                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1946
                         ___________________________

                                 Landon L. Michael

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

  Joshua Trevena; Ryan Chaffee, in their individual capacities as officers of the
                       Watford City Police Department

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                            Submitted: March 13, 2018
                              Filed: August, 7, 2018
                                  ____________

Before GRUENDER, BEAM, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       Landon Michael filed suit against Watford City, North Dakota, police officers
Joshua Trevena and Ryan Chaffee, alleging unlawful arrest and excessive force after
the officers were called to help resolve a family dispute. The district court granted
the officers summary judgment based on qualified immunity. Michael appeals.
                                          I.

      Michael was in possession of a set of keys to a truck his mother had rented. He
refused to return them without speaking to his mother, but she refused to talk with
him. The police were called. Officer Trevena arrived first, and officer Chaffee soon
afterward. Both officers wore microphones that recorded much of what happened
next. Both officers also drove police vehicles equipped with dashboard cameras.
Trevena’s vehicle was positioned such that the camera was facing away from the front
yard where Michael was sitting. Chaffee’s vehicle was positioned with its dash cam
pointing at the yard, but its view was almost completely obscured by a large tree.

       Michael was sitting in a chair on the lawn of his cousin’s home, and his mother
and sister (who was in the driver’s seat) were sitting in a vehicle parked nearby.
Michael went to speak to his mother but, as he approached, Michael’s sister started
the vehicle and began to drive away. Michael returned to the lawn chair, out of view
of either officer’s dash cam. He claimed that his sister had run over his foot on
purpose. As recorded by the officers’ microphones, the exchange went as follows:

      TREVENA:            You intentionally put your foot under the vehicle.
      MICHAEL:            No, I . . . I did not intentionally do that.
      TREVENA:            Yeah, ya did.
      MICHAEL:            I did not in . . . you know I didn’t; you are accusing me of
                          nothin’ just to provoke me and I did not do no such thing.
      TREVENA:            Yeah, ya did.
      MICHAEL:            I did no such thing. She just ran over my foot.
      TREVENA:            You were standing that far away . . . .
      MICHAEL:            She just ran over my foot, sir. She ran over my foot. You
                          can be a witness against me in court.
      TREVENA:            Okay, she ran over your foot?
      MICHAEL:            You can be a witness against me in court.
      TREVENA:            Okay, did she intentionally run over your foot?
      MICHAEL:            Yes.


                                         -2-
      TREVENA:            I am going to arrest you for providing a false statement to
                          a peace officer right now.

Both officers then moved in to arrest Michael.

      Trevena ordered Michael to stand up, but he remained seated. The officers say
Michael tensed up his body and gripped the chair, which Michael denies. Michael
says Trevena grabbed his right arm and throat, which Trevena denies. Everyone
agrees that Chaffee took out his police baton and placed it between Michael’s left arm
and chest. Chaffee then used the baton as a lever to get Michael out of the lawn chair,
and broke Michael’s arm. Michael was transported to the hospital. Trevena and
Chaffee filed charges against Michael for making a false report, citing the exchange
reproduced above. The North Dakota authorities declined to prosecute.

      Michael filed this 42 U.S.C. § 1983 case against Trevena and Chaffee for
excessive force and unlawful arrest.1 The district court granted both officers
summary judgment on the basis of qualified immunity, and Michael appeals.

                                          II.

     We review grants of summary judgment de novo.               Gilmore v. City of
Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016).




      1
        Michael also contests the district court’s denial of his Rule 59(e) motion to
alter or amend the judgment to include a ruling on a claim against Trevena for
unlawful investigatory detention. The district court concluded that Michael had
failed to adequately plead unlawful investigatory detention as a separate claim, and
had not timely moved to amend his complaint before moving for summary judgment.
Reviewing for an abuse of discretion, see Webb v. Exxon Mobil Corp., 856 F.3d
1150, 1160 (8th Cir. 2017), we affirm that ruling.

                                         -3-
       “[O]fficers are entitled to qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138
S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). In
this case, neither party disputes the clearly-established prong of the qualified
immunity analysis. Thus, the only question for us to resolve is whether, viewing the
record in the light most favorable to Michael, Trevena and Chaffee violated Michael’s
constitutional rights.

      The Supreme Court has explained:

      The first step in assessing the constitutionality of [the officers’] actions
      is to determine the relevant facts. As this case was decided on summary
      judgment, there have not yet been factual findings by a judge or jury,
      and [Michael’s] version of events (unsurprisingly) differs substantially
      from [the officers’] version. When things are in such a posture, courts
      are required to view the facts and draw reasonable inferences in the light
      most favorable to the party opposing the [summary judgment] motion.
      In qualified immunity cases, this usually means adopting . . . the
      plaintiff’s version of the facts.

Scott v. Harris, 550 U.S. 372, 378 (2007) (cleaned up). But that does not mean we
are bound to credit the plaintiff’s version of events, come what may. Id. at 379–80.
“At the summary judgment stage, facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Id. at 380.
Therefore, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Id.

       Applying those rules here, we conclude that neither party’s version of events
is “blatantly contradicted by the record” because the dash cam video of the incident

                                          -4-
reveals very little. Owing to the tree and the way the dash cam frames the front yard,
the following events are missing from the video: (1) Michael’s sister running over his
foot (intentionally or otherwise); (2) Michael sitting in the lawn chair once he returns
to the front lawn; (3) the officers approaching Michael; (4) Michael’s posture and
physical reaction to the officers; (5) the officers’ actions to remove Michael from the
lawn chair; and (6) the breaking of Michael’s arm. Although the officers’ audio
recordings make it fairly clear who said what during the events, the recordings are
insufficient to conclusively resolve whether Trevena and Chaffee violated Michael’s
constitutional rights. The officers’ argument that the dash cam footage is dispositive
of the case is wholly unsupported by the record. Accordingly, we conclude that this
is one of those “usual” qualified immunity cases in which viewing the facts in the
light most favorable to the nonmovant “means adopting . . . the plaintiff’s version of
the facts.” Id. at 378.

       We turn now to Michael’s two claims. On the excessive force claim, “[t]he test
is whether the amount of force used was objectively reasonable under the particular
circumstances.” Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting
Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). Objective
reasonableness is “judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,
396 (1989). The assessment “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. Applying
these factors, we have previously “denied police qualified immunity in an
excessive-force case where . . . (1) the arrestee’s ‘alleged misconduct was neither
violent nor serious,’ (2) ‘there was little evidence to indicate that the arrestee posed
a physical threat to anyone,’ and (3) ‘there was a factual dispute as to whether the
arrestee was “actively” resisting arrest.’” Atkinson v. City of Mountain View, 709
F.3d 1201, 1213 (8th Cir. 2013) (cleaned up) (quoting Gainor v. Rogers, 973 F.2d

                                          -5-
1379, 1388 (8th Cir. 1992)). We have also held “that force 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.

       Accepting Michael’s version of events as true, Trevena and Chaffee’s use of
force was objectively unreasonable. The officers allegedly suspected Michael of
making a false statement—a nonviolent misdemeanor. See N.D. Cent. Code
§ 12.1-11-03(1). Michael was neither fleeing nor actively resisting arrest and, sitting
in a lawn chair, he posed no threat to the security of the officers or the public.
Accordingly, none of the Graham factors cuts in favor of a forceful arrest being
reasonable. See Graham, 490 U.S. at 396; Atkinson, 709 F.3d at 1213. Under
Michael’s version of the facts, he was a nonviolent misdemeanant who neither fled
nor actively resisted arrest, and posed no threat to the officers or other members of
the public. See Brown, 574 F.3d at 499. Under these circumstances, it is objectively
unreasonable to make an arrest by grabbing the suspect by the throat (Trevena), or
using a baton with sufficient force to break the suspect’s arm (Chaffee). Accordingly,
neither officer is entitled to qualified immunity on Michael’s excessive force claim.

       On the unlawful arrest claim, the district court granted the officers summary
judgment based on its finding that “Michael’s report of his sister intentionally
running over his foot was clearly false.” Neither the dash cam video nor audio
recordings can sustain that conclusion. The recordings are at best inconclusive and,
in finding otherwise, the district court resolved fact disputes in the officers’ favor,
which is impermissible at summary judgment in any civil case, including a § 1983
suit involving the doctrine of qualified immunity. Tolan v. Cotton, 134 S. Ct. 1861,
1866–68 (2014).

     Like the district court, the dissent believes that the dash cam video clearly
shows Michael intentionally put his foot under the tire of his sister’s vehicle (a



                                         -6-
minivan). We have watched the same video and we disagree.2 The video shows
Michael walking quickly to the passenger side of the van. Michael’s sister begins to
drive away. We do not see Michael taking any steps backwards; his feet move but
he remains immediately beside the van. As the van turns toward Michael and away
from the curb, Michael’s right foot moves under the rolling van. The van’s rear
tire—presumably the tire Michael says ran over his foot—is not visible because the
van blocks the dash cam’s view as it turns into the street. Though a jury could
reasonably conclude that Michael put his foot under his sister’s van on purpose, it
could also reasonably conclude that Michael’s sister deliberately turned the van
toward him, and succeeded in running over his foot. Thus, this remains one of those
“usual” qualified immunity cases in which viewing the facts in the light most
favorable to the nonmovant “means adopting . . . the plaintiff’s version of the facts.”
Scott, 550 U.S. at 378. Here, that means assuming, for the purpose of summary
judgment, that Michael’s sister intentionally ran over his foot.

       “A warrantless arrest is consistent with the Fourth Amendment if it is
supported by probable cause.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008).
“Probable cause exists when the totality of the circumstances shows that a prudent
person would believe that the arrestee has committed a crime.” Id. Officers are
entitled to qualified immunity even if they “reasonably but mistakenly conclude that
probable cause is present.” Anderson v. Creighton, 483 U.S. 635, 641 (1987). This
standard provides “‘ample room for mistaken judgments’ by protecting ‘all but the
plainly incompetent or those who knowingly violate the law.’” Hunter v. Bryant, 502
U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)).3


      2
       The fact that a panel of this court cannot unanimously agree on precisely what
the video shows may further support our conclusion that there is a genuine dispute
of material fact.
      3
      This circuit often refers to this standard using the shorthand “arguable
probable cause.” See Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000).

                                         -7-
       The officers claim they believed that Michael violated N.D. Cent. Code
§ 12.1-11-03(1), which makes it a crime to “[g]ive[] false information or a false report
to a law enforcement officer which that person knows to be false, and the information
or report may interfere with an investigation or may materially mislead a law
enforcement officer.” (Emphasis added). Though the parties cite no North Dakota
cases interpreting this provision, we think the plain language of the statute is clear
enough for our purposes: the information or report in question must be false, and of
a nature that it may interfere with an investigation or materially mislead a law
enforcement officer.

       Viewing the facts in the light most favorable to Michael, it was objectively
unreasonable to believe there was probable cause to arrest him for violating N.D.
Cent. Code § 12.1-11-03(1). The officers arrested Michael for stating that his sister
ran over his foot on purpose. Putting aside that Michael’s accusation seems to us a
matter of opinion (that, by definition, cannot be true or false), there was no basis to
believe the accusation “may interfere with an investigation or may materially mislead
a law enforcement officer.”4 Michael’s exchange with Trevena makes clear that
Trevena first decided Michael was lying, and then asked a question to induce Michael
to repeat the accusation: “Okay, she ran over your foot?” When Michael’s response
evaded the question (“You can be a witness against me in court”), Trevena repeated
his query: “Okay, did she intentionally run over your foot?” When Michael said
“yes,” Trevena and Chaffee arrested him. Where an officer has already concluded

      4
        The dissent asserts that the statute’s ambiguity makes the officers’ belief they
had probable to arrest Michael reasonable because Michael’s statements “may have
led officers to investigate or even arrest his sister.” But probable cause is evaluated
under the totality of the circumstances in a particular case, based on what the record
shows the officers knew and did. See Anderson, 483 U.S. at 641 (noting that the
inquiry focuses on “the information that the [arresting] officers possessed”). To
suggest that Michael’s statements may have interfered with an investigation or misled
an officer is to ignore what actually happened in this case.


                                          -8-
that a suspect’s statement is a lie, it is unreasonable to think that, by repeating the
statement, the suspect may interfere with an investigation into whether the statement
is, in fact, a lie. Equally unreasonable is the notion that repeating a statement, which
the officer has already decided is false, might materially mislead a law enforcement
officer into believing the statement is true. Thus, the officers’ belief, mistaken or
otherwise, that they had probable cause to arrest Michael for violating N.D. Cent.
Code § 12.1-11-03(1) was unreasonable. Accordingly, neither Trevena nor Chaffee
is entitled to qualified immunity.

                                          III.

     We reverse the district court’s grant of summary judgment to the officers, and
remand for further proceedings consistent with this opinion.

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

      I agree that the district court erred in granting qualified immunity on Michael’s
excessive-force claims. As the court explains, because a tree partially obscures the
only video of the arrest, there remain genuine questions of material fact concerning
the extent to which Michael resisted arrest and the degree of force the officers
employed. See ante at 5-6. Thus, I join that portion of the court’s opinion. But, for
two reasons, I respectfully dissent from the reversal of summary judgment as to
Michael’s unlawful-arrest claims.

      First, the court misconstrues the record in “assuming, for the purpose of
summary judgment, that Michael’s sister intentionally ran over his foot.” Ante at 6.
While we generally must view the facts and draw all reasonable inferences in a light
most favorable to the nonmoving party, the Supreme Court has made clear that we
cannot accept allegations that are contradicted by reliable video evidence. See Scott



                                          -9-
v. Harris, 550 U.S. 372, 380-81 (2007). Having reviewed the video here, I simply
disagree that “[t]he recordings are at best inconclusive” as to whether Michael’s sister
intentionally ran over his foot. Ante at 6. Officer Chaffee’s dash-camera video
clearly shows that, as Michael’s sister begins to drive off, he takes three backward
steps away from the van before suddenly extending his right foot under the vehicle’s
rear, passenger-side tire. This video disproves Michael’s claim that his sister
intentionally ran over his foot. Indeed, Michael moved into the path of the vehicle
so quickly that it would have been impossible for her to deliberately speed up or fail
to stop, even if she could have seen his foot under the rear tire of the forward-moving
vehicle. Thus, I do not accept the court’s characterization of Michael’s report to
officers as “a matter of opinion (that, by definition, cannot be true or false).” Ante at
8. The video conclusively demonstrates that Michael deliberately put his foot under
the vehicle, that his sister could not have intended to run it over, and that he made a
false report to officers on both scores.

       Second, and more problematically, the court misapplies the arguable probable
cause standard in light of relevant statutory ambiguity. See Walker v. City of Pine
Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (“Because the qualified immunity privilege
extends to a police officer who is wrong, so long as he is reasonable, the governing
standard for a Fourth Amendment unlawful arrest claim is not probable cause in fact
but arguable probable cause . . . that is, whether the officer should have known that
the arrest violated plaintiff’s clearly established right.” (internal quotation marks
omitted)). North Dakota’s false-report statute makes it a crime to “[g]ive[] false
information or a false report to a law enforcement officer which that person knows
to be false, and the information or report may interfere with an investigation or may
materially mislead a law enforcement officer.” N.D. Cent. Code § 12.1-11-03(1)
(emphasis added). As this case demonstrates, the final clause of this provision allows
for several plausible interpretations: (1) that the false information or report must, in
fact, interfere or mislead—as Michael suggests; (2) that the false information or



                                          -10-
report must, under the circumstances, be capable of interfering or misleading, in light
of the officer’s subjective knowledge as to the validity of the information or
report—the standard adopted by the court; or (3) that the false information or report
is of the type that may interfere or mislead given its relation to an officer’s law
enforcement duties—as the officers contend.

       The officers’ interpretation strikes me as the most natural reading of statute, as
the alternatives each require a deviation from the text. See Johnson v. Dept. of
Transp., 683 N.W.2d 886, 889 (N.D. 2004) (explaining that North Dakota statutes are
to be interpreted by looking at the “plain language of the statute and giv[ing] every
word of the statute its ordinary meaning”). For example, the final clause of the
provision refers generally to “a law enforcement officer,” not specifically to the
officer who received the false report, which suggests a more objective standard than
that adopted by the court. Nor is there any language in the provision indicating that
the false report must actually interfere or mislead. Nevertheless, resolving this
statutory ambiguity is not our task today. Instead, we must determine whether a
reasonable officer could conclude that Michael’s false report—that he did not
deliberately put his foot under the vehicle and that his sister intentionally ran over his
foot—was sufficient to constitute a violation of the statute.

        Given that there is no North Dakota caselaw clarifying the ambiguous “may”
provision and that the officers’ interpretation is at the very least reasonable, their
arrest of Michael did not violate clearly established law. See Lawyer v. City of
Council Bluffs, 361 F.3d 1099, 1108 (8th Cir. 2004) (emphasizing that “[p]olice
officers are not expected to parse code language as though they were participating in
a law school seminar” and concluding that a challenged arrest “did not violate clearly
established law” where a reasonable officer could believe that the plaintiff-arrestee’s
conduct violated an ambiguous provision, even if a state court later concluded that
it did not); see also Gorra v. Hanson, 880 F.2d 95, 98 (8th Cir. 1989) (“Because the



                                          -11-
law had not been construed at the time of the arrest, and because the troopers’
interpretation was not inconsistent with common understanding, we cannot say that
[their] interpretation of the statute was unreasonable.”). Under the officers’
reasonable reading of statute, both of Michael’s statements would qualify as a false
report because they may have led officers to investigate or even arrest his sister.
Therefore, the officers had at least arguable probable cause to arrest Michael.

       Accordingly, I concur in the court’s reversal of summary judgment as to
Michael’s excessive-force claims but dissent from its reversal of summary judgment
as to his wrongful-arrest claims.
                       ______________________________




                                       -12-
