                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2617
                         ___________________________

                                   Charles Jackson

                                 Plaintiff - Appellant

                                          v.

Billy D. Stair, III, individually and in his official capacity with Jacksonville Police
   Department; Jacksonville Arkansas, City of; Jacksonville Police Department

                               Defendants - Appellees
                                   ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                              Submitted: June 6, 2019
                             Filed: September 12, 2019
                                   ____________

Before ERICKSON, WOLLMAN, and GRASZ, Circuit Judges.
                        ____________

ERICKSON, Circuit Judge.

        Charles Jackson brought an action for damages under 42 U.S.C. § 1983,
alleging various constitutional violations against the City of Jacksonville, Arkansas,
the Jacksonville Police Department, and Jacksonville Police Officer Billy D. Stair,
III, individually and in his official capacity, after Jackson was detained and tased by
Officer Stair as part of an arrest. The district court granted summary judgment in
favor of defendants, and Jackson appealed. For the reasons stated below, we affirm
in part, reverse in part, and remand.

                                          I.

       On July 23, 2013, Jacksonville Police Department (JPD) officers were
dispatched to a dispute in progress at a local business, Vaughn Tire. The dispute
arose because Jackson believed that Vaughn Tire had damaged a wheel lug during the
course of a repair of Jackson’s dump truck. Officer Stair was the first to respond on
the scene, where he found Jackson walking with another man. Video evidence1
shows that Officer Stair asked, “What’s going on guys?” In response, Jackson, who
was obviously quite agitated, began to yell and point toward another group of men.
Officer Stair instructed Jackson to relax, and Jackson replied, pointing at one of the
men, “Get him, and I’m gonna relax.” Officer Stair directed Jackson to go stand by
the patrol car. Jackson began to comply, still yelling, when Officer Stair told him to
keep his hands out of his pockets. Jackson reached his left hand into his pocket and
stopped immediately in front of Officer Stair to shout that he did not have anything
in his pockets. Officer Stair ordered Jackson to turn around. Jackson got louder and
did not comply.

       Officer Stair pulled out his Taser, pointed it at Jackson, and again ordered
Jackson to turn around, or he would be tased. More yelling and pointing ensued from
Jackson - at one point Jackson shouted: “You tase me and see what happens.” Officer
Stair ordered Jackson to turn around five more times before Jackson began to comply.
Officer Stair told Jackson to put his hands up, and he did, but he was still facing
Officer Stair. Officer Stair again ordered Jackson to turn around, and Jackson did so


      1
        The record contains video evidence from the patrol car dash camera, and
from a camera mounted on Officer Stair’s Taser.

                                         -2-
with his hands in the air, but Jackson continued to yell, asking for Officer Stair’s
badge number and threatening to file a complaint with his supervisor.

          Another officer, Kenneth Harness, approached Jackson and attempted to
handcuff him. Jackson put his hands behind his back, and then he stated: “Don't hurt
my arm.” Jackson turned around to face Officer Harness and raised his right fist
toward the officer’s head. Officer Stair immediately deployed his Taser, and Jackson
fell to the ground, kicking his legs. Moments later, and without another warning,
Officer Stair deployed his Taser a second time. Officer Stair then ordered Jackson
to turn on his stomach or he would be tased again. Officer Stair repeated the order,
but Jackson rose to one knee, in the direction of Officer Stair. Officer Stair deployed
his Taser a third time. Jackson finally complied with the order to lie on his stomach,
and Officer Harness handcuffed him. Jackson was arrested for disorderly conduct.

       Jackson filed a complaint under 42 U.S.C. § 1983 against Officer Stair, in his
individual and official capacities, the City of Jacksonville (City), and the JPD,
alleging that his constitutional rights were violated during the tasing incident.2 The
district court granted summary judgment in favor of the defendants, and Jackson filed
a timely notice of appeal.

       The record contains copies of the City’s Taser policy and evidence of Officer
Stair’s completion of Taser-specific and general law enforcement trainings upon his
hiring. The record also includes documentation of the JPD’s “Use of Force Review”
of the tasing incident at issue here. Following that investigation, Officer Stair
received a written warning and additional use-of-force training.




      2
         The complaint also alleged violations of the Arkansas Civil Rights Act and
claimed that Officer Stair’s conduct amounted to a felony under Arkansas law,
entitling him to damages. Those allegations are not relevant to this appeal.

                                         -3-
                                         II.

      We review de novo a district court order granting summary judgment, viewing
the evidence in the light most favorable to Jackson, and drawing all reasonable
inferences in his favor. Schoelch v. Mitchell, 625 F.3d 1041, 1045 (8th Cir. 2010).
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

       We note at the outset that Jackson failed to make any meaningful argument on
appeal regarding his claims against the JPD. Those claims are therefore waived.
Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007). Likewise, the
complaint alleged violations of the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments. However, as noted by the district court, the Fifth Amendment applies
only to the federal government or federal actions and does not apply to state and
municipality actors as alleged here, Barnes v. City of Omaha, 574 F.3d 1003, 1005
n.2 (8th Cir. 2009); the Eighth Amendment applies only to convicted prisoners, Hott
v. Hennepin County, 260 F.3d 901, 905 (8th Cir. 2001); and the Fourteenth
Amendment does not apply to excessive force claims involving arrests, which are
appropriately reviewed under a Fourth Amendment analysis, Graham v. Connor, 490
U.S. 386, 394-95 (1989). Accordingly, only the First and Fourth Amendment claims,
and the claims against the City, are relevant here.

                             A. Claims Against the City

       Jackson lodges several claims against the City of Jacksonville, including an
official-capacity claim against Officer Stair. Jackson argues that the district court
erred in granting summary judgment in favor of the City, because Officer Stair’s
conduct during the tasing incident was consistent with a City policy, custom, or



                                         -4-
practice, and because the City had been deliberately indifferent to Officer Stair’s
conduct. We disagree.

      A municipality may be held liable for a constitutional violation under section
1983 if the violation resulted from “(1) an ‘official municipal policy,’ (2) an
unofficial ‘custom,’ or (3) a deliberately indifferent failure to train or supervise.”
Corwin v. City of Independence, MO., 829 F.3d 695, 699 (8th Cir. 2016) (citations
omitted). See also Monell v. Dep’t of Social Servs. of the City of New York, 436
U.S. 658, 690-91 (1978); Mick v. Raines, 883 F.3d 1075, 1079-80 (8th Cir. 2018).

       Here, Jackson has not presented any evidence to suggest that the City has
created, adopted, or supported any policy or custom that would demonstrate
municipal liability. To the contrary, the City has submitted copies of its relevant
policies and training manuals, and the City has shown that Officer Stair received
specific Taser training on top of his general law enforcement training. Moreover, the
City investigated the tasing incident after the fact; as a result, Officer Stair received
a written warning, and he was required to undergo additional use-of-force training.

      Because Jackson fails to provide the evidence necessary to support his claims
of municipal liability, the City is entitled to summary judgment as to Jackson’s
claims.

                  B. First Amendment Claim Against Officer Stair

      Likewise, summary judgment in favor of Officer Stair on Jackson’s First
Amendment Claim is appropriate. The First Amendment protects freedom of speech,
and Jackson argues that Officer Stair violated his First Amendment rights by
detaining him based on his speech. While the video evidence clearly shows that
Jackson was loud and profane during the minutes surrounding the tasing incident, it
does not necessarily follow that his arrest was grounded in an effort by Officer Stair

                                          -5-
to restrain Jackson’s right to express himself. “[W]hen ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.” U.S. v. O’Brien, 391 U.S. 367, 376
(1968). Otherwise, any foul-mouthed citizen could bring a constitutional claim
against an arresting officer. In this case, there is no evidence to support a First
Amendment claim, and summary judgment was therefore appropriate.

                 C. Excessive Force Claims Against Officer Stair

       Jackson also claims that Officer Stair used excessive force during the tasings
in violation of his constitutional rights. The Fourth Amendment guarantees each
citizen a right to be free from unreasonable searches or seizures. Where, as here, an
excessive force claim is made against a law enforcement officer related to conduct
involving an arrest, the Supreme Court has made clear that the conduct should be
analyzed under an objective reasonableness standard. Graham, 490 U.S. at 394-96.
Such an analysis requires the “careful balancing of ‘the nature and quality of the
intrusion on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S.
1, 8 (1985)). Relevant considerations include the severity of the crime at issue,
whether the suspect posed an immediate safety threat, and whether he was actively
resisting arrest or attempting to flee. Id. See also Henderson v. Munn, 439 F.3d 497,
502 (8th Cir. 2006). We judge the relevant facts from the perspective of a reasonable
officer on the scene, not with 20/20 hindsight vision. Carpenter v. Gage, 686 F.3d
644, 649 (8th Cir. 2012). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them . .
. .” Graham, 490 U.S. at 397.

       Here, Jackson was aggressive and noncompliant in response to Officer Stair’s
directives. Jackson ignored multiple orders to turn around, arguing with Officer Stair

                                         -6-
and even threatening him. When Officer Harness attempted to handcuff Jackson,
Jackson turned around toward Officer Harness and raised his right fist near Officer
Harness’s head. At that point, Officer Stair deployed his Taser. A reasonable officer
in Officer Stair’s position could have viewed Jackson’s actions as threatening,
resisting arrest, and endangering the safety of an officer. The evidence in the record
demonstrates that the first tasing was objectively reasonable.

       The second tasing is a different story. When the electric probes from the first
tasing struck Jackson, he fell to the ground. Only moments later, and without
warning, Officer Stair again deployed his Taser. At the time of this second tasing,
Jackson did not appear to pose a threat to law enforcement, resist arrest, or flee - he
was on his back, on the ground. Based on the Taser-mounted video, Jackson did not
have time to show compliance or continued resistance before the second tasing was
deployed. Officer Stair argued that he perceived Jackson to kick his legs out and turn
his body as if to confront the officers again. The video footage, however, shows that
Jackson was several feet away from the nearest officer, unable to pose a threat from
his position on the ground.

        The district court ruled that Officer Stair’s conduct as a whole was reasonable
without considering whether the second tasing could be a constitutional violation on
its own. See Smith v. Conway County, 759 F.3d 853, 860-61 (8th Cir. 2014) (even
if the initial tasing of detainee was justified because he had just kicked a guard,
second tasing would be unreasonable if detainee was no longer acting aggressively,
no longer posed any immediate security concern, and was trying to comply with
guard’s orders). In light of the video footage depicting the quick succession of the
tasings and dispute as to whether Jackson was resisting the officers or posing a threat
at the time of the second tasing, we find that there is a genuine issue of material fact
as to whether the second tasing amounted to excessive force.




                                          -7-
       The third tasing occurred after Officer Stair gave several clear orders for
Jackson to stop moving and lay down on his stomach, or he would be tased.
Afterward, Jackson moved in the direction of Officer Stair and rose to his knee in an
apparent attempt to get off the ground. Officer Stair then deployed his Taser for the
third and final time before Jackson complied with his demands and was arrested. A
reasonable officer in Officer Stair’s position could have perceived Jackson to be
resisting arrest and could have feared for his safety. Based on our review of the
record, we conclude the third tasing was objectively reasonable.

                                D. Qualified Immunity

       Officer Stair argues that the doctrine of qualified immunity shields him from
any liability. Qualified immunity protects a government official from liability in a
section 1983 action, unless the official’s conduct violates a clearly established
constitutional or statutory right of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The court must follow a two-step
inquiry in a qualified immunity analysis: “(1) whether the facts shown by the plaintiff
make out a violation of a constitutional or statutory right, and (2) whether that right
was clearly established at the time of the defendant’s alleged misconduct.” Brown
v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). A right is clearly
established if its contours are “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730,
739 (2002). The relevant question is whether a reasonable officer would have fair
warning that his conduct was unlawful. Brown, 574 F.3d at 499.

       As explained above, because the first and third tasings were objectively
reasonable, Jackson cannot show a violation of his constitutional rights. The second
tasing, however, presents a closer question. If Officer Stair used excessive force
during the second tasing, then qualified immunity will protect him from liability only
if Jackson’s constitutional rights were not clearly established at the time of the second

                                          -8-
tasing. When Officer Stair tased Jackson, however, it was well-settled law that the
use of force against a non-violent detainee who was not actively fleeing or resisting
arrest, or posing a security threat, was unlawful. Id. at 499-500; see also Smith, 759
F.3d at 860-61. If the second tasing amounted to excessive force, then Officer Stair
is not entitled to qualified immunity.

                                           III.

       In the instant case, Officer Stair tased Jackson three times. The district court
ruled that Officer Stair used a reasonable amount of force to subdue Jackson,
considering the officer’s conduct as a whole. The court erred by not considering and
analyzing each tasing individually. We find the first and third tasings were
objectively reasonable, and no Fourth Amendment violation occurred. As to the
second tasing, we find there are genuine issues of material fact regarding whether
Officer’s Stairs use of force was excessive. Jackson failed to present sufficient
evidence to establish a First Amendment claim against Officer Stair or to establish
municipal liability against the City. We affirm in part, reverse in part, and remand to
the district court for proceedings consistent with this opinion.

WOLLMAN, Circuit Judge, concurring and dissenting.

      I agree with the court that Officer Stair’s first and third tasings were objectively
reasonable and that Jackson’s First and Fourth Amendment and municipal liability
claims are without merit.

      When viewed in light of his earlier manifestation of unceasing, rage-filled
verbal and physical conduct, Jackson’s momentary post-tasered position on the
ground does not justify considering it as a clearly punctuated interim of compliance
with Officer Stair’s earlier commands, and thus the second tasing was not objectively
unreasonable. Granted that Jackson had not at that point attempted to rise from the

                                           -9-
ground, his earlier-expressed threatened use of force against Officer Harness, when
coupled with the nearly hysterical tone of his voice throughout his interaction with
Stair and others nearby, justified the continued application of the Taser. It may appear
from our chambers-viewed observation of the entire encounter to have been a too-
hasty application, but given Jackson’s earlier pretasing arm-waving, rant-filled anger
and his reluctance to comply with Stair’s several earlier-expressed commands and
warnings, his momentarily supine position on the ground was hardly a guarantee of
a no-longer aggressive subject, as was the case of the medical assistance-seeking
detainee in Smith v. Conway. In a word, then, although Officer Stair’s quickly
applied application following Jackson’s initial fall to the ground may have been ill-
advised, I do not believe that it was objectively unreasonable in the circumstances,
and so I respectfully dissent from the court’s decision to remand the case for a further
review of that issue.
                        ______________________________




                                         -10-
