                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2448
                                   ___________

Eddie Howard,                              *
                                           *
             Plaintiff-Appellee,           *
                                           *   Appeal from the United States
      v.                                   *   District Court for the Western
                                           *   District of Missouri.
Kansas City Police Department;             *
Michael Galley, Police Officer; Board      *
of Police Commissioners, Through its       *
members; Angela Wasson-Hunt, in her        *
official capacity as a member of the       *
Board of Police Commissioners of           *
Kansas City, Missouri; Karl Zobrist, in    *
his official capacity as a member of the   *
Board of Police Commissioners of           *
Kansas City, Missouri; James Wilson,       *
in his official capacity as a member of    *
the Board of Police Commissioners of       *
Kansas City, Missouri; Terry Brady, in     *
his official capacity as a member of the   *
Board of Police Commissioners of           *
Kansas City, Missouri; Mayor Kay           *
Barnes, in his official capacity as a      *
member of the Board of Police              *
Commissioners of Kansas City,              *
Missouri,                                  *
                                           *
             Defendants,                   *
                                           *
Ryan Bronner, Police Officer; Mike         *
Sartain, Police Officer,                   *
                                           *
      Defendants-Appellants.               *
                                     ___________

                              Submitted: January 16, 2009
                                 Filed: July 2, 2009
                                  ___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Kansas City, Missouri, police officers Ryan Bronner and Mike Sartain
(collectively, the “Officers”) filed an interlocutory appeal from a district court1 order
denying their motion for summary judgment on Eddie Howard’s claim of excessive
force on the basis of qualified immunity. We affirm.

                                            I

       Viewing the alleged facts in the light most favorable to Howard, this lawsuit
arises from the following events.2 On July 27, 2002, the temperature in Kansas City,
Missouri, exceeded 100 degrees Fahrenheit, and local weather forecasters had issued
a heat advisory. At approximately 4:45 p.m., Howard, who was sitting in his red
Chevrolet Camaro, was shot in his upper left arm by someone in a green Mitsubishi
Mirage. Howard drove away at a high rate of speed, and the assailants gave chase.
Soon thereafter, Howard saw a police cruiser and attempted to get its attention by
honking and swerving his vehicle. Police officer Michael Galley observed the chase,
activated his emergency lights, and pursued the speeding vehicles.


      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
      2
         See McLean v. Gordon, 548 F.3d 613, 616 (8th Cir. 2008) (construing the
facts in the light most favorable to the non-moving party on review of a denial of
summary judgment on the basis of qualified immunity).

                                          -2-
       At some point during the car chase, Howard removed his shirt and wrapped it
around his arm in an attempt to stem the flow of blood. Howard eventually decided
to stop the vehicle and flee from his assailants on foot; he abandoned his vehicle, ran
across a vacant lot, and climbed a fence. Howard’s assailants then ceased their
pursuit. After climbing the fence, Howard saw another police officer and attempted
to get his attention. Other police officers, including officers Bronner and Sartain,
arrived on the scene.

       Officers Bronner and Sartain drew their weapons and pushed Howard, who
remained shirtless, onto the asphalt street. The Officers began administering first aid
and questioning Howard about who shot him. After two to three minutes, Howard
began complaining that the hot asphalt was burning his exposed skin. The Officers
interrupted Howard’s complaints and continued to question him about his assailants.
Howard continued to complain about the heat, and he asked the Officers whether he
could move to a less painful spot. Specifically, he asked if he could lean on a police
cruiser or if he could lay on a nearby patch of grass until an ambulance arrived. The
Officers denied both requests.

       As the asphalt continued to burn Howard, he began struggling to remove his
exposed skin from the asphalt. In addition to his constant verbal complaints, Howard
started moving his shoulders back and forth in an attempt to lift his back and arms off
the asphalt. One of the Officers, however, held his arms down and restrained him
against the asphalt. Howard then began moving his legs, but the other Officer grabbed
hold of his legs and held them in place. After Howard was on the asphalt for seven
to eight minutes, either Bronner or Sartain instructed a nearby officer to retrieve a
yellow blanket from their police cruiser, and they placed the blanket underneath
Howard.3 As a result of his exposure to the asphalt, Howard suffered second-degree
burns on his arms, back, shoulders, neck, and upper buttocks.


      3
         Both Bronner and Sartain admitted in their affidavits that they sent another
officer to retrieve the blanket.

                                         -3-
       Claiming they used excessive force in violation of the Fourth Amendment,
Howard sued Bronner and Sartain under 42 U.S.C. § 1983.4 Bronner and Sartain
moved for summary judgment on the grounds of qualified immunity. The district
court denied the Officers’ motion, concluding the alleged facts state the violation of
a clearly established right. This interlocutory appeal followed.

                                          II

       We have jurisdiction over this interlocutory appeal under the collateral order
doctrine. Bonner v. Outlaw, 552 F.3d 673, 676 (8th Cir. 2009). We review de novo
the district court’s denial of summary judgment on the issue of qualified immunity.
Ngo v. Storlie, 495 F.3d 597, 601-02 (8th Cir. 2007). “Qualified immunity protects
a government official from liability in a section 1983 action unless the official’s
conduct violated a clearly established constitutional or statutory right of which a
reasonable person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th
Cir. 2006). To overcome the defense of qualified immunity, a plaintiff must show:
(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2) the right was clearly
established at the time of the deprivation. See id. at 501-02. In Saucier v. Katz, the
Supreme Court mandated us to consider these two requirements in sequential order.
533 U.S. 194, 201 (2001). That is, we were required to determine whether the facts
demonstrated the violation of a constitutional or statutory right before determining
whether that right was clearly established. See id. Recently, however, the Supreme
Court abandoned this rigid sequence and allowed judges “to exercise their sound


      4
         Howard also brought an excessive force claim against police officer Michael
Galley and a failure to train claim against the Board of Police Commissioners and its
individual members in their official capacities. The district court dismissed Howard’s
claim against Galley for failure to serve, and it granted summary judgment in favor
of the Board of Police Commissioners and its individual members on his claim for
failure to train. Neither of these rulings are at issue in the instant appeal.

                                         -4-
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). In the instant case, we elect to
proceed under the traditional framework and decide first whether the facts
demonstrate a violation of Howard’s constitutional rights before determining whether
such rights were clearly established.

                                           A

       Viewing the facts in the light most favorable to Howard, we conclude the
Officers used excessive force in violation of Howard’s constitutional rights. We
analyze excessive force claims in the context of the Fourth Amendment. Henderson,
439 F.3d at 502. “To establish a violation of the Fourth Amendment in a section 1983
action, the claimant must demonstrate a seizure occurred and the seizure was
unreasonable.” Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008) (quoting McCoy
v. City of Monticello, 342 F.3d 842, 846 (8th Cir. 2003)).

       For purposes of the Fourth Amendment, a seizure occurs whenever “an officer
restrains an individual’s liberty through physical force or a show of authority.” Id.
Because the facts show the Officers pushed Howard to the ground and restrained him
on the asphalt in spite of his attempts to move elsewhere, we conclude the Officers
seized Howard. While the dissent is correct to note that Howard “voluntarily and
willingly sought assistance” from the Officers, post at 15, it is equally true the
Officers forced Howard to the ground, refused his verbal demands to be moved
elsewhere, and actively resisted his physical efforts to remove himself from the
burning pavement. Moreover, nowhere in the record is it clear that Howard felt free
to leave the Officers’ care, but was simply objecting to a specific application of force
as part of his treatment. Given the rapidly evolving circumstances of the situation, it
is difficult to accept the dissent’s argument that a reasonable person would have
viewed the seven to eight minute encounter as a series of mini-events that began as
consensual, turned into a seizure, and then at some point once again became

                                          -5-
consensual. In contrast, a reasonable person who flags down police officers, is forced
to the ground by those officers, is denied his requests to move elsewhere, and has his
arms and legs pinned to the ground as he tries to get up would not believe that he was
at “liberty to ignore the police presence and go about his business.” Florida v.
Bostick, 501 U.S. 429, 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569
(1988)).

       Because the Officers seized Howard, we must determine whether the seizure
was reasonable. “Once the predicate facts are established, the reasonableness of the
official’s conduct under the circumstances is a question of law.” Mann v. Yarnell, 497
F.3d 822, 825 (8th Cir. 2007) (quoting Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.
2001)). The penultimate question is “whether the amount of force used was
objectively reasonable under the particular circumstances.” Ngo, 495 F.3d at 602
(quoting Henderson, 439 F.3d at 502). “Determining whether the force used to effect
a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Graham v. Conner, 490 U.S. 386, 396 (1989) (internal quotation marks omitted). In
assessing the reasonableness of the Officers’ conduct, we look at the totality of the
circumstances and focus on factors such as “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight.” Id. We may also consider the result of the force. Littrell v. Franklin, 388
F.3d 578, 583 (8th Cir. 2004). Additionally, we must judge the reasonableness of the
Officers’ conduct from the “perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight,” and with “allowance for 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.” Graham, 490 U.S. at 396-97.




                                         -6-
       The present case is unusual because Howard was not a suspect in the traditional
sense. Rather, the Officers contend, and Howard essentially concedes, they restrained
him on the asphalt not with an intent to injure him, but to render medical aid.
According to the Officers, they did not move Howard off the asphalt because they
feared doing so could cause further injury. Nevertheless, by restraining Howard for
the purpose of rendering medical aid and by actively preventing him from moving off
the asphalt, the Officers seized Howard within the meaning of the Fourth Amendment.
As such, “the question is whether the officers’ actions [we]re ‘objectively reasonable’
in light of the facts and circumstances, without regard to their underlying intent or
motivation.” Id. at 397. The Supreme Court has counseled that “[a]n officer’s evil
intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.” Id.

       Viewing the facts as previously described, we conclude the Officers’ use of
force was objectively unreasonable. Initially, the Officers were justified in drawing
their weapons and forcing Howard to the ground upon arriving at the scene. The
Officers were aware there was a shooting and a high-speed car chase, and, even
though Howard approached them trying to get their assistance, it was necessary for
the Officers to ensure their safety until they could ascertain Howard’s role in the
incident and determine whether he was armed.

        It was the Officers’ actions after forcing Howard to the ground, however, that
were objectively unreasonable. Once Howard was on the ground, it was apparent to
the Officers that he was a victim of an attack and not a suspect, that he was unarmed,
and that he was not attempting to flee, resist, or harm the Officers. While the Officers
initially acted reasonably in administering first aid, Howard soon thereafter began
complaining that the asphalt was burning his exposed skin. Howard asked to await
an ambulance while leaning on a police cruiser or while lying on a nearby patch of
grass; the Officers denied both requests. In spite of Howard’s constant complaints,
it took the Officers four to six minutes before they responded and ordered someone

                                          -7-
to retrieve a blanket, which they then placed underneath him. Moreover, not only did
the Officers fail to act in response to Howard’s complaints, they affirmatively resisted
his attempts to move his exposed skin off the asphalt. The Officers were aware of the
damage the asphalt was inflicting on Howard when he began to complain and move
to free himself, and, instead of remedying the situation with reasonable dispatch, the
Officers did nothing while Howard’s injuries worsened. As a result, Howard received
severe second-degree burns. Given Howard’s persistent, specific complaints about
the exposure of his exposed skin to hot asphalt on a day when the temperature
exceeded 100 degrees, a reasonable officer should have recognized the danger to
Howard and responded appropriately. Instead, Officers Bronner and Sartain did
nothing for four to six minutes except pin Howard’s arms and legs to the ground in
spite of his attempts to move his exposed skin off the asphalt. On this version of the
facts, we conclude the Officers’ actions were not objectively reasonable.

       Although the Officers did eventually respond to the danger by directing another
officer to retrieve a blanket and placing the blanket underneath Howard, it was not
reasonable for the Officers to wait seven to eight minutes after he was on the ground
(four to six minutes after he began complaining) to do so. The blanket was available
immediately, and there is no evidence the Officers were prevented from ordering
another officer to retrieve it because of external factors or other responsibilities.
Absent a good reason for waiting so long to remedy the situation while Howard’s
injuries worsened, the Officers’ actions were unreasonable.5

      5
       While we agree with the dissent’s assertion that the Officers were doing
“something” during this time period to treat Howard’s gunshot wound, post at 21, the
relevant point is that they did “nothing” to respond to Howard’s complaints of pain
caused by the hot asphalt. There is no evidence to suggest that because the Officers
were administering first aid to Howard, they were prevented from simultaneously
dispatching another officer to retrieve a blanket. Thus, it was unreasonable for the
Officers to wait four to six minutes before directing another officer to retrieve said
blanket when they could have just as easily done so immediately. Therefore, the
Officers were not faced with a conflict between treating Howard’s gunshot wound and
responding to Howard’s complaints of pain; they could have easily accomplished

                                          -8-
        The Officers contend they acted reasonably because they were trained in most
circumstances not to move people who are injured and bleeding, and they did not
move Howard because they feared doing so could risk further injury. The Officers’
justification, however, is unpersuasive. Their concern about moving Howard is a red
herring because the Officers eventually placed a blanket underneath him; thus, the
Officers must not have been concerned about the small amount of movement
necessary to do so. While such a concern may have reasonably motivated their
decision to prevent him from leaning on a police cruiser or moving to a nearby patch
of grass, it does not explain why Bronner and Sartain waited four to six minutes after
he began complaining before directing another officer to obtain a blanket. Thus, their
delay in doing so was not objectively reasonable.6 As such, the Officers violated
Howard’s Fourth Amendment right to be free from excessive force when they seized
Howard.

                                            B

       We also agree with the district court that the constitutional violation was clearly
established. To be clearly established, “the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.” Lindsey v. City of Orrick, 491 F.3d 892, 902 (8th Cir. 2007). “The question
is whether the law gave the officials ‘fair warning that their alleged conduct was
unconstitutional.’” Bonner, 552 F.3d at 679 (quoting Brown v. Fortner, 518 F.3d 552,
561 (8th Cir. 2008)). “[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730,


both, and it was unreasonable for them to fail to do so.
      6
        Contrary to the dissent’s assertion, we are not “construct[ing]” a constitutional
violation. Post at 19. We are affirming based on the district court’s own theory of the
case. See J.A. at 213-14 (“A question remains whether, in view of the circumstances
present in this case, the amount of force used by Officers Bronner and Sartain in
holding plaintiff down on the hot pavement for some minutes before placing a blanket
under him was objectively reasonable.”)

                                           -9-
741 (2002). The “salient question” is whether the law in 2002 gave the officers fair
warning that their alleged treatment of Howard was unconstitutional. Id.

       “The right to be free from excessive force is a clearly established right under
the Fourth Amendment’s prohibition against unreasonable seizures of the person.”
Mann, 497 F.3d at 825 (quoting Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)).
We have already concluded the Officers used excessive force in seizing Howard
because they acted unreasonably in responding to the dangers posed by the hot
asphalt. We similarly conclude a reasonable official would understand that such
conduct constitutes excessive force. “The key distinction between [the reasonableness
inquiry and the one made under the first step of the qualified immunity analysis] is
that the right allegedly violated must be defined at the appropriate level of specificity
before a court can determine it was clearly established.” Moore, 514 F.3d at 763
(quoting Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005)) (alteration in original).

       Defining the right at the appropriate level of specificity, the Officers had fair
warning that their alleged conduct was not objectively reasonable, and thus
unconstitutional. As of 2002, it was clearly established that the Fourth Amendment
was violated if an officer unreasonably ignored the complaints of a seized person that
the force applied by the officer was causing more than minor injury. This proposition
was established, for example, in a series of cases involving failure to respond to
complaints of overly-tight handcuffs. Kopec v. Tate, 361 F.3d 772, 778 (3d Cir.
2004) (discussing clearly established law as of 2000); Heitschmidt v. City of Houston,
161 F.3d 834, 839-40 (5th Cir. 1998); Martin v. Heideman, 106 F.3d 1308, 1312 (6th
Cir. 1997); Alexander v. County of Los Angeles, 64 F.3d 1315, 1322-23 (9th Cir.
1995); Palmer v. Sanderson, 9 F.3d 1433, 4136 (9th Cir. 1993); cf. Hanig v. Lee, 415
F.3d 822, 824 (8th Cir. 2005) (discussing excessive force claim arising in 2000). In
this case, the Officers were expressly made aware, by Howard’s persistent complaints
and efforts to move his arms and back off the asphalt, of the harm that the hot asphalt
was inflicting on Howard. As such, it was clear to a reasonable officer that doing
nothing for four to six minutes—and in fact making the situation worse by pinning

                                          -10-
Howard’s arms and back to the asphalt—without a good reason was unlawful in the
situation Officers Bronner and Sartain confronted.

       The dissent is incorrect to conclude that just because prior cases do not set forth
a fixed period of time beyond which it is unreasonable to ignore a seized person’s
complaints of pain, the constitutional violation in this case was not clearly established.
Post at 25. As noted, cases clearly establish that it is unreasonable to ignore a
person’s complaints of pain resulting from an officer’s use of force. Because the
Officers in this case ignored, i.e., did not reasonably respond to, Howard’s complaints
of pain, the unlawfulness of their actions was apparent. We need not define at
precisely what moment their delay became unconstitutional, only that waiting four to
six minutes, without justification, before responding was tantamount to ignoring
Howard’s complaints.7 Because case law clearly establishes that is a Fourth
Amendment violation to unreasonably ignore a seized person’s complaints of pain, the
unlawfulness of the Officers’ actions was apparent.

       Moreover, the only excessive force case in existence at the time of the incident
dealing with the dangers of hot asphalt on exposed skin found for the police officers
only after finding several mitigating factors not present in this case. See Price v.
County of San Diego, 990 F. Supp. 1230 (S.D. Cal. 1998). In Price, police officers
wrestled with a large suspect, hogtied him, and left him lying shirtless on hot asphalt.
Id. at 1234-36. The suspect eventually died. Id. at 1236. Addressing the claim of
excessive force with respect to leaving the suspect shirtless on hot asphalt, the court

      7
       The dissent makes much of facts that are not before the court. Had the Officers
immediately directed someone to find a blanket, but it took several minutes for that
person to retrieve the blanket, then it could not fairly be said that the Officers ignored
Howard’s complaints. Post at 25. Likewise, had circumstances been such that the
Officers could not have retrieved the blanket because of other responsibilities (e.g.,
the Officers would have had to interrupt treatment to retrieve the blanket, and it would
be reasonable to conclude the interruption in treatment would pose a greater threat
than the hot asphalt), then they would have a good reason for delaying, and we would
not say the Officers ignored Howard’s complaints.

                                          -11-
found the officers acted reasonably for several reasons: (1) the deputies were tired
after struggling with the suspect, which would have made it difficult to move a hefty
and belligerent person; (2) the officers had to perform other tasks, such as calling for
medical assistance and controlling onlookers; and (3) the suspect did not suffer any
burns, which indicates the asphalt temperature was not so high that it was
unreasonable to leave him lying there for a short period of time. Id. at 1241.

       In this case, however, there is no evidence the Officers were unable to prevent
the injuries caused by the hot asphalt; in fact, by placing a blanket underneath Howard
the Officers demonstrate how easy and readily available such a solution was.
Additionally, there is no evidence the Officers were reasonably prevented from
directing another officer to retrieve the blanket because of other necessary
responsibilities. Finally, Howard suffered severe second-degree burns. Because none
of the mitigating factors present in Price were involved in this case, the Officers had
fair warning that their use of force was not objectively reasonable. As such, the
Officers’ conduct violated a clearly established right.8

                                          III

      Accordingly, we affirm the district court.




      8
       We reiterate that our holding is premised on the stark factual scenario posited
by Howard and the district court. In contrast, the Officers have averred that they
dispatched an officer to retrieve the blanket after Howard complained about the hot
pavement, and that Howard spent no more than a few minutes (as opposed to seven
or eight minutes) on the pavement before he was moved to the blanket. If these facts
are accepted, then the conduct of the Officers was objectively reasonable and
consistent with the Fourth Amendment. At this stage of the proceedings, however, we
must accept Howard’s contrary version of events, and we resolve the issue of qualified
immunity on that basis.

                                         -12-
GRUENDER, Circuit Judge, dissenting.

       This appeal presents the question whether Officers Ryan Bronner and Mike
Sartain are entitled to qualified immunity on Eddie Howard’s claim that he was
subjected to excessive force in violation of the Fourth Amendment. Because I do not
agree with the Court’s conclusions that Howard was seized when the alleged
constitutional violation occurred, that the officers’ actions were objectively
unreasonable under the Fourth Amendment, and that the alleged constitutional
violation was clearly established, I respectfully dissent.

I.    Howard was not seized when the alleged constitutional violation occurred

       At the outset, it is worth reiterating that an excessive force claim under the
Fourth Amendment requires that the plaintiff be seized when the constitutional
violation occurs. Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008). Here, the
Court concludes that Howard was seized during the alleged constitutional violation
because the officers had “pushed Howard to the ground and restrained him on the
asphalt in spite of his attempts to move elsewhere.” Ante at 5. The Court’s analysis
of the seizure issue, however, is incomplete. The Court neglects significant
circumstances demonstrating that a reasonable person in Howard’s position would
have understood that the situation began as a consensual encounter, was momentarily
converted into a seizure, and then was converted back into a consensual encounter
before the alleged constitutional violation occurred. Because the totality of the
circumstances shows that a reasonable person in Howard’s position would have
understood that he was free to refuse the officers’ medical treatment and terminate the
encounter, see Florida v. Bostick, 501 U.S. 429, 437 (1991), I would find that Howard
was not seized when the alleged constitutional violation occurred.

      “Not every encounter between a police officer and a citizen constitutes an
unreasonable seizure under the Fourth Amendment.” United States v. Barry, 394 F.3d
1070, 1074 (8th Cir. 2005). To determine whether an encounter constitutes a Fourth

                                         -13-
Amendment seizure, “the crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police conduct would ‘have
communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.’” Bostick, 501 U.S. at 437 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)); cf. California v. Hodari D., 499 U.S. 621, 628
(1991) (noting that satisfaction of the “reasonable person” test described in Bostick
is “a necessary, but not a sufficient, condition for seizure”). We view the
circumstances surrounding the encounter through the lens of a reasonable person in
Howard’s situation, informed by the objective facts known to an individual in
Howard’s position at that time. See Chesternut, 486 U.S. at 569. The seizure inquiry
is necessarily imprecise and requires case-by-case evaluation, since the result hinges
on the unique facts of each situation. United States v. Griffith, 533 F.3d 979, 983 (8th
Cir. 2008).

       Here, the encounter began when Howard voluntarily and willingly sought
assistance from the officers to provide protection from his pursuing assailants and
medical aid for his gunshot wound. To this end, Howard first attempted to draw
Officer Galley’s attention by honking and swerving his red Camaro while he was
being pursued by his assailants in the green Mirage, and he then flagged down
Officers Bronner and Sartain for help after fleeing his parked car. Ante at 2-3. The
fact that Howard initiated contact is significant because it is more likely that a citizen
would feel free to terminate the encounter when he, and not the police, invited the
encounter. Cf. United States v. Valle Cruz, 452 F.3d 698, 705-06 (8th Cir. 2006)
(holding that an individual was not seized when she voluntarily pulled her vehicle
over to wait for a traveling companion in another vehicle, which had been stopped by
law enforcement); United States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001)
(holding that defendant’s act of approaching the police officer supported the
conclusion that the interaction was voluntary).

      Although I agree with the Court that the situation was momentarily converted
from a consensual encounter into a seizure because of the officers’ acts of drawing

                                          -14-
their weapons, ordering Howard to the ground, and forcing him down on the ground,
see ante at 5, the subsequent circumstances, viewed from the objective perspective of
a reasonable person in Howard’s position, converted the situation back into a
consensual encounter before the alleged constitutional violation occurred. Cf. United
States v. Barnum, 564 F.3d 964, 972-73 (8th Cir. 2009) (holding that a police officer’s
acts converted a seizure into a consensual encounter); United States v. Ramirez, 476
F.3d 1231, 1240 (11th Cir. 2007) (same). As the officers laid Howard on the ground,
Howard apprised the officers that he was a victim rather than a perpetrator, yelling “I
just got shot; the guys was over there, they’re back there.” Once the officers noticed
Howard’s gunshot wound, they immediately holstered their weapons and began
treating his injury. The officers’ actions removed from the equation most of those
objective circumstances—the display of weapons, the use of coercive language or
intonation, and acts and language indicating the person is under investigation—that
could lead a reasonable person in Howard’s situation to believe that he was being
seized. See Griffith, 533 F.3d at 983. Similarly, a reasonable person in Howard’s
situation would understand that the remaining circumstances that might otherwise be
indicative of a seizure—the presence of several officers and physical restraint—were
clearly done in the furtherance of the officers’ provision of treatment to Howard. Cf.
Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009) (“Hallmark factors such as
physical restraint . . . may be suggestive, but in certain circumstances such factors may
be perfectly consistent with an investigatory stop [instead of an unlawful detention].”).

      After the officers holstered their weapons and began treating Howard, they
asked him questions about his assailants and radioed dispatch “to tell the cops that it’s
a green car and there’s four dudes in the car.” The officers’ questions concerning
Howard’s assailants, when considered alongside the facts that the officers did not
handcuff Howard, administer Miranda9 warnings, or tell him that he was under arrest,
would lead a reasonable person in Howard’s situation to believe that the officers
accepted Howard’s claim that he was a victim and not the subject of police suspicion


      9
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -15-
or investigation.10 Moreover, after the officers determined that Howard was the victim
and not a suspect, this encounter occurred entirely for the benefit of Howard, the
citizen, rather than for the benefit of law enforcement, which typically enjoys the
fruits of those encounters alleged to be seizures. Cf. United States v. Drayton, 536
U.S. 194, 201 (2002) (encounter benefitted police drug interdiction efforts); INS v.
Delgado, 466 U.S. 210, 211-12 (1984) (encounter benefitted federal immigration law
enforcement efforts); Terry v. Ohio, 392 U.S. 1, 6-7 (1968) (encounter benefitted law
enforcement anti-theft efforts). Howard’s status as the intended beneficiary of the
encounter further increases the likelihood that a reasonable person in Howard’s
position would have understood that he was not being seized. Cf. United States v.
Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007) (“A consensual encounter does
not implicate the Fourth Amendment.”).

      I am not convinced that the officers’ acts of immobilizing Howard in
accordance with their first-responder training and refusing his requests to move the
continuing treatment onto a nearby patch of grass or against the officers’ police cruiser
converted the consensual encounter back into a seizure. The Supreme Court has
recognized that “not every governmental interference with an individual’s freedom of
movement raises such constitutional concerns that there is a seizure of the person.”
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 618 (1989). For instance, the
Sixth Circuit has held that “a voluntarily confined individual who is bodily restrained
by State actors, related to his consented-to medical treatment, has not been seized for
purposes of the Fourth Amendment’s application so long as a reasonable person in the
patient’s position would believe that he was free to leave the State’s care.” Lanman
v. Hinson, 529 F.3d 673, 681 (6th Cir. 2008) (citing Chesternut, 486 U.S. at 573).
The Sixth Circuit’s reasoning in Lanman is instructive here. A reasonable person in

      10
         Although it cannot factor into the objective inquiry, Howard’s subjective
beliefs show he understood that the situation reverted back to a consensual encounter
from a seizure. According to Howard’s testimony, the encounter changed from one
where “[the police] probably thought that I was the bad guys” into one where “[the
officers] instantly started asking questions [about the assailants in the green car].”

                                          -16-
Howard’s position, a citizen seeking and voluntarily consenting to assistance from
police officers for treatment of a gunshot wound, “would believe that the restraint was
part of the medical treatment he had authorized, and not an attempt by defendants to
keep him there against his will.”11 Id. Moreover, “[w]hile the facts viewed in the light
most favorable to plaintiff suggest that [Howard] did ask defendants to get off of him
. . . , there is no evidence to suggest that [he] expressed a desire to leave [their
treatment] and defendants refused to allow him to do so.” See id.; cf. United States
v. Siwek, 453 F.3d 1079, 1086 (8th Cir. 2006) (holding that an individual must make
“an unequivocal act or statement” to withdraw his consent to search).12

      Because a reasonable person in Howard’s position, a law-abiding citizen who
sought out police officers, would have understood that he was not under suspicion of
any crime and that he was free to discontinue the treatment and leave the situation, I
would find that Howard was not seized when the alleged constitutional violation
occurred.

II.   The officers’ actions were objectively reasonable under the Fourth
      Amendment

      Even assuming that the officers seized Howard, I would find that the seizure did
not violate the Fourth Amendment because the officers’ actions were objectively
reasonable under the circumstances. In particular, I would find that it was objectively


      11
        Indeed, Howard himself even speculated that the officers’ restraint was based
on a concern for his safety because “[they] didn’t want me to move and hurt myself
more than I was already hurt.”
      12
        In concluding that Howard was seized, the Court impermissibly focuses on
Howard’s subjective understanding of the situation rather than the understanding of
an objectively reasonable person in Howard’s situation. See ante at 6 (“[N]owhere in
the record is it clear that Howard felt free to leave the Officers’ care, but was simply
objecting to a specific application of force as part of his treatment.” (emphasis
added)).

                                         -17-
reasonable for the officers to spend four to six minutes attending to Howard’s life-
threatening gunshot wound before responding to Howard’s complaints about the hot
pavement, which caused injuries that were serious but not life-threatening.

        The Court concedes that the officers’ actions were at least partially reasonable.
Initially, the Court finds that it was objectively reasonable for the officers to force
Howard to the ground at gunpoint and to administer first aid in the two to three
minutes before Howard started to complain about the hot pavement. Ante at 7-8. The
Court also indicates that the officers’ concern with limiting Howard’s movement in
order to avoid further injuries “may have reasonably motivated their decision to
prevent [Howard] from leaning on a police cruiser or moving to a nearby patch of
grass.” Ante at 9. Finally, the Court suggests that “[if] Howard spent no more than
a few minutes (as opposed to seven or eight minutes) on the pavement before he was
moved to the blanket,” then the officers’ actions were “objectively reasonable and
consistent with the Fourth Amendment.” Ante at 13 n.8.

       Nevertheless, the Court holds that the officers’ actions were not objectively
reasonable based on at least four considerations. First, Howard complained that the
pavement was hot and asked to move to a different location. Ante at 8. Second, the
officers responded to Howard’s complaints four to six minutes later by “directing
another officer to retrieve a blanket” from their police cruiser and placing the blanket
underneath Howard’s back and shoulders. Ante at 8. Third, the officers “did nothing”
during the intervening four to six minutes “except pin Howard’s arms and legs to the
ground.” Ante at 8. Fourth, the blanket was “available immediately,” so the officers
could have “order[ed] another officer to retrieve it” as soon as Howard started to
complain, and there is no evidence that the officers had a “good reason” for waiting
four to six minutes to respond to Howard’s complaints. Ante at 8-9.

       The Court’s holding is premised on a theory of the alleged constitutional
violation that the Court has itself constructed: basically, waiting too long to order a
third officer to retrieve the blanket while “doing nothing” and without a “good

                                          -18-
reason.” As far as I can tell, Howard has never alleged that Officers Bronner and
Sartain violated the Fourth Amendment in this manner. Instead, the focus of
Howard’s complaint and his opposition to the officers’ motion for summary judgment
was the officers’ affirmative conduct in forcing him to the ground at gunpoint and
holding him down on the hot pavement. The crux of Howard’s constitutional claim
was that the officers violated the Fourth Amendment by using excessive force, which
prevented him from getting off the pavement and moving to a different location.
Howard could not prevail under this excessive force theory; as the Court seems to
recognize, it was objectively reasonable for the officers to immobilize Howard on the
pavement in order to avoid further injuries (and, of course, to limit the loss of blood).
See ante at 9. On its own initiative, the Court converts the alleged constitutional
violation into one of omission—the officers’ failure to respond to Howard’s
complaints “with reasonable dispatch.” Ante at 8. The result is a glaring mismatch
between the Court’s theory of the alleged constitutional violation and the specific facts
set out in Howard’s opposition to the officers’ motion for summary judgment. Cf.
Fed. R. Civ. P. 56(e)(2) (“When a motion for summary judgment is properly made and
supported, an opposing party . . . must—by affidavits or as otherwise provided in this
rule—set out specific facts showing a genuine issue for trial.”).

       If the constitutional violation is waiting too long to order a third officer to
retrieve a blanket while in the meantime “doing nothing” without a “good reason,”
then the plaintiff bears the burden under Rule 56(e)(2) of specifically asserting that
Officers Bronner and Sartain did nothing except pin his arms and legs to the ground
and had no good reason for failing to respond to his complaints with greater dispatch.
In my view, Howard has not met that burden. On the contrary, Howard’s version of
the facts tends to show that the officers were occupied with other tasks during the four
to six minutes after he initially complained about the hot pavement and that the
officers had a good reason for waiting four to six minutes before ordering a third
officer to retrieve the blanket. According to Howard, Officer Bronner was applying
pressure to Howard’s gunshot wound, Officer Sartain was restraining Howard’s legs
to thwart Howard’s “attempts to scramble to his feet,” and both officers were asking

                                          -19-
repetitive questions with the obvious purpose of keeping Howard from slipping into
unconsciousness. Thus, Howard has conceded that Officers Bronner and Sartain did
something rather than nothing for the four to six minutes after he started to complain
and that the officers had a good reason—treating his life-threatening gunshot
wound—for waiting four to six minutes to respond to his complaints. As for the third
officer who allegedly retrieved the blanket, Howard again falls short of his burden
under Rule 56(e)(2) because he does not set out any specific facts about who the third
officer was, when the third officer arrived on the scene, whether the third officer was
occupied with other tasks before retrieving the blanket, or how long it took the third
officer to locate the blanket and bring it to Officers Bronner and Sartain after being
ordered to do so.

       The Court’s analysis of the alleged constitutional violation is flawed in two
additional respects. First, the Court’s analysis fails to account for the governmental
interests at stake in this situation. As the Supreme Court has held, “[d]etermining
whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
Amendment requires a careful balancing of ‘the nature and quality of the intrusion on
the individual’s Fourth Amendment interests’ against the countervailing governmental
interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee
v. Garner, 471 U.S. 1, 8 (1985)). The Court’s analysis focuses exclusively on the
nature and quality of the intrusion on Howard’s Fourth Amendment interests without
placing any countervailing governmental interest in the balance. Although the officers
have not clearly articulated what interests they seek to defend, we may infer that one
of the relevant interests is the interest of police in providing efficacious treatment to
a person who seeks medical attention for a life-threatening injury. The interest in
providing efficacious treatment necessarily implies that officers are entitled to some
measure of deference in attending to the life-threatening injury before responding to
comparatively less serious complaints. Placing this interest in the balance yields the
conclusion that a reasonable officer could reasonably spend four to six minutes
maintaining pressure on Howard’s wound, restraining Howard’s legs to thwart his



                                          -20-
attempts to scramble to his feet, and asking repetitive questions to keep Howard from
slipping into unconsciousness before turning to other matters.13

       Second, the Court’s analysis depends on the “20/20 vision of hindsight.” See
Graham, 490 U.S. at 396 (“The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.”). For example, the Court states that “by placing a blanket
underneath Howard the Officers demonstrate[d] how easy and readily available such
a solution was.” Ante at 12. The Court’s logic seems sound enough with the benefit
of hindsight. But the Court fails to heed the Supreme Court’s admonition that the
Fourth Amendment inquiry must make “allowance[s] for the fact that police officers
are often forced to make split-second judgments . . . in circumstances that are tense,
uncertain, and rapidly evolving.” Graham, 490 U.S. at 397. The medical emergency
that Officers Bronner and Sartain confronted was tense, uncertain, and rapidly
evolving, forcing them to make immediate treatment decisions with potential life-or-
death consequences. As a result, ordering a third officer to retrieve the blanket in the
eighth minute of their encounter with Howard does not prove that the solution was
“easy and readily available” four, five, or six minutes earlier. Not every delay in
responding to a seized person’s complaints—even complaints that later seem vitally


      13
         The Court assumes that Officers Bronner and Sartain could have continued
treating Howard’s life-threatening injury while “simultaneously dispatching another
officer to retrieve a blanket.” Ante at 9 n.5. To be sure, human beings generally are
capable of performing more than one task at once. But the relevant question here is
whether the Fourth Amendment required Officers Bronner and Sartain to shift part of
their focus away, albeit momentarily, from maintaining pressure on Howard’s wound,
restraining Howard’s legs to thwart his attempts to scramble to his feet, and asking
repetitive questions to keep Howard from slipping into unconsciousness. Although
“[a] creative judge engaged in post hoc evaluation of police conduct can almost
always imagine some alternative means by which the objectives of the police might
have been accomplished,” United States v. Sharpe, 470 U.S. 675, 686-87 (1985), I do
not think it was unreasonable for Officers Bronner and Sartain to spend four to six
minutes working singlemindedly to save Howard’s life.

                                         -21-
important and easily redressed—violates the Fourth Amendment. Cf. id. at 396 (“Not
every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” (internal citation and quotation marks
omitted)).

        As we have previously noted, “officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.” Littrell v. Franklin, 388 F.3d 578,
582 (8th Cir. 2004) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992)). I am convinced that the officers in this case were operating in a gray area.
Without the benefit of 20/20 hindsight, the officers could not have predicted whether
Howard would survive the gunshot wound which severed the brachial artery in his
arm. Equally, the officers could not have predicted the precise extent of the harm
caused by Howard’s exposure to the hot pavement, though this harm was obviously
not life-threatening. The officers faced a conflict between Howard’s complaints, their
training not to move a person with a gunshot wound, and the other tasks that occupied
their time and attention during the crucial four-to-six-minute interval. Under these
challenging circumstances, the officers made what was at worst a “bad guess”—that
the best course of action was to take steps that would maximize Howard’s chances of
survival before responding to his complaints about the hot pavement. Judging this
incident from the perspective of a reasonable officer on the scene, I cannot say that
Officers Bronner and Sartain should be denied qualified immunity, which protects “all
but the plainly incompetent or those who knowingly violate the law.” See Littrell, 388
F.3d at 582 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

III.   The alleged constitutional violation was not clearly established

       Even assuming that the officers’ actions were not objectively reasonable under
the circumstances, I would still find that the officers are entitled to qualified immunity
because the alleged constitutional violation was not clearly established at the time of
their encounter with Howard. The Court reaches a contrary conclusion by defining
the alleged constitutional violation at an excessive level of generality. Namely, the

                                           -22-
Court holds that “[a]s of 2002, it was clearly established that the Fourth Amendment
was violated if an officer unreasonably ignored the complaints of a seized person that
the force applied by the officer was causing more than minor injury.” Ante at 11. The
Supreme Court has made clear that “the right the official is alleged to have violated
must have been ‘clearly established’ in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “This is not to say that an official action is
protected by qualified immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the unlawfulness
must be apparent.” Id. (internal citation omitted).

       I am not convinced that in the light of pre-existing law the unlawfulness of the
officers’ actions was apparent. There is a dearth of pre-existing law concerning the
use of excessive force in the course of providing treatment to a seized person who
requested assistance from the police. Cf. Hope v. Pelzer, 536 U.S. 730, 753 (2002)
(Thomas, J., dissenting) (“[I]t is crucial to look at precedent applying the relevant
legal rule in similar factual circumstances. Such cases give government officials the
best indication of what conduct is unlawful in a given situation.”). Cases involving
an officer’s failure to respond to a suspect’s complaints about tight handcuffs seem
inapposite given the nature of the medical emergency that Officers Bronner and
Sartain confronted. When a suspect complains that his handcuffs are too tight, the
injury can be redressed by loosening the handcuffs.14 Identifying the proper course
of action is not so simple when a person with a life-threatening injury complains of
a condition that is likely to cause injuries that are not life-threatening. Here again,


      14
        Even so, an officer’s failure to respond to such complaints does not
necessarily violate the Fourth Amendment. See, e.g., McGruder v. Heagwood, 197
F.3d 918, 920 (8th Cir. 1999) (affirming the grant of qualified immunity to officers
who ignored a suspect’s complaints that his handcuffs were too tight, holding that
“objectively reasonable police officers could have believed that they were not using
excessive force, though this belief may have been erroneous”).

                                         -23-
without resorting to 20/20 hindsight, I would conclude that a reasonable officer could
reasonably elect to focus his undivided attention on treating the life-threatening injury
before responding to other complaints.

      The Court does not identify any cases clearly establishing the amount of time
that may elapse before an officer’s failure to respond to a seized person’s
complaints—about tight handcuffs or any other potentially injurious
condition—becomes a constitutional violation. And the Court’s analysis of the
alleged constitutional violation in this case provides precious little guidance to officers
who might face an analogous situation in the future.

       What exactly does it mean, in practice, to “remedy[] [a] situation with
reasonable dispatch”? See ante at 8. Presumably, the clock starts running as soon as
a seized person complains about a potentially injurious condition. But it would be
absurd to suggest that police officers must always redress a seized person’s complaints
within four to six minutes. What if Howard had suffered a grand mal seizure instead
of a gunshot wound, would it then be reasonable for the officers to spend four to six
minutes treating his life-threatening condition without “simultaneously” responding
to earlier complaints? Or what if Officers Bronner and Sartain dispatched the third
officer immediately but it took more than six minutes to find the blanket, buried
beneath a pile of other equipment in the back of their police cruiser? In that situation,
Howard would spend at least as much time on the hot pavement as he did in this case,
yet the Court indicates that the officers’ conduct would no longer violate the Fourth
Amendment. See ante at 12 n.7. This suggests that the outcome of the Court’s
constitutional inquiry depends more on whether the officers intended to redress
Howard’s complaints with reasonable dispatch and less on whether the officers’ actual
conduct was unreasonable. Cf. Graham, 490 U.S. at 397 (“An officer’s evil intentions
will not make a Fourth Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively unreasonable use of
force constitutional.”). It seems as if the most a reasonable officer could learn from
the Court’s opinion is that ignoring a seized person’s complaints for four to six

                                           -24-
minutes is sometimes (often? always?) impermissible, while redressing such
complaints within “a few minutes” is sometimes (often? always?) objectively
reasonable. Compare ante at 11-12, with ante at 13 n.8.

       In my view, the contours of the right that the officers allegedly violated were
not sufficiently clear that a reasonable officer would understand that it was unlawful
to spend four to six minutes attending to Howard’s life-threatening gunshot wound
before responding to his complaints about the hot pavement, which caused injuries
that were serious but not life-threatening.

IV.   Conclusion

       In summary, I would conclude that Howard was not seized when the alleged
constitutional violation occurred, that the officers’ actions were objectively reasonable
under the Fourth Amendment, and that the alleged constitutional violation was not
clearly established. Accordingly, I would reverse the district court’s denial of the
officers’ motion for summary judgment on the issue of qualified immunity and
remand with instructions to grant the motion. Because the Court concludes otherwise,
I respectfully dissent.
                         ______________________________




                                          -25-
