                   United States Court of Appeals
                                For the Eighth Circuit
                           ___________________________

                                   No. 18-1823
                           ___________________________

                                    Kayla Robinson

                                           Plaintiff - Appellee

                                            v.

     Angela Hawkins, individually and in her official capacity; Kelli Swinton,
                   individually and in her official capacity

                                        Defendants - Appellants

 St. Louis Board of Police Commissioners; Richard Gray, In his official capacities
        as a member of the St. Louis Board of Police Commissioners; Bettye
   Battle-Turner, In her official capacities as a member of the St. Louis Board of
 Police Commissioners; Thomas J. Irwin, In his official capacities as a member of
    the St. Louis Board of Police Commissioners; Erwin Switzer, In his official
capacities as a member of the St. Louis Board of Police Commissioners; Francis G.
Slay, In his official capacities as a member of the St. Louis Board of Police Commissioners

                                      Defendants
                                     ____________

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

                             Submitted: January 16, 2019
                              Filed: September 5, 2019
                                   ____________

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

       Kayla Robinson sued Officers Angela Hawkins and Kelli Swinton for civil
conspiracy and Officer Hawkins for excessive force and performing an unreasonable
search.1 The officers moved for summary judgment, and the district court denied their
motion. The officers now appeal that denial. Because Robinson has not stated facts
sufficient to support a finding of civil conspiracy or excessive force, we reverse the
district court in part. We affirm that portion of the district court’s opinion denying
Officer Hawkins summary judgment on the unreasonable search claim.

I.    Background

       We view the facts in a light most favorable to Kayla Robinson, the non-moving
party to the summary judgment. On October 19, 2012, St. Louis Metropolitan Police
Department (SLMPD) Officers Angela Hawkins and Joseph Speiss were among a
group of officers conducting a police checkpoint. At approximately 10:30 p.m.,
Robinson’s boyfriend—who was driving Robinson’s car while she sat in the front
passenger seat—made an illegal U-turn, apparently to avoid the checkpoint. Officers
from the checkpoint then conducted a traffic stop on Robinson’s car.

      As Officer Hawkins approached the stopped car she saw Robinson’s boyfriend
hand something to Robinson, and Robinson “taking her hands out of the front of her
waistband.” Robinson v. City of St. Louis, Mo., No. 4:17-CV-156-PLC, 2018 WL
1695534, at *3 (E.D. Mo. Apr. 6, 2018). Officer Hawkins suspected that Robinson
and her boyfriend had exchanged drugs or a weapon. Once she reached the car,
Officer Hawkins asked Robinson to show her hands and step outside. Robinson
complied. Officer Hawkins then handcuffed Robinson and performed a pat-down
search which failed to reveal the presence of any contraband. Officer Hawkins then
asked Robinson what she had placed in her waistband, and Robinson admitted to

      1
          Robinson also sued other parties not subject to this appeal.

                                            -2-
having attempted to hide some marijuana. Officer Hawkins told Robinson to retrieve
the marijuana, but Robinson asked to be brought to the police station to retrieve the
marijuana there. Officer Hawkins refused, citing officer safety concerns.

        Officer Hawkins moved Robinson to a nearby parking lot behind a tractor-
trailer, intending to complete the search for the drugs that Robinson had admitted were
in her possession. While being moved, Robinson continued to object to the search in
the parking lot and asked to be taken to the station. According to Robinson Officer
Hawkins said, “Bitch, no, we’re doing this right now” and yelled at her repeatedly in
response to her desire to be taken to the station, calling her a “f*cking dope fiend.”
Hawkins requested rubber gloves over the radio. Sgt. Mark McMurry, another SLMPD
officer, drove up “alongside the trailer” and delivered a pair of gloves. Once in
location Robinson retrieved the marijuana. Officer Hawkins remained convinced that
Robinson was likely hiding other contraband. While there is some dispute as to what
was said and done, Robinson asserts Officer Hawkins grabbed her by the arms and
pushed her face-first into the trailer yelling, “Bitch, this isn’t all that you have. You’re
not freaking out over a bag of marijuana.”

        Officer Hawkins turned Robinson around and pushed her back against the
trailer. Pictures of Robinson’s clothes from that evening show some staining,
reportedly caused by the encounter. Robinson claims Officer Hawkins then
unfastened her pants, pulled down her underwear, and “touched . . . Robinson’s
vagina, anus, and inside her vagina lips.” Robinson claims that shortly thereafter,
Officer Hawkins planted a baggie containing drugs on the ground in front of
Robinson.2


      2
       Though the district court’s order and the briefing both mention the alleged
drugs in passing (as “dope”), neither comments on their significance. It is unclear
whether any drugs were in fact recovered. Taking the facts in the light most
favorable to Robinson, Robinson had no drugs, and Officer Hawkins knew she had
no drugs.

                                            -3-
       Robinson also claims she “could still see the man [i.e., the male officer] that was
watching” during the search. Security footage confirmed the presence of a male
officer in the lot during at least a portion of the search. Officer Hawkins did not
dispute Robinson’s assertion “that there were at least two male officers in the parking
lot while [Officer Hawkins] searched [Robinson].” Robinson described the experience
as feeling “like [she] was being raped in public.”

      Officer Hawkins walked Robinson back to the patrol car and shortly thereafter
Officer Swinton arrived at the scene of the stop. Officer Swinton observed that
Robinson was “hysterical.” According to Officer Swinton it appeared that Robinson
was “having a panic attack.”

      Robinson was transported to the police station, where she attempted to write a
statement describing Officer Hawkins’s behavior. While Robinson was writing her
statement, Officer Swinton allegedly attempted to pressure her into claiming the
“dope” belonged to her boyfriend. Robinson asked for a lawyer and Officer Swinton
cursed at her in reply. Robinson claims Officer Swinton then read her statement,
laughed, balled it up, and did not include the statement in the final incident report. At
her deposition, Officer Swinton explained she did not include the statement in
Robinson’s incident report because it was unsigned. There is, however, no SLMPD
policy requiring statements to be signed. Officer Swinton also described Officer
Hawkins as a “mentor.”

      The day after her encounter with police, Robinson visited an emergency room
and was treated for shoulder pain, neck pain, and cuts and bruising on her wrists, all
of which she attributed to her encounter with the officers. Following treatment, she
was prescribed an anti-inflammatory drug, a pain-killer, and a muscle relaxant.

      Officer Swinton later drafted her own incident report for the evening, even
though she had not been at the scene during most of the relevant events. The officers
concede that Officer Swinton’s report is riddled with inaccuracies and omissions. For

                                           -4-
example, the report did not mention the presence of Officers Spiess and McMurry, the
pat-down search in the street, Robinson’s request to be searched at the station, Officer
Hawkins’s request for gloves, the strip-search in the parking lot, the unfastening and
lowering of Robinson’s pants, or Robinson’s distress.

       No charges were brought against Robinson. Robinson subsequently sued
Officers Hawkins and Swinton in both their individual and official capacities under
42 U.S.C. § 1983 for violating her constitutional rights. Robinson alleged Officers
Swinton and Hawkins conspired to produce a false police report. She also alleged
Officer Hawkins used excessive force and performed an unreasonable search, in
violation of the Fourth Amendment. Officers Hawkins and Swinton moved for
summary judgment on the basis of qualified immunity.

       The district court construed Robinson’s complaint as alleging that Officers
Swinton and Hawkins had conspired to deny her access to the courts. The district
court then granted summary judgment to the officers on the official capacity claims
but denied summary judgment on the individual capacity claims. The court
determined a reasonable jury could conclude that Officer Hawkins had used excessive
force and performed an unreasonable search and that Officers Hawkins and Swinton
had conspired to deny Robinson access to the courts.

      On appeal, Officers Hawkins and Swinton argue Robinson’s complaint does not
allege that they conspired to violate her constitutional rights, and they deny the
existence of a constitutional right to an accurate police report. Officer Hawkins also
denies having used excessive force or performed an unreasonable search.




                                          -5-
II.    Discussion

       A.     Conspiracy

       Count VI of Robinson’s complaint alleges that the officers “unlawfully
conspired with each other to violate [her] constitutional rights” and that she “was
deprived of her rights guaranteed in the United States Constitution.” The district court
construed the conspiracy count as a conspiracy by the officers to deprive Robinson of
her right access to the courts. While we have recognized that this type of construction
may be appropriate, see S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep’t Bd.
of Police Comm’rs, 725 F.3d 843, 848–49 (8th Cir. 2013) (cleaned up) (construing
plaintiff’s claim that defendants “had violated her Fourteenth Amendment rights to
due process, property, equal protection under the law, and equal justice by conspiring
together . . . to undertake a course of conduct that violated [plaintiff’s] civil rights” as
alleging deprivation of access to the courts), we believe that such a construction is
unavailing to save Robinson’s conspiracy claim in this case.

        In order to prove a conspiracy under § 1983, the plaintiff must show for a
particular defendant: (1) a conspiracy between the defendant and at least one other
person; (2) an overt act in furtherance of the conspiracy; (3) a resulting injury to the
plaintiff; and (4) the deprivation of a constitutional right or privilege. Askew v.
Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (internal citations omitted). Even though
the question of a conspiracy to deprive a person of their constitutional rights is usually
a jury question, a court may resolve a conspiracy claim on summary judgment where
it is “convinced that the evidence presented is insufficient to support any reasonable
inference of a conspiracy.” White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008)
(internal quotations omitted).

       This is such a case. Robinson has scant evidence from which a reasonable jury
could infer that Officers Hawkins and Swinton conspired to deprive Robinson of her
constitutional rights. The evidence Robinson points to included: Officer Swinton

                                            -6-
called Officer Hawkins “a mentor”; that Swinton’s report included multiple material
inaccuracies; that it was unusual for a person who had not witnessed either the stop
or the search to prepare a report; and that Swinton was rude and disrespectful while
Robinson drafted her statement. Taking Robinson’s claims about Officer Swinton’s
treatment as true, we agree that Officer Swinton acted unprofessionally in yelling and
cursing at Robinson while she drafted her statement. The multiple inaccuracies in
Officer Swinton’s report are concerning. These shortcomings reflect poorly on Officer
Swinton’s credibility. Nonetheless, they do not establish the existence of an
agreement between Officers Hawkins and Swinton. That Officers Hawkins and
Swinton enjoyed a close professional relationship is insufficient, standing alone, to
support a reasonable inference of a conspiracy.

    We find the district court erred in denying Officers Hawkins and Swinton
summary judgment on the conspiracy claim.

      B.     Fourth Amendment Claims

      “We review de novo a district court’s denial of summary judgment on the basis
of qualified immunity.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.
2009).

      Ordinarily, we lack jurisdiction to hear an immediate appeal from a
      district court’s order denying summary judgment, because such an order
      is not a final decision. We do, however, have limited authority to review
      the denial of qualified immunity through an interlocutory appeal under
      the collateral order doctrine. Jurisdiction over an interlocutory appeal
      from the denial of qualified immunity extends only to abstract issues of
      law, not to determinations that the evidence is sufficient to permit a
      particular finding of fact after trial.

Shannon v. Koehler, 616 F.3d 855, 860–61 (8th Cir. 2010) (cleaned up). “Qualified
immunity shields a government official from liability and the burdens of litigation in

                                         -7-
a § 1983 action for damages unless the official’s conduct violated a clearly established
constitutional or statutory right of which a reasonable official would have known.”
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant asserts qualified immunity
at the summary judgment stage, the plaintiff must produce evidence sufficient to create
a genuine issue of fact regarding whether the defendant violated clearly established
law.” Id. (citing Johnson v. Fankell, 520 U.S. 911, 915 (1997)).

         “The obvious function of the qualified immunity rule is to excuse an officer who
makes a reasonable mistake in the exercise of his official duties.” Edwards v. Baer,
863 F.2d 606, 607 (8th Cir. 1988). Therefore, the “clearly established” analysis
“focus[es] . . . on whether the officer had fair notice that her conduct was unlawful .
. . at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam). Though “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right . . . [t]his
is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful.” Koehler, 616 F.3d at 864
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

                    1.     Excessive Force

       “The right to be free from excessive force in the context of an arrest is clearly
established under the Fourth Amendment.” McCrystal, 708 F.3d at 1005. However,
“[n]ot every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S.
386, 396 (1989)) (citation omitted). “Police officers undoubtedly have a right to use
some degree of physical force, or threat thereof, to effect a lawful seizure, and
reasonable applications of force may well cause pain or minor injuries with some
frequency.” Chambers, 641 F.3d at 907 (citation omitted). “A de minimis use of force
is insufficient to support a claim, and it may well be that most plaintiffs showing only
de minimis injury can show only a corresponding de minimis use of force.” Id. at 906.

                                           -8-
        We conclude that Officer Hawkins is entitled to qualified immunity because it
is not clearly established that the amount of force Hawkins used against Robinson is
excessive. While we have previously stated that “the use of force against a suspect
who was not threatening and not resisting may be unlawful,” Shannon v. Koehler, 616
F.3d 855, 864 (8th Cir. 2010), that general proposition does not answer whether a
particular use of force is de minimis (and therefore insufficient to support a claim).
In Crumley v. City of St. Paul, we held that a police officer did not violate a suspect’s
clearly established rights when he “struck or pushed [the suspect] approximately five
times and then spun her around and handcuffed her,” and where the suspect suffered
bleeding wrists as a result of being handcuffed. 324 F.3d 1003, 1006–08 (8th Cir.
2003) (“[W]e conclude no reasonable jury could have found the police officer used
excessive force by pushing or shoving Crumley to effect the arrest.).3 The amount of
force used in Crumley was comparable to that alleged here, where Robinson was
shoved up against a trailer and handcuffed. The injuries Robinson sustained as a result
of the force were fairly minor, including some pain and bleeding from the wrists as a
result of being handcuffed and pain in her shoulders from being pushed against the
trailer. While a de minimis injury does not preclude a claim of excessive force, the
nature of any injuries suffered may still inform our understanding of the force used.
Chambers, 641 F.3d at 906; see also id. at 907 (citation omitted) (“Handcuffing
inevitably involves some use of force, and it almost inevitably will result in some
irritation, minor injury, or discomfort where the handcuffs are applied.”). Given the


      3
        Crumley was decided at a time when we had not yet determined whether
alleging more than de minimis injury was required to support an excessive force
claim. Our reasoning in Crumley shifted between holding that the absence of an
injury “suggest[ed]” that “the force used here was reasonable,” and that the injuries
themselves were “too minor to support an excessive force claim.” Id. at 1008
(emphasis added). While we eventually held in Chambers that it was possible for the
use of excessive force to result in only a de minimis injury, we explained that the
“degree of injury” was still “certainly relevant insofar as it tends to show the amount
and type of force used.” 641 F.3d at 906. Accordingly, much of the reasoning in
Crumley is not clearly overridden by our decision in Chambers.

                                          -9-
general rule that “[n]ot every push or shove . . . violates the Fourth Amendment” and
in the absence of a case clearly holding that shoving a suspect against a vehicle and
tightening their handcuffs in circumstances like this amounts to more than de minimis
force, we conclude that Officer Hawkins’s use of force did not violate a “clearly
established” right.

             2.     Unreasonable Search

                    a. Violation of a Constitutional Right

       The Fourth Amendment protects against unreasonable searches and seizures.
Strip searches raise special considerations, as “the need for the particular search [must
be balanced] against the invasion of personal rights that the search entails.” Franklin
v. Lockhart, 769 F.2d 509, 510–11 (8th Cir. 1985) (alteration in original) (quoting Bell
v. Wolfish, 441 U.S. 520, 559 (1979)). Such a search must be “reasonable in its scope,
manner, and location.” United States v. Williams, 477 F.3d 974, 975 (8th Cir. 2007).
In regards to scope and manner, “evidence [of] . . . touch[ing,] . . . prodd[ing,] . . . or
[the use of] physical force . . . . are important considerations in weighing the level of
insult to personal privacy visited upon the victim of a search.” United States v.
Oyekan, 786 F.2d 832, 838 (8th Cir. 1986) (internal quotation omitted). Accordingly,
searches involving “penetration or public exposure of genitals” are considered more
intrusive than those not involving such means. Williams, 477 F.3d at 976.

       In Williams, officers transported a suspect to a police station parking lot after
a pat-down search revealed the presence of potential contraband. Id. at 975. An
officer then searched the suspect in the lot—opening his pants, reaching inside his
underwear with a gloved hand, and retrieving a large amount of drugs from near his
genitals. Id. The lot was enclosed by a brick building and a chain-link fence topped
with barbed wire. Id. We held that the officers had not acted unreasonably in
searching the suspect outdoors, declining “to adopt a bright-line rule that when a
detainee has been secured, and travel to a station-house is possible, an on-street

                                           -10-
intimate inspection is an unconstitutional, unreasonable search.” Id. at 977 (cleaned
up). We found that the lot, though outdoors, was “partially secluded” and that the
suspect’s genitals “remained obscured from the view of passers-by.” Id. We also
distinguished the search as less intrusive than those “involv[ing] . . . penetration or
public exposure of genitals.” Id. at 976.

       The district court found that “a reasonable jury could find that the strip search
was justified” by Robinson’s admission that she was carrying marijuana. However,
the district court also found that

      [t]here are genuine issues of fact . . . regarding whether and at what
      distance a male officer watched the search; whether Defendant Hawkins
      used abusive language and excessive force during the search; and
      whether Plaintiff’s pants and/or underpants were lowered further than
      necessary for Plaintiff to retrieve the marijuana hidden inside.

Upon review, we agree with the district court that issues of material fact remain as to
whether Officer Hawkins’s search was indeed reasonable.

       Taking the facts in the light most favorable to Robinson, a reasonable jury could
conclude that the search was unreasonable in both scope and manner. Robinson
alleges that Officer Hawkins pulled down her underwear while she was pushed against
an oily tractor-trailer in an open-air parking lot, touched the inside and outside of her
vagina and her anus as a male officer watched, and yelled insults and expletives at her
during the search. Furthermore, Officer Hawkins’s own testimony reasonably
supported the presence of contraband under Robinson’s garments (rather than inside
her genitals), and she had already retrieved the marijuana from Robinson’s underwear
when she proceeded to push Robinson against the trailer and expose and probe
Robinson’s genitals.




                                          -11-
       We cannot say that Officer Hawkins’s search was reasonable as a matter of law,
and we conclude that questions of material fact exist as to whether Officer Hawkins
violated Robinson’s constitutional rights.

                   b.     Clearly Established Right

        We have long prohibited officers from unduly invading personal rights during
a strip search. See Franklin, 769 F.2d at 510–11. Specifically, clearly established law
holds that strip searches are to be conducted by an officer of the same sex as the
suspect “in an area as removed from public view as possible without compromising
legitimate security concerns” and to “be performed in a hygienic fashion and not in a
degrading, humiliating or abusive fashion.” Richmond v. City of Brooklyn Ctr., 490
F.3d 1002, 1008 (8th Cir. 2007).

       In Richmond, male officers strip searched a male suspect in his motel room. Id.
at 1005. While the suspect was bent over, an officer noticed a tissue protruding from
the suspect’s anus and removed it with a gloved hand. Id. Though we did not
consider the reasonableness of the strip search itself, we held the search had not
violated clearly established law because the suspect had been searched in the privacy
of his hotel room by male officers and there was no “evidence of insulting,
intimidating or humiliating comments or jokes by the officers.” Id. at 1009.

      In contrast, Robinson claims a male officer was watching while Officer
Hawkins conducted the strip search, and Officer Hawkins acknowledges that “a male
should not be present for a female search.” Robinson claims the search was
“conducted in [an] unsanitary parking lot,” and Officer Hawkins has also




                                         -12-
acknowledged that the parking lot was not sanitary.4 Finally, Robinson claims Officer
Hawkins cursed and yelled at her.

       The other officer at the scene was not of the same sex as Robinson. An oily
tractor-trailer in an open-air parking lot is not hygienic. And Robinson’s claim that
Officer Hawkins called her a “bitch” and a “f*cking dope fiend,” is “evidence of
insulting, intimidating or humiliating comments or jokes.” See Richmond, 490 F.3d
at 1009.

       As of October 19, 2012, the law spoke directly and clearly to the issues raised
with respect to Officer Hawkins’s search. Therefore, we conclude that the law was
sufficiently clear to inform Officer Hawkins her search of Robinson was unlawful both
in scope and manner.

     The district court did not err in denying Officer Hawkins qualified immunity on
Robinson’s unreasonable search claim.




      4
        Though Officer Hawkins admitted in her deposition that the parking lot was
not sanitary, she argues on appeal that the “fact [that the area was unsanitary] has no
consequence if none of [Robinson’s] private areas were touching them.” Relatedly,
she also argues that because the Richmond suspect’s hotel room was likely dirtier
than the parking lot, she did not have fair notice of “hygienic’s” meaning. However,
the cleanliness of the search’s setting matters. See, e.g., Rodriques v. Furtado, 950
F.2d 805, 810, 811 (1st Cir. 1991) (emphasizing the cleanliness of the “atmosphere”
and “setting” of the area where an intimate search is conducted). A suspect’s own
hotel room and a public, open-air parking lot occupied by foreign objects—including
oily machinery—are readily distinguishable.

                                         -13-
III. Conclusion

       The judgment of the district court is reversed as to the conspiracy and excessive
force claims and affirmed as to the unreasonable search claim. We remand for further
proceedings consistent with this opinion.

SMITH, Chief Judge, concurring in part and dissenting in part.

       I concur in Part II.A of the panel opinion, and in Part II.B.2, which affirms the
district court’s denial of qualified immunity as to Robinson’s unreasonable search
claim. I write separately to express why I would also affirm the district court’s denial
of qualified immunity on Robinson’s excessive force claim based on Robinson’s
allegation that Officer Hawkins twice slammed her against the trailer while performing
the strip search.5

      In her complaint, Robinson alleges that Officer Hawkins performed an
unreasonable search (Count I), as she “had no legal cause to justify her strip search
and body cavity search of [Robinson].” Am. Compl. at ¶ 80, Robinson v. City of St.
Louis, No. 4:17-cv-00156 (E.D. Mo. Feb. 2, 2017), ECF No. 18. Additionally,
Robinson alleges that Officer Hawkins used excessive force (Count II) by “forc[ing]
[Robinson] to bend over . . . in public and in front of a male police officer, pull[ing]
[Robinson’s] pants down, and put[ting] her fingers inside [Robinson’s] vagina”;
“slamm[ing] [Robinson] into a parked tractor trailer while [Robinson] was in
handcuffs”; and “tighten[ing] [Robinson’s] handcuffs to an extent that [Robinson’s]
skin was cut.” Id. at ¶ 87. The district court rejected Robinson’s assertion that the
search was unjustified. The court concluded that “a reasonable jury could find that the


      5
       However, to the extent Robinson claims Officer Hawkins used force
independent of the search—i.e., in dragging her into the lot or handcuffing her—I
concur in the court’s analysis as outlined in Part II.B.1 of this opinion.


                                         -14-
strip search was justified” by Robinson’s admission that she was carrying marijuana.
Robinson, 2018 WL 1695534, at *7. The district court denied qualified immunity as
to Count I relying mainly on the facts Robinson alleged under Count II, explaining
that

      [t]here are genuine issues of fact . . . regarding whether and at what
      distance a male officer watched the search; whether Defendant Hawkins
      used abusive language and excessive force during the search; and
      whether Plaintiff’s pants and/or underpants were lowered further than
      necessary for Plaintiff to retrieve the marijuana hidden inside.

Id. (emphasis added).

       The search conducted in this case was unreasonable in part due to the force used
in conducting it. Strip searches can certainly be lawful. However, “[a] strip search
conducted in a professional manner is more reasonable than one that is not,” Harris
v. Miller, 818 F.3d 49, 59–60 (2d Cir. 2016) (per curiam), and such searches must be
reasonable in “scope, manner, and location.” Williams, 477 F.3d at 975. Specifically,
in regards to scope and manner, “evidence [of] . . . touch[ing,] . . . prodd[ing,] . . . or
[the use of] physical force . . . .[is an] important consideration[] in weighing the level
of insult to personal privacy visited upon the victim of a search.” Oyekan, 786 F.2d
at 838 (emphasis added) (internal quotation omitted). The Eleventh Circuit has
included use of force in its review of the reasonableness of strip searches. See United
States v. Vega-Barvo, 729 F.2d 1341, 1346 (11th Cir. 1984) (“[W]e have isolated three
factors which contribute to the personal indignity endured by the person searched: (1)
physical contact between the searcher and the person searched; (2) exposure of
intimate body parts; and (3) use of force.” (emphasis added)). And, “[u]nnecessary
force” may contribute to a search’s unreasonableness. See Evans v. Stephens, 407 F.3d
1272, 1281 (11th Cir. 2005) (en banc). I agree with the district court’s conclusion that
Officer Hawkins’s use of force during the search creates an issue of material fact as
to the search’s overall reasonableness.


                                           -15-
       I also agree with the district court’s conclusion that Officer Hawkins used
excessive force. The majority holds that “it is not clearly established that the amount
of force [Officer] Hawkins used against Robinson is excessive.” I dissent from that
portion of the panel opinion. Existing precedent put Officer Hawkins on notice that
her use of force in the context of a strip search was unlawful.

       “[F]orce is least justified against nonviolent misdemeanants who do not flee or
actively resist arrest and pose little or no threat to the security of the officers or the
public.” Brown, 574 F.3d at 499. And, “[l]ong before [October 19, 2012], this court
(among others) had announced that the use of force against a suspect who was not
threatening and not resisting may be unlawful.” Koehler, 616 F.3d at 864. Specifically,
“[i]t was [also] clearly established [by October 19, 2012] that when a person is
subdued and restrained with handcuffs, a gratuitous and completely unnecessary act
of violence is unreasonable and violates the Fourth Amendment.” Blazek v. City of
Iowa City, 761 F.3d 920, 925 (8th Cir. 2014) (internal quotation omitted) (finding
plaintiff had a clearly established right not to be “jerked” onto his bed where plaintiff
was “handcuffed and under control,” not resisting or posing a threat to the officers,
and not suspected of a serious crime).

       The court concludes that Crumley precludes finding that Officer Hawkins
violated Robinson’s clearly established rights. However, Blazek, rather than Crumley,
is the better precedent for the instant facts. In Blazek, the officer was on notice that
“jerk[ing]” the handcuffed and compliant plaintiff constituted “a gratuitous and
completely unnecessary act of violence,” in violation of the Fourth Amendment. 761
F.3d at 925 (internal quotation omitted). Blazek put Officer Hawkins on notice that
pushing a handcuffed and compliant Robinson against a trailer was unlawful.
Robinson’s relatively minor injuries do not distinguish this case from Blazek. See id.
at 926 (describing plaintiff’s injuries as “significant”). In Chambers, we explained that
while a plaintiff’s injuries may be relevant in determining whether the force used was
excessive, “there is no uniform requirement that a plaintiff show more than de minimis
injury to establish an application of excessive force.” 641 F.3d at 907. Though a

                                          -16-
suspect’s degree of injury may be relevant to assessing the degree of force used, the
force itself, and the reasonableness of that force in light of the circumstances, is the
critical inquiry. Id. It is the degree of force in light of the circumstances, not the degree
of injury, that determines lawfulness or unlawfulness of a particular use of force. See
id. Significantly, Crumley involved a plaintiff who resisted the arresting officer. 324
F.3d at 1008. Here, by contrast, it is undisputed that Robinson did not resist Officer
Hawkins at any point during their encounter and that she was already handcuffed
when Officer Hawkins twice shoved her against the trailer.

       On this record, I also would not characterize Officer Hawkins’s forceful pushing
of Robinson against the trailer as a de minimis use of force. We have characterized de
minimis uses of force as those incidental contacts between officers and suspects during
the course of a seizure or arrest, since “[t]he right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019 (8th
Cir. 2009) (quoting Graham, 490 U.S. at 396). The force inquiry cannot be completely
divorced from its “context,” i.e., “whether the force used to effect a particular seizure
is reasonable.” Waters v. Madson, 921 F.3d 725, 740 (8th Cir. 2019) (internal
quotations omitted).

       The de minimis force and reasonableness inquiries are not necessarily
antagonistic. See Chambers, 641 F.3d at 907 (“The dispositive question is whether the
officer’s conduct was objectively reasonable under the circumstances, as judged from
the perspective of a reasonable officer on the scene at the time the force was
applied.”); LaCross v. City of Duluth, 713 F.3d 1155, 1159 (8th Cir. 2013) (“[A]n
officer is not entitled to qualified immunity if his use of force is excessive in the
circumstances, even if the injury inflicted was minor.” (emphasis added)). That is
because “force unjustified by any legitimate need would be unlawful.” Hemphill v.
Hale, No. 4:09-cv-2123, 2011 WL 4014371, at *4 (E.D. Mo. Sept. 9, 2011), aff’d, 677




                                            -17-
F.3d 799 (8th Cir. 2012) (per curiam).6 Qualified immunity appropriately protects
officers from suit and liability for inadvertent harm caused by negligent acts as they
enforce the law. Those putting their lives on the line for the safety of the public
deserve no less. But it provides no litigation shield for unnecessary, intentional acts
violative of clearly established rights.

       Robinson’s allegation that Officer Hawkins used excessive force in slamming
her against the trailer to effect a search is distinct from her claim that Officer Hawkins
used excessive force in applying her handcuffs or otherwise effecting her seizure.
Officer Hawkins’s tightening of Robinson’s handcuffs may be characterized as de
minimis. But, her alleged slamming of Robinson against the trailer should not be.
Robinson had already submitted when Officer Hawkins allegedly shoved her against
the trailer. The shoving did not further Officer Hawkins’s legitimate purpose of
arresting Robinson or effecting a lawful search.

      I would permit the excessive force claim to proceed as well as the unreasonable
search claim.

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

       Officer Hawkins unquestionably had probable cause to search appellee
Robinson’s person for contraband at the time of her arrest. Indeed, Robinson admitted
before the search that she had concealed drugs inside the front of her waistband before
the arrest. Yet without identifying any decision of the Supreme Court or this court

      6
       See also Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981) (deeming “any
force” unlawful where the person in custody has already “quietly submit[ted]”). That
a particular use of force may be deemed de minimis in some contexts does not
legitimize an otherwise illegitimate use of force. Cf. Hemphill, 677 F.3d at 801
(explaining that while “officers undoubtedly have a right to use some degree of
physical force . . . to effect a lawful seizure,” they “do not have the right to use any
degree of physical force” to coerce consent to a search (internal quotation omitted)).

                                          -18-
holding unreasonable the scope and manner of a search of a suspect’s person for
contraband, the court holds that Hawkins violated a clearly established right of
Robinson’s under the Fourth Amendment. Proper application of the doctrine of
qualified immunity calls for a contrary conclusion, so I would reverse the district
court’s order on Robinson’s unreasonable search claim.

       During the disputed search, Hawkins wore sanitary rubber gloves on her hands.
The search took place in a parking lot behind a tractor-trailer and out of public view.
The only third party who witnessed the search was a male police officer at an alleged
distance of twenty feet. R. Doc. 55-1, at 45. Robinson asserts that Hawkins called her
“Bitch” and a “f***ing dope fiend” before the search. Id. at 39. During the search for
contraband, Hawkins allegedly pulled down Robinson’s pants and touched her vagina,
inside her vaginal lips, and the area below her anus. R. Doc. 68-2, at 22. Robinson
also asserts that Hawkins used unreasonable force in conducting the search, but this
court properly concludes that allegedly shoving Robinson against the tractor-trailer
did not violate a clearly established right.

        The first significant problem with the court’s qualified-immunity analysis is that
it relies on dicta rather than holdings of the Supreme Court or this court. Clearly
established law must be derived from holdings, not from dicta. See Morrow v.
Meachum, 917 F.3d 870, 875-76 (5th Cir. 2019) (collecting authorities). To support
its ruling that Hawkins’s conduct violated a clearly established right, the court relies
almost entirely on a decision of this court holding that a search did not violate clearly
established rights. See Richmond v. City of Brooklyn Center, 490 F.3d 1002, 1008
(8th Cir. 2007). The court cites dicta from Richmond as the source of “clearly
established law.” Yet Richmond could not place the Fourth Amendment issue beyond
debate, because the decision did not even hold that the search in that case was
unconstitutional. Id. at 1007 & n.4.

       The second major difficulty is that the dicta from Richmond—even assuming
that they could clearly establish a constitutional right—do not address the particular

                                          -19-
circumstances of this case. In considering a defense of qualified immunity, the law
must not be examined at a high level of generality: “The dispositive question is
whether the violative nature of particular conduct is clearly established.” Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation omitted).
“[S]pecificity is especially important in the Fourth Amendment context, where the
Court has recognized that it is sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation the officer confronts.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (first alteration in
original) (internal quotation omitted).

      The discussion from Richmond does not address facts comparable to those
presented here. The decision could not place the constitutionality of Hawkins’s search
“beyond debate,” such that only a “plainly incompetent” officer or a knowing
lawbreaker could have conducted the search. See id. (internal quotation omitted). The
court’s other principal authority, United States v. Williams, 477 F.3d 974 (8th Cir.
2007), highlights the fact-intensive nature of the reasonableness inquiry in this
context. Williams expressly declined “to adopt a bright-line rule that when a detainee
ha[s] been secured, and travel to a station-house [is] possible, an on-street intimate
inspection [is] an unconstitutional, unreasonable search.” Id. at 977 (alterations in
original) (internal quotation omitted).

       The court first cites a statement from Richmond that “strip searches should be
conducted in an area as removed from public view as possible without compromising
legitimate security concerns.” 490 F.3d at 1008. The principal authority cited in
Richmond, however, was a decision holding that a visual body cavity search of
inmates conducted within view of four to five other inmates was reasonable. See
Franklin v. Lockhart, 883 F.2d 654, 655-57 (8th Cir. 1989). The only cited authority
that found a constitutional violation was far afield from the facts of this case: the
Tenth Circuit held unreasonable a strip search of an arrestee conducted in a police
station’s public lobby area where “ten to twelve people were milling about.” Hill v.
Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984). Here, the district court correctly

                                          -20-
deemed it undisputed that Hawkins conducted the search in an area “that shielded
[Robinson] from public view.” R. Doc. 84, at 14.

       The only witness to Hawkins’s search of Robinson was a male police officer.
Under Robinson’s version of the facts, he was present at a distance of twenty feet.
The relevant precedents gave no fair warning that this court would hold the manner
of searching unconstitutional based on the male officer’s observations. In Timm v.
Gunter, 917 F.2d 1093 (8th Cir. 1990), this court held that it was reasonable for
female guards to conduct intermittent visual surveillance of male inmates for security
purposes while they used showers and bathrooms or slept without clothing. Id. at
1102. We held in Story v. Foote, 782 F.3d 968 (8th Cir. 2015), that officials did not
violate a clearly established right under the Fourth Amendment by conducting a body-
cavity inspection of a male subject while a female officer could view the search
through a video feed on a security camera. Id. at 971-72. The law thus did not place
Hawkins on clear notice that it was unreasonable for a male officer to observe her
search of Robinson from a distance in case Hawkins needed assistance. Accord
Burton v. Spokane Police Dep’t, 383 F. App’x 671, 673 (9th Cir. 2010).

       The court next cites dictum from Richmond that a “strip search” should be
conducted in a “hygienic fashion.” 490 F.3d at 1008. Based on this phrase, the court
concludes that Hawkins violated a clearly established right by conducting the search
of Robinson in an “unsanitary parking lot” after pushing her against an “oily tractor-
trailer” and then pulling her off. See R. Doc. 55-1, at 48. In explaining its reference
to hygiene, however, Richmond cited only a decision holding that officers acted
unreasonably when they wore a single pair of gloves to conduct body-cavity searches
of multiple inmates. Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986). Hawkins
did nothing of the sort; she requested a fresh set of sanitary gloves to search
Robinson’s private areas. There is no evidence that anything unsanitary from the
parking lot entered Robinson’s body. Richmond’s dictum declaring it unreasonable
to employ a soiled glove to search a suspect’s body cavities did not give fair warning


                                         -21-
that a search conducted with a sanitary glove would be declared unreasonable based
on the condition of the surrounding area.

       The court also invokes Richmond’s dictum that a “strip search” should not be
conducted in a “degrading, humiliating or abusive fashion.” 490 F.3d at 1008. To
explain this statement, however, Richmond cited a decision holding it unreasonable
to subject a prisoner to sexual comments about his anatomy and rub his buttocks with
a night stick during strip searches. See Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th
Cir. 1995). Richmond also adverted to the Supreme Court’s statement in Bell v.
Wolfish, 441 U.S. 520 (1979), that “on occasion a security guard may conduct the
[body-cavity] search in an abusive fashion,” and that “[s]uch an abuse cannot be
condoned.” Id. at 560. The Wolfish Court was referring to a district court’s finding
that “[t]here have been insultingly suggestive remarks and banal but terrifying
expressions of aggressions like those of guards threatening in the time of nakedness
to ‘put [a] foot up [the] ass’ or merely to ‘kick the ass’ of the humbled prisoner.”
United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977).

      By contrast, Hawkins’s alleged name-calling and use of profanity was not
sexually suggestive or particular to the intimate search. Hawkins did not misuse a
baton or threaten physical abuse of Robinson’s private areas. Hawkins did not have
fair warning that she was forbidden to proceed with a search after allegedly uttering
the quoted expletives. While the cited language may offend the sensibilities of a
reviewing judge in chambers, the court cites no authority holding that use of foul
language during the rough-and-tumble of street interaction between officer and
suspect renders a subsequent search unreasonable.

       Other points raised by the court do not bolster its conclusion. That Robinson
had relinquished some marijuana from her underwear did not make it unreasonable for
Hawkins to search for more. If anything, confirmation that Robinson hid some drugs
under her garments bolstered probable cause to believe that she secreted other
contraband inside her clothing or body. That Robinson preferred to be searched at a

                                        -22-
police station is immaterial. There is no clearly established law that a suspect is
entitled to choose the venue for a search supported by probable cause. The
inflammatory statement that Robinson felt like she was “being raped in public” adds
nothing to the analysis. As a factual matter, it is undisputed that she was shielded
from public view. As a legal matter, the Fourth Amendment reasonableness standard
is objective and does not turn the subjective feelings of the person searched.

       Rulings declaring the violation of a “clearly established right” require careful
attention, because “qualified immunity is important to ‘society as a whole,’ and
because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is
erroneously permitted to go to trial.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per
curiam) (internal quotation marks and citation omitted). For the reasons discussed, the
district court’s decision denying qualified immunity to Hawkins on Robinson’s
unreasonable search claim should be reversed. Any disputed facts are not material to
the legal conclusion. I concur in Parts II.A and II.B.1 of the opinion of the court and
would reverse the district court’s order on all three points raised.
                        ______________________________




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