more than a de minimis injury to Peterson. (48) Peterson was unable to prove he suffered more than de minimis injury through the use of pepper spray. (49) Kopp's conduct could have been deemed unreasonable under later decisions by the Eighth Circuit, (50) but since the incident in question predated the more favorable legal precedent, Kopp was held to an outdated legal standard. (51)

3. Robinson v. Payton (52)

On September 13, 2011, Matthew Robinson and his mother were out walking their dog near their home. (53) City of Dover Deputy Marshal Steven Payton viewed the pair as "suspicious people walking." (54) Payton saw Robinson throw something into the grass, stopped the Robinsons on the sidewalk, then witnessed the Robinson's dog run away. (55) When Robinson returned with the dog, he and his mother were placed in Payton's patrol car. (56) When another officer asked Robinson to exit the patrol car, Robinson refused and was tased. (57) Robinson, a six foot tall man who wore a size sixteen shoe, claimed he was tased as he struggled to get out of the back of the patrol car. (58) Robinson also claimed he grabbed a police officer's arm only to assist him in getting out of the vehicle. (59) The officers present claimed Robinson refused to exit the vehicle after multiple requests, and officers told Robinson he would be tased if he did not comply. (60) Even after Robinson was pulled from the car, Payton continued to tase Robinson. (61) Photos of Robinson after the incident showed at least fifteen taser marks. (62) Robinson was charged with refusal to submit to arrest. (63)

The Robinsons sued the City of Dover, the county, the county sheriff, and the individual officers, including Trooper Stewart Condley, alleging the use of excessive force in violation of the Robinsons' constitutional rights. (64) Even though Condley had not personally applied force to Robinson, Robinson asserted Condley had a duty to intervene to stop another officer from excessively tasing Robinson. (65) Condley's motion for summary judgment on the basis of qualified immunity was denied by the district court. (66) The Eighth Circuit Court of Appeals reversed, finding that "a reasonable official, standing in Trooper Condley's shoes, would not understand that what he [was] doing--restraining a hysterical individual [Robinson's mother] on the scene and deciding not to leave the hysterical individual and intervene--violates clearly established law." (67)

Circuit Judge Murphy dissented, asserting there were still disputed issues of facts within the case, including whether Condley breached a duty to intervene while other officers repeatedly tased Robinson. (68) Judge Murphy noted Robinson was tased 22 times and suffered scarring on "his face, chest, abdomen, and back, as well as a pilonidal cyst on his anus." (69) No drugs were ever found on Robinson. (70) Judge Murphy found summary judgment was not appropriate altogether. (71)

B. CASES WHERE USE OF FORCE WAS EITHER REASONABLE OR SOMEWHAT UNCLEAR

I. De Boise v. Taser International, Inc. (72)

Samuel De Boise "suffered from schizophrenia, which caused him to experience serious psychotic episodes." (73) On July 7, 2008, De Boise experienced an episode that caused him to become delusional and leave his home naked. (74) The next morning, neighbors saw De Boise wandering around, beating houses with a stick, and claiming to be God. (75) De Boise later returned home, held his mother's head down on the floor, and demanded that she worship him. (76) De Boise left his mother's presence, and his mother called 911 from a neighbor's home. (77) Officers Bret Lively and Joseph Percich were sent to the scene and informed by dispatch that De Boise was emotionally disturbed and acting violently. (78) The officers encountered De Boise exiting the home--De Boise was belligerent, noncompliant, still naked, and still claiming to be God. (79) After several attempts at ordering De Boise to the ground, Officer Percich tased De Boise in the chest for five seconds. (80) When De Boise continued to struggle and rise to his feet, Officer Percich delivered seven more five-second taser cycles. (81) De Boise attempted to kick officers while being handcuffed, and was tased twice more in the leg using the drive stun mode of the taser. (82) De Boise was eventually restrained, and a paramedic and EMT injected him with a sedative. (83) While being transferred to a hospital, De Boise went into cardiac arrest and died. (84)

De Boise's father and De Boise's minor children sued Officers Lively and Percich under [section] 1983. (85) The officers moved for summary judgment on the basis of qualified immunity. (86) The district court granted the motion. (87) The Eighth Circuit Court of Appeals affirmed, reasoning that even if the officer's application of force violated De Boise's Fourth Amendment rights, such rights were not clearly established at the time of the incident. (88) The court declined to specifically say whether the use of force was actually excessive or reasonable, but the language used by the court indicated that Officer Percich's use of a taser was reasonable. (89)

2. Schoettle v. Jefferson County (90)

On November 6, 2010, Edward C. Schoettle, a diabetic, began to feel lightheaded while driving his truck. (91) He pulled over to the side of the road to eat some candy and glucose tablets. (92) He then fell asleep or lost consciousness altogether. (93) Schoettle was slumped over in his truck when he was discovered by Officer Matthew Hudson. (94) Hudson believed Schoettle was intoxicated, even though Hudson did not see any evidence of alcohol containers. (95) When Hudson tapped on Schoettle's window, Schoettle attempted to explain he was on the side of the road to eat candy and recover from low blood sugar. (96) Hudson still called for assistance from DWI enforcement Officer Aaron Peifer. (97)

Peifer arrived and also tapped on Schoettle's window, but Schoettle told Peifer to "leave me the fuck alone." (98) Peifer twice requested that Schoettle get out of the vehicle, but Schoettle stated "I got no reason to get out, mother fucker, because I've done nothing wrong." (99) Peifer opened Schoettle's door, and the two officers forcibly removed Schoettle from the truck. (100) Schoettle resisted handcuffs and continued to struggle against the officers. (101) The officers pepper-sprayed Schoettle, and struck Schoettle on the head and body in an attempt to control him. (102) When Schoettle was finally handcuffed, EMTs arrived and treated him for a nosebleed and hypoglycemia. (103) Later, it was later discovered Schoettle had no alcohol in his system and had sustained a broken rib. (104)

Schoettle sued Officers Peifer and Hudson for the use of excessive force under [section] 1983. (105) The district court granted summary judgment to both defendants on all counts based on qualified immunity. (106) The Eighth Circuit affirmed, holding that the severity of the crime at issue--driving under the influence--coupled with the immediate risk to public safety justified the use of force. (107) The court held this was true even for a driver who was not intoxicated, but rather experiencing diabetic shock. (108)

3. Smith v. Buck (109)

Demone Royelio Smith was pulled over in Brooklyn Park, Minnesota on December 19, 2008. (110) A police officer ordered Smith out of his car, but Smith "panicked" and got back into his vehicle. (111) Smith got in and out of his car a few times, but eventually gave in to the officer's command for Smith to put his hands up and turn away from the officer. (112) A police dog was deployed, and, as Smith stood still, the dog grabbed the back of Smith's coat and pulled Smith in the direction of police. (113) When Smith turned to the police, another officer pointed a gun at Smith, and ordered him to turn around and get on the ground. (114) Smith complied, turned around, got on his knees, and put his hands up. (115) Without warning, the police dog was deployed on Smith for a second time. (116) The dog engaged and bit Smith, who suffered two teeth puncture wounds in the upper part of his left leg. (117) Smith also claimed to have suffered trauma and nerve damage as a result of the dog bite. (118)

Police officers painted a starkly different picture of the incident. (119) Officer Jason Buck was aware that Smith had a felony warrant issued after he was indicted for conspiracy to distribute crack and cocaine, and three counts of distribution of crack. (120) The Brooklyn Park Police Department executed Smith's traffic stop at the request of Drug Enforcement Agency, which also warned that Smith could be armed and dangerous. (121) After Smith got in and out of his vehicle several times, the stop was considered "high risk," and canine assistance was requested. (122) Officer Buck and his dog partner, Diesel, responded to the situation. (123) When Smith exited the vehicle, Buck issued a warning that the dog would be let loose on Smith, if Smith remained noncompliant. (124) Smith did not obey, so Diesel was deployed. (125) Believing Smith was still not under control, Buck redeployed Diesel. (126) Police claimed Smith had only a scratch on the upper portion of his left thigh, and did not see any other injuries which would have required medical attention. (127)

Smith, appearing pro se, sued Officer Buck under [section] 1983, alleging the use of excessive force. (128) The district court granted Officer Buck's motion for summary judgment on qualified immunity grounds. (129) The Eighth Circuit reversed and remanded, believing that a reasonable officer would not think redeploying Diesel was a reasonable amount of force. (130) The Eighth Circuit also remanded on the issue of whether Officer Buck caused more than a de minimis injury to Smith. (131) On remand, the district court denied summary judgment. (132)

C. ISSUES OF INCONSISTENT APPLICATION OF [section] 1983 EXCESSIVE FORCE LAW

The cases above represent prime examples of inconsistencies in the Eighth Circuit's application of [section] 1983 excessive force law. (133) Is it clearly unreasonable to tase a black man who was simply waiting for his children on a cold day? (134) If so, was the Eighth Circuit correct in deciding that a jury should still decide that issue? (135) Is it unreasonable to violently cuff and detain a non-violent loiterer who only wanted to enjoy some hookah with his friends? (136) If so, why did the Eighth Circuit grant summary judgment to the officer who lost his cool? (137) Is it sketchy to allow police officers to tase a person fifteen times after seeing him walk suspiciously? (138) If so, why did the Eighth Circuit grant summary judgment to the officer instead of sending the issue to a jury? (139)

These cases also demonstrate the logical issues presented when a court grants summary judgment on fact issues that should have been determined by a jury. (140) Was it reasonable to grant summary judgment to officers whose tasing resulted in the death of a schizophrenic man, or should it be a jury's decision? (141) Is it acceptable to grant summary judgment for the tasing and arrest of a diabetic who parked on the side of a roadway, or should a jury decide? (142) Is it proper to deny summary judgment to an officer who deployed a police dog on a jittery arrestee with a felony warrant, or should a jury make the proper assessment? (143)

Cases where legal conclusions are based on disputed facts naturally create complex scenarios, multifaceted outcomes, and inconsistent judicial decisions. (144) These inconsistencies are, unfortunately, arising from the application of the same legal precedents, and in the simple granting or denial of summary judgment based on qualified immunity. (145) The tragedy of these above cases lies not only in the facts, but in the inconsistent decisions made by a single judge or judicial panel when granting or denying summary judgement. (146) It seems that any possible inconsistencies should stem from a jury of the plaintiff's peers rather than a judge. (147) The "gray" character of excessive force cases, the inconsistent use of summary judgments, and the social significance of police-citizen relationships highlight the need for change in this area of the law. (148) In order to understand how the future of case law in this area should be resolved, there must be a clear understanding of the legal background of excessive force cases, both nationally and within the Eighth Circuit. (149)

III. LEGAL BACKGROUND

A. 42 U.S.C. [section] 1983

In 1871, Congress passed the Ku Klux Act, which was intended to give a civil remedy to those who were deprived of their constitutional rights, in particular, by governments in post-Civil War southern states. (150) Today, that statute is codified as 42 U.S.C. [section] 1983. (151) Section 1983 is used as a means to bring civil rights claims against state and local governments and their officials who have allegedly violated a person's constitutional rights. (152) A plaintiff must show they were deprived of "rights, privileges, or immunities secured by the Constitution and laws" in order to recover. (153) If a plaintiff meets the prevailing jurisdiction's standard for the [section] 1983 action, the court may award economic, compensatory, and punitive damages, as well as attorneys' fees. (154)

Even though [section] 1983 was passed 144 years ago and amended only twice, (155) it still provides a relevant, modern cause of action for a wide variety of lawsuits. (156) Recently, in Glossip v. Gross, (151) [section] 1983 was used to challenge Oklahoma's three-drug lethal injection procedures by inmates who were sentenced to death. (158) The prisoners unsuccessfully argued that a drug used in the first stage of execution "fail[ed] to render a person insensate to pain[,]" and thus the use of the drug violated the Eighth Amendment prohibition of cruel and unusual punishment. (159) In Lefemine v. Wideman, (160) an abortion protester successfully used [section] 1983 to obtain a permanent injunction against several local police officers. (161) During a protest on the availability of abortions, the officers forced the protester to discard signs displaying pictures of aborted fetuses in violation of the protester's First Amendment right to free speech. (162) In McBurney v. Young, (163) [section] 1983 was used to question the constitutionality of the Virginia Freedom of Information Act, which opened up Virginia's public records to state citizens but denied access to out-of-state residents. (164) Out-of-state citizens failed to convince the Supreme Court that Virginia's law violated either the Privileges and Immunities Clause or the Dormant Commerce Clause of the Constitution. (165) The broad array of uses for [section] 1983 actions, all decided by the Supreme Court within the past five years, shows the breadth and relevance of the statute as a civil cause of action. (166)

The clarity of uses of [section] 1983 actions begin to crumble while examining the deeper nuances of the statute in the context of excessive force, thus, deeper analysis is needed. (167) Examination of the qualified immunity doctrine demonstrates a possible defense for public officials to use against a claim of excessive force. (168) Inspection of the doctrine of excessive force is necessary to clarify how courts view police force in a civil setting. (169) Consideration of the doctrine of de minimis injuries is called for to explain the amount of harm a plaintiff needs to prove to win an excessive force claim. (170)

B. QUALIFIED IMMUNITY DEFENSE

Absolute immunity, used as a defense from a civil suit, can be granted to officials based on their assigned function, but not on a particular title or position. (171) For example, absolute immunity shields officials from damages, injunctive relief, declaratory relief, and attorneys' fees. (172) Qualified immunity is a lesser defense which protects an official whose challenged actions do not match the functions which have been designated by the courts to qualify for absolute immunity. (173)

This shield of protection becomes uncertain in qualified immunity circumstances, and opens the door for the potential of personal liability. (174) The defense of qualified immunity allows a defendant to be excused from all liability, but only if the alleged "conduct does not violate 'clearly established constitutional rights.'" (175) "[E]ven if the right asserted by the plaintiff was clearly established at the time of the challenged conduct, government officials may still be protected by qualified immunity if they can show extraordinary circumstances." (176)

Courts justify qualified immunity as a means to protect government officials who use a great deal of discretion. (177) From a policy perspective, qualified immunity encourages officials to enthusiastically exercise their discretion without the fear of incurring personal liability. (178) The defense does not extend, however, to government officials who act maliciously. (179) Qualified immunity serves to deter social costs such as the personal expense of litigation, reduce time spent away from work, and encourage competent individuals to seek public employment or public office. (180)

An example of one of the vast uses of the qualified immunity defense is demonstrated in the recent case of Wood v. Moss. (181) In Wood, the Supreme Court held that secret service agents were entitled to qualified immunity. (182) During a last-minute presidential stop, the agents moved unsupportive protesters away from President George W. Bush, and left supportive protesters with a more advantageous access to the President. (183) The unsupportive protesters claimed that their First Amendment rights were violated. (184) The Court found the agents were entitled to qualified immunity because the law was not clear to the agents that they needed to maintain equal distances between protesters with opposing viewpoints and the President. (185)

In Taylor v. Barkes, (186) the Commissioner of the Delaware Department of Corrections and the warden of a prison claimed they were entitled to qualified immunity. (187) The pair were sued by a widow of a deceased inmate for failing to prevent the inmate's suicide, depriving him of his Eighth Amendment rights. (188) Again, the Supreme Court accepted the qualified immunity defense, holding there was no clearly established right to the proper implementation of suicide prevention measures. (189)

In Stanton v. Sims, (190) a municipal police officer was granted qualified immunity after kicking in a wooden gate without a warrant and injuring a homeowner. (191) The officer had pursued the plaintiff because he believed the plaintiff had committed a misdemeanor. (192) In Plumhoff v. Rickard, (193) the Supreme Court granted qualified immunity to two officers who fired fifteen shots at a suspect's vehicle in order to end a high-speed chase. (194) In Carroll v. Carman, (195) an officer was granted qualified immunity after he entered a homeowner's backyard, set foot on the deck, and knocked on the door to speak with the homeowner. (196) In City & County of San Francisco v. Sheehan, (191) the Court gave qualified immunity to two officers who forcefully reentered the room of a mental patient in order to subdue her, after the patient had made threats, acted violently, and threatened the officers with a knife. (198) It is a fair assessment to say the Supreme Court is reluctant to deny a defense of qualified immunity, as demonstrated in the decisions above, handed down in the past five years in a variety of factual circumstances. (199)

C. EXCESSIVE FORCE

Police officers may arrest a person if they have probable cause to believe that person committed a crime. (200) Officers may use force to effect arrests, but only force that is reasonable. (201) A court determines reasonableness based on the specific circumstances of each case. (202) When determining reasonableness, a court balances the nature and quality of the intrusion on an individual's Fourth Amendment rights against the importance of the government's interest in justifying the intrusion. (203) The use of deadly force is limited to situations where a suspect poses an imminent threat to the safety of police officers or to other citizens. (204)

A criminal suspect may bring a [section] 1983 claim against a police officer for excessive force based on the reasonableness standard. (205) When a claim is brought, a court must first identify "the specific constitutional right allegedly infringed by the challenged application of force." (206) Different constitutional protections can apply based on whether a suspect was an arrestee, pretrial detainee, or convicted inmate. (207) The Fourth Amendment governs cases where the suspect is an arrestee. (208) Remedies available to an arrestee alleging excessive force, under [section] 1983, include damages against the police officer or an order enjoining the use of an abusive police technique. (209) To obtain an injunction, a plaintiff must also demonstrate that there is a likelihood of future victimization through the use of the police technique. (210)

The recent case of Tolan v. Cotton (211) demonstrates the elements generally involved in an excessive force case as well as the importance of [section] 1983 remedies. (212) In Cotton, the Supreme Court's rare denial of qualified immunity to a police officer was tied to an extremely unfortunate fact pattern. (213) When a police officer mistakenly entered the license plate number of a potentially suspicious vehicle, the search, off by only one number, brought up a stolen vehicle of the same color and make as the vehicle the officer was pursuing. (214) The police officer pursued Tolan, an innocent suspect, to his parent's home, and eventually called for the assistance of Officer Cotton. (215) Cotton remained impervious to the insistence of Tolan's parents that they owned the car in question and that Tolan was their son. (216) Cotton attempted to subdue Tolan's mother, and Tolan responded by saying "[G]et your fucking hands off my mom." (217) Cotton then drew his pistol and fired three shots at Tolan without warning. (218) Tolan survived, but suffered a serious injury which ended his professional baseball career and caused daily pain. (219) The Supreme Court held that the Fifth Circuit Court of Appeals failed to view the circumstances of the case in a light most favorable to Tolan, and thus wrongfully granted summary judgment to Cotton based on qualified immunity grounds. (220) The clear violation of a Constitutional right in Cotton, combined with the reversal of a grant of summary judgment, demonstrates the continuing need for [section] 1983 claims to protect excessive force victims in a civil setting. (221)

D. DE MINIMIS INJURY

Injuries in excessive force claims are classified based on a broad sliding scale. (222) The first classification, significant injuries, is the most serious. (223) Injuries that leave permanent marks or require medical attention qualify as significant injuries. (224) The second classification, actual injuries, includes lesser, but still debilitating injuries which allow for easier physical recovery than significant injuries. (225) Examples of actual injuries include moderate cuts or any other clearly visible wounds. (226) Finally, de minimis injuries are the least serious injury classification in excessive force cases. (227) Examples of de minimis injuries include pain with no body marks, or small bruises, scrapes, and sprains that do not require medical care. (228)

The Supreme Court briefly explored de minimis injuries in the case of Hudson v. McMillian. (229) Hudson, an inmate at a Louisiana state penitentiary, suffered a beating at the hands of McMillian and other corrections security officers. (230) After an argument between Hudson and McMillian, Hudson was removed from his cell, handcuffed, and shackled. (231) McMillian punched Hudson in the mouth, eyes, chest, and stomach, while another officer kicked and punched Hudson from behind. (232) A third supervising officer watched the entire beating, but only told the two other officers "not to have too much fun." (233)

Hudson received minor bruises and experienced swelling in his face, mouth, and lips as a result of the incident. (234) His teeth were also loosened, and a dental appliance in his mouth was cracked, making it useless for several months. (235) The Court explained that de minimis injuries do not violate the Eighth Amendment right against cruel and unusual punishment, under which Hudson had brought his [section] 1983 claim. (236) The Court also deemed that Hudson's injuries were not minor or de minimis for Eighth Amendment purposes. (237) Thus, the extent of the injuries did not provide a basis for the lower court to dismiss Hudson's [section] 1983 claim. (238)

IV. EIGHTH CIRCUIT APPLICATION & PRECEDENTS

A. 42 U.S.C. [section] 1983 AND THE QUALIFIED IMMUNITY DEFENSE

The Eighth Circuit follows the definition of qualified immunity provided above and uses it to protect and insulate government officials such as police officers from a [section] 1983 suit and the burden of litigation. (239) An officer is shielded only when conduct does not clearly violate established statutory or constitutional rights using an objectively reasonable standard. (240) Courts, on appeal, analyze a grant or denial of summary judgment on grounds of qualified immunity using a de novo standard of review. (241) Like any other basis for summary judgment, when a defendant asserts qualified immunity, the plaintiff must produce evidence that is sufficient to create a genuine issue of fact as to whether the defendant violated a clearly established right--otherwise, summary judgment will be granted. (242)

To determine whether a police officer is entitled to summary judgment on the grounds of qualified immunity, a court must answer two questions. (243) First, do the facts show that the challenged conduct violates a constitutional right? (244) Second, is the right clearly established at the time of the incident in question? (245) Whether a right is "clearly established" is a question of law for the court to decide. (246) A "clearly established" right is one so blatantly clear in the law that a reasonable official would know the amount of force used would violate the right. (247)

To defeat a police officer's claim of qualified immunity, a plaintiff must present sufficient facts and evidence to affirmatively establish the two-prong test. (248) The court may use discretion and pose either question first, considering the circumstances of the case. (249) Police officers and other government officials "are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." (250) Thus, qualified immunity law in the Eighth Circuit provides leeway for mistaken judgment and gives deference to police officers. (251) Officers who are plainly incompetent or knowingly violate a constitutional right are not protected under this standard. (252)

The Eighth Circuit ideal of giving deference to police officers in qualified immunity cases is demonstrated in Meehan v. Thompson. (253) On the night of April 28, 2011, Kathleen Meehan was a passenger in a vehicle which was accosted by police after a dinner party. (254) While the driver of the vehicle was arrested for driving under the influence, Meehan, who had also been drinking, remained in the vehicle. (255) Meehan asked Officer Scott Thompson, one of the responding officers, if she could leave the scene and wait for a sober ride at a nearby grocery store. (256) Thompson refused to let Meehan leave or take a taxi home from the scene, insisting that she find a sober adult driver to come and pick her up. (257) When a sober ride did not arrive after three and a half minutes, and after Meehan refused to take a preliminary breath test, Thompson frisked and arrested Meehan and took her to a detoxification facility. (258)

Meehan sued Thompson under 42 U.S.C [section] 1983, for battery, and for false imprisonment--Thompson moved for summary judgment on the basis of qualified immunity. (259) The Eighth Circuit Court of Appeals granted qualified immunity to Thompson, after concluding that Minnesota state law was not so clear that a reasonable officer would have known that such an arrest violated Meehan's constitutional rights. (260) The statute in question allowed a police officer to take an intoxicated person into custody and transport the person to a treatment facility. (261) According to the court, the statute did not override Meehan's Fourth Amendment rights, but illustrated that a reasonable officer in Thompson's situation could have believed Meehan's arrest was legal. (262) Thus, Meehan's rights were not clearly established, and Thompson was entitled to deference and qualified immunity. (263)

B. EXCESSIVE FORCE

In the Eighth Circuit, force is permitted when the safety of an officer is threatened. (264) It is also recognized as a means of coercion to effect an arrest or investigatory stop. (265) Officers cannot use force against an unarmed fleeing suspect, (266) to coerce a consent of a warrantless search of a home, (267) or against nonviolent misdemeanants. (268) Specific facts surrounding the application of force are extremely important. (269) Courts evaluate the entirety of the record, including the severity of the crime, whether the arrestee posed an immediate threat to the officers or others, and whether the arrestee resisted arrest or attempted to flee. (270) The court views the situation objectively from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." (271) An officer's subjective or personal beliefs about what happened are irrelevant. (272) The court should also remain aware of the realities of being a police officer, and consider that police officers must often make split-second judgments in dangerous situations. (273)

Situations where force is not normally used provides the best insight into how the Eighth Circuit evaluates force. (274) In Bishop v. Glazier, for instance, a disputed amount force was used by a police officer when attempting to help a stranded driver. (275) Bishop was driving through Minnesota when he lost control of his vehicle and became stuck in a snow bank. (276) Officer Glazier was dispatched to help Bishop after Bishop called 911 for assistance. (277) After numerous attempts to dislodge the car, Glazier became frustrated with Bishop, claiming that even though he had cleared a path and given Bishop instructions on how to steer the car, Bishop continued to drive the vehicle right back into the snowbank. (278) Glazier began to yell at Bishop, and Bishop tried to leave his car to ask another officer on the scene for help. (279)

The parties disagreed as to what happened next. (280) Glazier contended that he only used minimal force, grabbed Bishop's shoulder, pushed Bishop back into the car, and told him "to remain in the car." (281) According to Bishop, however, Glazier grabbed Bishop by the throat, pushed Bishop against the side of the car for forty-five seconds, shoved Bishop back inside the car, then told Bishop to "shut the f*** up and sit the f*** down." (282) Even assuming that Bishop was choked, the court held that Glazier was entitled to qualified immunity, because, at the time of the incident, the law was not clearly established. (283) At the time of the incident, Officer Glazier, due to Eighth Circuit precedent, (284) could have reasonably believed that he was not exerting excessive force so long as he did not cause more than a de minimis injury. (285) Since only a de minimis injury was present here, Glazier was entitled to qualified immunity. (286)

c. DE MINIMIS INJURIES

Previously, Eighth Circuit precedent indicated that the presence of a de minimis injury foreclosed any claims of excessive force. (287) The reasoning behind this viewpoint was that de minimis injuries typically corresponded with the use of de minimis force and not excessive force. (288) Under this rationale, the degree of injury a plaintiff sustained became relevant in a court's excessive force analysis. (289) The Eighth Circuit has since abandoned this rationale, holding that, on the question of whether excessive force was present, the degree of injury is a relevant factor, but not a dispositive one. (290)

The new approach adopted by the Eighth Circuit asserts that a de minimis injury does not foreclose a claim of excessive force under the Fourth Amendment. (291) The appropriate inquiry is whether the force used to effectuate the seizure is reasonable from the perspective of a reasonable officer on the scene at the time the force was used. (292) If the court is faced with two different versions of the incident or injury, the assessment of reasonableness must be left to a jury to determine based on the facts of the case. (293) In this more modern approach, the basis for a claim must be on more than a de minimis use of force. (294) This methodology is well-reasoned because it is logically possible for an excessive use of force to result in de minimis injury. (295)

Current Eight Circuit jurisprudence hinges on the seminal case of Chambers v. Pennycook. (296) In that case, Chambers was arrested when police officers executed a search warrant for drugs at the apartment of Chambers' stepdaughter. (297) Chambers claimed that during the raid, members of the police squad held him on the floor, handcuffed him, jammed guns into his back, called him a liar, cursed at him, kicked him several times, and pressed a foot on Chambers' back. (298) Chambers also claimed that a police officer planted a glass pipe in Chambers' pocket. (299) After the arrest, Chambers was transported to a county jail. (300) While there, Chambers complained of back pain and was transported to a hospital by police officers. (301) Chambers asserted that the police officers adjusted his seat in the police car so far forward that Chamber's head was touching the dashboard; after which the officers accelerated, braked, drove erratically, kicked the back of his seat, used their arms to choke Chambers from behind, and drove in circles to delay the trip. (302) According to Chamber's narrative, this was done while the officers complained that Chambers was wasting their time, and in an effort to cause Chambers more pain. (303)

After the incident, Chambers exhibited redness, bruising, and a back contusion. (304) The appellate court concluded that Chambers had not suffered more than de minimis injuries, but, most importantly, that evidence of only de minimis injury does not necessarily foreclose an excessive force claim. (305) The court held that the degree of injury is not dispositive, but only a factor in considering whether the force applied was reasonable from the perspective of a reasonable police officer on the scene at the time the force was used. (306) Still, the court held that the officers involved were entitled to qualified immunity because the law was unclear and the new de minimis standard had not yet been applied at the time of the incident. (307)

D. VICARIOUS LIABILITY

A police officer can also be held liable for failing to act when witnessing one of their colleagues use excessive force. (308) However, personal liability in that situation would attach to the police officer only if the officer was aware of the abuse, and if the duration of the incident was sufficient enough to permit an intervention. (309) Respondeat superior is inapplicable to claims brought under [section] 1983. (310) A plaintiff may bring an action against a government entity for deprivation of civil rights, but those allegations cannot be based on mere speculation. (311)

V. ANALYSIS & ARGUMENTS

A. [section] 1983 WEAKNESSES

Several weaknesses exist with the availability and nature of [section] 1983 excessive force suits. (312) First, [section] 1983 actions are inaccessible to citizens most in need. (313) The majority of victims of police brutality are either minorities or those who are indigent, and the cost of [section] 1983 actions can prevent lower income populations from bringing suit. (314) Even assuming that a plaintiff has the funds to bring a suit, the lack of access to credible witnesses, unavailability of tangible evidence, and low likelihood of success further reduces the chances of a plaintiff even finding an attorney to take the case. (315)

Second, the qualified immunity defense further prejudices plaintiffs by allowing an easy way out for defendants. (316) Defendant police officers can argue that the law at the time of their challenged conduct was so ambiguous they could not realize their actions were violating a plaintiff's constitutional right. (317) In the alternative, a defendant can argue that a reasonable officer could even conclude that the conduct was completely lawful. (318) This results in outcomes that are disproportionately in favor of police officers, without any regard to civil liability for the possibly egregious acts an officer may have committed. (319) Offering such a simple defense imbalances the civil process and does little to fulfill the explicit language of [section] 1983 to protect the interests of plaintiffs and provide a means to bring civil rights claims against officials who have violated constitutional rights with the use of excessive force. (320)

Third, the way [section] 1983 actions are currently brought limits a plaintiffs ability to target, enjoin, and thus, eliminate a particularly violent police technique. (321) A plaintiff must meet the high burden of demonstrating the likelihood of future victimization by a destructive police technique. (322) This is a rigorous standard that seems set up only to protect government entities from the actions of their employees. (323) Such a standard makes it difficult for a plaintiff to shift blame away from individual police officers. (324)

Regarding the Eighth Circuit decision in Smith, for example, the court focused on Officer Buck, and not on the police department policy and whether the policy condoned the method by which the police dog, Diesel, was deployed. (325) In De Boise, the plaintiff claimed that a police policy that stated emotionally disturbed individuals may still refuse to follow orders even after being tased put officers on notice that emotional individuals should not be excessively tased, but the Court disagreed. (326) This individual-centered inquiry permits a culture of singling out police officers and potentially throwing them under the bus for following employment procedures over which they have no say or control. (327) If an officer is trained and encouraged to use a particular technique to subdue a suspect, should they be blamed for damages caused by the good faith use of those techniques? (328) On the other hand, if clear police policy or training exists and is ignored by an individual police officer, the existence of the policy should be given more credence as evidence of officer liability. (329) Eighth Circuit precedent does not address this subject. (330)

Fourth, the qualified immunity defense can be extremely detrimental to plaintiffs when trial courts determine that, as a matter of law, the defendant police officer's actions are reasonable. (331) When it comes to the issue of reasonableness, a judge or jury is much more likely to believe a trusted police officer over a plaintiff-suspect who may have a criminal record. (332) This is especially true when, as is usually the case, the record is devoid of other witnesses to the excessive use of force. (333) Historically, courts and juries recognized that the use of force is necessary to maintain social order and apprehend criminal suspects. (334) If both are affording extra, unwarranted protection to police officers, however, then they risk undermining the judicial process for the sake of protecting the excessive use of force. (335)

Finally, qualified immunity in [section] 1983 actions can likewise prejudice a defendant because the actions focus solely, and sometimes unreasonably, on the individual police officer who exercised force against a suspect. (336) This focus avoids an opportunity to place some accountability on the government entities that employ officers who violate civil rights. (337) With the rejection of respondeat superior liability by the Eighth Circuit, a plaintiff would need to prove that a government entity actually caused a constitutional violation, rather than simply employing someone who violated a constitutional right. (338) This makes it impossible for supervisors and supervisory entities to be assigned liability. (339) Supervisors, while not usually directly involved in excessive force claims, are more likely to be people in power--policymakers and decision-makers--who have a larger role in deciding how force is effectuated. (340) Should a judgment be rendered against a supervisor or organization, there would also be a larger impact and a greater possibility for positive change in the culture of the local police community. (341) Further, when police officers are targeted over entities, the public perception of individual police officers is damaged. (342) The ability to maintain peaceful and amicable relations with citizens who already harbor a deep mistrust of the police is hampered. (343) The broad smattering of issues raised here, with only the basic ways in which [section] 1983 actions are brought, highlights a need for change. (344)

B. SUGGESTIONS FOR CHANGE

The tangled web presented by the qualified immunity doctrine, and the uneven way it has been applied across the country calls for courts, lawyers, and policymakers to better understand the doctrine and look for ways to change it. (345) The overall goal of these changes should match the initial goals of the [section] 1983 action: to prevent the violation of civil rights and to provide a civil remedy if rights are violated. (346) The following are possible options for legal decision makers moving forward--listed in order from status quo to most aggressive--to continue to provide a strong opportunity for plaintiffs to recover against defendants who have injured them by using excessive force. (347)

1. Keep the Status Quo

By doing nothing to change the way [section] 1983 excessive force cases are brought and keeping the status quo, the Eighth Circuit and other jurisdictions would preserve a well-settled body of case law often tested under many varying circumstances. (348) Some argue that the emotional aspect of excessive force cases can and is being used to nullify long-accepted standards of law, striking the right balance between the rights of police officers and suspects. (349) It is reasonable then, to err on the side of caution and not rush into changes which may damage core principles of long-settled law. (350)

Current [section] 1983 jurisprudence, though somewhat complicated, boasts several redeeming characteristics. (351) The broadness of [section] 1983 actions provides an adequate remedy for plaintiffs in a variety of situations where a constitutional right has been violated. (352) Qualified immunity currently preserves the protection of police officers who face a complex and dangerous world every day. (353) The notion allows an officer to use force reasonably necessary to effect an arrest, properly leaving the officer with personal discretion to determine the amount of force that is required in the situation at hand. (354) Further, the Eighth Circuit's most recent applications of de minimis injury law has shifted in a sensible direction, focusing not on the extent of the injury, but again on the "reasonableness" of the police officer. (355) Qualified immunity provides an especially strong defense for police officers who may argue forceful actions are justified due to a threat of danger to the officer. (356) A policy argument would dictate that qualified immunity is needed to ensure that government officials such as police officers are effective in the performance of their important duties of protecting the public. (357)

2. Improve Police-Community Relationships in the Eighth Circuit

A final suggestion to improve excessive force and qualified immunity law would be to initiate measures that reduce the use of excessive force altogether. (358) Fewer violent incidents between police officers and suspects means fewer court cases in both the criminal and civil arenas. (359) On a national scale, and in light of the events which occurred in Ferguson, Missouri, in December of 2014, President Obama announced several of such steps to improve police-community relations and reduce violent incidents. (360) These initiatives included advancing the use of body cameras, creating a task force to explore more community-oriented policing, and strategizing about how the federal government equips state and local law enforcement with military-style equipment. (361) These actions could reduce police violence by educating police officers about the hardships and characteristics of people who live in the neighborhoods they patrol, while also educating the public about the hardships and dangers faced by police every day. (362) President Obama's actions are only one example of how relations could be improved, and only a small step in the right direction. (363) More events and initiatives, such as legislation, budgeting, community roundtables, town hall meetings, seminars, discussions, conventions, fundraisers, and other means are needed at every level of government across the Eighth Circuit. (364)

While some of these suggested strategies are beyond the purview of the courts, courts can still play an active role in improving police-community relationships. (365) Judges and lawyers are an important part of the communities in which they live and serve--it could be argued they have a duty to promote positive relationships between police officers and citizens if it means that those positive relationships will result in safer communities. (366) Some concrete examples of actions lawyers can undertake to effect positive change are to conduct workshops for local police officers or perform pro bono services for disadvantaged community members. (367) Workshops would help to educate officers on what constitutional rights are "clearly established" in the context of qualified immunity, and pro bono work would inform and educate lawyers about the array of issues faced by people in their communities. (368) Both options promote the fostering of healthy relationships, which breed empathy and understanding, and allow citizens to overcome and prevent future incidents like those that took place in the cases listed above. (369)

3. Add a Third Prong to Qualified Immunity

The two-part test currently employed by the Eighth Circuit to determine whether a police officer is entitled to summary judgment on the basis of qualified immunity seems to be a straightforward proposition, designed to analyze the law with the facts. (370) In light of the facts of a particular case, however, the prongs extend qualified immunity too far, by allowing police officers to unfairly escape liability in the face of what may be serious constitutional violations. (371) The second part of the test has been almost the exclusive reason the Eighth Circuit has granted qualified immunity to police officers in excessive force cases, leaving plaintiffs without a viable remedy. (372)

The largest malfunction of the "clearly established" prong is that it allows plaintiffs to slip through the cracks and leaves them without remedy. (373) The second prong proclaims police officers "are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." (374) The "clearly established" prong also claims not to protect officers who are plainly incompetent or knowingly violate a constitutional right. (375) Yet, a great deal of cases occur in those gray areas where plainly incompetent officers act unreasonably. (376) A victim of seemingly unreasonable or excessive force should not have to bear burden and injury because the law is unclear as to an unconstitutional infringement of Fourth Amendment rights at the time of the incident? (377) The facts often show some sort of wrongful infringement, which would, at the very least, seem unreasonable to the reasonable juror. (378) In those situations, is it inappropriate to automatically give police the benefit of the doubt under the slim policy justification that reasonable force is sometimes needed to effect an arrest? (379)

To be more proactive and to reduce burdens on plaintiffs, the Eighth Circuit should add a third prong to the qualified immunity test. (380) The new third prong should truly hold officers to an objectively "reasonable" standard rather than holding them to a "clearly established" standard in the subjective eyes of the officer. (381) The newest prong could be along the lines of: "Even if the right was not clear to the officer or clear within the law, was the force still unreasonable?" (382) If the answer is yes, then qualified immunity should be denied, and the question of excessive force should be put to a jury. (383) This ensures a better chance that officers who act unreasonable would be held accountable, plaintiffs wronged would potentially be afforded more leeway at the hands of a jury, and that many instances of excessive force could be prevented before they start. (384)

4. Recognize Respondeat Superior Liability

Another alternative which ties into the qualified immunity defense would be the application of the doctrine of respondeat superior to defendants. (385) Government entities should be held liable if the government official was acting in line with the entity's policies. (386) Adopting respondeat superior liability would not disregard the requirement that plaintiffs must first plead and prove an underlying constitutional violation. (387) It may also take some of the heat off officials who fear personal liability through normal performance of their employment duties. (388) Respondeat superior would also reduce the amount of time and resources spent litigating the qualified immunity defense. (389) As previously noted, government entities are the likely source to ensure appropriate change in harmful policies, have the capability to satisfy civil judgments, and have the ability to effect positive changes in police culture and race relations. (390)

5. Abolish or Place Higher Standards on the Qualified Immunity Defense

Abolishing the qualified immunity defense in excessive force cases may be a more drastic measure, but would demonstrate a true, unequivocal dedication to civil rights. (391) Qualified immunity often fails to serve its sole purpose to defend police officers from suit and, instead, becomes simply another defense on the merits for those officials. (392) The defense often renders [section] 1983 useless as a tool for plaintiffs, and leaves them without a strong remedy against serious breaches of constitutional rights. (393) A door is then opened for further abuses of power by police officers and other officials who fall under the purview of [section] 1983. (394)

Summary judgments based on qualified immunity should be denied in nearly all excessive force cases. (395) By their nature, excessive force cases breed bitter factual disputes, and, as shown in examples above, the courts often side with the police officer, regardless of how egregious the officer's conduct may have seemed at face value. (396) A prime example of this is in the fact pattern of Smith v. Buck, where versions of Smith's arrest varied greatly. (397) Due to this lack of clarity and complexity, it may be prudent to abandon the qualified immunity defense altogether, and leave it solely to the jury to decide on a factual basis whether or not a police officer should be protected in a particular case. (398)

Some qualified immunity disputes can be solved without making factual determinations, but most involve complex, mixed, questions of law and fact. (399) Thus, in many cases, summary judgment is misguided. (400) Again, the complex nature of [section] 1983 excessive force actions creates a definite call to look beyond summary judgment and either eliminate or reduce its use in excessive force cases. (401) Instead, courts should adopt a more traditional approach, where the question of reasonableness of a police officer's use of excessive force is left to a jury. (402) The factual inquiry into reasonableness is the most important, difficult, controversial, and decisive inquiry of any [section] 1983 claim, and is best resolved by a jury who best knows the needs of its community. (403)

VI. CONCLUSION

Several cases within the Eighth Circuit along with a plethora of tragedies and current events have started a fire and public outcry over both the importance of police officers' use of force, and the deprivation of rights of suspects. The fire is partially fueled by the complex intricacies of [section] 1983 actions, and the inconsistent ways case law is applied to those actions. In the context of excessive force law, the Eighth Circuit should reevaluate whether justice is better served under the status quo, the implementation of initiatives which help to improve police-community relationships, a reworking of the "clearly established" prong of qualified immunity, a recognition of respondeat superior liability, or an abolishment of the qualified immunity defense. Clarity on the issue of civil excessive force cases will proactively help the Eighth Circuit fuel a fire of its own and make the choice between solidarity or social change.

SHAD E. CHRISTMAN ([dagger])

Copyright [c] 2017. All Rights Reserved by Shad E. Christman and the South Dakota Law Review.

([[dagger]) J.D., 2017, University of South Dakota School of Law; B.S. in Speech Communication and Political Science, 2012, South Dakota State University. I would like to thank my wife Rebecca Christman for gracefully fulfilling the role of "law school widow" throughout the writing of this article and giving me constant support and encouragement. I would also like to thank my personal editors who have helped me to hone and sharpen this work: Deborah Morris, Terra Fisher, Emily Maurice, Nicholas Koontz, and Ashley Brost. Finally, I would like to take this opportunity to recognize the Staff and Editors of Volume 62 of the South Dakota Law Review. Their tireless work and dedication made this article possible and also enables the South Dakota Law Review to shine as a beacon of legal academic excellence in South Dakota and across the nation.

(1.) It is important to reiterate that this article addresses only excessive uses of force in civil 42 U.S.C. [section] 1983 actions, and not criminal actions brought against police officers for the use of deadly force. The author wishes to express that the intent of this article is not to ignore the serious issues with the use of deadly force that our country is experiencing. See infra note 5 and accompanying text. Instead, this article aims to focus on another area within the realm of police force where positive change may be easier and quicker to obtain.

(2.) See generally e.g., California v. Hodari D., 499 U.S. 621 (1991) (holding that police officers had not seized a fleeing minor under the Fourth Amendment when the minor started to run from police, but when the police applied physical force and tackled him); Tennessee v. Garner, 471 U.S. 1 (1985) (striking down as unconstitutional a Tennessee statute which seemingly authorized the use of deadly police force against an unarmed minor fleeing from a burglary); Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385 (8th Cir. 2007) (finding a city policy that did not require police officers to give verbal warnings before deploying police dogs on suspects constitutional).

(3.) Josh Sanburn, From Trayvon Martin to Walter Scott: Cases in the Spotlight, TIME (Apr. 10, 2015), http://time.com/3815606/police-violence-timeline/.

(4.) See David Hudson, Building Trust Between Communities and Local Police, THE WHITE HOUSE BLOG (Dec. 1, 2014, 8:25 PM), https://obamawhitehouse.archives.gov/blog/2014/12/01/building-trust-between-communities-and-local-police (announcing concrete steps the Obama Administration planned to strengthen relationships between law enforcement and citizens).

(5.) See The Counted: People Killed by Police in the US, THE GUARDIAN, http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/about-the-counted (last visited Apr. 3, 2017). The Counted, a special project by the Guardian, maintains an unofficial database of people were killed by police in 2015 and 2016. Id. At last visit, the Counted's website reported 1,092 people were killed by police in 2016. The Counted: People Killed by Police in the US, THE GUARDIAN, https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database (last visited Apr. 3, 2017). The database's infographics, featuring personalized statistics and life stories of the victims of deadly police force, provide a chilling illustration of a serious national issue. Id.

(6.) Search of [section] 1983 Excessive Force Cases in the Eighth Circuit, WESTLAW, https://l.next.westlaw.com/ (search "42 USC 1983") (click statute) (arrow over citing references, then click cases) (narrow to Federal Cases, Eighth Circuit) (narrow results to cases within the last five years) (click "Apply Filters") (search "excessive force" within case results). This general, unscientific search query, should give the reader a snapshot of the proposition that [section] 1983 excessive force cases occur frequently, and that [section] 1983 is a common vehicle for plaintiffs to seek a federal remedy. Id. The search reveals that, in the last five years alone, approximately 52 [section] 1983 excessive force cases have been heard by the Eighth Circuit Court of Appeals. Id.

(7.) 42 U.S.C. [section] 1983(2012).

(8.) See Story v. Norwood, 659 F.3d 680, 686 (8th Cir. 2011) (stating that facts must establish excessive force by a preponderance of the evidence).

(9.) See infra Part V.B (detailing potential solutions to better serve police officers and plaintiffs in [section] 1983 excessive force actions).

(10.) 42 U.S.C. [section] 1983 (2012).

(11.) See infra Part II.A-B (comparing different types of police force cases through an explanation of the facts).

(12.) See infra Part III-IV (providing a history and background of [section] 1983 law and applying it to the Eighth Circuit).

(13.) See infra Part V (analyzing the Eighth Circuit's application of [section] 1983 in excessive force cases and providing arguments for change).

(14.) See infra Part II (detailing the factual scenarios of six Eighth Circuit [section] 1983 excessive force cases).

(15.) See infra Parts II.A-B (comparing three cases of unjustifiable force against three cases of justifiable or unclear force).

(16.) 159 F.Supp.3d 945 (D. Minn. 2016).

(17.) Id. at 951.

(18.) Id.

(19.) Id. at 951-52.

(20.) Id. at 952.

(21.) Id.

(22.) Id. at 956.

(23.) Id. 953-54.

(24.) See id. at 954 (stating an officer described Lollie as having "an attitude or was belligerent and was making continual statements").

(25.) Id. at 957.

(26.) Id.

(27.) Id at 960.

(28.) Id.

(29.) Id. at 967.

(30.) See id. (pointing to the fact that the presence of disputed issues of fact rendered the court unable to grant summary judgment on several claims).

(31.) 754 F.3d 594 (8th Cir. 2014).

(32.) Id. at 596-97.

(33.) Id. at 597.

(34.) Id.

(35.) Id.

(36.) Id.

(37.) Id.

(38.) Id.

(39.) Id.

(40.) Id.

(41.) Id.

(42.) Id.

(43.) Id.

(44.) Id.

(45.) Id. at 597-98.

(46.) Id. at 598.

(47.) Id. at 603.

(48.) Mat 601.

(49.) Id.

(50.) Id. See also Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (stating that an appropriate inquiry into excessive force is whether the forced used in that situation was reasonable, not whether the force only caused a de minimis injury).

(51.) Kopp, 754 F.3d at 601.

(52.) 791 F.3d 824 (8th Cir. 2015).

(53.) Id. at 826.

(54.) Id.

(55.) Id.

(56.) Id.

(57.) Id. at 827.

(58.) Id.

(59.) Id.

(60.) Id.

(61.) Id.

(62.) Id. Police also had an altercation with Robinson's mother during the arrest. Id. Robinson's mother thought Robinson was being shot instead of tased. Id. Out of fear, she urinated on herself and screamed for her husband. Id. At one point, she also broke free of her own handcuffs and was slammed onto the hood of the police car. Id.

(63.) Id. at 828.

(64.) Id.

(65.) Id.

(66.) Id.

(67.) Id. at 829-30.

(68.) Id. at 830 (Murphy, J., dissenting).

(69.) Id.

(70.) Id.

(71.) See id. at 831 (stating that disputed facts remained and thus the district court's denial of qualified immunity should be affirmed).

(72.) 760 F.3d 892 (8th Cir. 2014).

(73.) Id. at 894.

(74.) Id.

(75.) Id.

(76.) Id.

(11.) Id.

(78.) Id. at 894-95.

(79.) See id. at 895 (stating De Boise rose after being ordered to the ground, clenched his fist, and refused several requests to lie down on the ground).

(80.) Id.

(81.) Id.

(82.) Id.

(83.) Id. at 896.

(84.) Id.

(85.) Id. at 894, 896.

(86.) Id.

(87.) Id. at 896.

(88.) Id. at 898.

(89.) See id. at 898 (indicating that "a reasonable officer, having the same training," would not have been on notice that using repeated taser cycles on a mentally ill individual may have no effect on the compliance on that individual).

(90.) 788 F.3d 855 (8th Cir. 2015).

(91.) Id. at 857.

(92.) Id.

(93.) Id.

(94.) Id.

(95.) Id.

(96.) Id.

(97.) Id.

(98.) Id.

(99.) Id.

(100.) Id.

(101.) Id. at 857-58.

(102.) Id. at 858.

(103.) Id.

(104.) Id.

(105.) Id.

(106.) Id.

(107.) Id. at 860.

(108.) Id.

(109.) CIV. No. 12-163 (PJS/JSM), 2013 WL 608823, (D. Minn. Jan. 23, 2013), rev'd, 564 F. App'x 258 (8th Cir. 2014).

(110.) Id.at *1.

(111.) Id.

(112.) Id

(113.) Id.

(114.) Id.

(115.) Id.

(116.) Id.

(117.) Id.

(118.) Id.

(119.) Id. at *2.

(120.) Id.

(121.) Id.

(122.) Id.

(123.) Id.

(124.) Id.

(125.) Id.

(126.) Id.

(127.) Id. at *3.

(128.) Id. at *1.

(129.) Id. at*11.

(130.) Smith v. Buck, 564 F. App'x 258, 259 (8th Cir. 2014).

(131.) Id. 259 n.l.

(132.) Smith v. Buck, No. 12-CV-0163 (PJS/JSM), 2015 WL 106380, at *2 (D. Minn. Jan. 7, 2015). 133. See supra Part II.A-B (presenting six cases for factual review under [section] 1983 excessive force law).

(134.) Lollie v. Johnson, 159 F.Supp.3d 945, 951-54 (D. Minn. 2016).

(135.) See id. at 967 (holding that disputed issues of facts in the case preclude summary judgment and call for a jury to decide).

(136.) Peterson v. Kopp, 754 F.3d 594, 597 (8th Cir. 2014).

(137.) Id. at 603.

(138.) Robinson v. Payton, 791 F.3d 824, 826-27 (8th Cir. 2015).

(139.) Id. at 829-30.

(140.) See supra Part II.B.1-3 (presenting three cases in which the facts indicate the use of force was either reasonable or unclear).

(141.) De Boise v. Taser Int'l, Inc., 760 F.3d 892, 894-96 (8th Cir. 2014).

(142.) Schoettle v. Jefferson Cty., 788 F.3d 855, 857-58 (8th Cir. 2015).

(143.) Smith v. Buck, No. 12-CV-0163 (PJS/JSM), 2015 WL 106380, at *2 (D. Minn. Jan. 7, 2015).

(144.) See supra Part II.A-B. (showing that for six different closely-related cases which occurred within the span of five years, the Eighth Circuit applied the same legal precedents, but reached starkly different results).

(145.) See supra Part II.A-B (highlighting uneven legal conclusions in similar cases).

(146.) See infra Part V. (analyzing the weaknesses of [section] 1983 law and suggesting changes).

(147.) De Boise v. Taser Int'l, Inc., 760 F.3d 892, 899 (8th Cir. 2014) (Bye, J., dissenting); see infra Part V (stating that fact questions are best left to a jury, and the use of summary judgment in excessive force cases should be reduced).

(148.) See infra Part V.B (suggesting some potential improvements that could be made to [section] 1983 excessive force law).

(149.) See infra Parts III-IV (laying out the landscape of [section] 1983 excessive force law in the United States and the Eighth Circuit).

(150.) Jessica R. Manley, Comment, A Common Field of Vision: Municipal Liability for State Law Enforcement and Principles of Federalism in Section 1983 Actions, 100 Nw. U. L. REV. 967, 971 (2006).

(151.) 42 U.S.C. [section] 1983 (2012). The statute reads, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer....


Id.

(152.) Glen N. Lenhoff, A View of the Present and Future of 42 USC 1983, 94-MAY MICH. B.J. 28, 29 (2015). Historically, however, [section] 1983 has been employed more broadly. Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights--Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. REV. 1, 19-20 (1985). Supreme Court Justice Harry Blackmun listed a wide variety of applications, stating [section] 1983 actions were used in many of the major school desegregation cases, to challenge state laws requiring loyalty oaths, prohibiting the wearing of arm bands to protest the Vietnam War, promoting state prosecution of communists, to establish the NAACP's authority to advise African Americans of their legal rights, and to challenge bans on lawyer advertising and spending limits on charitable activities. Id. Litigants have also used [section] 1983 to establish due process rights to utility service, and to dispute unlawful discharge by employers, illegal state seizure of property, mandatory maternity leave policies, limitations on social security benefits, restrictions on the right to vote, poll taxes, age limitations on the sale of beer, restraint on marriage, and infringements on the rights of prisoners. Id. at 20.

(153.) 42 U.S.C. [section] 1983 (2012).

(154.) Lenoff, supra note 152, at 29.

(155.) 42 U.S.C. [section] 1983 (2012). The statute was amended in 1979 to include the District of Columbia, Pub. L. 96-170, 93 Stat 1284 (1979), and in 1996 to provide an exemption for judges. Pub. L. 104-317, 110 Stat 3847 (1996).

(156.) See 42 U.S.C. [section] 1983 (providing a cause of action for "every person" against "any person" who caused the deprivation of "any rights").

(157.) Glossip v. Gross, 135 S. Ct. 2726 (2015).

(158.) Id. at 2731.

(159.) Id. at 2731-32.

(160.) 133 S. Ct. 9(2012).

(161.) See id. at 10-11. The only issue before the Supreme Court was whether the plaintiff was entitled to attorney's fees, though the Court notes that a permanent injunction was granted by the District Court. Id. at 11.

(162.) Id. at 10.

(163.) 133 S. Ct. 1709(2013).

(164.) Id. at 1713-14.

(165.) Id at 1713.

(166.) See supra Part III.A (reviewing three recent Supreme Court cases with different applications of [section] 1983).

(167.) See infra Part III.B-D (discussing three important concepts in [section] 1983 Fourth Amendment cases: qualified immunity, excessive force, and de minimis injury).

(168.) See infra Part III.B (considering the legal justifications of qualified immunity).

(169.) See infra Part III.C (explaining the standards for determining excessive force).

(170.) See infra Part III.D (examining the relevance of classifying injuries as de minimis).

(171.) Ivan E. Bodensteiner, Congress Needs to Repair the Court's Damage to [section] 1983, 16 TEX. J. ON C.L. & C.R. 29, 34 (2010). See also Butz v. Economou, 438 U.S. 478, 505-06 (1978) (stating that it makes "little sense" to not hold higher-ranking officials liable just because of their greater authority).

(172.) Bodensteiner, supra note 171, at 35.

(173.) Id. at 38.

(174.) See id. at 39 (noting that qualified immunity is only available in situations where a government official must exercise discretion, and that discretionary functions can be interpreted differently).

(175.) Lenhoff, supra note 152, at 29 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

(176.) Bodensteiner, supra note 171, at 40 (citing Harlow, 457 U.S. at 819).

(177.) Bodensteiner, supra note 171, at 39.

(178.) Id. See also Butz v. Economou, 438 U.S. 478, 506 (1978) ("We consider here... the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.").

(179.) See Harlow, 457 U.S. at 816 (holding that a determination of intent, or malice, is better left to a jury, and not for determination by a judge on summary judgment for qualified immunity).

(180.) Id. at 814; Bodensteiner, supra note 171, at 39.

(181.) 134 S. Ct. 2056(2014).

(182.) Id. at 2069.

(183.) Id. 2060-61.

(184.) Id. at 2065.

(185.) Id. at 2068-69.

(186.) 135 S. Ct. 2042 (2015).

(187.) Id. at 2043-44.

(188.) Id. The Eighth Amendment guarantees the right to be free from cruel and unusual punishment. U.S. CONST. AMEND. VIII.

(189.) Barkes, 135 S. Ct. at 2044.

(190.) 134 S. Ct. 3 (2013).

(191.) Id. at 4.

(192.) Id.

(193.) 134 S. Ct. 2012(2014).

(194.) Id. at 2017-18.

(195.) 135 S. Ct. 348(2014).

(196.) Id. at 348-50.

(197.) 135 S. Ct. 1765 (2015).

(198.) Id. at 1769-72.

(199.) See generally Taylor v. Barkes, 135 S. Ct. 2042 (2015) (holding commissioner of state department of corrections and prison warden entitled to qualified immunity); Sheehan, 135 S. Ct. 1765 (finding police officers entitled to qualified immunity); Carroll, 135 S. Ct. 348 (holding police officer entitled to qualified immunity); Plumhoff, 134 S. Ct. 2012 (ruling police officers entitled to qualified immunity); Stanton v. Sims, 134 S. Ct. 3 (2013) (holding police officer entitled to qualified immunity). See also generally Lane v. Franks, 134 S. Ct. 2369 (2014) (deciding president of community college was entitled to qualified immunity); Wood v. Moss, 134 S. Ct. 2056 (2014) (granting qualified immunity to secret service agents).

(200.) E.g., Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (quoting Dunaway v. New York, 442 U.S. 200, 208 (1979)); United States v. Watson, 423 U.S. 411,417-23 (1976).

(201.) E.g., Plumhoff, 134 S. Ct. at 2020; Atwater, 532 U.S. at 326; Graham v. Connor, 490 U.S. 386, 388 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985).

(202.) Shultz v. Buchanan, 829 F.3d 943, 948 (8th Cir. 2016) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). See also Douglas B. Mckechnie, Don't Daze, Phase, or Lose Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge, 60 U. KAN. L. REV. 139, 141 (2011) ("[T]he examination of constitutional excessive-force claims is not a monolithic inquiry, applicable across the spectrum of circumstances.").

(203.) E.g., Riley v. California, 134 S. Ct. 2473, 2484 (2014) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); Virginia v. Moore, 553 U.S. 164, 171 (2008) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); U.S. v. Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

(204.) Garwer, 471 U.S. at 11.

(205.) 42 U.S.C. [section] 1983 (2012). See also Alison L. Pattom, Note, The Endless Cycle of Abuse: Why 42 U.S.C. [section] 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 753 (1993) (stating that a claim for excessive force can be brought under [section] 1983).

(206.) Mckechnie, supra note 202, at 141 (quoting Graham, 490 U.S. at 394).

(207.) Id.

(208.) Id.

(209.) Patton, supra note 205, at 753.

(210.) See City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 111 (1983) (withholding injunctive relief from plaintiff, who was choked by a police officer, because the plaintiff could not show a likelihood of future victimization).

(211.) 134 S. Ct. 1861 (2014).

(212.) See id. at 1865-68 (analyzing the elements of qualified immunity and ultimately reversing a judgment in favor of a police officer on the basis of qualified immunity).

(213.) Id. at 1863-64.

(214.) Id. at 1863.

(215.) Id. at 1863-64.

(216.) Id. at 1864.

(217.) Id.

(218.) Id.

(219.) Id.

(220.) Id. at 1867-68.

(221.) See id. at 1863-64, 1866-68 (shining a light on the importance of viewing facts in a light most favorable to the non-moving party in a summary judgment for qualified immunity). The court in Tolan did not make any moral considerations regarding the force used within the case, but the nature of facts and the court's legal conclusions spoke for themselves, showing that the police officer was unreasonable in his actions. Id.

(222.) Bryan N. Georgiady, Comment, An Excessively Painful Encounter: The Reasonableness of Pain and De Minimis Injuries for Fourth Amendment Excessive Force Claims, 59 SYRACUSE L. REV. 123,136(2008).

(223.) Id.

(224.) Hudson v. McMillian, 503 U.S. 1, 13 (1992) (Blackmun, J., concurring). 225. Georgiady, supra note 222, at 136-37.

(226.) Id.

(227.) Id. at 136.

(228.) Id.

(229.) 503 U.S. at 9-10.

(230.) Id. at 4.

(231.) Id.

(232.) Id.

(233.) Id.

(234.) Id.

(235.) Id.

(236.) Id. at 9-10.

(237.) Id. at 10.

(238.) Id.

(239.) See Ziesmer v. Hagen, 785 F.3d 1233, 1237 (8th Cir. 2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) ("Government officials are shielded from liability for civil damages so long as they did not violate a clearly established right that a reasonable person would have known.").

(240.) Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Shultz v. Buchanan, 829 F.3d 943, 948 (8th Cir. 2016); Ziesmer, 785 F.3d at 1237; Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014).

(241.) Peterson, 754 F.3d at 598; LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013); Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013). In addition, appellate court jurisdiction extends only to legal issues of whether the facts, taken in a light most favorable to the nonmoving party support a finding for summary judgment. Peterson, 754 F.3d at 598. Facts viewed in a favorable light cannot be so blatantly contradicted by the record that no reasonable jury could believe them. Ziesmer, 785 F.3d at 1238. If a court has drawn all reasonable inferences in favor of the nonmoving party and no genuine issues of material fact exist, the movant is entitled to judgment as a matter of law. Peterson, 754 F.3d at 598. The party who has moved for summary judgment has the burden of showing that material facts in the case are undisputed. Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The non-moving party receives the benefit of all reasonable inferences supported by the evidence, "but has 'the obligation to come forward with specific facts showing that there is a genuine issue for trial.'" Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013) (quoting Dahl v. Rice Cty., 621 F.3d 740, 743 (8th Cir. 2010)).

(242.) Montgomery v. City of Ames, 749 F.3d 689, 694 (8th Cir. 2014) (citing Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013)); Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011).

(243.) Robinson v. Payton, 791 F.3d 824, 828 (8th Cir. 2015); Blazek v. City of Iowa City, 761 F.3d 920, 922-23 (8th Cir. 2014); Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014).

(244.) E.g., Payton, 791 F.3d at 828.

(245.) E.g., id.

(246.) Atkinson, 709 F.3d at 1211.

(247.) Id. at 1211-12.

(248.) Chambers, 641 F.3d at 904.

(249.) Pearson v. Callahan, 555 U.S. 223, 236 (2009); Payton, 791 F.3d at 828; Meehan, 763 F.3d at 940; LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013).

(250.) Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th Cir. 2012); Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004); Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). See also Anderson v. Creighton, 483 U.S. 635, 640 (1987) ("in the light of pre-existing law the unlawfulness [of an official's action] must be apparent.").

(251.) See Payton, 791 F.3d at 829 (quoting Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001)) (stating that "qualified immunity 'provides ample protection to all but the plainly incompetent or those who knowingly violate the law'"); Meehan, 763 F.3d at 940 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)) ("Qualified immunity provides 'ample room for mistaken judgments.'").

(252.) Meehan, 763 F.3d at 940 (quoting Malley, 475 U.S. at 341).

(253.) See generally Meehan, 763 F.3d at 938-47 (recounting an incident of alleged excessive force where a police officer was granted qualified immunity).

(254.) Id. at 938.

(255.) Id. at 938-39.

(256.) Id. at 939.

(257.) Id.

(258.) Id. at 939-40.

(259.) Id. at 938.

(260.) Id. at 945.

(261.) Id. at 945. See Minn. Stat. Ann. [section] 253B.05, subd. 2(a) (containing Minnesota's emergency admission statute, which states that a police officer "may take a person into custody and transport the person to a licensed physician or treatment facility if the officer has reason to believe... that the person is mentally ill or developmentally disabled and in danger of injuring self or others if not immediately detained").

(262.) Meehan, 763 F.3d at 945.

(263.) Id. at 943.

(264.) Shannon v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010).

(265.) Graham v. Connor, 490 U.S. 386, 396 (1989); Lollie v. Johnson, 159 F. Supp. 3d 945, 958 (8th Cir. 2016).

(266.) See Nance v. Sammis, 586 F.3d 604, 610 (8th Cir. 2009) (pointing out that the use of deadly force is reasonable when the fleeing suspect poses a threat of serious physical harm, but unreasonable where the suspect poses no immediate threat and the force is used only to stop the suspect); Moore v. Indehar, 514 F.3d 756, 763 (8th Cir. 2008) (holding a police officer's use of deadly force against an unarmed, fleeing individual was unreasonable under the Fourth Amendment); Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)) (stating the harm caused by a fleeing suspect who escapes is not enough to justify the use of deadly force to stop the suspect).

(267.) Hemphill v. Hale, 677 F.3d 799, 801 (8th Cir. 2012).

(268.) Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)).

(269.) See Atkinson v. City of Mountain View, 709 F.3d 1201, 1207-11 (8th Cir. 2013) (evaluating a motion for summary judgment based on three particular, disputed facts of the case).

(270.) Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014) (quoting Graham, 490 U.S. at 396); Small, 708 F.3d at 1005; Montoya v. City of Flandreau, 669 F.3d 867, 870-71 (8th Cir. 2012) (quoting Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009)).

(271.) Peterson, 754 F.3d at 600 (quoting Graham, 490 U.S. at 396-97).

(272.) Lollie v. Johnson, 159 F. Supp. 3d 945, 958 (8th Cir. 2016); Shekleton v. Eichenberger, 677 F.3d 361, 364 n. 4 (8th Cir.2012).

(273.) See Schoettle v. Jefferson County, 788 F.3d 855, 859 (8th Cir. 2015) (quoting Graham, 490 U.S. at 396-97) (asserting the proposition made in Graham that when determining reasonableness, a court should consider "the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation").

(274.) See Bishop v. Glazier, 723 F.3d 957, 959-60 (8th Cir. 2013) (illustrating an instance of excessive force where a police officer was helping an innocent citizen in trouble, and not pursuing a potentially dangerous criminal suspect).

(275.) Id.

(276.) Id. at 959.

(277.) Id.

(278.) Id.

(279.) Id. at 959-60.

(280.) Id. at 959.

(281.) Id. at 960.

(282.) Id.

(283.) Id. at 962.

(284.) See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (rejecting an excessive force rule that turns on an arrestee's degree of injury, and stating that the appropriate inquiry is into whether the force used was objectively reasonable in a particular situation). Pennycook was decided in 2011, after the incident in Glazier, which occurred in December of 2010. Glazier, 723 F.3d at 962.

(285.) See Glazier, 723 F.3d at 962.

(286.) Id.

(287.) See Pennycook, 641 F.3d at 906 (changing Eighth Circuit precedent to reflect that "evidence of only de minimis injury [does not] necessarily forecloses a claim of excessive force under the Fourth Amendment").

(288.) See id. (pointing to the possibility that "most plaintiffs showing only de minimis injury can show only a corresponding de minimis use of force").

(289.) Id.

(290.) Id.

(291.) Pennycook, 641 F.3d at 906; Peterson v. Kopp, 754 F.3d 594, 601 (8th Cir. 2014); Stepnes v. Ritschel, 663 F.3d 952, 961 (8th Cir. 2011).

(292.) Pennycook, 641 F.3d at 906; Carter v. Huterson, 831 F.3d 1104, 1109 (8th Cir. 2016), applied for cert., No. 16-7916 (2017); Grider v. Bowling, 785 F.3d 1248, 1252 (8th Cir. 2015); Peterson, 754 F.3d at 600; Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013); Montoya v. City of Flandreau, 669 F.3d 867, 870-71 (8th Cir. 2012); Johnson v. Carroll, 658 F.3d 819, 826 (8th Cir. 2011).

(293.) See Atkinson v. City of Mountain View, 709 F.3d 1201, 1211 (8th Cir. 2013) (citing Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002)) ("Which story is more plausible we cannot say because 'it is not our function to remove the credibility assessment from the jury.'").

(294.) Id. at 1210-11 (quoting Pennycook, 641 F.3d at 906).

(295.) Pennycook, 641 F.3d at 906; Glazier, 723 F.3d at 962.

(296.) See Pennycook, 641 F.3d at 906 (stating that a claim for excessive force is not foreclosed by a de minimis injury, and that the appropriate consideration is whether the force was reasonable).

(297.) Id. at 901.

(298.) Id. at 902.

(299.) Id.

(300.) Id.

(301.) Id.

(302.) Id.

(303.) Id.

(304.) Id.

(305.) Id. at 906.

(306.) Id. at 906-07.

(307.) Id. at 908-09.

(308.) Grider v. Bowling, 785 F.3d 1248, 1253 (8th Cir. 2015) (citing Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009)).

(309.) See id. (quoting Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009)) (positing that an officer could be held liable for nonfeasance in excessive force cases "where the officer is aware of the abuse and the duration of the episode is sufficient to permit an inference of tacit collaboration").

(310.) See e.g., Bell v. Kansas City Police Dep't, 635 F.3d 346, 347 (8th Cir. 2011) (inapplicability of respondeat superior to claims against Kansas City Police Chief and police commissioners); Chambers v. St. Louis Cty., 247 F. App'x 846, 848 (8th Cir. 2007) (inapplicability of respondeat superior to claims against St. Louis County and the St. Louis County Drug Task Force); Hill v. Kansas City Metro Task Force, 182 Fed.Appx. 620, 621 (8th Cir. 2006) (inapplicability of respondeat superior to claims against Kansas City Metro Task Force).

(311.) See Chambers v. St. Louis Cty., 247 F. App'x 846, 848 (8th Cir. 2007). In a previous decision of the Chambers v. Pennycook case, the Eighth Circuit dismissed St. Louis County from the case, holding that the plaintiff's allegations were speculative and noting that respondeat superior could not be a basis of liability for the county. Id.

(312.) See Patton, supra note 205, at 753-54; see also infra, Section V.A (pointing to several weaknesses in [section] 1983).

(313.) Patton, supra note 205, at 753-54.

(314.) Id.

(315.) Id. at 755.

(316.) See Teressa E. Ravenell, Hammering in Screws: Why the Court Should Look Beyond Summary-Judgment When Resolving [section] 1983 Qualified Immunity Disputes, 52 VILL. L. REV. 135, 154-55 (2007) (stating the ways in which a defendant can easily argue their way out of a [section] 1983 claim).

(317.) Id.

(318.) Id. at 155 (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

(319.) See supra Part III.B, IV.B. These sections discuss the qualified immunity defense, which is an extremely strong weapon for defendant police officers to avoid liability in excessive force cases. Id.

(320.) 42 U.S.C. [section] 1983 (2012). See supra Part III.A. (explaining the history of [section] 1983 and the original intent of the law).

(321.) Patton, supra note 205, at 753-54 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111-13 (1983). See also Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (stating that when a plaintiff seeks to enjoin the activity of a government agency, the agency is given a wide latitude to take care of its own affairs); Smook v. Minnehaha Cty., 457 F.3d 806, 816 (8th Cir. 2006) (refusing to enjoin search techniques at a juvenile detention center).

(322.) See Lyons, 461 U.S. at 105-10 (holding that a plaintiff was unable to enjoin the police technique of choking, because he could not show a likelihood that he would "again be wronged in a similar way").

(323.) See supra Part III.C. & IV.B. (discussing the high standards for proving excessive force in the Eight Circuit and beyond).

(324.) See Patton, supra note 205, at 766 (discussing the difficulty of enjoining a police technique). 325. Smith v. Buck, CIV. No. 12-163 (PJS/JSM), 2013 WL 608823, at *l-*2 (D. Minn. Jan. 23, 2013), rev'd, 564 F. App'x258 (8th Cir. 2014).

(326.) De Boise v. Taser Int'l, Inc., 760 F.3d 892, 898 (8th Cir. 2014).

(327.) See id. (noting that the officer in the De Boise case may have been reasonably following taser guidelines in his department's police training manual when he tased a mentally disabled man).

(328.) See id. (stating that the officer in the De Boise case was not able to safely cuff the suspect safely, and so applying more taser cycles was reasonably necessary).

(329.) See supra Part IV.B. This section discusses how excessive force is judged under a reasonableness standard. Id. Presumably, consideration that a police officer was following their training would make their challenged conduct more reasonable. Id.

(330.) See supra Part IV.B. (reviewing Eighth Circuit precedent regarding officer liability for excessive force).

(331.) See Lenhoff, supra note 152, at 29 (highlighting the importance of [section] 1983 to successful plaintiffs, stating they can win economic, compensatory, and punitive damages).

(332.) Patton, supra note 205, at 753-54.

(333.) Id.

(334.) Id. at 758.

(335.) Id.

(336.) See Bodensteiner, supra note 171, at 51 (noting the heightened pleading requirements on plaintiffs who wish to hold government entities liable).

(337.) Id. at 75.

(338.) Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 WM. & MARY BILL RTS. J. 913, 915 (2015).

(339.) Id.

(340.) Bodensteiner, supra note 171, at 51.

(341.) See id. (presuming that judgments against supervisors are "more likely to lead to a change in the municipal culture, customs, and practices or policies that facilitated the challenged conduct").

(342.) See supra Part I (noting some of the issues with police perception in light of recent issues of excessive force).

(343.) See Race, Trust and Police Legitimacy, NAT'L INS. OF JUSTICE, https://nij.gov/topics/law-enforcement/legitimacy/pages/welcome.aspx (last visited Mar. 28, 2017). The National Institute of Justice ("NIJ") provides a great deal of clarity to this proposition:
The public's perceptions about the lawfulness and legitimacy of law
enforcement are an important criterion for judging policing in a
democratic society. Lawfulness means that police comply with
constitutional, statutory and professional norms. Legitimacy is linked
to the public's belief about the police and its willingness to
recognize police authority.

Racial and ethnic minority perceptions that the police lack lawfulness
and legitimacy, based largely on their interactions with the police,
can lead to distrust of the police. Distrust of police has serious
consequences. It undermines the legitimacy of law enforcement, and
without legitimacy police lose their ability and authority to function
effectively.


Id. See also Jake Horowitz, Making Every Encounter Count: Building Trust and Confidence in the Police, NAT'L INST. OF JUST. J., No. 256, Jan. 2007, https://nij.gov/journals/256/pages/building-trust.aspx (highlighting the importance of quality treatment by the police in improving the public's trust in police).

(344.) See Bodensteiner, supra note 171, at 70-71 (arguing for Congress to make amendments to [section] 1983).

(345.) Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 41 AM. U. L. REV. 1, 104 (1997).

(346.) 42 U.S.C. [section] 1983(2012).

(347.) See infra Parts V.B. 1-5 (detailing five suggestions for change in excessive force case law).

(348.) See supra Parts IV.A-E. (touching on all aspects of Eighth Circuit [section] 1983 excessive force case law in its current form).

(349.) J. Michael McGuinness, Law Enforcement Use of Force: Safe and Effective Policing Requires Retention of the Reasonable Belief Standard, 39-MAY CHAMPION 26, 27 (2015).

(350.) See supra Parts IV.A-E (expounding on elements of [section] 1983 law in the Eighth Circuit which has been well-settled by a variety of cases, cited in these five Parts).

(351.) See infra Part V.B.1 (outlining examples of positive aspects of current [section] 1983 law).

(352.) 42 U.S.C. [section] 1983 (2012). See also supra Part III.A, IV.A (providing case examples of some of the wide applications of [section] 1983 law, even in the area of excessive force).

(353.) See McGuinness, supra note 347, at 27 ("We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.") (quoting Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)); supra Part I-II (highlighting real-world and case examples of some very dangerous situations).

(354.) See Graham v. Connor, 490 U.S. 386, 396 (1989). In Graham, the Supreme Court stressed that "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. On the other hand, the court remarked that determining the reasonableness of the force used required "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. These considerations rely somewhat on the discretion of the police officer and how they used force in a given situation. See id. (stating that reasonableness "must be judged from the perspective of a reasonable officer on the scene... ").

(355.) Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011); Carter v. Huterson, 831 F.3d 1104, 1109 (8th Cir. 2016), applied for cert, No. 16-7916 (2017); Grider v. Bowling, 785 F.3d 1248, 1252 (8th Cir. 2015); Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014); Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013); Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya v. City of Flandreau, 669 F.3d 867, 870-71 (8th Cir. 2012); Johnson v. Carroll, 658 F.3d 819, 826 (8th Cir. 2011).

(356.) Lenhoff, supra note 152, at 29.

(357.) See Wood v. Strickland, 420 U.S. 308, 317-18 (1975) (citing a policy objective of immunity as being a "need to avoid discouraging effective official action by public officers charged with a considerable range of responsibility and discretion").

(358.) See infra Part V.B.2 (pointing out ways to reduce excessive force by improving police-community relations).

(359.) See David Hudson, Building Trust Between Communities and local Police, THE WHITE HOUSE BLOG, (Dec. 1, 2014, 8:25 PM), https://obamawhitehouse.archives.gov/blog/2014/12/01/building-trust-between-communities-and-local-police (aiming proposed initiatives at keeping crime rates down).

(360.) Id.

(361.) Id.

(362.) See generally Lollie v. Johnson, 159 F. Supp. 3d 945, 950-57 (D. Minn. 2016) (noting an incident where a civilian was arrested for loitering on a skywalk); Peterson v. Kopp, 754 F.3d 594, 596-98 (8th Cir. 2014) (noting an incident where a man waiting at a bus stop had a bad encounter with a police officer); Robinson v. Payton, 791 F.3d 824, 826-28 (8th Cir. 2015) (noting an incident of misunderstanding between two civilians walking their dog and police officers, based on the civilians looking suspicious). It is important to review the facts of the aforementioned cases, to see that they were all simple misunderstandings which had very unfortunate endings. Id. If the officers in these cases had been more understanding of the civilian's circumstances and been less commanding, would the outcome have been different? Id. If the civilians had politely explained their actions and been apologetic and or courteous, would the outcome have been different? Id. It is misguided to ultimately view cases of excessive force in terms of black and white, right or wrong, but to simply turn the facts on their head to try and predict legal outcomes may help to develop strong policies and sound legal developments. Id.

(363.) See Hudson, supra note 359 (outlining general, but non-exhaustive policy goals to reduce crime and improve policy-community relations).

(364.) See id. (stating that one way to improve police-community relations is to "[e]ngage law enforcement and community leaders in devising new ways to reduce crime while building public trust").

(365.) See Brian A. Jackson, Respect and Legitimacy--A Two-Way Street: Strengthening Trust Between Police and the Public in an Era of Increasing Transparency, RAND CORP., 16-17 (2015), http://www.rand.org/pubs/perspectives/PE154.html (click "Read Online" or download PDF file). Dr. Jackson, the director of the Security Studies Program in the Homeland Security Operational Analysis Center at the RAND Corporation and a professor at the Pardee RAND Graduate School, states, in regard to police procedure, that "concerns about the fairness and effectiveness of internal review and corrective mechanisms, the involvement of outside entities is often a part of restoring public trust. Such involvement can range from institutionalized processes... to the use of the courts through either criminal prosecution or civil litigation." Id.

(366.) See MODEL CODE OF PROF'L CONDUCT r. 6.1 (AM. BAR ASS'N 2015). The ABA's Model Rules of Professional Conduct grazes this subject in its discussion of the requirements for lawyers to log pro bono hours:
Every lawyer has a professional responsibility to provide legal
services to those unable to pay. A lawyer should aspire to render at
least (50) hours of pro bono publico legal services per year. In
fulfilling this responsibility, the lawyer should:

(a) provide a substantial majority of the (50) hours of legal services
without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental and
educational organizations in matters that are designed primarily to
address the needs of persons of limited means; and

(b) provide any additional services through:

(1) delivery of legal services at no fee or substantially reduced fee
to individuals, groups or organizations seeking to secure or protect
civil rights, civil liberties or public rights, or charitable,
religious, civic, community, governmental and educational
organizations in matters in furtherance of their organizational
purposes, where the payment of standard legal fees would significantly
deplete the organization's economic resources or would be otherwise
inappropriate;

(2) delivery of legal services at a substantially reduced fee to
persons of limited means;

or

(3) participation in activities for improving the law, the legal
system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support
to organizations that provide legal services to persons of limited
means.


Id. (emphasis added).

(367.) See MODEL CODE OF PROF'L CONDUCT r. 6.1, cmt. 2 (AM. BAR ASS'N 2015) ("Legal services... consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means.").

(368.) See MODEL CODE OF PROF'L CONDUCT r. 6.1 (AM. BAR Ass'N 2015) (providing a variety of ways in which lawyers can, and must, serve their communities).

(369.) See supra Part II. (describing six cases which had adverse impacts for all parties involved, regardless of their legal outcomes).

(370.) Robinson v. Payton, 791 F.3d 824, 828 (8th Cir. 2015); Blazek v. City of Iowa City, 761 F.3d 920, 922-23 (8th Cir. 2014); Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014). Again the test is: (1) was there a violation of a constitutional right; and (2) was the right clearly established at the time of the incident. Id.

(371.) See supra Part II.A-B (detailing case examples of potential police misconduct through the use of excessive force).

(372.) See e.g., Blazek, 761 F.3d at 923 (granting qualified immunity as it was not clearly established that it was unconstitutional to jerk an arrestee's arm behind his back after the arrestee was passively resisting and asked to speak to a lawyer); Meehan, 763 F.3d at 946 (granting qualified immunity as it was not clearly established that it was unconstitutional to frisk and detain an intoxicated passenger who had not committed a crime, because the frisk had only caused a de minimis injury); Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013) (granting qualified immunity as it was not clearly established that it was unconstitutional to choke an arrestee and slam him against a car for 60 seconds, so long as the choking and grabbing only caused de minimis injury); LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013) (granting qualified immunity as it was not clearly established that it was unconstitutional to tase a minor suspected of underage drinking, so long as the taser only caused a de minimis injury).

(373.) See Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011) (asserting that the burden is on the plaintiff to prove Constitutional rights were violated, and that those rights were clearly established). One can imagine how difficult it is for a plaintiff to meet this standard, especially if the plaintiff is of limited means. Id.

(374.) Luckert v. Dodge Cry., 684 F.3d 808, 817 (8th Cir. 2012); Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004); Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). See also Anderson v. Creighton, 483 U.S. 635, 640 (1987) ("[I]n the light of pre-existing law the unlawfulness [of an official's action] must be apparent.").

(375.) Id.

(376.) See supra Part II.B (recalling recent cases where it is unclear, at least to the lay person, whether the use of force was reasonable or not).

(377.) See Bodensteiner, supra note 171, at 75 (pointing out the disconnect between [section] 1983 law and tort law under the "clearly established" prong).

(378.) See supra Part II. (noting examples of excessive force).

(379.) See Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 22-27 (1968)) (expressing that the Supreme Court "has long recognized that the right to make an arrest... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it").

(380.) See infra Part IV.B.3 (explaining the elements of a potential third prong to add to [section] 1983 excessive force jurisprudence).

(381.) See Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014) (quoting Graham, 490 U.S. at 396-97). "[T]he 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. "'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.'" Id..

(382.) See id. It is potentially counterintuitive to require an objective standard for reasonable force, then turn around and view the force from the subjective eyes of the officer. Especially when the officer may see a reasonable threat, but act with an unreasonable amount of force. Id. In many excessive force instances, it seems better for a jury to decide. Id.

(383.) Id. A mix of objective and subjective standards may especially hurt a plaintiff when the officer sees a reasonable threat, but acts with an unreasonable amount of force. Id. In these instances, it seems better for a jury to decide. Id.

(384.) See supra Part I (displaying current events as an example of why positive change is needed in this area of the law).

(385.) See Bodensteiner, supra note 171, at 75 (pointing to the disconnect between [section] 1983 law and tort law, in that [section] 1983 law allows government entities to be "absolved" of the conduct of their agents).

(386.) See id. (noting that government entities can avoid liability for their agent's actions, unless it is shown that the agent was acting according to the entity's policy).

(387.) Blum, supra note 338, at 963-64.

(388.) See Bodensteiner, supra note 171, at 39. This author states that a policy justification for qualified immunity is to encourage government officials to exercise their "discretion in a vigorous manner." Id. Recognizing respondeat superior liability may fulfill the same goal. Id.

(389.) Blum, supra note 338, at 964.

(390.) Bodensteiner, supra note 171, at 51.

(391.) See id. at 75 (stating that one of the goals of [section] 1983 actions is to deter violations of civil rights).

(392.) Kenneth Duvall, Burdens of Proof and Qualified Immunity, 37 S. III. U. L.J. 135, 142 (2012).

(393.) See supra Part III.A-B (detailing the elements and vast uses of the qualified immunity defense).

(394.) See supra Parts I, II.A (citing examples of instances of excessive force in light of the arrestee's actions).

(395.) See Lenhoff, supra note 152, at 29 (suggesting trial courts should not resolve difficult fact questions which civil rights cases usually generate via summary judgment).

(396.) See supra Part II-III (listing examples of egregious police conduct where no civil remedy was provided to the plaintiff).

(397.) Smith v. Buck, CIV. No. 12-163 (PJS/JSM), 2013 WL 608823, at *1 (D. Minn. Jan. 23, 2013), rev'd, 564 F. App'x 258 (8th Cir. 2014). See also supra Part II (detailing the circumstances of the Smith case).

(398.) See Bodensteiner, supra note 171, at 71-73 (proposing an amendment to [section] 1983 which would abolish the qualified immunity defense).

(399.) Ravenell, supra note 316, at 185.

(400.) Id.

(401.) Id. at 186.

(402.) Id. at 183.

(403.) See Atkinson v. City of Mountain View, 709 F.3d 1201, 1211 (8th Cir. 2013) (stating the proposition that if a court is confronted with two different factual versions of an incident of excessive force, the assessment of reasonableness of the force must be left to a jury).
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