                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3812
                                   ___________

Avone Kukla,                            *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of South Dakota.
                                        *
Andrew D. Hulm; Scott Brown,            *
                                        *
                   Appellants.          *
                                   ___________

                             Submitted: June 11, 2002

                                 Filed: November 15, 2002
                                  ___________

Before BOWMAN, FAGG, and BYE, Circuit Judges.
                          ___________

FAGG, Circuit Judge.

      Motor carrier inspector Scott Brown and Trooper Andrew D. Hulm arrested
Avone Kukla, a commercial truck driver, for failing to produce his logbook. After
a South Dakota judge dismissed the charges against Kukla, Kukla brought this federal
lawsuit against Brown for illegal arrest and against Hulm for using excessive force.
The district court* denied Brown and Hulm’s motion for summary judgment based on



      *
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
qualified immunity, finding there were questions of fact about the arrest’s validity and
the amount of force used. Brown and Hulm appeal. We affirm.

       We review the denial of summary judgment de novo. As we explain the facts,
we must give Kukla, the party opposing summary judgment, the benefit of all
reasonable inferences. Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000).
According to Kukla’s affidavit, on November 25, 1998, he was driving west on I-90
when he saw a sign indicating “truck inspection ahead.” App. at 61. Testimony in
Kukla’s state court proceeding indicates the inspection was at a public rest area. App.
at 86, 92. Kukla had never seen an inspection station at that location before. App.
at 61-62. He pulled into the rest area, but did not see any official emblems or insignia
confirming an inspection was authorized by the state. App. at 62. Kukla had never
had any problems with inspections or weigh stations, including the day before at the
Tilford weigh station located on eastbound I-90. At the rest area, Kukla was
approached by a person wearing clothing different from that worn by inspectors at the
Tilford station, and Kukla saw no insignia, emblem, badge, or name tag indicating
who the individual was. Id. Kukla noticed an old, blue Suburban, which did not
appear to have any insignia. Kukla had heard of phony truck inspections being set
up in other states, and the situation seemed peculiar to him. Id. The person who
approached Kukla, later identified as motor carrier inspector Scott Brown, asked for
Kukla’s driver’s license and logbook. Kukla pulled them out and showed him he had
them, but told the person he would not turn them over until the person identified
himself. Id. Brown refused to identify himself, and stated he didn’t have to. Brown
told Kukla he was “putting [his] truck out of service for eight hours,” and told Kukla
to pull over. Kukla complied. Id.

      Within a few seconds, App. at 88, a car with an official South Dakota emblem
drove up, App. at 62. A uniformed person, motor carrier enforcement officer
Lawrence Bryant, got out of the car. Bryant approached Kukla, asked why Kukla
would not comply with Brown, and asked for Kukla’s records. Id. at 63. Kukla

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explained Brown would not identify himself and he looked different from other
inspectors he had encountered the day before. Because Kukla could see Bryant was
acting on behalf of the State of South Dakota, Kukla gave Bryant his license and
logbook. Bryant found everything in order, and left the scene. Id.

       Brown then issued a ticket to Kukla for failing to produce his logbook, which
Kukla refused to sign. Id. Brown radioed the South Dakota Highway Patrol (SDHP)
for assistance and Trooper Andrew Hulm responded. Bryant overheard the call to the
highway patrol and returned to the inspection point. During this time, Kukla
retrieved his camera and appeared to take pictures of the scene. When Hulm arrived,
he spoke with Brown and then advised Kukla he had to sign the ticket or be subject
to arrest. Id. at 64. Kukla refused to sign the ticket and Hulm announced he was
going to arrest Kukla. Kukla was handcuffed by Hulm and Bryant and taken into
custody. Kukla asserts he did not resist arrest, but rather was unnecessarily
manhandled. Kukla alleges that when Hulm told him he was under arrest, he
protested, but did not take an aggressive stance. A doctor determined that as a result
of the arrest, Kukla strained and sprained his right shoulder, distal right clavicle, right
elbow, and right wrist.

       To avoid summary judgment based on qualified immunity, Kukla had to assert
a violation of a constitutional right, show the alleged right was clearly established at
the time of the alleged violation, and raise a genuine issue of material fact about
whether Brown and Hulm would have known their alleged conduct would have
violated his clearly established right. Smithson, 235 F.3d at 1061. In other words,
qualified immunity shields Brown and Hulm from this lawsuit if they could have
reasonably believed their conduct was lawful in light of clearly established law and
the information they possessed. Id. If an officer alleges conduct by an arrestee giving
rise to probable cause and those facts are undisputed, the officer is entitled to
qualified immunity. Arnott v. Mataya, 995 F.2d 121, 123-24 (8th Cir. 1993). On the
other hand, if the arrestee challenges the officer’s description of the facts and presents

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a factual account that would not permit a reasonable officer to make an arrest, then
there is a material factual dispute precluding summary judgment. Id. at 124.

       Kukla asserts a violation of his Fourth Amendment right to be free from arrest
without probable cause. This right was clearly established at the time of Kukla’s
arrest. Id. Kukla was arrested without probable cause if a reasonable person would
not have believed Kukla “‘had committed . . . an offense’ at the time of the arrest.”
Smithson, 235 F.3d at 1062 (emphasis added) (quoting Hannah v. City of Overland,
Mo., 795 F.2d 1385, 1389 (8th Cir. 1986)). Brown contends he could reasonably
believe that a citation is properly issued to a driver who initially refused to produce
his logbook, but later produced it at the request of a different inspector. Brown does
not suggest Kukla was lawfully arrested for failing to sign the citation.

       Under South Dakota Codified Laws § 32-2-7, “agents, patrol officers, motor
carrier enforcement officers, and motor carrier inspectors may examine any . . .
registration, license, or permit to determine if the motor carrier is properly registered,
licensed, or permitted.” The same specified individuals may place violators of any
of the laws or regulations governing motor carriers under arrest without a warrant for
criminal offenses committed in their presence. Id. § 32-2-8. South Dakota has
adopted federal regulations regarding motor carriers. S.D. Cod. Laws § 49-28A-3.
One of the adopted regulations requires drivers to record their duty status in a log,
and states failure to complete or preserve the record, or making false reports, subjects
the driver and carrier to prosecution. 49 C.F.R. § 395.8. Here, according to the
SDHP case report, the district court, and Brown and Hulm’s brief, Kukla was arrested
for “Failure to Produce a Log Book SDCL 49-29A-3.” App. at 24, 95, Appellant’s
Brief at 5. Neither the pertinent federal regulations nor South Dakota laws
criminalize a trucker’s failure to turn over his logbook. The affidavit of Hulm’s
supervisor, SDHP Lieutenant Chuck Hoffman, states it is the policy of the SDHP that
any driver who refuses to produce a driver’s license or logbook on demand by a fully
uniformed officer will be cited for failure to have or produce a license or logbook.

                                           -4-
App. at 37. Full uniform includes badges, name tags, appropriate patches, and
insignia. Id. When in full uniform and on duty, neither SDHP motor carrier
inspectors nor troopers will provide further identification before proceeding with an
inspection or arrest. Id.

       Viewing the facts in Kukla’s favor, we conclude Brown could not reasonably
believe Kukla “‘had committed . . . an offense’ at the time of the arrest.” Smithson,
235 F.3d at 1062. Before Brown arrested Kukla, Kukla had asked Brown to identify
himself as an authorized official and Brown had refused to do so, Brown saw Kukla
turn over his records to one of Brown’s colleagues who was clearly identifiable as an
authorized official, and the authorized official had found nothing wrong. Only a few
seconds elapsed between the time Kukla left Brown to pull over his truck and the time
Bryant approached Kukla and obtained his records. Given these facts, Kukla did not
violate the law requiring truckers to maintain logbooks. Further, the South Dakota
statutes giving inspection and arrest power to specified individuals make clear that
a civilian cannot examine the records of truck drivers or make arrests for violations.
Even the SDHP policy states the officer must be in proper uniform. There is simply
no offense when, as here, a trucker refuses to turn records over to a person who is not
identifiable as an authorized officer or inspector.

       In sum, viewing the facts in Kukla’s favor, we conclude a reasonable jury could
find there was no probable cause for the citation and thus no probable cause for
Kukla’s arrest. Because Kukla presents a factual account that would not permit a
reasonable officer to make an arrest, there is a material factual dispute precluding
summary judgment. Arnott, 995 F.2d at 124. The district court thus properly denied
summary judgment to Brown. Id. Of course, the jury may disbelieve Kukla’s
testimony at trial, but it is not our function to remove the credibility assessment from
the jury. Because Kukla could prevail if the jury believes him, summary judgment
for Brown is improper.



                                          -5-
       Second, Kukla contends Hulm violated his Fourth Amendment right to be free
from excessive force. This right was also clearly established at the time of Kukla’s
arrest. Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). Force is excessive when
an officer’s actions are not objectively reasonable in light of the facts and
circumstances confronting him. Id. Here, Kukla alleges that although he did not
resist arrest or take an aggressive stance, Hulm forced him against his truck, twisted
his arm, and raised it high behind his back injuring his collar bone, shoulder, neck,
and wrist. Kukla also claims the handcuffs were so tight that they broke his wrist and
were not loosened for fifteen minutes despite his repeated complaints. Considering
the circumstances, including the offense at issue, the lack of an immediate safety
threat, and the lack of active resistance to arrest, we agree that there is a genuine issue
of whether the force used was excessive, so the district court properly denied
summary judgment to Hulm. See Graham v. Connor, 490 U.S. 386, 396 (1989).

      Accordingly, we affirm the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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