                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2849
                                   ___________

Richard Goff,                             *
                                          *
              Appellee,                   *
                                          *
       v.                                 *
                                          *
Lloyd Bise, Individually and in his       * Appeal from the United States
official capacity as Mayor of the town * District Court for the
of Vilonia, Arkansas; Shane Shoemake, * Eastern District of Arkansas.
Individually and in his official capacity *
as Chief of Police of the Police          *
Department of Vilonia, Arkansas;          *
City of Vilonia, Arkansas,                *
                                          *
              Appellants.                 *
                                     ___________

                             Submitted: February 10, 1999
                                 Filed: April 6, 1999
                                  ___________

Before BOWMAN, Chief Judge, FAGG, and HANSEN, Circuit Judges.
                             ___________

BOWMAN, Chief Judge.

     Alleging violations of 42 U.S.C. § 1983, Richard Goff sued Lloyd Bise, the
mayor of Vilonia, Arkansas; Shane Shoemake, the Vilonia chief of police; and the City
of Vilonia. The District Court1 denied the defendants' motion for summary judgment
based on qualified immunity, and the case was tried to a jury. Mr. Goff's claims against
the City were not submitted to the jury, but the jury determined that Mayor Bise and
Chief Shoemake had violated Mr. Goff's Fourth Amendment rights by arresting him
without probable cause and by using excessive force when making the arrest. The
District Court entered judgment on the jury's verdict. All three defendants appeal,
arguing they were entitled to summary judgment based on qualified immunity. Mayor
Bise and Chief Shoemake also argue that the District Court erred when it denied their
motion for judgment as a matter of law and made certain evidentiary and instructional
rulings. We affirm.
                                          I.

       Lloyd Bise, the mayor of Vilonia, Arkansas, and Richard Goff, a Vilonia
resident, met in 1978 and for many years were friends and business associates. In
February 1996, however, Mr. Goff began to suspect that his wife, Joyce Goff, was
having an affair with Mayor Bise. Mr. and Mrs. Goff subsequently divorced, and the
relationship between Mr. Goff and Mayor Bise deteriorated. This led to a number of
confrontations, including one on August 12, 1996, that gave rise to this lawsuit. The
parties dispute much of what occurred on August 12, but the jury's verdict resolved
these disputes in Mr. Goff's favor. We therefore summarize the evidence in the light
most favorable to the jury verdict. See Cox v. Dubuque Bank & Trust Co., 163 F.3d
492, 494 (8th Cir. 1998).
       On August 12, Mr. Goff was driving through Vilonia when he saw Mayor Bise
standing outside City Hall. Mayor Bise made an obscene gesture at Mr. Goff and
taunted Mr. Goff about the affair the mayor was having with Mr. Goff's wife. Angered,




      1
        The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.

                                          -2-
Mr. Goff turned his truck around and followed Mayor Bise, who got into his own truck
and drove to the Vilonia post office.

       At the post office, Mayor Bise remained in his truck while mailing some letters.
Mayor Bise then attempted to depart, but Mr. Goff pulled his truck across the
driveway, blocking Mayor Bise's path. The two men began arguing. During this
argument, Mr. Goff got out of his truck, approached Mayor Bise's truck, and attempted
to confront the mayor. Mayor Bise refused to get out of his truck. Instead, Mayor Bise
tried to turn his truck around, almost running over Mr. Goff in the process. Mr. Goff
then drew his pocket knife and, without opening the blade, banged it on the window of
Mayor Bise's truck. The banging and arguing continued until Mayor Bise succeeded
in turning around his truck and drove away. Mr. Goff then returned to his truck and
drove to his daughter's house, located a short distance from the post office, to calm
down and visit his granddaughter.

       After leaving the post office, Mayor Bise used a police radio installed in his truck
to locate the Vilonia police officer on duty. Learning that the officer, Chief of Police
Shane Shoemake, was at a nearby store, Mayor Bise stopped at the store and asked
Chief Shoemake to speak with Mr. Goff regarding the confrontation. Chief Shoemake
then drove his police car to the post office, discovered that Mr. Goff had just departed,
and followed Mr. Goff to Mr. Goff's daughter's house.

       Arriving at Mr. Goff's daughter's house, Chief Shoemake saw that Mr. Goff had
parked in the driveway and was walking toward the house. Chief Shoemake parked
behind Mr. Goff's truck, got out, and asked Mr. Goff about the incident at the post
office. Mayor Bise then drove up, and Mr. Goff and Mayor Bise resumed their
argument. Mayor Bise accused Mr. Goff of damaging his truck and ordered Chief
Shoemake to arrest Mr. Goff. In response, Mr. Goff circled Mayor Bise's truck,
demanding to know the location of the damage.


                                           -3-
       Chief Shoemake interrupted this argument and told Mr. Goff that he was under
arrest. Mr. Goff demanded to know the grounds for the arrest, and Chief Shoemake
responded that he saw Mr. Goff jab his hand through the passenger window of Mayor
Bise's truck and attempt to poke Mayor Bise in the eyes. Chief Shoemake then told
Mr. Goff to put his arms behind his back and to stand against the police car. According
to Mr. Goff, he did not resist Chief Shoemake's efforts to arrest him. Nevertheless,
when Mr. Goff was standing against the police car, Chief Shoemake invited or allowed
Mayor Bise to assist in effecting the arrest.2

      Mayor Bise took Chief Shoemake's handcuffs and fastened the first cuff around
Mr. Goff's wrist so tightly that it pinched a nerve and drew blood. Feeling his hand go
numb, Mr. Goff complained to Chief Shoemake that the handcuff was too tight. When
Chief Shoemake did not answer, Mr. Goff turned and saw that Mayor Bise, not Chief
Shoemake, had fastened the handcuff. Mr. Goff kicked at Mayor Bise, and Mayor Bise
pulled on the handcuffs' chain, swinging Mr. Goff around and throwing him to the
ground. The fall aggravated injuries Mr. Goff previously had suffered to his back and
shoulder. Mayor Bise and Chief Shoemake then pinned Mr. Goff to the ground, and
Mayor Bise choked Mr. Goff until he temporarily lost consciousness.

      Mayor Bise fastened the second handcuff to Mr. Goff's wrist before Mr. Goff
regained consciousness. Chief Shoemake then loaded Mr. Goff into the police car and
transported Mr. Goff to a county jail. Along the way, Chief Shoemake reportedly made
a number of unnecessary stops and refused to give Mr. Goff medical treatment or
loosen the handcuff on Mr. Goff's wrist.




      2
        The record indicates that, although he did not have any law enforcement
training, Mayor Bise was deputized and sometimes assisted Vilonia police officers in
performing their duties, including making arrests and controlling unruly suspects.

                                          -4-
        Mr. Goff was charged with assault, disorderly conduct, and resisting arrest
because of his actions during the August 12 incident at his daughter's house. Acquitted
on all charges, he filed the present § 1983 action. Mayor Bise and Chief Shoemake
disputed Mr. Goff's account of the events on August 12, in particular Mr. Goff's claims
that he did not assault Mayor Bise and that he did not resist arrest. All three defendants
filed for summary judgment based on qualified immunity, but the District Court
determined there were genuine issues of fact material to the qualified-immunity claim
and denied the motion. The case was tried to a jury, which rejected Mayor Bise and
Chief Shoemake's version of the events on August 12 and awarded Mr. Goff $12,000
in compensatory damages against the two defendants jointly; $100,000 in punitive
damages against Mayor Bise; and $2000 in punitive damages against Chief Shoemake.
The District Court entered judgment on this verdict. Mayor Bise, Chief Shoemake, and
the City of Vilonia (although there is no judgment against it) all appeal.
                                           II.
        Mayor Bise and Chief Shoemake first contend that the District Court erred when
it denied them summary judgment based on qualified immunity on Mr. Goff's claims
that they arrested him without probable cause and used excessive force during the
arrest.3 The parties disagree whether this issue is properly before the Court. We hold
that it is. Normally this Court will not review the denial of a motion for summary
judgment after a trial on the merits. See Cowan v. Stafford R-VI Sch. Dist., 140 F.3d
1153, 1157 (8th Cir. 1998); Metropolitan Life Ins. Co. v. Golden Triangle, 121 F.3d
351, 353-54 (8th Cir. 1997). However, a district court's denial of summary judgment




      3
        Mayor Bise and Chief Shoemake also appeal the District Court's denial of their
motion for summary judgment on qualified immunity grounds on a claim that they
illegally detained Mr. Goff prior to his arrest. No judgment was entered against Mayor
Bise and Chief Shoemake on such a claim, so the issue is moot. Therefore, we decline
to consider it. For the same reason, we decline to consider the City of Vilonia's appeal
of the District Court's denial of summary judgment on the basis of qualified immunity.

                                           -5-
based on qualified immunity is an exception, and is reviewable after a trial on the
merits. See Littlewind v. Rayl, 33 F.3d 985, 986 (8th Cir. 1994) (stating that a
defendant is not required to appeal immediately a denial of summary judgment based
on qualified immunity to preserve the qualified-immunity issue on appeal); McIntosh
v. Weinberger, 810 F.2d 1411, 1431 n.7 (8th Cir. 1987) (concluding a defendant did
not surrender his qualified immunity defense by failing to appeal it immediately),
vacated and remanded on other grounds sub. nom. Turner v. McIntosh, 487 U.S. 1212
(1988). Therefore, the issue of qualified immunity is properly before us. The standard
of review is de novo. See Liebe v. Norton, 157 F.3d 574, 576 (8th Cir. 1998).

       To withstand a motion for summary judgment on qualified immunity grounds,

       a civil rights plaintiff must (1) assert a violation of a constitutional right;
       (2) demonstrate that the alleged right is clearly established; and (3) raise
       a genuine issue of fact as to whether the official would have known that
       his alleged conduct would have violated [the] plaintiff's clearly established
       right.

Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.), cert. denied, 117 S. Ct. 518
(1996). Mr. Goff's complaint states that Mayor Bise and Chief Shoemake arrested him
without probable cause and used excessive force when making the arrest. Both of
these claims allege violations of constitutional rights that were clearly established at the
time of the August 12 arrest. See Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998)
("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.");
Habiger, 80 F.3d at 295 (stating that a person has "a clearly established right under the
Fourth Amendment not to be arrested unless there [is] probable cause for [the] arrest").
Moreover, given the particular circumstances shown by the summary-judgment record,
we believe Mr. Goff was entitled to survive summary judgment on the defendants'
qualified-immunity claim.




                                            -6-
       Reviewing the evidence that was before the District Court when it denied the
defendants' motion for summary judgment, we conclude that Mr. Goff had created a
number of genuine issues of material fact regarding whether Mayor Bise and Chief
Shoemake should have known that their conduct violated these clearly established
constitutional rights. Mr. Goff had submitted evidence tending to support his
allegations that Mayor Bise and Chief Shoemake arrested Mr. Goff not because they
had probable cause to believe he had committed a crime, but because of Mayor Bise's
personal animosity toward Mr. Goff.4 Mr. Goff also had submitted evidence, including
eyewitness and medical testimony, that Mayor Bise and Chief Shoemake used
unnecessary and excessive force during the arrest, and that Mr. Goff suffered injuries
as a result of this force. Although Mayor Bise and Chief Shoemake disagreed with Mr.
Goff's account, and offered evidence tending to support a contrary conclusion, the state
of the record was such that the District Court was correct when it declined at the
summary judgment stage to hold the defendants entitled to qualified immunity.
See Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993) (stating that summary
judgment based on qualified immunity is inappropriate "[i]f the arrestee challenges the
officer's description of the facts and presents a factual account where a reasonable
officer would not be justified in making an arrest"). Therefore, we find the District
Court did not err when it denied Mayor Bise and Chief Shoemake's motion for
summary judgment based on qualified immunity on Mr. Goff's illegal-arrest and
excessive-force claims.




      4
        Mayor Bise and Chief Shoemake assert that there was undisputed evidence they
had probable cause to arrest Mr. Goff because Mr. Goff never expressly denied their
allegations that he had assaulted Mayor Bise. After our review of Mr. Goff's response
to the defendants' motion and the materials that were before the District Court when it
ruled on the summary judgment motion, we conclude that Mr. Goff adequately disputed
the defendants' allegations that Mr. Goff had attempted to poke Mayor Bise in the eyes.

                                          -7-
                                           III.

       Mayor Bise and Chief Shoemake also assert that the District Court erred when
it denied them judgment as a matter of law on Mr. Goff's excessive-force claim. This
Court will affirm the District Court's denial of a motion for judgment as a matter of law
unless, after reviewing de novo all the evidence in the light most favorable to the non-
moving party, we determine that no reasonable juror could have returned a verdict in
the non-moving party's favor. See Cox, 163 F.3d at 495-96.

       Police officers are liable for the use of excessive force when they use force that
is not objectively reasonable in light of the facts and circumstances confronting them.
See Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998) (quoting Graham
v. Connor, 490 U.S. 386, 394 (1989)). In reviewing whether a plaintiff has made the
requisite showing, this Court will "pay close attention to the particular facts," including
the severity of the suspected crime, whether the suspect posed an immediate threat to
the officer or others, and whether the suspect was actively resisting arrest. See id.
       Reviewing the record in this manner, we find that a reasonable juror could
determine that the force Mayor Bise and Chief Shoemake used was not objectively
reasonable. A reasonable juror could believe that Mr. Goff was not suspected of any
crime when he was arrested, but was arrested because Mayor Bise, acting on personal
animosity, ordered Chief Shoemake to arrest him. A reasonable juror also could
believe Mr. Goff's testimony that he did not resist Chief Shoemake's efforts to arrest
him, but struggled and fought only after he realized that it was Mayor Bise--the man
whom Mr. Goff suspected of having an affair with Mrs. Goff and with whom Mr. Goff
had been arguing--who had placed the handcuff on his wrist so tightly that it pinched
a nerve and drew blood. In addition, Mr. Goff offered evidence indicating the
following: that this was the first time Mayor Bise had ever handcuffed an arrestee; that
Chief Shoemake invited or permitted Mayor Bise, Mr. Goff's adversary, to participate
in making the arrest; and that Mr. Goff's bad shoulder and bad back made it unlikely




                                           -8-
that Mr. Goff would have wrestled with Chief Shoemake, a personal friend to Mr. Goff.
Finally, a juror could reasonably believe Mr. Goff's testimony that at the time of the
arrest, he posed a threat to no one: Mr. Goff testified that he was walking up the
driveway to his daughter's house, intending to visit his granddaughter, when Mayor
Bise arrived, began arguing with Mr. Goff, and demanded that Chief Shoemake arrest
Mr. Goff.

       When the force used by Chief Shoemake and Mayor Bise is considered in light
of these circumstances, a juror could reasonably conclude that it was excessive. Mr.
Goff testified that he was painfully handcuffed, thrown to the ground, pinned by two
law enforcement officers, and choked into unconsciousness. A reasonable juror could
credit this evidence and determine that this force was excessive when applied to a
person whom the juror reasonably believed committed no crime, posed a threat to no
one, and resisted only when his personal adversary was permitted to inflict pain upon
him while illegally arresting him under color of law. Therefore, we affirm the District
Court's denial of Mayor Bise and Chief Shoemake's motion for judgment as a matter
of law on the excessive-force claim.

        In their brief, Mayor Bise and Chief Shoemake argue that they cannot be held
liable for an excessive use of force because Mr. Goff did not suffer sufficient injuries.
This Court repeatedly has refused to establish the threshold level of injury a person
must suffer before officers may be held liable for using excessive force. See, e.g., Curd
v. City Court of Judsonia, 141 F.3d 839, 841-42 n.6 (8th Cir.), cert. denied, 119 S. Ct.
204 (1998); Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). In the present case,
we again do not need to decide whether some minimum level of injury is required,
because--whatever that minimum level might be--we have no difficulty in concluding
as a matter of law that Mr. Goff's injuries were sufficient to support an excessive-force
claim. The evidence shows that Mr. Goff suffered significant physical injuries,
including a torn rotator cuff and scarring and nerve damage to his left hand, that
required $11,954.24 in medical treatment. Mr. Goff sought compensatory damages in



                                          -9-
this amount, and the jury awarded him $12,000 in compensatory damages. The damage
award indicates the jury agreed that Mr. Goff had suffered substantial injuries as Mr.
Goff and his experts testified. Therefore, while we do not here establish the minimum
threshold of injury a plaintiff must suffer, we find that the injuries Mr. Goff suffered
clearly suffice to support the defendants' liability. Cf. Dawkins, 50 F.3d at 535 (stating
that, if the court assumed some minimum level of injury is required, the plaintiffs'
alleged injuries--bruises, a facial laceration, hospitalization, and posttraumatic stress
disorder--would satisfy such a requirement).

                                           IV.

       Mayor Bise and Chief Shoemake next argue that the District Court erred when
it admitted evidence of the alleged affair between Mayor Bise and Mrs. Goff. The jury,
the defendants argue, was asked to evaluate whether officers in the position of Mayor
Bise and Chief Shoemake could reasonably believe there was probable cause to arrest
Mr. Goff and whether the amount of force used was reasonable considering the
circumstances. These are objective determinations. The defendants assert that
evidence of the affair would indicate only the subjective motivation of the arresting
officers, which were irrelevant to the jury's required determinations. We review the
District Court's ruling on the admissibility of this evidence for abuse of discretion.
See Excel Corp. v. Bosley, 165 F.3d 635, 640 (8th Cir. 1999).

       The Supreme Court has recognized that in some § 1983 actions it may be
appropriate to consider evidence that a defendant police officer had ill-will toward the
plaintiff. See Graham, 490 U.S. 386, 399 n.12 (1989) ("[I]n assessing the credibility
of an officer's account of the circumstances that prompted the use of force, a fact finder
may consider, along with other factors, evidence that the officer may have harbored ill-
will toward the citizen."). Mr. Goff alleged that Mayor Bise and Chief Shoemake had
abused their authority as law enforcement officers to gain an advantage in a private
dispute. The jurors were asked to decide whether they believed Mr. Goff's account that



                                          -10-
he was arrested and beaten due to Mayor Bise's personal animosity toward him or
Mayor Bise's and Chief Shoemake's accounts that they arrested Mr. Goff for an
appropriate reason and used appropriate force when making the arrest. To enable the
jury to make a more accurate determination, the District Court indicated it would allow
limited disclosure of information about the alleged alienation of affection. See Trial Tr.
at 6 ("Of course, I am going to let the alienation of affections [evidence in]--I am not
going to let you spend a whole lot of time, but I don't think you can show the
background of this case without showing that, that that is the basis of the whole
altercation.").5

       The defendants argue that, because Mr. Goff admitted he had kicked at Mayor
Bise, they had probable cause to arrest Mr. Goff and a reasonable basis to use force,
so the jury had no reason to consider the background of the conflict or make credibility
determinations. This Court has recognized that, where there is undisputed evidence
that a police officer had probable cause to arrest a person, this Court will not consider
whether the police officer had a second, possibly improper basis for believing he could
make the arrest. See Foster v. Metropolitan Airport Comm'n, 914 F.2d 1076, 1080-81
(8th Cir. 1990) (refusing to consider whether a police officer improperly believed he
could arrest the plaintiff for verbal abuse and tearing up a parking ticket where the
plaintiff had not challenged the officer's claim that he reasonably believed he could
arrest the plaintiff for interfering with the officer's performance of official duties).
Here, however, the defendants do not have an uncontested basis for making the arrest
and using force. Mr. Goff admitted that he attempted to kick at Mayor Bise during the
arrest, but this is not an admission that the officers had probable cause to arrest Mr.
Goff and to use force. Rather, Mr. Goff says he kicked at Mayor Bise only after
feeling pain from the handcuff Mayor Bise had placed on his wrist. Therefore, this case




      5
       The defendants did not object to and do not appeal the amount of evidence
concerning the affair that was admitted or the admission of any particular evidence
concerning the affair.

                                          -11-
is not governed by Foster. Rather, Mr. Goff's allegations are more like those in Motes
v. Myers, 810 F.2d 1055 (11th Cir. 1987), a case that the Foster court identified as an
example of when it "may be appropriate to consider the arresting officer's motive."
Foster, 914 F.2d at 1080. Similar to the plaintiff in Motes, Mr. Goff alleged he was
illegally arrested with excessive force purely because of a private dispute between
himself and Mayor Bise, one of the arresting officers. Cf. Motes, 810 F.2d at 1060.
In these unusual circumstances, we cannot say the District Court abused its discretion
in admitting evidence from which the jury could find that the arresting officers were
actuated by an improper motive.

                                           V.

       Finally, Mayor Bise and Chief Shoemake argue that the District Court erred
when it refused to instruct the jury that section 5-54-103 of the Arkansas Code imposed
a duty on Mr. Goff to submit to arrest, without resistance, even if the arrest was
unjustified. This Court reviews a district court's decisions regarding jury instructions
for abuse of discretion. See Cox, 163 F.3d at 464.

       The District Court did not abuse its discretion by omitting the requested
instruction. This Court decided the precise question presented here in Jackson v.
Crews, 873 F.2d 1105 (8th Cir. 1989). In Jackson, this Court held that in a § 1983
excessive-force case, "an instruction to the jury that one has a duty to submit to lawful
arrest is plainly irrelevant to the issue of whether the officer used excessive force in
effecting the arrest." Id. at 1109. Jackson is the law of this Circuit and forecloses the
defendants' argument. Evidence of an arrestee's resistance and the nature of that
resistance is, of course, always relevant to the jury's consideration of whether the force
used by the officers in subduing the arrestee was excessive. But that provides no
reason for instructing the jury that a statute forbids resistance against officers
attempting to make an arrest. A district court that might choose to instruct the jury




                                          -12-
regarding the duty of non-resistance would need to exercise particular care in crafting
the instruction so as to avoid in effect directing the jury to find for the defendants.

                                         VI.

      Having considered all the defendants' arguments, we find no basis for reversal.
The judgment of the District Court is affirmed.

      A true copy.

             Attest:

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




                                         -13-
