                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3487
                                   ___________

David Kenyon,                           *
                                        *
             Plaintiff/Appellee,        *
                                        *
       v.                               *
                                        * Appeal from the United States
Clayton Edwards, individually,          * District Court for the Eastern
                                        * District of Arkansas.
             Defendant/Appellant,       *
                                        *
Lt. Jim Hale, individually; Jeremiah    *
Ervin, individually; Dan Jarry,         *
individually, originally sued as        *
"Van Jarry,"                            *
                                        *
             Defendants.                *
                                        *
                                   ___________

                             Submitted: April 11, 2006
                                Filed: September 7, 2006
                                 ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Clayton Edwards, a deputy sheriff for White County, Arkansas, brings this
interlocutory appeal of the district court's denial of his motion for summary judgment
based on qualified immunity. David Kenyon (Kenyon) sued Edwards and three White
County deputy sheriffs: Lieutenant Jim Hale, Sheriff Jeremiah Ervin, and Sheriff Dan
Jarry.

I.    BACKGROUND

        We recount the facts in the light most favorable to Kenyon, the party asserting
the injury in this qualified immunity case. Saucier v. Katz, 533 U.S. 194, 201 (2001).
On September 13, 2003, Edwards responded to a report of an altercation at a
demolition derby being held at the White County fairgrounds in Searcy, Arkansas.
Edwards arrived to see an irritated Stephen Kenyon being restrained by a member of
a large crowd that had gathered near the derby pits. Edwards noticed that Stephen
looked as though he had been in a fight. Edwards asked what was going on, and
Stephen replied, "He hit my mother." Edwards could tell Stephen was indicating that
his mother was Shirley Cox, and so Edwards went over to her. Edwards described
Cox's nose as being flat against her face, and that she was bleeding profusely from her
nostrils. He noted that he was among a crowd of between one-hundred and two-
hundred people, and described the environment as an "atmosphere of hostility" where
weapons of opportunity, such as crowbars and hammers, were readily available. At
first, Cox did not respond to Edwards' questions about what had happened because she
was in pain. Edwards told Cox that an ambulance was on the way. Eventually, Cox
told Edwards that it was David Kenyon who had hit her. Edwards learned that David
Kenyon was Cox's ex-husband, and realized he had a domestic battery situation on his
hands.

          Edwards addressed the crowd around him and asked if there were any
witnesses to the events. He also asked where David Kenyon was. No one answered
at first, but then someone called out, "There he is." The crowd parted, leaving Kenyon
in the middle. Edwards and the other officers on the scene approached Kenyon, and
Edwards put his hand on Kenyon's elbow and asked his name. When Kenyon



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answered, Edwards told him he was under arrest.1 Kenyon raised his arms in an
inquiring gesture and asked, "For what?" Edwards then grabbed Kenyon's wrist and
took his arm behind his back. Though precisely what happened next is in dispute, we
must, as we have said, credit Kenyon's version of the facts for purposes of the
qualified immunity analysis. Under that version, Edwards threw Kenyon onto the
hood of a nearby car and pulled Kenyon's arms up high behind his back in order to
handcuff him. Kenyon told Edwards that he was hurting his arms, but Edwards
persisted until Kenyon was handcuffed. Kenyon resisted because his arms were in
pain from the handcuffing, and the officers told Kenyon to stop resisting. Kenyon
claims he suffered a torn rotator cuff, requiring surgery, and continues to have pain.

       Kenyon's suit against the four police officers ended with a jury finding in favor
of the officers, save Edwards. The jury was unable to reach a verdict on the excessive
force claim against Edwards, and the court declared a mistrial. After the court
scheduled a new trial, Edwards moved for summary judgment based in part on
qualified immunity. The district court accepted Kenyon's version of the facts as true
for purposes of qualified immunity, and found that on those facts, Edwards' actions
violated Kenyon's constitutional rights. But the court said it was impossible at the
summary judgment stage to answer whether it would be clear to a reasonable officer
that Edwards' conduct was unlawful in the situation he faced–that is, whether the
constitutional right at issue was clearly established–because it found that a material
question of fact remained. The court did not explain at that point what fact remained
in dispute, but elsewhere in its opinion, the court stated a material question of fact
remained as to whether the force Edwards used was objectively reasonable under the
circumstances.




      1
        The record indicates that Kenyon admitted that Edwards had probable cause
to arrest Kenyon for both domestic battery and public intoxication.

                                          -3-
II.   DISCUSSION

      A district court's order denying summary judgment is generally not appealable.
Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006). However, this court has
limited authority to review the denial of summary judgment based on qualified
immunity to the extent the appellant seeks review of purely legal determinations. Id.
Edwards does not seek review of any factual determinations, but argues, in essence,
that Kenyon has failed to show that Edwards used excessive force in his arrest, and
that even if Edwards did, Kenyon's right to be free from such force under these
circumstances was not clearly established. We find that Edwards is entitled to
summary judgment based on qualified immunity.

      A.     The Qualified Immunity Analysis

       Saucier provides the marching orders for courts considering qualified immunity
claims. Under Saucier, courts presented with a motion for summary judgment on the
basis of qualified immunity undertake a two-step inquiry. The threshold question asks
"[t]aken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional right?" 533 U.S. at 201.
If, on the facts as alleged, no constitutional violation could be shown were the
allegations established, the inquiry ends, and the defendant is entitled to qualified
immunity. "On the other hand, if a violation could be made out on a favorable view
of the parties' submissions, the next, sequential step is to ask whether the right was
clearly established." Id. The second question must be asked in a "particularized"
sense: "'[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.'" Id. at 202 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, the essential question at
step two is "whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Id.



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      B.     No Constitutional Violation

       Edwards first argues that because Kenyon has failed to point to the violation of
an "objective law enforcement standard" during the arrest, Kenyon has failed to show
that reasonable officers would disagree on the proper course of action in the situation.
Thus, Edwards says, there is nothing for a jury to decide. This somewhat convoluted
argument challenges the district court's finding that the facts as alleged by Kenyon
show that Edwards used excessive force during the arrest, violating Kenyon's Fourth
Amendment right to be free from unreasonable seizure.

       Excessive force claims are analyzed under the Fourth Amendment's
reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989). In
determining whether the amount of force used is reasonable, courts must balance "the
nature and quality of the intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests at stake." Id. at 396 (internal
quotations and citation omitted). This analysis requires "careful attention to the facts
and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
"The 'reasonableness' of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Id. Finally, judges must allow for the fact that police officers often make split-second
decisions about the amount of force necessary in tense, uncertain, and rapidly
changing circumstances. Id. at 396-97.

       Taking the facts as alleged by and in the light most favorable to Kenyon,
Edwards threw Kenyon onto the hood of a car and pulled his arms up high behind his
back in an "unnatural" manner in an attempt to arrest and handcuff Kenyon for
domestic battery and public intoxication. Kenyon kept asking why he was being
arrested, as he continued to resist, albeit because of the pain from the handcuffing.

                                          -5-
The encounter took place amidst a large crowd of people in an atmosphere of hostility
where weapons of opportunity were available. Based on all of the factors in Graham,
Edwards did not use excessive force. Though the encounter apparently resulted in
injury to Kenyon's rotator cuff, we believe under the circumstances that Edwards' use
of force was reasonable in order to bring a potentially volatile situation under control.

      C.     Right Not Clearly Established

       Even if it could be said, on the facts as alleged, that Edwards' use of force was
unreasonable, and thus unlawful, it would not necessarily have been clear to a
reasonable officer that the amount of force used was problematic. That is, it could not
be said that the right to be free from the kind of force Edwards used in the situation
was clearly established. Because an outstanding issue of material fact remained as to
whether Edwards used excessive force, the district court did not analyze whether a
reasonable officer would know that the force used was unlawful. But in Saucier, the
Supreme Court rejected this approach. The Court reversed the Ninth Circuit, which
had upheld the district court's denial of summary judgment based on qualified
immunity because an issue of material fact remained on the excessive force claim.
The Ninth Circuit viewed the question of whether an officer was reasonable in
believing his actions were lawful in light of clearly established law, and the question
of reasonableness on the merits of the Fourth Amendment claim, as the same inquiry.
However, the Supreme Court made clear the importance of proceeding in order
through both steps–determining whether the facts alleged showed a constitutional
violation, and then whether a reasonable officer would believe his actions were
unlawful in light of clearly established law. This, the Court noted, allows for the
elaboration of and advancement toward an understanding of the law from case to case.
Saucier, 533 U.S. at 201. The Court said:

      [t]he approach the Court of Appeals adopted–to deny summary judgment
      any time a material issue of fact remains on the excessive force


                                          -6-
      claim–could undermine the goal of qualified immunity to avoid
      excessive disruption of government and permit the resolution of many
      insubstantial claims on summary judgment. If the law did not put the
      officer on notice that his conduct would be clearly unlawful, summary
      judgment based on qualified immunity is appropriate.

Id. at 202 (internal quotation and citations omitted).

         Thus, on the facts alleged by Kenyon, we do not believe the state of the law at
the time of this incident was such that it would be clear to a reasonable officer that
Edwards' conduct was unlawful in the situation he confronted at the derby. Kuha v.
City of Minnetonka, 365 F.3d 590, 601-02 (8th Cir. 2003). Though it is clearly
established that the Fourth Amendment bars the use of excessive force generally, we
must keep in mind that the right must be clearly established "in a more particularized
. . . sense" such that the "contours of the right" make it clear to officers what the law
is in a given circumstance. Saucier, 533 U.S. at 202 (internal quotations omitted).

       Kenyon points principally to Goff v. Bise, 173 F.3d 1068 (8th Cir. 1999),
Kopec v. Tate, 361 F.3d 772 (3d Cir.), cert. denied, 543 U.S. 956 (2004), and
Kostrzewa v. City of Troy, 247 F.3d 633 (6th Cir. 2001), to argue that the right to be
free from the force Edwards used in the situation he faced was clearly established.
But these cases do not present facts akin to those faced by Edwards in his
confrontation with Kenyon. In Goff, we affirmed the denial of qualified immunity
where a police officer and town mayor arrested the plaintiff, tightly cuffed him, threw
him to the ground, and choked him to unconsciousness in a situation where personal
animosity may have motivated the arrest and where the plaintiff did not pose a threat.
In Kopec, a police officer handcuffed the plaintiff so tightly that he began to faint and
writhed in pain on the ground for about ten minutes after the plaintiff refused to
provide the officer personal information, following the officer's demand that the
plaintiff and his girlfriend desist their frolicking trespass onto a frozen pond. The
court in Kopec held that the officer's failure to respond promptly to the plaintiff's

                                          -7-
painful pleas in what were "rather benign circumstances" where the officer did not
face a "dangerous situation" constituted excessive force. 361 F.3d at 777. In
Kostrzewa, the court denied qualified immunity where the plaintiff was stopped for
a routine traffic violation, tightly handcuffed, and then battered about the back of a
squad car by the intentionally reckless driving of the arresting officers. In Kukla v.
Hulm, 310 F.3d 1046 (8th Cir. 2002), the court upheld the denial of qualified
immunity where officers arrested plaintiff for refusing to sign a ticket for failure to
produce a trucker log book, and in the process forced him against his truck, twisted
his arm high behind his back injuring his collar bone, and broke his wrist with the
handcuffs. The court found that the minor infraction and lack of a safety threat
merited denial of immunity. In none of these cases did the officers face the charged
and potentially dangerous atmosphere that Edwards faced in arresting Kenyon, where
physical violence had already occurred and a large crowd with access to weapons of
opportunity stood nearby.

       Based on the state of the law and given the facts as alleged by Kenyon, we do
not find that a reasonable officer would have believed that the force Edwards used was
unlawful.

III.   CONCLUSION

       Because, given the facts as alleged by Kenyon, we believe no constitutional
violation occurred and, alternatively, that a reasonable officer would not believe the
force used here to be excessive, we find that Edwards is entitled to qualified
immunity. We therefore reverse and remand.

SMITH, Circuit Judge, dissenting.

      I respectfully dissent. When reviewing a grant or denial of qualified immunity,
we recite the facts and view the evidence in the light most favorable to plaintiff

                                         -8-
Kenyon, accepting his account of the facts as true where there are material
inconsistencies. E.g., Guite v. Wright, 147 F.3d 747, 749 (8th Cir. 1998). The majority
opinion, however, gives too little deference to Kenyon's version of the facts. The facts
alleged by Kenyon, if true, establish that Edwards violated a clearly established
constitutional right to be free from excessive force.

        Kenyon alleged that as he was being handcuffed—in what several witnesses
testified was an unnatural motion—he yelled that Edwards was badly hurting his arm.
Edwards replied, "If you don't shut your mouth, I'm gonna break the thing off."
Several witnesses at trial, including Kenyon, also testified that Kenyon did not resist
arrest and that he only told the deputies that they were hurting his arm. Virginia Noah,
Judith Rhodes, and Karen Cummins testified that Kenyon's head was banged
repeatedly against the car during the handcuffing. Assuming, as we must, that Kenyon
did not resist, Edwards's conduct potentially classifies as gratuitous and excessive
force.

       The majority adopts Edward's characterization of the crowd, viewing it as
hostile and with easy access to weapons, and also ignores the fact that four armed
policemen were present during the handcuffing. The threat posed by the crowd, if any,
to Edwards is a fact that should be resolved by the jury. The threat posed by Kenyon,
if any, was minor, according to his account and that of several witnesses at trial.
Although Kenyon was arrested on two misdemeanor charges, he was acquitted of one
and the other was dismissed.2

       Finally, the majority makes no mention of the testimony favorable to Kenyon's
claim that Edwards used an unorthodox method of handcuffing that was not officially
sanctioned. Officer Folk, who received training from the same employer as Edwards,

      2
       A jury acquitted Kenyon on the third-degree battery charge, and the public
intoxication charge was dismissed. The majority makes no mention of any of this.
Instead, the majority implies Kenyon's guilt on the charges.

                                          -9-
testified that when properly handcuffing an arrestee, one should bring the arm and
hand down by the arrestee's side and then around to the back. Edwards contends that
Officer Folk's testimony supports the notion that the technique of bringing a suspect's
raised arm behind his back represents a law enforcement technique that is taught in
training classes, pointing to Officer Folk's statement that "[w]ell, it depends on which
training class you take" after he was asked if the raised-arm technique was proper.
However, Edwards's argument takes Officer Folk's statements out of context. Folk
went on to state that he had been shown the raised-arm technique informally by an ex-
Marine in 1969. He further stated that "I never did hear nothing about using that style
but he [the ex-Marine] wasn't certified back then" and that his training updates have
continued to teach the method of bringing the arm behind the back after it has been
lowered. Viewing the evidence in the light most favorable to Kenyon, it appears that
Officer Folk considered the raised-arm technique unorthodox and not officially
sanctioned.

       These questions—whether Kenyon was resisting; whether Edwards made
comments indicating an intent to cause gratuitous injury; whether the four deputies
actually had control over the crowd; and whether the handcuffing technique was
unorthodox—constitute material, disputed issues of material fact that should not be
tried by this court on appeal.

       I also disagree with the majority on the qualified immunity analysis. "We
analyze excessive force claims occurring in the context of seizures under the Fourth
Amendment, using its reasonableness standard." Henderson v. Munn, 439 F.3d 497,
502 (8th Cir. 2006). "To establish a constitutional violation under the Fourth
Amendment's right to be free from excessive force, the test is whether the amount of
force used was objectively reasonable under the particular circumstances." Id.
(quoting Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir.2004) (quoting Greiner v.
City of Champlin, 27 F.3d 1346, 1354 (8th Cir.1994))) (internal quotations omitted).
"Circumstances such as the severity of the crime, whether the suspect posed a threat

                                         -10-
                                          10
to the safety of the officers or others, and whether the suspect was resisting arrest are
all relevant to the reasonableness of the officer's conduct." Id. (quoting Foster v.
Metro. Airports Comm'n, 914 F.2d 1076, 1081 (8th Cir.1990) (citing Graham v.
Connor, 490 U.S. 386, 396 (1989))). At this procedural juncture, we must decide
whether Kenyon "presented sufficient proof in support of his claim, if believed, to
allow a reasonable jury to find the degree of force used against him was not
'objectively reasonable.'" Id. On this record, Kenyon satisfies this standard.3


       3
        Kenyon presented sufficient proof to allow a jury to reasonably conclude that
the force used against him was objectively unreasonable: First, Officer Folk testified
that the proper manner of handcuffing someone was to bring the arm and hand down
by their side and then around to the back. Officer Folk also indicated that the raised-
arm technique is unorthodox. Second, Kenyon presented the testimony of several
witnesses to his arrest, all of whom testified that Kenyon was not resisting arrest other
than to the extent that he sought to avoid sustaining injury to his arm from Edwards's
technique. Third, Kenyon was being arrested for misdemeanors. Fourth, at the time
that Edwards allegedly used excessive force, Kenyon was immobilized. Deputies
Edwards and Hale held Kenyon by the arms with his face down on a car, and Edwards
proceeded to handcuff Kenyon. Edwards testified that he had control of Kenyon even
before Hale arrived. (App. 62). Again, several witnesses testified that Kenyon was not
resisting arrest. Fifth, Kenyon's alleged injury, a torn rotator cuff that required surgery,
tends to establish that excessive force may have been used by Edwards. Cf. Wertish
v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) ("[B]ecause some force was
reasonably required to arrest and handcuff [the plaintiff], his relatively minor scrapes
and bruises and the less-than-permanent aggravation of a prior shoulder condition
were de minimis injuries that support the conclusion that [the officer] did not use
excessive force.").

       Edwards's torquing of Kenyon's arm "may have been a 'gratuitous and
completely unnecessary act of violence,'" in violation of Kenyon's Fourth Amendment
rights. Henderson, 439 F.3d at 503 (quoting Fontana v. Haskin, 262 F.3d 871, 880
(9th Cir. 2001)) (brackets omitted). Accepting these facts as true, which we must at
this procedural posture, Kenyon presented sufficient proof in support of his claim to
allow a jury to conclude reasonably that the degree of force used was not objectively
reasonable under the Fourth Amendment.

                                           -11-
                                            11
       "The right to be free from excessive force is a clearly established right under
the Fourth Amendment's prohibition against unreasonable seizures of the person."
Guite, 147 F.3d at 750 (citing Graham, 490 U.S. 386); accord Henderson, 439 F.3d
at 503. The right "must be defined at the appropriate level of specificity before a court
can determine whether it was clearly established." Craighead v. Lee, 399 F.3d 954,
961 (8th Cir.), cert. denied, 126 S. Ct. 472 (2005) (citing Saucier v. Katz, 533 U.S.
194, 202 (2001); Brosseau v. Haugen, 543 U.S. 194, 199–200 (2004) (per curiam)).
"Although earlier cases involving 'fundamentally similar' facts can provide especially
strong support for a conclusion that the law is clearly established, they are not
necessary to such a finding." Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002))
(internal quotations omitted). Instead, the issue is whether prior cases would have put
a reasonable officer on notice that the degree of force used would violate the plaintiff's
right not to be subjected to excessive force. Craighead, 399 F.3d at 962–63.

       The relevant case law supports the conclusion that the right to be free from
excessive force in handcuffing was clearly established when Edwards arrested
Kenyon—in this circuit and in other circuits. Goff v. Bise, 173 F.3d 1068, 1073 (8th
Cir. 1999); accord Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004); Kostrzewa v. City
of Troy, 247 F.3d 633, 641 (6th Cir. 2001); see Henderson, 439 F.3d at 503; Guite,
147 F.3d at 750.

       Goff bolsters the denial of qualified immunity in the case at bar. In Goff, the
plaintiff was tightly cuffed and choked, receiving a less substantial injury than
Kenyon's torn rotator cuff. Moreover, although personal animosity was present in
Goff, Edwards's comments during his arrest of Kenyon could indicate an intent to
cause gratuitous injury. Whether an officer's desire to inflict unnecessary pain is
motivated by personal animosity, as in Goff, or by some other inappropriate intent is
immaterial. Furthermore, Edwards testified that he had control of Kenyon even before
the other three deputies arrived. Considering that four deputies were present and that
Kenyon was not resisting, it is unclear how Kenyon posed any more of a threat than

                                          -12-
                                           12
did the plaintiff in Goff—both men were subdued before the unnecessary force was
used against them. In sum, Goff supports Kenyon's contention that the right to be free
from excessive force in handcuffing was clearly established.

       Other circuits have held that the right to be free from excessive force in
handcuffing is clearly established. E.g., Kopec, 361 F.3d at 777–78 (holding that
officer used excessive force by placing excessively tight handcuffs on the plaintiff and
refusing to loosen them for ten minutes); Kostrzewa, 247 F.3d at 641 (holding that
allegation of excessively tight handcuffing establishes constitutional violation). In
Kostrzewa, the Sixth Circuit stated, "This circuit has held that the right to be free from
excessive force, including 'excessively forceful handcuffing,' is a clearly established
right for purposes of the qualified immunity analysis." 247 F.3d at 641 (citations
omitted). Given this language, Kostrzewa turned upon the tight handcuffing of the
plaintiff independently and without regard to the officers' intentionally reckless
driving, as the majority indicates.

      For the foregoing reasons, I respectfully dissent.
                      ______________________________




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