                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-1183
                       ___________________________

                                 Kimberly Boude

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

 City of Raymore, Missouri; Joseph German, Police Officer; Raymore Missouri
                              Police Department

                           lllllllllllllllllllll Defendants

                      Michael W. Heady, Police Officer

                     lllllllllllllllllllll Defendant - Appellee
                                    ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                        Submitted: December 14, 2016
                            Filed: May 5, 2017
                               ____________

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.
                          ____________




     1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
BENTON, Circuit Judge.

      Kimberly K. Boude sued Officer Michael W. Heady of the Raymore, Missouri,
Police Department for excessive use of force under 42 U.S.C. § 1983, as well as
common law negligence and battery. The district court2 granted summary judgment
to Heady based on qualified and official immunity. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

                                        I.

      Boude was addicted to huffing aerosol spray cans, which intoxicated her. On
March 17, 2012, Raymore Police Officer Joseph German was dispatched to “check
on a person in their vehicle” in the parking lot of a Sonic restaurant. Arriving,
German found Boude behind the wheel of her vehicle, an SUV. Seeing she was “not
completely coherent,” he summoned medical assistance.

      The next day, Boude huffed two times and then drove to the Sonic restaurant.
On patrol, German and Heady heard a radio dispatch about a motorist potentially in
need of assistance. The dispatcher’s description matched Boude’s SUV from the
previous day. Heady knew about German’s encounter with Boude the day before, and
began to search for the car. Within minutes, he saw a SUV matching the description.
Stepping out of his patrol car, Heady motioned and told Boude to stop her SUV.
Boude stopped. Heady approached the open driver-side window. German arrived
within one minute of the stop. His dash camera recorded the events.

      Heady asked Boude how much she huffed that day. She said “not much.”
Heady told her to turn the car off. Boude reached for the gearshift of the SUV. As
she reached, the car’s brake lights turned on. Heady said “no, no, no,” reached

      2
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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through the front window, turned off the ignition, and took the keys. Heady told
Boude to step out of the car. She failed to comply. Heady physically removed her,
placed her on the ground, and handcuffed her. Boude later pled guilty to driving
while intoxicated, a misdemeanor. She claims injures from the arrest, requiring spinal
surgery and physical therapy.

      Boude sued Heady for excessive force under 42 U.S.C. § 1983. She also
alleged common law negligence and battery. The district court granted summary
judgment to Heady based on qualified and official immunity. Boude appeals.

                                          II.

       This court reviews de novo a grant of qualified immunity. See Stodghill v.
Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008). While this court views the
facts most favorably to Boude, it need not adopt her factual allegations where a video
“blatantly contradict[s]” her version of events. See Scott v. Harris, 550 U.S. 372, 380
(2007).

       Qualified immunity is a basis to dismiss a claim against a public employee if
the alleged conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” See Hayek v. City of St.
Paul, 488 F.3d 1049, 1054 (8th Cir. 2007) (quotation omitted). The qualified
immunity analysis considers two questions: First, “taken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” See Harris, 550 U.S. at 377 (quotation omitted).
Second, whether the right at issue was “clearly established in light of the specific
context of the case.” See id. (quotation omitted). Courts may decide “which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” See Pearson v. Callahan, 555 U.S.
223, 236 (2009).

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       Boude contends that Heady violated her Fourth Amendment “right to be free
from excessive force in the context of an arrest.” See Shannon v. Koehler, 616 F.3d
855, 859 (8th Cir. 2010) (citation omitted). Under the Fourth Amendment, police
officers are liable for excessive force that is not objectively reasonable under the
circumstances. See Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.
2009). Officers are “justified in using force to remove a driver, whom they believed
to be impaired, from his vehicle after he refused to comply with their order to exit it.”
Schoettle v. Jefferson Cty., 788 F.3d 855, 860 (8th Cir. 2015). Accord Wertish v.
Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (holding that when a driver failed to
comply with an officer’s orders to get out of the vehicle, it was objectively reasonable
for the officer to pull the driver from the truck and handcuff him).

       Here, it was objectively reasonable for Heady to believe that Boude’s reach for
the gearshift was an attempt to shift the car to drive and to flee. Heady knew about
Boude’s huffing the day before, so he had reason to believe she was intoxicated and
a potential threat to public safety. See Schoettle, 788 F.3d at 860 (citation omitted)
(noting the “potential threat to public safety” when an impaired driver is in command
of a vehicle). When the brake lights to the SUV turned on—consistent with shifting
gears—Heady said “no, no, no,” reached into the car, and turned off the ignition.
After Boude refused to comply with Heady’s order to exit, he was “justified in using
force to remove [Boude], whom [Heady] believed to be impaired.” See id.

       True, as the district court found, the dash-cam video does not “blatantly
contradict” Boude’s allegation that she “reached for the gear shift to make sure her
vehicle was in park before she made any move to comply with Defendant’s order that
she turn the vehicle off.” See Harris, 550 U.S. at 380. However, qualified immunity
does not depend on whether Boude was in fact attempting to flee when she reached
for the gearshift; rather, the key is Heady’s objectively reasonable beliefs under the
circumstances. See, e.g., Brown, 584 F.3d at 496. See also Graham v. Connor, 490
U.S. 386, 396-97 (1989) (explaining objective reasonableness considers that “police

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officers are often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation”). Here, assuming Boude’s reach for the gearshift was
innocent, Heady could still have an objectively reasonable belief that her movement
was a non-compliant attempt to shift the car to drive and to flee. See Carpenter v.
Gage, 686 F.3d 644, 650 (8th Cir. 2012) (“Even if Carpenter’s motive was innocent,
the deputies on the scene reasonably could have interpreted Carpenter’s actions as
resistance and responded with an amount of force that was reasonable to effect the
arrest.”).

       Boude contends that Heady’s use of force was objectively unreasonable
because when he removed her from the SUV, he had already taken the keys,
eliminating any risk she might flee. Even after the car was off, it was reasonable for
Heady to believe that Boude—intoxicated, and moments earlier non-compliant with
his order to turn off the car—would continue to be non-compliant or attempt to flee
on foot. See Schoettle, 788 F.3d at 860 (explaining that a driver “posed a threat to
himself, the officers and the general public, even after [the officer] turned off
[defendant’s] vehicle”). Officers are “justified in using force to remove a driver,
whom they believed to be impaired, from his vehicle after he refused to comply with
their order to exit.” Id. (emphasis added). Moments “after [Boude] refused to
comply” with Heady’s order to turn off the car, he was “justified in using force to
remove” her. See id.

      Boude relies on Brown, where this court found a fact dispute whether an officer
held an objectively reasonable belief that force was necessary under the
circumstances. Brown, 574 F.3d at 496. There, the suspect’s husband had been
pulled over for allegedly driving under the influence. Id. at 492. After he was
handcuffed, the suspect—in the front passenger seat—became frightened and dialed
911. Id. An officer told her to hang up. She refused. The officer then entered the
car and tased her. Id. Reversing a grant of qualified immunity, this court said,

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“Whether [the officer] reasonably interpreted her refusal as a realistic threat to his
personal safety or whether it constituted nothing more than an affront to his command
authority is a matter for a jury to decide.” Id. at 497.

       The facts here differ from Brown in two critical ways. First, the suspect in
Brown was in the passenger seat; Boude was in the driver seat. See Schoettle, 788
F.3d at 860 (citation omitted) (explaining there is a “potential threat to public safety
[when] an impaired driver [is] in command” of a car (emphasis added)). Second, the
suspect in Brown did not make any movement that could be reasonably interpreted
as an attempt to flee. See Brown, 574 F.3d at 497 (finding that the suspect was “not
actively resisting arrest or attempting to flee”). Here, it was objectively reasonable
for Heady to believe that, when Boude—a suspected intoxicated driver—reached for
the gearshift after he told her to exit the SUV, she was attempting to flee.

       Because Heady’s use of force was objectively reasonable under the
circumstances, he did not violate Boude’s Fourth Amendment right to be free from
excessive force. See id. at 496. This court need not address the “clearly established”
prong of the qualified immunity analysis. See Harris, 550 U.S. at 377. Heady is
entitled to qualified immunity and summary judgment on the excessive-use-of-force
claim.

                                          III.

       Heady invoked official immunity on Boude’s negligence and battery claims.
This court reviews de novo a grant of summary judgment based on official immunity.
See Murray v. Leyshock, 915 F.2d 1196, 1199 (8th Cir. 1990). Official immunity
“protects public employees from liability for alleged acts of negligence committed
during the course of their official duties for the performance of discretionary acts.”
Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). “[A] police
officer has the benefit of official immunity.” Fonseca v. Collins, 884 S.W.2d 63, 66

                                          -6-
(Mo. App. 1994). Discretionary acts require “the exercise of reason in the adaptation
of means to an end and discretion in determining how or whether an act should be
done or course pursued.” Id. (citation omitted). The decision to arrest someone is a
discretionary act. Blue v. Harrah’s N. Kansas City, 170 S.W.3d 466, 479 (Mo. App.
2005). An “officer’s decision to use force in the performance of his duties is
discretionary.” Davis v. White, 794 F.3d 1008, 1013 (8th Cir. 2015) (applying
Missouri law).

       Boude argues that Heady forfeits his official immunity because he acted in bad
faith. Official immunity is lost if the official “acted in bad faith or with malice, which
ordinarily requires actual intent to cause injury.” Austell v. Sprenger, 690 F.3d 929,
938 (8th Cir. 2012) (quotation omitted). “A defendant acts with malice when he
wantonly does that which a man of reasonable intelligence would know to be contrary
to his duty and which he intends to be prejudicial or injurious to another.” State ex
rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986) (quotation omitted).
Bad faith means “dishonest purpose, moral obliquity, conscious wrongdoing, breach
of a known duty through some ulterior motive, or ill will partaking of the nature of
fraud.” Id. (quotation omitted).

       Boude believes that her bad faith allegation survives summary judgment
because “[w]hether or not an officer acted maliciously or willfully is usually a
question of fact to be resolved by the jury.” See Brown, 574 F.3d at 496. Brown
applied Minnesota law. In Missouri, a bad-faith allegation survives summary
judgment if a plaintiff states “facts from which it could reasonably be inferred that
[defendant] acted in bad faith or from an improper or wrongful motive.” See Adolf,
706 S.W.2d at 447-48. Boude’s conclusory allegations that Heady acted in bad faith
are insufficient to defeat summary judgment. See Quinn v. St. Louis Cty., 653 F.3d
745, 752 (8th Cir. 2011) (finding conclusory statements insufficient to establish a



                                           -7-
material question of fact). Heady is entitled to official immunity on Boude’s
negligence and battery claims.

                                *******

     The judgment is affirmed.
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