               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 14-1993
                      ___________________________

                              Edward C. Schoettle

                     lllllllllllllllllllll Plaintiff - Appellant

                                         v.

   Jefferson County; Oliver Glenn Boyer, Sheriff, Jefferson County; Matthew
                    Hudson, Deputy; Aaron Piefer, Deputy

                    lllllllllllllllllllll Defendants - Appellees
                                     ____________

                  Appeal from United States District Court
                for the Eastern District of Missouri - St. Louis
                                ____________

                          Submitted: March 11, 2015
                             Filed: June 11, 2015
                               ____________

Before MURPHY and SHEPHERD, Circuit Judges, and BROOKS,1 District
Judge.
                         ____________

BROOKS, District Judge.




     1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas, sitting by designation.
      Edward C. Schoettle brought a civil rights lawsuit under 42 U.S.C. § 1983
against Jefferson County, Jefferson County Sheriff Oliver Glenn Boyer, and Deputies
Matthew Hudson and Aaron Piefer, alleging inter alia that his constitutional rights
were violated during his arrest on November 6, 2010. The district court2 granted
summary judgment for the defendants. Schoettle appeals, and we affirm.

                                  I. Background

      Schoettle, an insulin-dependent diabetic, was driving his truck on the evening
of November 6, 2010, when he began to feel lightheaded and experienced vision
problems. He pulled over to the shoulder of the highway and parked. After eating
candy and glucose tablets he either fell asleep or slipped into unconsciousness in the
cab of his truck.

       Hudson approached Schoettle’s truck and observed Schoettle slumping or
slouching to the side. Hudson did not notice any alcohol containers or weapons in
the truck. After Hudson knocked on the window and attempted to identify himself,
Schoettle mumbled that he was eating candy to recover from low blood sugar.
Believing Schoettle to be intoxicated, Hudson walked back to his vehicle and radioed
for assistance from a DWI enforcement officer.

       When Peifer, a DWI enforcement officer with the Jefferson County Sheriff’s
Office, arrived at the scene, he also knocked on the window of Schoettle’s truck.
Schoettle woke up, asked Peifer who he was, and told him to “leave me the fuck
alone.” Peifer twice requested that Schoettle exit his vehicle, but Schoettle refused,
telling Peifer, “I got no reason to get out, mother fucker, because I’ve done nothing


      2
       The Honorable Shirley Padmore Mensah, United States Magistrate Judge for
the Eastern District of Missouri, presiding by consent of the parties. 28 U.S.C. §
636(c).

                                         -2-
wrong.” When Peifer opened Schoettle’s door to remove him from the truck,
Schoettle withdrew into the passenger side to avoid Peifer and Hudson. Each officer
grabbed one of Schoettle’s legs and pulled him from the truck, causing him to hit the
ground. At some point, Schoettle then broke free and attempted to move back toward
the truck while one officer held his right arm.

       Schoettle resisted being handcuffed, and the officers forced him to the ground
on his stomach. While they attempted to pull his arms behind his back to handcuff
him, Schoettle stated he did not want to put his hands behind his back because he had
a gun in his waistband. Peifer removed the gun and threw it out of Schoettle’s reach.
Schoettle became more agitated because of concern that the gun could have
discharged, and he asked the officers if they were stupid.

       The officers made further attempts to handcuff Schoettle, who continued to
resist and struggle. The officers pepper-sprayed Schoettle, but he continued to kick
and punch at the officers from the ground. During the scuffle, the officers struck
Schoettle about the head and body in an attempt to subdue him. After that, they were
able to handcuff Schoettle and hold him until additional officers arrived on the scene.

      Officer Scott Schumer then arrived on the scene and either called or directed
another officer to call an ambulance. Schoettle continued to resist until the
ambulance arrived, and EMS personnel noted that Schoettle was “very
uncooperative” and would answer few questions. Schoettle was treated for a
nosebleed and hypoglycemia, after which he became calm. Tests on his blood alcohol
content were negative. It was later revealed that he had sustained a broken posterior
rib.

      Schoettle brought this lawsuit in the United States District Court for the
Eastern District of Missouri, and alleged five counts in his amended complaint: (1)
excessive use of force against Peifer and Hudson; (2) refusal of medical assistance

                                         -3-
against Peifer and Hudson; (3) supervisory liability against Oliver “Glen” Boyer, the
Sheriff of Jefferson County; (4) municipal liability for failure to instruct, supervise,
control, and discipline against Jefferson County; and (5) state-law claims of assault
and battery against Peifer and Hudson. The district court found that Peifer and
Hudson were entitled to qualified immunity, and granted summary judgment for the
defendants on all counts. Schoettle brought this appeal from the district court’s grant
of summary judgment.

                                   II. Legal Standard

       We review the district court’s order granting summary judgment de novo,
viewing the evidence in the light most favorable to Schoettle and drawing all
reasonable inferences in his favor.3 Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir.
2012). In claims brought under 42 U.S.C. § 1983, “qualified immunity shields
government officials from liability and the burdens of litigation unless their conduct
violated a clearly established constitutional or statutory right of which a reasonable
official would have known.” Id. Schoettle must present sufficient evidence to create
a genuine issue of fact as to whether the deputies violated a clearly established right
in order to overcome their assertion of qualified immunity. Id.

                                     III. Discussion

       Schoettle argues on appeal that the district court erred by granting summary
judgment for the defendants on his excessive force, state-law, and supervisory and
municipal liability claims. He contends that genuine issues of material fact existed
for each of these claims.

                               A. Excessive Force Claim


      3
          The facts in the preceding section are recited in accordance with this standard.

                                            -4-
       We begin our analysis with Schoettle’s excessive force claim. Regarding this
claim, Schoettle maintains that genuine issues of material fact exist as to: (1) whether
the officers had reasonable suspicion that Schoettle had been driving while
intoxicated; (2) the levels of Schoettle’s resistance and the officers’ force; and (3) the
officers’ knowledge of Schoettle’s medical condition.

                              1. Reasonable Suspicion

       “A police officer may conduct a brief, investigatory stop of an individual if the
officer reasonably suspects that the individual is involved in criminal activity.”
United States v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013) (citing Terry v. Ohio,
392 U.S. 1 (1968)). “Reasonable suspicion exists when an officer is aware of
particularized, objective facts which, taken together with rational inferences from
those facts, reasonably warrant suspicion that a crime is being committed.” United
States v. Givens, 763 F.3d 987, 989 (8th Cir. 2014) (internal citations and quotations
omitted). We look at the totality of the circumstances to determine whether
reasonable suspicion existed, allowing officers to draw on their experience and
training. Lawhorn, 735 F.3d at 820 (internal citations and quotations omitted).

       When an officer observes a man passed out or asleep in the driver’s seat of an
automobile on the side of the road, and when the man responds to the officer’s
questions with alternatingly unintelligible or belligerent responses, it is reasonable
for the officer to suspect that the man has been driving while intoxicated. Cf. United
States v. Broadie, 452 F.3d 875, 879 (D.C. Cir. 2006); Ramirez v. City of Buena Park,
560 F.3d 1012, 1021 (9th Cir. 2009); United States v. Neemann, 61 F.Supp.2d 944,
953 (D. Neb. 1999). And when an officer is conducting an investigative traffic stop
based upon reasonable suspicion, he may order a passenger to exit the vehicle.
United States v. Phillips, 679 F.3d 995, 998 (8th Cir. 2012). That is exactly what
happened here. See Section I, supra.

                                           -5-
                         2. Levels of Resistance and Force

        Satisfied that the officers had reasonable suspicion, we turn to the levels of
resistance and force that were used during this encounter. Claims that law
enforcement officers used excessive force during an arrest or investigatory stop are
analyzed under the Fourth Amendment’s prohibition of unreasonable searches and
seizures. Graham v. Connor, 490 U.S. 386, 394-95 (1989). When determining
whether unreasonable force was used, courts must give “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.
at 396. Courts should not allow “the 20/20 vision of hindsight” to cloud “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.” Id. at 396-97. In other words, to comport with
the Fourth Amendment, the force must have been objectively reasonable in light of
the facts and circumstances confronting the officers at the time it was used. Id. at
397. Courts should not consider the officers’ subjective motivations when
determining whether their use of force was reasonable under the Fourth Amendment.
Id. at 397-98.

       Schoettle concedes that he refused to comply with the officers’ orders,
repeatedly attempted to evade arrest, and even physically struggled against the
arresting officers. We have previously cognized the severity of the suspected crime
at issue—driving while intoxicated—and the immediate threat that impaired drivers
pose to the safety of officers and others. In Janis v. Biesheuvel, we held that officers
were justified in using force to remove a driver, whom they believed to be impaired,
from his vehicle after he refused to comply with their orders to exit it. 428 F.3d 795,
800 (8th Cir. 2005). We approvingly quoted a Seventh Circuit case’s recognition of
“the potential threat to public safety of an impaired driver in command of a running

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vehicle.” Id. (quoting Smith v. Ball State Univ., 295 F.3d 763, 770 (7th Cir. 2002))
(alterations omitted). Notably, the Seventh Circuit observed elsewhere in the same
opinion that “Smith [a driver in diabetic shock] posed a threat to himself, the officers
and the general public, even after Officer Foster turned off Smith’s vehicle and
attempted unsuccessfully to communicate with him.” Smith, 295 F.3d at 769.
Similarly, in Wertish v. Krueger, we held that when an impaired driver in diabetic
shock “failed to comply with orders to get out of his vehicle, it was objectively
reasonable for [the officer] to pull [the driver] from the truck and handcuff him.” 433
F.3d 1062, 1066 (8th Cir. 2006) (internal citations omitted). In short, all three
Graham factors weigh against Schoettle and in favor of the officers in this case.

           3. Officers’ Knowledge of Schoettle’s Medical Condition

       Schoettle argues that there is a material factual dispute with regard to whether
or when the officers knew that Schoettle was experiencing a medical emergency.
Schoettle reasons that if the officers learned early in the encounter that his erratic
behavior was due to a medical emergency and not intoxication, then his subsequent
arrest and the force used to effectuate it were unreasonable. Our prior cases supply
some indirect support for this line of argument. Cf. Wertish, 433 F.3d at 1067
(“Wertish admits there was nothing visible to tell officer Krueger that he was dealing
with a diabetic. Officer safety concerns made it objectively reasonable for Krueger
and the Renville officers to assume they were dealing with a belligerent drunk—or
perhaps a fleeing criminal—who required forcible detention.”); Janis, 428 F.3d at 800
(“At the time they pulled Richards from the car, however, the officers did not know
that Richards’s actions were the result of a diabetic seizure, not intoxication.”).

      It is certainly true that an officer’s knowledge of an arrestee’s medical
condition can be relevant to a determination of whether the officer employed
excessive force. After all, Graham instructs us that we are to determine whether the
level of force was objectively reasonable in light of the facts and circumstances

                                          -7-
confronting the officers at time the force was used. 490 U.S. at 397. However, we
are persuaded by the record before us that the level of force used by the officers
against Schoettle was objectively reasonable, regardless of when they learned that he
was experiencing a medical emergency. Our opinion in Carpenter v. Gage provides
especially useful guidance for reaching this conclusion. 686 F.3d 644 (8th Cir. 2012).

      In Carpenter, the plaintiff’s wife called 911 when the plaintiff (Carpenter)
suffered a stroke. 686 F.3d at 646-47. When a paramedic attempted to enter
Carpenter’s house, Carpenter chased him out of the house with a baseball bat. Id.
Several deputy sheriffs then arrived at the house in response to a call that first
responders had been threatened with a baseball bat. Id. at 647. At least one of the
deputies was informed upon arrival that Carpenter might have suffered a stroke. Id.
Both deputies were told that there was a rifle in the house. Id. The deputies entered
the house and, after Carpenter refused to comply with their orders to stop moving
around, they took him to the ground and tased him several times in order to restrain
and arrest him. Id.

       Carpenter sued the deputies, the sheriff, and the county, claiming, inter alia,
that excessive force was used against him and that the deputies exhibited deliberate
indifference to his medical needs. Id. at 647-48. We affirmed the district court’s
grant of summary judgment on all counts. See id. at 646. With regard to his
excessive force claim, we observed “that Carpenter refused to offer his hands when
ordered to do so, . . . that he was warned about the use of the taser,” and that “[e]ven
if Carpenter’s motive was innocent, the deputies on the scene reasonably could have
interpreted Carpenter’s actions as resistance and responded with an amount of force
that was reasonable to effect the arrest.” Id. at 650. Later in the opinion, when
analyzing Carter’s deliberate indifference claim,4 we noted that “[b]efore the deputies


      4
       We analyzed Carpenter’s deliberate indifference claim under the Due Process
Clause of the Fourteenth Amendment and under the Eighth Amendment, because the

                                          -8-
could consider responding to Carpenter’s medical needs, they had to subdue him and
secure the premises.” Id.

       Returning to the instant facts, the record indisputably shows that even if the
officers became aware at some point during their interaction with Schoettle that he
was suffering a hypoglycemic episode, they were still confronted with a belligerent
and impaired man who was refusing to comply with their orders to exit the vehicle
and who was physically resisting their attempts to remove him from it. If the officers
realized at some point that Schoettle’s impairment was not attributable to any fault
of his own, that knowledge would not have made Schoettle any less dangerous to
himself and others while he was impaired. Given these facts, it is difficult to
conceive how Schoettle could have received appropriate medical care without first
being physically subdued. Indeed, as noted above, even after he was arrested
Schoettle continued to resist until the ambulance arrived and was uncooperative with
EMS personnel. The district court properly determined that the officers are entitled
to qualified immunity and summary judgment on Schoettle’s excessive force claim.

                          B. Assault and Battery Claims

       The district court also granted the officers summary judgment on Schoettle’s
Missouri-law assault and battery claims. Under Missouri law, a law enforcement
officer “is answerable in damages as for assault and battery only when in the
performance of his duty in making the arrest he uses more force than is reasonably
necessary for its accomplishment.” Neal v. Helbling, 726 S.W.2d 483, 487 (Mo. Ct.
App. 1987) (quoting State v. Hines, 128 S.W. 248, 248-49 (Mo. Ct. App. 1910)). As



deliberate indifference was alleged to have occurred after Carpenter’s arrest. 646
F.3d at 650. Schoettle’s excessive force claim is properly brought under the Fourth
Amendment as it concerns pre-arrest conduct, and is therefore governed by the
Graham standard enunciated supra.

                                         -9-
discussed in Section III.A. supra, the district court correctly determined that the
officers did not use more force against Schoettle than was reasonably necessary.

                C. Supervisory and Municipal Liability Claims

       Finally, the district court granted summary judgment to the county and the
sheriff on Schoettle’s section 1983 supervisory and municipal liability claims. This,
too, was proper. We have long held that neither municipal nor supervisory liability
may attach in section 1983 actions unless individual liability is first found on an
underlying substantive claim. See Moore v. City of Desloge, Mo., 647 F.3d 841, 849
(8th Cir. 2011). “Because [Schoettle] failed to establish [the officers] violated
[Schoettle]’s constitutional rights, [Schoettle] cannot maintain this action against
either [the sheriff] or the [county].” Id.

                                  IV. Conclusion

      The judgment of the district court is affirmed.
                     ______________________________




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