                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3352
                        ___________________________

                                    Mark Atkinson

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

         City of Mountain View, Missouri; Derek Sanders; Michael Bales

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                          Submitted: September 20, 2012
                             Filed: February 8, 2013
                                 ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Mark Atkinson, a retired military police officer, sued the City of Mountain
View, Missouri (city), and its former police chief, Derek Sanders, under 42 U.S.C.
§ 1983. Atkinson claimed Sanders, dressed in street clothes, used excessive force in
violation of the Fourth and Fourteenth Amendments when, without identifying
himself as a police officer, Sanders charged at Atkinson. The charge slammed
Atkinson ten to fifteen feet backward into the side of a pickup truck, causing
Atkinson severe injuries.

       The district court entered summary judgment against Atkinson on his federal
claims and declined to exercise supplemental jurisdiction over his state law claims.
Atkinson appeals. Atkinson’s claim against Sanders presents a genuine dispute of
material fact for trial, but Atkinson’s claim against the city does not. We affirm in
part, reverse in part, and vacate the district court’s dismissal of Atkinson’s pendent
state law claims.

I.     BACKGROUND1
       A.     The Events of August 31, 2007
       Atkinson is a United States Army veteran who served as an M-60 tank driver
for four years and a military police officer for nineteen years. After his honorable
discharge in 2005, Atkinson earned a master’s degree from the University of
Arkansas in 2007. On August 31, 2007, Atkinson traveled from his home in
Arkansas to Mountain View, Missouri, to attend his nephew Justin Taylor’s first
varsity football game. Justin, his arm in a sling because of a dislocated shoulder,
remained on the sidelines. After the game, as Atkinson and his extended family were
preparing to leave, Atkinson saw someone attack and tackle Justin. Justin’s father
Joe Taylor, Atkinson’s brother-in-law, rushed toward Justin. By the time Taylor
reached his son, the attacker had pinned Justin to the ground. Taylor bent over the
two adolescents and began “hollering.” “Get off my boy,” he yelled. Taylor wanted
to stop the fight without “grab[bing] somebody.”




      1
        Because this appeal arises from a grant of summary judgment, we recite the
facts in the light most favorable to Atkinson, the non-moving party. See, e.g., Young
v. Allstate Ins. Co., 685 F.3d 782, 783 (8th Cir. 2012).

                                         -2-
       As Atkinson moved toward his nephew, he saw an unknown man approach
Taylor, who now was bending down with his hands on his knees. The stranger
pushed Taylor and began to yell. Leaning into Taylor’s face, the stranger said, “I’m
the motherf[---]er who says who does what around here.” As Atkinson approached
them, Taylor was “start[ing] towards” the unknown man. Worried Taylor was going
to “retaliate,” Atkinson pushed Taylor and the stranger apart and said, “Look, calm
down.” The stranger accused Atkinson of assault, pulled out a cell phone, reached
toward Atkinson, and said, “I’ll take care of you.” Believing the stranger to be a
“compadre” of the adolescent who had attacked Justin, and fearing the man wanted
to call for “reinforcements,” Atkinson took the cell phone without touching the man
and asked, “Why can’t you just talk to us?”

       Atkinson “was just about to hand [the phone] back” when the stranger “bull
rushed” Atkinson—this unknown man charged “like a football [player],” ramming
his shoulder into the right side of Atkinson’s chest. The charge slammed Atkinson
ten to fifteen feet backward into the side of a parked pickup truck. When Atkinson
looked up, Mountain View police officers handcuffed him. As a result of the blow,
Atkinson spent twenty-four days in the hospital for treatment of three broken ribs, a
punctured lung, and repeated pneumothorax—his right lung collapsed three separate
times.

      Unbeknownst to Atkinson until after he was handcuffed and in the backseat of
a police cruiser, the unknown man who caused these injuries was Derek Sanders,
Mountain View’s police chief. Sanders, though on duty, was not in uniform and had
neither his gun nor his badge. Sanders never identified himself as a police officer.
Atkinson testified, “[I]f [Sanders] would have said . . . he was a police officer, I
would have . . . respected him.” All criminal charges against Atkinson stemming
from the incident were later dismissed.




                                         -3-
       B.     The City
       Mountain View is classified as a “Fourth Class City” under Missouri law. See
Mo. Rev. Stat. § 72.040. Sanders testified the city’s mayor and city council were the
final authority on the police department’s policies, and the mayor testified the city
council set those policies. Sanders also testified he was “the policy maker” for his
department, but he “could not use [the policy] until it was reviewed and signed off by
the mayor and city council.” During Sanders’ tenure as police chief from 2005 to
2009, the city had no binding, written policies on any police-related issue, including
use of force. Sanders had formulated non-binding guidelines for the department, and
he testified his own actions on August 31, 2007, were consistent with those
guidelines. Neither the city council nor the mayor ever approved the guidelines,
which Sanders explained were “a work in progress.” The guidelines were not official
city policies and did not apply to Sanders’ subordinates.

       C.     The District Court’s Decision
       Atkinson sued the city and Sanders under 42 U.S.C. § 1983, alleging Sanders
used excessive force in violation of the Fourth and Fourteenth Amendments and the
city was liable for Sanders’ unconstitutional conduct. Atkinson also asked the district
court to exercise pendent jurisdiction over his state law claims against Sanders. The
district court granted summary judgment against Atkinson on his federal claims and
declined to exercise pendent jurisdiction over his state law claims.

       The district court analyzed Atkinson’s excessive force claim under two
different constitutional standards. First, analyzing Sanders’ actions under the
Fourteenth Amendment’s Due Process Clause, see, e.g., Cnty. of Sacramento v.
Lewis, 523 U.S. 833 (1998), the district court found “no material factual dispute
regarding whether defendant Sanders violated plaintiff’s substantive due process
rights by acting maliciously and sadistically with the intent to cause harm.”
Purportedly viewing the evidence in the light most favorable to Atkinson, the district
court found it undisputed that Sanders “only used force to take his cell phone back

                                         -4-
from plaintiff after he was deprived of his means of communication” and that Sanders
“clearly” did not “act[] sadistically or maliciously to simply cause harm, but rather . . .
acted in good faith to restore balance to the situation.”

      Second, analyzing Sanders’ actions under the Fourth Amendment’s objective
reasonableness standard, see, e.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989),
the district court found no genuine issue of material fact related to “the
reasonableness of [Sanders’] actions from the perspective of the objectively
reasonable officer.” Having concluded Sanders violated neither the Fourth nor
Fourteenth Amendment, the district court did not decide whether a seizure occurred
or whether Sanders was entitled to qualified immunity.

       Turning to Atkinson’s municipal liability claim, the district court held that the
city could not be held liable under Monell v. Department of Social Services of New
York, 436 U.S. 658, 690 (1978), because no evidence established Sanders’ actions
were the product of a city policy, and, in any event, Sanders had not violated
Atkinson’s constitutional rights. Rejecting Atkinson’s argument that the city was
liable under Monell by virtue of its delegation of policymaking authority to Sanders,
the district court relied on a Missouri statute, which grants policymaking authority in
a “Fourth Class City” to the mayor and city council. Atkinson appeals, arguing
(1) Sanders seized him under the Fourth Amendment, (2) Sanders’ use of force was
objectively unreasonable, and (3) the city is liable for Sanders’ actions.

II.     DISCUSSION
        We review grants of summary judgment de novo. Davenport v. Univ. of Ark.
Bd. of Trs., 553 F.3d 1110, 1112-13 (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.” Dahl v. Rice Cnty., Minn., 621 F.3d 740, 743 (8th Cir. 2010). Summary
judgment is only appropriate when there is “no genuine dispute as to any material fact

                                           -5-
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2);
see also Dahl, 621 F.3d at 743.

       Because Atkinson’s claims arise under § 1983, we will reverse the district
court’s award of summary judgment to Sanders only if a reasonable jury could find
Sanders, “‘acting under the color of state law,’” violated “‘a right secured by the
Constitution and laws of the United States.’” Cook v. City of Bella Villa, 582 F.3d
840, 848-49 (8th Cir. 2009) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)); see 42
U.S.C. § 1983. We will reverse the district court’s award of summary judgment to
the city only if a reasonable jury could find that “action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691.

       A.    Section 1983 Claim Against Sanders
       Atkinson’s § 1983 claim against Sanders rests primarily on an alleged violation
of Atkinson’s Fourth Amendment right to be free from excessive force while seized.
To find in Atkinson’s favor on this claim, a jury would need to conclude Sanders used
objectively unreasonable force against Atkinson. See Graham, 490 U.S. at 395-97;
see also Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). There is no genuine
dispute of material fact for a jury to resolve unless, in the light most favorable to
Atkinson, (1) Sanders seized Atkinson under the Fourth Amendment, (2) this seizure
violated Atkinson’s Fourth Amendment rights, and (3) Sanders is not entitled to
qualified immunity. See, e.g., Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008).

             1.     Seizure
       Atkinson contends that when Sanders barreled into him, Sanders effected a
Fourth Amendment seizure. Sanders argues that a police officer’s use of physical
force against an unwilling subject does not always implicate the Fourth Amendment
right “against unreasonable . . . seizures,” U.S. Const. amend. IV. The district court
agreed with Sanders. We agree with Atkinson.



                                          -6-
       In accordance with the Supreme Court’s decision in California v. Hodari D.,
499 U.S. 621 (1991), our understanding of a Fourth Amendment seizure of the person
flows from the common law. See id. at 623-25, 626 n.2; cf. United States v. Jones,
565 U.S. ___, ___, 132 S. Ct. 945, 950 (2012) (“At bottom, we must ‘assur[e]
preservation of that degree of privacy against government that existed when the
Fourth Amendment was adopted.’” (quoting Kyllo v. United States, 533 U.S. 27, 34
(2001))). Although “seizure” and “arrest” were not identical at common law, we look
to the common law concept of arrest to “define[] the limits of a seizure of the person.”
Hodari D., 499 U.S. at 627 n.3 (emphasis omitted). At common law, “[i]t [wa]s
perfectly clear that . . . touching the person constitute[d] an arrest.” Sandon v. Jervis,
(1859) 120 Eng. Rep. 760 (Exch. Cham.) 762; El. Bl. & El. 942, 947 (Williams, J.);
see also Genner v. Sparks, (1704) 87 Eng. Rep. 928 (Q.B.) 929; 6 Mod. 173 (per
curiam) (“[I]t was agreed, that if here he had but touched the defendant even with the
end of his finger, it had been an arrest.”).

       Physical contact was not the sole means of arrest under the common law. See,
e.g., Arrowsmith v. Le Mesurier, (1806) 127 Eng. Rep. 605 (Ct. Com. Pl.) 606; 2 Bos.
& Pul. (N.R.) 211, 211 (“I can suppose that an arrest may take place without an actual
touch.”). Common law arrest required “‘either touching or submission.’” Hodari D.,
499 U.S. at 627 (quoting Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201,
206 (1940)) (emphasis added). Because the Supreme Court has directed us to apply
this common law dichotomy to seizure of the person under the Fourth Amendment,
we similarly “require[] either physical force . . . or, where that is absent, submission
to the assertion of authority.” Id. at 626.

      To constitute a Fourth Amendment seizure, an application of physical force
“must be willful” because “the word ‘seizure’ . . . can hardly be applied to an
unknowing act.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989). Whether
physical force was “intentionally applied,” id. at 597 (emphasis omitted), is
determined by the officer’s objective behavior, not his subjective motive. Cf.

                                           -7-
Brendlin v. California, 551 U.S. 249, 260 (2007). Also implicit in the term “seizure”
is a requirement that the application of physical force “restrain[] . . . freedom of
movement.” Id. at 254. This restraint need not actually “‘succeed in stopping or
holding [the person] even for an instant.’” Hodari D., 499 U.S. at 625 (quoting Asher
Cornelius, Search and Seizure 163-64 (2d ed. 1930)). But the seizure does not outlast
the restraint on free movement. See id. at 624-25.

       None of Sanders’ arguments calls into question our longstanding approach to
seizure of the person under the Fourth Amendment. See Ludwig, 54 F.3d at 471
(“[A] seizure is ‘effected by the slightest application of physical force’ despite later
escape.” (quoting Hodari D., 499 U.S. at 625)); see also Cole v. Bone, 993 F.2d 1328,
1332 (8th Cir. 1993) (“In []Hodari D., the Supreme Court held that a seizure occurs
only when the pursued citizen is physically touched by the police or when he submits
to a show of authority by the police.” (emphasis added)). Sanders builds his ill-fated
arguments on an interpretation of the Supreme Court’s decision in United States v.
Mendenhall, 446 U.S. 544 (1980), a case decided well before the Court’s decision in
Hodari D. and before our decisions in Cole and Ludwig. Pointing to Mendenhall,
Sanders would have us ignore the physical force that hurled Atkinson backward and
ask only whether, at the moment Atkinson landed on the ground, he “would
[reasonably] have believed that he was not free to leave,” id. at 554. This is the
wrong question.

       Although “Mendenhall establishes that the test for existence of a ‘show of
authority’ is an objective one,” the case does not stand for the proposition that a
person can be seized only through a “show of authority.” Hodari D., 499 U.S. at 628.
Instead, the Mendenhall test applies “precisely” to a “seizure effected through a
‘show of authority.’” Id. Our reading of Mendenhall is consistent with cases decided
after Mendenhall, see, e.g., Brendlin, 551 U.S. at 254, and with earlier cases such as
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen

                                          -8-
may we conclude that a ‘seizure’ has occurred.” (emphasis added)). It would make
little sense to ask whether a person felt “free to leave” while an officer restrained the
person’s freedom of movement through physical force because the force itself
necessarily—if only briefly—“restrained [the person’s] liberty.” Terry, 392 U.S. at
19 n.16.

       Viewing this case through the common law lens of Hodari D., we conclude the
facts most favorable to Atkinson are sufficient to establish a seizure occurred the
moment Sanders charged into Atkinson. It is undisputed Sanders intentionally
applied physical force against Atkinson, and the evidence most favorable to Atkinson
shows far more than a slight physical touch—Sanders’ “bull rush” forced Atkinson
ten to fifteen feet backward into the side of a truck, broke three ribs, punctured one
lung, and caused repeated pneumothorax. This violence was more than enough
physical force to effect a seizure under the Fourth Amendment.2 See, e.g., Acevedo,
457 F.3d at 725 (“In a case like this one . . . where a police officer’s use of force
causes a man to reel backwards and fall to the ground, a seizure has occurred.”); see
also United States v. Pratt, 355 F.3d 1119, 1122 (8th Cir. 2004).




      2
         Our conclusion is consistent with the views of our sister circuits. See, e.g.,
Slusher v. Carson, 540 F.3d 449, 454 (6th Cir. 2008) (holding a Fourth Amendment
seizure occurred when a police officer grabbed a woman’s hand); United States v.
Brown, 448 F.3d 239, 245 (3d Cir. 2006) (“[A] seizure occurs when there is either
(a) ‘a laying on of hands or application of physical force to restrain movement, even
when it is ultimately unsuccessful,’ or (b) submission to ‘a show of authority.’”
(quoting Hodari D., 499 U.S. at 626)); Acevedo v. Canterbury, 457 F.3d 721, 724-25
(7th Cir. 2006) (“It is true that language in some of our previous decisions might, out
of context, lend itself to th[e] interpretation [that physical force alone cannot
constitute a seizure] . . . . [b]ut the Supreme Court has held otherwise.” (citing Hodari
D., 499 U.S. at 626)); Vaughan v. Cox, 343 F.3d 1323, 1329 n.5 (11th Cir. 2003)
(same). Sanders’ use of force not only restrained Atkinson’s freedom of movement,
but actually stopped his movement.

                                          -9-
      Because there is enough evidence of a Fourth Amendment seizure, we need not
decide whether a reasonable jury could find Sanders’ conduct “shocked the
conscience” in violation of the Fourteenth Amendment. See, e.g., Cnty. of
Sacramento, 523 U.S. at 848-50, 855; Myers v. Scott Cnty., 868 F.2d 1017 (8th Cir.
1989).

              2.     Fourth Amendment Violation
       Having found sufficient evidence of a Fourth Amendment seizure, we next
consider whether that seizure was “objectively reasonable within the meaning of the
Fourth Amendment.” Ludwig, 54 F.3d at 470 (citing Krueger v. Fuhr, 991 F.2d 435,
438 (8th Cir. 1993)). “We evaluate the reasonableness of an officer’s use of force
‘from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.
2009) (quoting Graham, 490 U.S. at 396). Our “reasonableness” analysis “requires
careful attention to the facts and circumstances of each particular case.” Graham, 490
U.S. at 396. The district court concluded Sanders’ actions, including the “bull rush,”
were objectively reasonable as a matter of law. We disagree.

       Viewing the facts most favorably to Atkinson and giving him the benefit of all
reasonable inferences, we think the three factors specifically identified by the
Supreme Court in Graham weigh against Sanders. First, Atkinson had not committed
any “severe or violent crime.” City of Golden Valley, 574 F.3d at 496; see also
Graham, 490 U.S. at 396; Cook, 582 F.3d at 849. A reasonable officer in Sanders’
position would not think otherwise if, as Atkinson and Taylor testified, Atkinson did
no more than attempt to avoid a fight between Sanders and Taylor. Second, Atkinson
did not “pose[] an immediate threat to the safety of the officer[] or others.” Graham,
490 U.S. at 396; see also Cook, 582 F.3d at 849. Sanders could not reasonably think
otherwise under Atkinson’s view of the facts. Although a jury could accept Sanders’
claim that Atkinson threatened him by pushing him away from Taylor, “a jury could
just as well interpret that conduct,” City of Golden Valley, 574 F.3d at 497, as a non-

                                         -10-
threatening effort by Atkinson to separate Taylor and Sanders and prevent them from
fighting. A reasonable jury also could interpret Atkinson’s question—“Why can’t
you just talk to us?”—as evidence that Atkinson sought to defuse Sanders’ anger
through peaceful words, not violence.3 Third, Atkinson was neither “actively
resisting arrest [n]or attempting to evade arrest by flight.” Graham, 490 U.S. at 396;
see also Cook, 582 F.3d at 849. Sanders could not reasonably have thought otherwise
because Sanders did not identify himself as a police officer and because, as Sanders
admits, he did not attempt to arrest Atkinson peacefully before physically charging
at Atkinson.

       Of particular relevance to the third Graham factor, we must at this stage assume
Sanders did not identify himself as a police officer before he “bull rushed” Atkinson.
A reasonable officer in Sanders’ position—without either of the first two Graham
factors justifying a forceful arrest—would not have thought it appropriate to charge
Atkinson without first identifying himself as a law enforcement official and giving
Atkinson a chance to return the cell phone peacefully. By remaining anonymous,
Sanders never gave Atkinson the opportunity to comply with a legitimate request by
a law enforcement official. Objectively, when Sanders told Atkinson to return the
cell phone, Sanders’ request was not the demand of a peace officer, but the plea of an
“irate” civilian. As Sanders himself admits, we “must accept as true that [Atkinson]
was unaware of a police presence until well after Sanders used force.” Thus, a
reasonable officer in Sanders’ position could not reasonably think Atkinson was
resisting arrest. Given these “facts and circumstances,” Graham, 490 U.S. at 396, we
cannot conclude Sanders’ use of force was objectively reasonable as a matter of law.


      3
       The dissent, disagreeing with this interpretation of the facts, concludes
Atkinson “committed an assault and stole property.” Post at 25. Were that true, we
would still decline to interpret the Fourth Amendment in such a legalistic way that
would authorize police officers to “bull rush” a teacher, a parent, or any adult who
separates two quarreling children or adolescents tussling over an object and who then
confiscates the object until the two calm down.

                                         -11-
       In reaching this conclusion, we also do not ignore the severe injury Atkinson
suffered. See, e.g., Montoya v. City of Flandreau, 669 F.3d 867, 872 (8th Cir. 2012).
Although a de minimis injury does not “necessarily foreclose[] a claim of excessive
force under the Fourth Amendment,” a claim must be based upon more than a “de
minimis use of force.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011).
Although we now focus on force rather than injury, Chambers does not stand for the
premise that the severity of an injury is no longer relevant evidence. See Montoya,
669 F.3d at 872; Chambers, 641 F.3d at 906. On the contrary, “the lack, or minor
degree, of any injury sustained . . . is relevant in considering the reasonableness of the
force used.” Cook, 582 F.3d at 850 (emphasis added). Atkinson’s three broken ribs,
punctured lung, and repeated pneumothorax far exceed the comparatively minor
injuries sustained by the plaintiffs in Cook. See id. Atkinson’s injuries are more
severe than the “cuts and abrasions across [the plaintiff’s] body” and the “knee
[injury] causing . . . difficulty in walking” sustained by the plaintiff in Copeland v.
Locke, 613 F.3d 875, 881 (8th Cir. 2010)—injuries which we considered to be, “as
a matter of law,” more than “de minimis.” Id. Because “[t]he degree of injury is . . .
relevant insofar as it tends to show the amount and type of force used,” Chambers,
641 F.3d at 906, a reasonable jury could find Sanders used more than de minimis
force against Atkinson.

        For these reasons, we do not agree with the district court that Atkinson’s
Fourth Amendment claim against Sanders presents no genuine dispute of material
fact. A reasonable jury could find Sanders was an overzealous police officer who,
without identifying himself as a law enforcement official, used excessive force and
unreasonably caused Atkinson severe injuries in violation of the Fourth Amendment.
If the jury credited Sanders’ evidence, the jury could find Sanders was a responsible
professional who reasonably thought it necessary to use force against Atkinson to
defuse a potentially dangerous dispute. Which story is more plausible we cannot say
because “it is not our function to remove the credibility assessment from the jury.”
Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002).

                                          -12-
             3.     Qualified Immunity
       Having found no objectively unreasonable conduct, the district court did not
decide whether Sanders was entitled to qualified immunity. Because we “‘may
uphold a grant of summary judgment for any reason supported by the record, even if
different from the reasons given by the district court,’” Chambers, 641 F.3d at 904
(quoting Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)), we
next consider whether Sanders is entitled to qualified immunity. He is not.

       Our test for qualified immunity has two parts: (1) whether there is sufficient
evidence the officer “violated a constitutional right,” and (2) whether the
“constitutional right [the officer violated] was so ‘clearly established’ at the time of
the alleged violation that a reasonable officer would have known that his conduct was
unlawful.” Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir. 2009) (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)). Having already concluded the district court erred
in finding Sanders’ use of force objectively reasonable as a matter of law, we proceed
to part two.

       Whether a right is “‘clearly established’ is a question of law for the court to
decide.” Rohrbough, 586 F.3d at 586. Our analysis is objective: “[f]or a right to be
deemed 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.’”
Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Because “[t]he dispositive inquiry is whether
‘it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted,’” Rohrbough, 586 F.3d at 586 (quoting Saucier, 533 U.S. at
202), we conduct a “fact-intensive inquiry . . . in light of the specific context of the
case,” Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir. 2006). At the
summary judgment stage, granting qualified immunity “is not appropriate where . . .



                                         -13-
a dispute remains regarding facts material to the qualified immunity issue.”
Rohrbough, 586 F.3d at 587.

       Viewing the record in the light most favorable to Atkinson, we decide the
unlawfulness of Sanders’ charging Atkinson “would be clear to a reasonable officer”
in Sanders’ situation. Saucier, 533 U.S. at 202. As a general matter, “[t]he right to
be free from excessive force is a clearly established right under the Fourth
Amendment’s prohibition against unreasonable seizures of the person.” Guite v.
Wright, 147 F.3d 747, 750 (8th Cir. 1998). Although we have not previously
confronted a situation identical to this case, “[t]here is no requirement that ‘the very
action in question [be] previously . . . held unlawful.’” Vaughn v. Ruoff, 253 F.3d
1124, 1129 (8th Cir. 2001) (quoting Anderson, 483 U.S. at 640). It is enough that
“earlier cases . . . g[a]ve” Sanders “‘fair warning that [his] alleged treatment of’”
Atkinson “‘was unconstitutional.’” Meloy v. Bachmeier, 302 F.3d 845, 848 (8th Cir.
2002) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). On August 31, 2007,
Sanders had “fair warning” that charging at a non-resisting individual without first
identifying himself as a police officer was unconstitutional in the context of an
arrest.4 See, e.g., Samuelson, 455 F.3d at 877 (denying qualified immunity where
there was evidence officers “stepped on [the arrestee’s] head while handcuffing him
[and] . . . . beat[], hit, and kicked [him] although he was not resisting arrest”
(emphasis added)).

       We doubt a reasonable officer in Sanders’ position would have needed to
“consult[] a casebook,” Catlin v. City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009),
to recognize the unreasonableness of using enough force to cause three broken ribs,

      4
        Although Sanders contends he merely intended to retake his cell phone, not
to arrest Atkinson, a reasonable jury could find that Sanders “objectively manifested,”
Brendlin, 551 U.S. at 260, an intent to arrest Atkinson. The reported fury of Sanders’
charge temporarily incapacitated Atkinson, and immediately thereafter Sanders
ordered Mountain View police officers to take Atkinson into custody.

                                         -14-
a punctured lung, and repeated pneumothorax against a man who was objectively
using peaceful means to prevent a fight.5 Even if the conduct which cast Sanders in
the role of “irate” stranger was itself reasonable, a reasonable officer finding himself
in that role would have sought to pacify—not escalate—the tense situation. A
reasonable officer would recognize that his own conduct—shoving a father who was
trying to extract his son from a fight and announcing “I’m the motherf[---]er who says
who does what around here”—directly contributed to the tense situation.

       But had Sanders perused the United States Reports on August 31, 2007, he
would have discovered the Supreme Court’s 1989 decision in Graham, showing his
extreme use of force against Atkinson was unconstitutional. In Graham, the Supreme
Court expressly tied the reasonableness of force under the Fourth Amendment to
three factors: (1) “the severity of the crime at issue, [(2)] whether the suspect poses
an immediate threat to the safety of the officers or others, and [(3)] whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.
at 396. In 1992, our court applied the Graham factors and denied police qualified
immunity in an excessive-force case where, as in Atkinson’s case, (1) the arrestee’s
“alleged misconduct was neither violent nor serious,” (2) “[t]here [wa]s little evidence
to indicate that [the arrestee] posed a physical threat to anyone,” and (3) “there [wa]s
a factual dispute as to whether [the arrestee] was ‘actively’ resisting arrest.” Gainor
v. Rogers, 973 F.2d 1379, 1388 (8th Cir. 1992). In more recent excessive-force
decisions, we focused on evidence the arrestee was not resisting arrest. See, e.g.,
Samuelson, 455 F.3d at 876 (denying qualified immunity in 2006 because “[t]he facts,
viewed in the light most favorable to [the arrestee], demonstrate[d] he was compliant
with the officers’ requests and did not resist arrest”); Kukla, 310 F.3d at 1050

      5
        The dissent takes issue with our interpretation of the facts “in the light most
favorable to the non-moving party.” Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004).
If three reasonable judges disagree about the facts contained in the record, surely the
factual dispute is genuine enough to require resolution by a reasonable jury. See, e.g.,
Kukla, 310 F.3d at 1050.

                                         -15-
(denying qualified immunity to a police officer who “forced [a non-resisting arrestee]
against [a] truck,” causing injuries less severe than broken ribs and a punctured lung);
Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir. 1999) (denying qualified
immunity where police officers “‘violently shoved’ and ‘kicked’ [the arrestee] into
the patrol car” even though the arrestee “did not resist arrest”).

       The “linchpin” of our decision is not that Sanders should have known the
Fourth Amendment required him “to identify himself as an officer before using force
to carry out an arrest in public.” Post at 22-23. We deny Sanders qualified immunity
because as in Gainor, Lambert, Kukla, and Samuelson, there is a genuine dispute of
material fact whether any of the three Graham factors reasonably justified slamming
Atkinson into the side of a truck with enough force to break three ribs and puncture
a lung. Our emphasis on Sanders’ failure to identify himself flows directly from
Graham’s third factor: it is convincing evidence that Atkinson was neither “actively
resisting arrest [n]or attempting to evade arrest by flight.”6 Graham, 490 U.S. at 396.
Had Sanders clearly identified himself and Atkinson still intervened or refused to
return the cell phone, Sanders might reasonably expect Atkinson would “actively

      6
        For this reason, the Seventh Circuit’s decision in Catlin, relied upon by the
dissent, post at 23, is inapposite. In sharp contrast to Sanders, the police officers in
Catlin reasonably believed all three Graham factors justified using force to effect an
arrest without identifying themselves as law enforcement professionals. First, the
Catlin officers believed the man they were arresting had an outstanding “arrest
warrant . . . for Class X felonies—the highest class of felony under [their state’s]
law.” Catlin, 574 F.3d at 363; cf. Graham, 490 U.S. at 396. Second, the Catlin
officers reasonably expected the targeted arrestee to be “armed and dangerous.”
Catlin, 574 F.3d at 363; cf. Graham, 490 U.S. at 396. Third, the Catlin officers knew
the targeted arrestee “had resisted arrest on several prior occasions and that he had
threatened violent resistance if the police attempted to re-arrest him.” Catlin, 574
F.3d at 363; cf. Graham, 490 U.S. at 396. In that context, the Seventh Circuit
unsurprisingly concluded the officers “were under no constitutional obligation to
carry out the arrest in a way that would have given [the arrestee] an opportunity to
make good on his earlier threats.” Catlin, 574 F.3d at 366.

                                         -16-
resist[] arrest,” id. But if Atkinson’s account is accepted, then Sanders could not
reasonably expect active resistance to an unidentified officer. It is not for us, at the
summary judgment stage, to construe the evidence in Sanders’ favor.

       To the extent Sanders asserts Missouri police officers are entitled to use more
force to recover a cell phone than to effect an arrest, he is mistaken. It would defy
reason if the same amount of force were unconstitutional if used to arrest one
compliant individual, but constitutional if used to retrieve a piece of property from
another equally compliant individual. A police officer, certainly, may retake his own
property using force incident to his power to arrest, preserve the peace, or protect the
public. However, Missouri law cannot give police officers a freestanding right to use
excessive force to recover personal property.7 See U.S. Const. art. VI, cl. 2; U.S.
Const. amend. IV.

     For these reasons, we hold Sanders is not presently entitled to qualified
immunity.

      B.    Section 1983 Claim Against the City
      Atkinson rests his claim for municipal liability on three alternate grounds:
(1) the city delegated final policymaking authority to Sanders, (2) Sanders


      7
        Missouri law does not appear to distinguish between police officers and
private individuals in permitting only reasonable and necessary “self-help” to recover
personal property. See Mo. Rev. Stat. § 563.041; State v. Dooley, 26 S.W. 558, 562
(Mo. 1894) (“[R]ight to recapture [is restricted] to such force as was reasonably
necessary to effect that purpose, provided it did not extend to the use of a deadly
weapon or to an assault likely to produce death or great bodily harm.”); State v.
Shilling, 212 S.W.2d 96, 99 (Mo. App. 1948) (“If more force is used than necessary
[to protect personal property], it constitutes criminal assault.”) (citing State v. Kaiser,
78 Mo. App. 575 (1899)); Mo. Approved Jury Instr. (MAI) § 32.10 (7th ed. 2012)
(explaining the requirement that a defendant “use[] only such force as was reasonable
and necessary”); Restatement (Second) of Torts § 106 (1965).

                                           -17-
“established unwritten policies, customs and usages for the City [that] condone the
use of excessive force,” and (3) the city failed adequately to supervise or train
Sanders. Although the Supreme Court has “held that a municipality is a ‘person’ that
can be liable under § 1983,” it is well established “that a municipality cannot be held
liable on a respondeat superior theory, that is, solely because it employs a tortfeasor.”
Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 389 (8th Cir. 2007) (citing
Monell, 436 U.S. at 690-91). Section 1983 liability for a constitutional violation may
attach to a municipality if the violation resulted from (1) an “official municipal
policy,” Monell, 436 U.S. at 691; (2) an unofficial “custom,” id. at 690-91; or (3) a
deliberately indifferent failure to train or supervise, see City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989). We consider in turn each justification Atkinson
advances for holding the city liable under § 1983.

             1.    Final Policymaking Authority
      Atkinson admits that no written municipal policy was a “moving force,”
Monell, 436 U.S. at 694, behind Sanders’ conduct, but Atkinson asserts his injuries
nonetheless resulted from the city’s “official municipal policy,” id. at 691, because
Sanders was one of the city’s final policymakers. We disagree.

      Whether Sanders exercised final policymaking authority for the city is “a
question of state law.” St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality
opinion);8 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality
opinion). We recognize that some language in one of our previous cases may have
suggested a role for juries in identifying municipal policymakers. See Copeland, 613
F.3d at 882 (“The district court rejected [the] claims for municipal liability because
no reasonable juror could find that (1) [the police chief] was the ‘final policy-maker’

      8
       One year later in Jett, Justice Kennedy (who took no part in Praprotnik) joined
the Praprotnik plurality in holding that the identity of a municipality’s final
policymaker is a legal question. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989); id. at 738 (Scalia, J., concurring).

                                          -18-
[or] (2) the city delegated final authority to [the police chief]. . . . We agree.”
(emphasis added)). To the extent this language implied the identity of a
municipality’s final policymaker was a question of fact for the jury, it was
inconsistent with our earlier cases, see, e.g., Ware v. Jackson Cnty., Mo., 150 F.3d
873, 885 (8th Cir. 1998); Angarita v. St. Louis Cnty., 981 F.2d 1537, 1547 (8th Cir.
1992), and the Supreme Court’s decision in Jett, 491 U.S. at 737, id. at 738 (Scalia,
J., concurring).9

        It is “the trial judge”—not the jury—who “must identify those officials . . . who
speak with final policymaking authority for the local government.” Jett, 491 U.S. at
737; id. at 738 (Scalia, J., concurring). Only after the judge identifies an official as
a final policymaker is it appropriate “for the jury to determine whether [that official’s]
‘decisions have caused the deprivation of rights at issue by policies which
affirmatively command that it occur.’” Angarita, 981 F.2d at 1547 (quoting Jett, 491
U.S. at 737). The interpretation of Jett we adopted in Angarita is consistent with the
interpretations adopted by every other circuit10 and the Supreme Court in its later
decisions, see, e.g., McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 784-85 (1997).

       In accordance with Jett and Angarita, we consult two key sources to determine
whether the district court correctly held that Sanders was not a final policymaker:
(1) “state and local positive law” and (2) state and local “‘custom or usage’ having
the force of law.” Jett, 491 U.S. at 737 (quoting Praprotnik, 485 U.S. at 124 n.1).

      9
        Despite the imprecise language in Copeland, 613 F.3d at 882, we went on in
that case to decide the final policymaker question in accordance with state law. See
id. (“[A]s a matter of Missouri law, [the police chief] is not the final policy maker.”).
      10
        See, e.g., Walden v. City of Providence, R.I., 596 F.3d 38, 55 (1st Cir. 2010)
(“Whether an official is a final policymaker is . . . a question of law for the trial judge
to decide.”); Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d
1219, 1224 (10th Cir. 2008) (“The judge, not the jury, should determine who
exercises final policymaking authority in a municipality.”).

                                           -19-
First, as a matter of Missouri positive law, Sanders was not a “final policymaker” for
the city. See Copeland, 613 F.3d at 882 (“Under Missouri state law, the mayor and
the board of aldermen of a [Fourth Class City] are the final policymakers for the
‘good government of the city [and] the preservation of peace and good order.’”
(second alteration in original) (quoting Mo. Rev. Stat. § 79.110)).

       Second, Atkinson’s argument that the city had a custom of delegating final
policymaking power to Sanders is unsupported by any evidence in the record. On the
contrary, the record evidence indicates the city’s mayor and board of aldermen
retained final policymaking power over Sanders, the police department, and the
department’s official policies. Because the identity of the city’s final law
enforcement policymaker is a legal question, Atkinson’s argument that “the evidence
is sufficient to support a jury finding that . . . Sanders was the policymaker for the
City” entirely misses the mark. Having “review[ed] the relevant legal materials,” Jett,
491 U.S. at 737, we agree with the district court that Atkinson cannot establish
Sanders was—as a matter of Missouri law—a final policymaker for the city.

              2.    Alternative Grounds for Municipal Liability
       Atkinson next contends the city may be liable even if Sanders is not a final
policymaker because the city (1) sanctioned unofficial customs that permitted police
officers to use excessive force, (2) failed to enact written policies on the use of force,
and (3) failed adequately to train and supervise Sanders. Even in the most favorable
light for Atkinson, the evidence contradicts these contentions.

       Although Sanders testified his actions on August 31, 2007, were consistent
with his department’s “policies, procedures, and guidelines,” Atkinson can point to
no city policy or custom—written or unwritten—that was a “moving force [behind]
the constitutional violation,” Monell, 436 U.S. at 694. Because there is no evidence




                                          -20-
of a facially unlawful city policy or custom,11 Atkinson could prove his case to a
reasonable jury only if he could demonstrate some municipal action or inaction, taken
“with ‘deliberate indifference’ as to its known or obvious consequences,” Bd. of
Cnty. Com’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997) (quoting
Harris, 489 U.S. at 388), caused his injuries. See Szabla, 486 F.3d at 390-91.
Nothing in the record would enable Atkinson to meet “the rigorous, deliberate
indifference standard of fault.” Id. at 395.

        Atkinson’s bare allegation that “the absence of a binding, written policy on the
use of force demonstrated deliberate indifference on the part of the City” is patently
insufficient. As we made clear in Szabla, a municipality may not be held liable under
§ 1983 merely because it “failed to implement a policy that would have prevented an
unconstitutional act by an employee otherwise left to his own discretion.” Id. Notice
is the touchstone of deliberate indifference in the context of § 1983 municipal
liability. See Brown, 520 U.S. at 409; Szabla, 486 F.3d at 392-93. Other than the
single incident at issue in this case, Atkinson has submitted no evidence of excessive
force by Sanders or any other city police officer. Because no reasonable jury could
find the city had notice that its lack of written use-of-force policies was likely to
result in a constitutional violation, the city’s failure to adopt such policies does not
create a genuine dispute of material fact.

       Atkinson has also failed to make a submissible case for municipal liability
based on the city’s training and supervision of Sanders. Under § 1983, “a claim for
failure to supervise requires the same analysis as a claim for failure to train.”
Robinette v. Jones, 476 F.3d 585, 591 (8th Cir. 2007) (citing Liebe v. Norton, 157
F.3d 574, 579 (8th Cir. 1998). Neither claim can succeed without evidence the


      11
       Atkinson does not argue the city ratified any unlawful conduct, and there is
no evidence the city ratified Sanders’ use of force. Cf. Dixon v. Lowery, 302 F.3d
857, 867 (8th Cir. 2002).

                                         -21-
municipality “[r]eceived notice of a pattern of unconstitutional acts committed by [its
employees].” Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010). Atkinson has
presented no evidence indicating the city had reason to believe, before the events
giving rise to this case, that its training or supervision of Sanders was inadequate.
Absent some form of notice, the city cannot be deliberately indifferent to the risk that
its training or supervision of Sanders would result in “a violation of a particular
constitutional or statutory right.” Brown, 520 U.S. at 411. Because no reasonable
jury could find the city liable under § 1983, the district court correctly granted the
city’s motion for summary judgment.

III.   CONCLUSION
       We affirm the district court’s summary judgment in favor of the city, reverse
the district court’s summary judgment in favor of Sanders on Atkinson’s excessive
force claim, vacate the district court’s dismissal of Atkinson’s pendent state law
claims, and remand the case to the district court for further proceedings consistent
with this opinion.

COLLOTON, Circuit Judge, concurring in part and dissenting in part.

       The linchpin of the court’s decision to deny qualified immunity to defendant
Derek Sanders is that Sanders was required to identify himself as a police officer to
plaintiff Mark Atkinson before Sanders used more than de minimis force to seize and
arrest Atkinson. From the dramatic portrayal of Sanders as a “stranger” and
“unknown man,” ante, at 3, to the legal conclusion that a reasonable officer would not
have “thought it appropriate to charge Atkinson without first identifying himself as
a law enforcement official and giving Atkinson a chance to return the cell phone
peacefully,” id. at 11, the court rests its decision on the proposition that the Fourth
Amendment required Sanders to identify himself. “By remaining anonymous,” the
court reasons, “Sanders never gave Atkinson the opportunity to comply with a
legitimate request by a law enforcement official.” Id. Central to the court’s holding

                                         -22-
is that Sanders’s call for Atkinson to return the cell phone he had taken from Sanders
“was not the demand of a peace officer, but the plea of an ‘irate’ civilian.” Id. In
denying qualified immunity, the court says that “[o]n August 31, 2007, Sanders had
‘fair warning’ that charging at a non-resisting individual without first identifying
himself as a police officer was unconstitutional in the context of an arrest.” Id. at 14
(emphasis added).

        There is a significant problem with the court’s analysis: It was not clearly
established in 2007 that the Fourth Amendment required a police officer to identify
himself as an officer before using force to carry out an arrest in public, even when
self-identification might have obviated the need to use force. Two years after the
incident in this case, the Court of Appeals for the Seventh Circuit surveyed the law
and determined that “it is far from clearly established that the Fourth Amendment
requires police officers to identify themselves in the course of carrying out an arrest
in a public place.” Catlin v. City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009)
(emphasis added). The Seventh Circuit was “aware of no court of appeals decision
that has recognized a constitutional obligation on the part of the police to announce
their identity when they carry out an arrest in a public place.” Id. The court found
that “the district courts that have considered this issue are, if anything, divided.” Id.;
see Sanchez v. City of New York, No. 96-C-7254, 2000 WL 987288, at *5 (S.D.N.Y.
July 17, 2000) (observing that the plaintiff’s Fourth Amendment claim “assumes the
uncertain proposition that the reasonableness of a seizure outside the home depends
on whether the police officer made an announcement or identification at all”). “Even
if the defendants had consulted a casebook,” the Seventh Circuit explained, “they still
would not have had fair notice that they had a constitutional obligation to announce
their identity prior to completing the arrest.” 574 F.3d at 369.

      The majority, ante, at 16 n.6, declares Catlin inapposite based on an inapposite
portion of the opinion. Of course, the Seventh Circuit concluded that the Fourth
Amendment did not require police officers to identify themselves when such notice

                                          -23-
would have allowed a suspect to flee or fight. 574 F.3d at 366. But the court
addressed separately whether the officers unreasonably failed to identify themselves
when there was no risk of causing flight or resistance, and when they used force
against an arrestee who was resisting only because he believed that “he was being
attacked by common criminals.” Id. at 368. Even though a jury could have found
that self-identification would have caused the arrestee to have “given up without a
fight, thus obviating the need for the [officers’] final show of force,” id., the court
held that the officers were entitled to qualified immunity against a claim that they
used excessive force. Id. at 369. Just as in this case, the court was confronted with
an argument that the failure of police officers to identify themselves was relevant to
whether the arrestee was resisting arrest or attempting to evade arrest, see Graham
v. Connor, 490 U.S. 386, 396 (1989), but the Seventh Circuit nonetheless held that
the use of force by unidentified officers to quell resistance did not violate a clearly
established right.

       The court cites no authority to undermine the Seventh Circuit’s conclusion.
The only case cited in support of the court’s assertion that Sanders had a
constitutional duty to identify himself has nothing to do with a police officer’s
obligation to declare his official status. See Samuelson v. City of New Ulm,
455 F.3d 871, 877 (8th Cir. 2006). When there is a legitimate question about whether
a public official’s conduct violates the Fourth Amendment, the official is entitled to
qualified immunity. Anderson v. Creighton, 483 U.S. 635, 640-41 (1987). “Officials
are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.” Austell v. Sprenger, 690 F.3d 929, 936 (8th Cir. 2012) (internal quotation
omitted). The central premise of the court’s analysis—that Sanders violated clearly
established rights under the Fourth Amendment by using force against Atkinson
without first identifying himself as a police officer—is mistaken. Sanders is entitled
to qualified immunity.




                                         -24-
       Aside from the question whether Sanders unreasonably failed to identify
himself as an officer, the undisputed facts support the district court’s conclusion that
Sanders acted reasonably. Atkinson did not appeal the district court’s ruling that
Sanders had probable cause to arrest Atkinson. See R. Doc. 113, at 12 (“It cannot be
seriously argued that a police officer, under the circumstances, did not have probable
cause to believe that plaintiff had committed a crime and that there were legal
grounds to arrest him.”). That there was probable cause for an arrest is thus not an
“interpretation of the facts,” ante, at 11 n.3; it is the law of the case. Little Earth of
the United Tribes, Inc. v. U.S. Dep’t of Hous. and Urban Dev., 807 F.2d 1433, 1437-
38 (8th Cir. 1986).

        There was probable cause to believe that Atkinson committed an assault and
stole property when Atkinson, by his own admission, put his hands on Sanders,
pushed him back a little, and snatched Sanders’s cell phone as Sanders tried to make
a call for help. Sanders asked Atkinson to return the phone, but Atkinson refused to
give it back. Atkinson admits that when Sanders called for the return of his phone,
Atkinson kept the phone and said, “Why don’t you talk to us? Why can’t you just
talk to us?” When Sanders again said, “Give me my phone back,” Atkinson admits
that he merely looked down at the phone and said, “You mean this?” A reasonable
officer could have interpreted Atkinson’s feigned uncertainty about Sanders’s request
as a determined refusal to return the property. It was reasonable for Sanders to arrest
Atkinson, and more than de minimis force reasonably was required for an unarmed
officer to make the seizure. The court emphasizes the injuries suffered by Atkinson
when Sanders “bull rushed” him into a truck, but by Atkinson’s own admission,
Sanders “was trying to knock me down to the ground” with “a football move.” It was
after Atkinson, in his words, “kept on side-stepping” that Sanders slid Atkinson into
the truck.12


      12
       The court seems to proceed on a misunderstanding of the undisputed facts
when it treats Atkinson as an “adult who separates two quarreling children or

                                          -25-
       Sanders was alone, unarmed, and deprived of means to communicate with his
fellow officers in a situation that was rapidly evolving. Even if Atkinson subjectively
intended to do “no more than attempt to avoid a fight between Sanders and Taylor,”
ante, at 10, and even if a jury could believe that Atkinson’s refusal to return Sanders’s
phone was a genuine effort “to defuse Sanders’ anger through peaceful words,” id.
at 11, those are not the relevant issues. The relevant question under the Fourth
Amendment is not what a jury might conclude about Atkinson’s intent with 20/20
hindsight after a full-blown trial, but what a reasonable officer on the scene could
perceive at the moment when action was required. Graham, 490 U.S. at 396. A
reasonable officer had probable cause to arrest Atkinson for assault, and reasonable
grounds to believe that barehanded force was necessary to secure Atkinson, to
retrieve the officer’s property, and to protect the safety of the officer. As the district
court cogently explained:

      Sanders was responding to a situation that seemed to be escalating
      rapidly when he used force against [Atkinson]. He used this force only
      after [Atkinson] had interjected himself into the fray by getting between
      defendant and Joe Taylor and then physically seizing [Sanders’s] cell
      phone from him. The incident occurred after a high school football
      game where emotions typically run high, and the officer was [] out-
      numbered. His effort to call for assistance was thwarted by [Atkinson],
      who demonstrated no intention of returning the phone. The
      reasonableness of the particular force used must be judged from the
      perspective of a reasonable officer on the scene. Under the
      circumstances, the Court finds, after careful review, that the amount of
      force used by defendant Sanders was objectively reasonable and did not
      amount to a violation of the Fourth Amendment.




adolescents tussling over an object and who then confiscates the object until the two
calm down.” Ante, at 11 n.3. There is no evidence that the cell phone that Atkinson
snatched from Sanders had been the object of a tussle.

                                          -26-
        The doctrine of qualified immunity requires an exercise of judicial restraint that
sometimes can be discomfiting. Even when a court believes that a defendant violated
the constitutional rights of a plaintiff, the court is required to dismiss the plaintiff’s
claim if the unconstitutionality of the defendant’s conduct was not clearly established.
Perhaps this is an appropriate case in which to announce a rule that a police officer
must identify himself before using more than de minimis force to complete an arrest,
if it is reasonable to believe that self-identification would obviate the need to use
force. See, e.g., Johnson v. Grob, 928 F. Supp. 889, 905 (W.D. Mo. 1996). The
Seventh Circuit thought that was a “close question” in 2009. Catlin, 574 F.3d at 368.
But the rule announced by the court today was not clearly established in 2007, and
the putative unlawfulness of Sanders’s action was not apparent under pre-existing
law. See Anderson, 483 U.S. at 640. I would affirm the judgment.
                         ______________________________




                                          -27-
