                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2429
                                ________________

Margaret Andrews,                         *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of South Dakota.
Robert Fuoss, individually and in         *
his capacity as Sheriff of Jones          *
County, South Dakota,                     *

             Appellee.

                                ________________

                                Submitted: February 18, 2005
                                    Filed: August 1, 2005
                                ________________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit
Judges.
                       ________________

GRUENDER, Circuit Judge.

       Margaret Andrews (“Andrews”) sued Sheriff Robert Fuoss (“Sheriff Fuoss”),
individually and in his capacity as Sheriff of Jones County, South Dakota, for
violations of her federal constitutional rights pursuant to 42 U.S.C. § 1983 and for
state law battery, which the district court had supplemental jurisdiction to consider
under 28 U.S.C. § 1367. Andrews alleged that Sheriff Fuoss violated her Fourth
Amendment right to be free from unreasonable searches and seizures when he briefly
stopped her during an incident that occurred in the Jones County Courthouse, and that
Sherif Fuoss employed excessive force in stopping her, also in violation of the Fourth
Amendment. The district court1 granted Sheriff Fuoss’s motion for summary
judgment on Andrews’s § 1983 claim on the ground that he was entitled to qualified
immunity because Andrews failed to establish that he violated a constitutional right.
The district court also refused to exercise supplemental jurisdiction over Andrews’s
state law claim and dismissed that claim without prejudice. Andrews appeals, arguing
that the district court erred in holding that Sheriff Fuoss’s seizure of Andrews was
constitutionally permissible and that Sheriff Fuoss’s use of force was not excessive.
We affirm.

I.    BACKGROUND

       On March 1, 2003, Andrews was in the Jones County Courthouse in Murdo,
South Dakota, to attend the sentencing of her son James Andrews (“James”) for his
involvement in a crime spree that included assaulting an elderly woman at gunpoint,
stealing her car, shooting at a house that provided day care, and lighting his mother’s
house on fire. At the time of his sentencing, James had an extensive prior criminal
history. Even Andrews admitted that James’s prior behavior led her to believe that
he was dangerous and violent.

       South Dakota Circuit Court Judge Max A. Gors (“Judge Gors”) presided over
James’s case. Judge Gors told Sheriff Fuoss that he was free to exercise his
discretion over how to keep the courtroom safe and secure, making Sheriff Fuoss his
de facto bailiff. At James’s earlier arraignment, Judge Gors asked Sheriff Fuoss how
close James could get to spectators, including his mother. Sheriff Fuoss stated that
there should be a ten-foot proximity limit for everyone except James’s attorney


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                          -2-
Thomas W. Clayton (“Clayton”). Sheriff Fuoss did not communicate the ten-foot
prohibition to Andrews, but did tell her, James and Clayton that she could not have
physical contact with James. Prior to James’s sentencing, Sheriff Fuoss informed
Deputy Mike Kiewel (“Deputy Kiewel”) that he was implementing a rule that no
person other than Clayton could come within ten feet of James. Sheriff Fuoss’s “ten-
foot rule” was intended to maintain courtroom security and safety but again was not
communicated to Andrews, James or Clayton.

      On the day of James’s sentencing hearing, Andrews was seated in the public
seating area. On the other side of a waist-high wooden railing, James sat at counsel’s
table with Clayton. While waiting for the hearing to begin, Clayton motioned for
Andrews to come to him. Andrews recalls Clayton asking her a question, which she
could not hear, and stepping forward as Clayton motioned to her.

       The parties dispute the details of what happened next. Andrews claims she
took two or three steps towards Clayton, coming within five or six feet of James,
when she felt a forceful blow on her left shoulder that came from behind. The blow
was forceful enough to make her “see stars,” and the force spun her around so that she
was facing Sheriff Fuoss. Sheriff Fuoss told her to remain ten feet away from her
son. She told Sheriff Fuoss to “keep your hands off me.” According to Andrews,
Sheriff Fuoss’s push was strong enough that she would have fallen had Sheriff Fuoss
not grabbed her arms. Clayton, who did not witness the initial contact, stated that he
noticed Andrews had been backed up five to seven feet in a split second.

      In contrast, Sheriff Fuoss claims that the only contact he had with Andrews was
when he extended his right arm and she ran into his open palm with her left shoulder,
stopping her forward progress and only causing her to take one step back. Although
Deputy Kiewel’s description of the incident was similar to Andrews’s, he stated that
the only contact Sheriff Fuoss had with Andrews was a “straight-arm” push that
caused Andrews to back up one step.

                                         -3-
       After the incident, Andrews was “shocked” and started to cry. Andrews
reported an immediate pain flare-up relating to pre-existing neck and back conditions,
but she returned to her seat and testified during the sentencing hearing. The incident
left Andrews with a sore neck and a “horrible, horrible” headache. The next day,
Andrews went to a physician due to continued soreness in her neck, arm and
shoulder, but she could not recall whether she received any bruises from the
encounter. Andrews also reported some increase in symptoms related to post-
traumatic stress disorder, which she was diagnosed with after a prior, unrelated
assault, but she admitted that her mental condition had been affected by other
stressful events that also occurred at that time. Beyond exacerbation of her previous
conditions, Andrews reported no other mental or physical problems resulting from the
incident.

II.   ANALYSIS

      On appeal, Andrews asserts that the district court erred in granting Sheriff
Fuoss’s motion for summary judgment on the basis of qualified immunity because
Sheriff Fuoss’s actions violated her clearly established constitutional right to be free
from unreasonable seizures under the Fourth Amendment to the United States
Constitution as incorporated through the Fourteenth Amendment. We disagree.

       “We review the district court’s grant of summary judgment on the basis of
qualified immunity de novo.” DeArmon v. Burgess, 388 F.3d 609, 610 (8th Cir.
2004). State officers “are entitled to qualified immunity unless their alleged conduct
violated ‘clearly established statutory or constitutional rights of which a reasonable
person [in their positions] would have known.’” McCoy v. City of Monticello, 342
F.3d 842, 846 (8th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). When determining whether a grant of summary judgment based on qualified
immunity was proper, we “must first consider the threshold question of whether,
construed in the light most favorable to the party asserting the injury, the facts alleged

                                           -4-
show the officers’ conduct violated a constitutional right.” Crow v. Montgomery, 403
F.3d 598, 601 (8th Cir. 2005). “If no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries concerning
qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see also McCoy, 342
F.3d at 846.

       Andrews argues that Sheriff Fuoss violated her Fourth Amendment right to be
free from an unreasonable seizure when he stopped her from moving any closer to
James or Clayton. To establish a Fourth Amendment violation for her § 1983 claim,
Andrews must demonstrate both that Sheriff Fuoss seized her within the meaning of
the Fourth Amendment and that the seizure was unreasonable. Hawkins v. City of
Farmington, 189 F.3d 695, 702 (8th Cir. 1999). Even assuming the incident in
question constituted a seizure entitled to Fourth Amendment protections, we reject
Andrews’s argument because Sheriff Fuoss’s actions were reasonable under the
circumstances.

       “A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when
government actors have, ‘by means of physical force or show of authority, . . . in
some way restrained the liberty of a citizen.” Graham v. Connor, 490 U.S. 386, 395
n.10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)); see also United
States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005). The district court held that
Sheriff Fuoss’s use of physical contact to prevent Andrews from coming within ten
feet of James restrained her freedom to move where she pleased, and, for that reason,
constituted a seizure for purposes of the Fourth Amendment. We assume without
deciding that the district court correctly determined that the push constituted a seizure
and consider whether the alleged seizure was reasonable.2

      2
       Andrews supports her conclusion that Sheriff Fuoss unreasonably seized her
by pointing out that Sheriff Fuoss acted without a warrant. The general rule with
regard to the Warrant Clause of the Fourth Amendment is that the police must obtain
a warrant for a search or seizure “whenever practicable.” Terry, 392 U.S. at 20.
                                           -5-
       To justify a limited and momentary detention of a person without violating the
Fourth Amendment’s proscription against an unreasonable seizure, “the police officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392
U.S. at 21 (footnote omitted). Whether such a seizure is reasonable “must be
determined on the totality of the circumstances and is to be judged from the
perspective of a reasonable officer on the scene without regard to the underlying
intent or motivation.” Hawkins, 189 F.3d at 702.

       On the day of James’s sentencing, Sheriff Fuoss was Judge Gors’s de facto
bailiff, in charge of courtroom security and responsible for addressing any threats that
may occur while James was in the courtroom. The parties in this case acknowledge
that James had a long record of violent criminal behavior and was being sentenced
for serious crimes, including aggravated assault. This history made his very presence
in the courtroom a safety concern. In the interest of maintaining a safe and secure
courtroom, it was reasonable for Sheriff Fuoss to place restrictions on the contact that
anyone, Andrews included, could have with James for at least two reasons: first,
James could have acted violently toward anyone near him, and, second, limiting
physical contact with James greatly limited an outsider’s ability to slip James a
dangerous weapon to use in an attempted escape.

       Recognizing that the important need for courtroom safety warranted some
limits on the contact that Andrews could have with James, our analysis is not whether
the ten-foot rule itself was constitutional, but whether Sheriff Fuoss’s action in
enforcing that rule was constitutional. While Andrews may not have known she
needed to stay more than ten feet away from her son, she did know that she was not


Andrews’s insistence that Sheriff Fuoss’s actions were constitutionally deficient
because he did not have a warrant is futile because it is untenable to argue that it
would have been in any way practicable for Sheriff Fuoss to have obtained a warrant
before enforcing his ten-foot rule.
                                          -6-
to have physical contact with him. Sheriff Fuoss’s action, whether it was merely
extending his arm or an actual, forceful push, was not an unreasonable response to
the need to keep Andrews from coming into physical contact with her son. Although
the parties contest precisely how, they agree that Sheriff Fuoss very briefly stopped
Andrews to inform her that she must keep a certain distance from her son. Because
stopping Andrews was a reasonable means of furthering courtroom safety, we hold
that even if Sheriff Fuoss seized Andrews by briefly stopping her, that seizure was
not unreasonable. Therefore, Andrews fails to establish that Sheriff Fuoss violated
her Fourth Amendment right to be free of an unreasonable seizure.

      Andrews also argues that the manner in which Sheriff Fuoss stopped her was
an unconstitutional use of excessive force. Specifically, Andrews argues that no
physical force was necessary under these circumstances. Again, we reject Andrews’s
argument because Sheriff Fuoss’s actions were reasonable under the circumstances.

       The right to be free from excessive force is included under the Fourth
Amendment’s prohibition against unreasonable seizures of the person. Guite v.
Wright, 147 F.3d 747, 750 (8th Cir. 1998) (citing Graham, 490 U.S. at 394). A
violation of that right will support a § 1983 action, but not every push or shove by an
officer violates the Fourth Amendment. Crumley v. City of St. Paul, 324 F.3d 1003,
1007 (8th Cir. 2003). Rather, an officer’s use of force is not excessive under the
Fourth Amendment if it was “objectively reasonable under the particular
circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).
“‘The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments – in circumstances that are
tense, uncertain, and rapidly evolving – about the amount of force that is necessary
in a particular situation.’” Crumley, 324 F.3d at 1007 (quoting Graham, 490 U.S. at
396-97).




                                          -7-
       As we have decided that Sheriff Fuoss’s decision to stop Andrews was
reasonable under the circumstances, we must only decide whether the means he
employed, the “forceful blow,” was a reasonable amount of force. Although we have
remarked that “[i]t remains an open question in this circuit whether an excessive force
claim requires some minimum level of injury,” Hunter v. Namanny, 219 F.3d 825,
831 (8th Cir. 2000), we have also held that “a de minimis use of force or injury is
insufficient to support a finding of a constitutional violation.” Crumley, 324 F.3d at
1007; see also Greiner, 27 F.3d at 1355 (noting that the lack, or minor degree, of any
injury is also relevant in determining the reasonableness of the force used to effect an
arrest). In this case, Andrews alleges at most very minor injuries, likely nothing more
than the temporary and slight aggravation of pre-existing conditions. These are
precisely the type of de minimis injuries that preclude a claim for excessive force.
Crumley, 324 F.3d at 1007. As a result, Andrews’s argument that it was an excessive
use of force to make any physical contact is not only dubious given the rapidly
developing nature of the incident but also fails because she sustained no more than
de minimis injuries. Cf. Curd v. City Court, 141 F.3d 839, 841 (8th Cir. 1998)
(holding that “[e]ven if seizing [the plaintiff’s] arm and turning her body was
unnecessary to effect the arrest, we cannot conclude that this limited amount of force
was objectively unreasonable,” where there was no allegation or evidence of injury
or physical pain).

       In summary, even when the facts are viewed in the light most favorable to her
claims, Andrews fails to establish that Sheriff Fuoss violated a clearly established
constitutional right, and we hold that Sheriff Fuoss is entitled to qualified immunity.3


      3
       The district court rejected Sheriff Fuoss’s argument that he was entitled to
absolute quasi-judicial immunity. See, e.g., Martin v. Hendren, 127 F.3d 720, 721
(8th Cir. 1997) (“Like other officials, bailiffs enjoy absolute quasi-judicial immunity
for actions ‘specifically ordered by the trial judge and related to the judicial
function.’” (quoting Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994))). On
appeal, Sheriff Fuoss again argues that he is entitled to absolute immunity, but our
                                          -8-
III.   CONCLUSION

      For the reasons stated above, we affirm the district court’s grant of Sheriff
Fuoss’s motion for summary judgment on the basis of qualified immunity.
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holding that he is entitled to qualified immunity obviates the need to consider the
issue of absolute immunity.
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