                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3332
                                   ___________

Tracy Allen Samuelson,                    *
                                          *
              Plaintiff - Appellant,      *
                                          *
      v.                                  *
                                          * Appeal from the United States
City of New Ulm; Officers Jeremey         * District Court for the
Brennan; Andrew Leif; Jerry Losinski, * District of Minnesota.
New Ulm Police officers, personally,      *
and in their official capacities as       *
New Ulm police officers,                  *
                                          *
              Defendants - Appellees.     *
                                     ___________

                             Submitted: May 9, 2005
                                Filed: July 20, 2006
                                 ___________

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       Tracy Allen Samuelson called the police to report intruders breaking into his
garage. He went outside, where police officers took him for an intruder, and he was
apprehended. Because of his behavior, the officers transported him to a medical
facility, and a physician authorized a seventy-two-hour hold. He sued the individual
police officers and the City of New Ulm under 42 U.S.C. § 1983 and Minnesota law,
alleging, inter alia, excessive force and unreasonable seizure. Samuelson appeals the
district court's grant of summary judgment in favor of the defendants on all claims.
We affirm in part and reverse in part.

                                         I

       The facts, viewed in the light most favorable to Samuelson, the nonmoving
party, Siebrasse v. U.S. Dep't of Agric., 418 F.3d 847, 850 (8th Cir. 2005), are as
follows. On the night of January 18, 2003, Samuelson, a private homeowner, woke
up and noticed his outdoor motion lights were on. He says he saw three people in his
backyard, shouted out the window at them, and watched them flee over his fence. He
went back to bed but was later awakened and noticed his motion light on again. This
time he saw two people in his backyard trying to get into his garage, and he then
called 911. Although Samuelson's conversation with the dispatcher was incoherent
at times, the operator elicited enough information to conclude he was complaining of
the presence of burglars in his garage. New Ulm police officers were dispatched to
his residence.

      After the dispatcher alerted Samuelson the police had arrived, he walked
outside to meet the police by the back fence. Officer Jeremey Brennan saw
Samuelson through the fence but did not announce his presence. Samuelson pulled
himself on the fence when Brennan ordered him to the ground. Samuelson then
complied. Brennan also ordered Samuelson to kneel with his hands in the air.
Samuelson complained of the muddy ground conditions but complied with the order.
Brennan asked Samuelson who owned the garage; Samuelson replied it was his.
When Brennan noticed the cordless phone in Samuelson's rear pocket, he asked if
Samuelson lived there. He responded in the affirmative.

      Samuelson testified an officer got on top of him and punched him on the ribs,
head, and neck. Then other officers piled on. Samuelson asked: "What did I do? I
am the landowner." An officer responded: "You know what you did. And you keep


                                        -2-
it up and you are really going to get a beating." According to Samuelson, he did not
retaliate or try to escape the officers.

       Only after Samuelson was handcuffed did any officer ask for his name. Once
restrained, he claims an officer grabbed him by his pinky fingers, bringing him to his
knees. The same officer pushed him back to the ground, only to pick him up by his
pinky fingers again. Another officer brought him to his feet by pulling on his biceps
muscles. Additionally, officers squeezed the handcuffs, causing pain in his wrists.
Samuelson asked, "What the hell is going on here? I am the one that called." At that
time, an officer took Samuelson's wallet and examined his license.

       After placing Samuelson in a police car, the officers searched the garage, but
found no intruders or any sign of a break-in. The officers detected a strong solvent
smell in the garage. Samuelson's explanation was earlier in the day, he varnished a
table in the garage with a finish which had very little odor. While he was in the police
car, he asked an officer why the wheels were turning on a stationary police car.
Sergeant Losinksi decided to transport him to the New Ulm Medical Center based, in
part, on his professional experience, Samuelson's demeanor, and the close proximity
to the hospital.

        Samuelson arrived at the hospital in a state of shock severe enough where he
could not even hold a pencil. He was examined by Dr. Rysdahl, who observed the
following: "His mind would all of a sudden not track. He would be saying one thing,
and then he would forget. Another time he was talking about something and then all
of a sudden he talked about if there's too many trees. He does not make any sense.
It is like his mind is not tracking." Dr. Rysdahl signed the written application for a
seventy-two-hour hold and stated Samuelson's fast heart rate and abnormal potassium
and creatinine levels were most likely due to high stress levels.




                                          -3-
       Following this incident, Samuelson experienced severe pain in his shoulder and
neck, causing him to take eight weeks off from his job as a logger. Although initial
tests uncovered no "significant abnormalities," Samuelson continued to feel pain in
his shoulder following ten weeks of physical therapy and he began another round of
therapy. In June 2003, he still presented "with significant limitation of the right
shoulder range of motion, clinical evidence of right subscapularis tendonitis and also
involvement of other components of the rotator cuff." An orthopedic surgeon
performed surgery on his rotator cuff in July 2003, but found no tear. As late as
December 2003, Samuelson still complained of pain in the shoulder, requiring
"ongoing exercising to fully rehabilitate and recondition the shoulder and arm." The
same orthopedic surgeon stated "the medical evaluations, diagnostic studies, and
treatment that [Samuelson] has undergone have all developed as a direct result of the
alleged incident" because he had no preexisting arm or shoulder injuries.

                                           II

       We review the district court's grant of summary judgment and qualified
immunity rulings de novo. Kuha v. City of Minnetonka, 365 F.3d 590, 596 (8th Cir.
2004). Summary judgment is appropriate if the record, when viewed in the light most
favorable to the non-moving party shows "there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). "In order to survive a motion for summary judgment under § 1983, the
plaintiff must raise a genuine issue of material fact as to whether (1) the defendants
acted under color of state law, and (2) the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right." Kuha, 365 F.3d at 596 (internal
quotation and citation omitted).




                                          -4-
                                            III

       To determine whether the defendants are entitled to qualified immunity, we
engage in a two-part analysis. Janis v. Biesheuvel, 428 F.3d 795, 799 (8th Cir. 2005).
The first step is to determine whether, viewing the facts in the light most favorable to
Samuelson, the officers' conduct violated a constitutional right. Id. (citing Andrews
v. Fuoss, 417 F.3d 813, 816 (8th Cir. 2005)). If a constitutional right has been
violated, we must then determine if such right was clearly established. Id. (citing
Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004)). This second step is a "fact-
intensive inquiry and 'must be undertaken in light of the specific context of the case,
not as a broad general proposition.'" Littrell, 388 F.3d at 583 (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)).

                                            A

       Samuelson claims the officers violated his Fourth Amendment right to be free
from excessive force. We analyze this claim under the Fourth Amendment
reasonableness standard. Graham v. Connor, 490 U.S. 386, 396 (1989).
"Determining whether the force used to effect a particular seizure is 'reasonable' under
the Fourth Amendment requires a careful balancing of the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the countervailing
governmental interests at stake." Id. (internal quotations and citations omitted).
"[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." Id. (citing Terry
v. Ohio, 392 U.S. 1, 22-27 (1968)). To determine if the officers used excessive force,
we pay "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. (quoting Tennessee v. Garner, 471 U.S.
1, 8-9 (1985)). Reasonableness is determined from the perspective of a "reasonable

                                           -5-
officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citation
omitted). Additionally, "[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." Id.
at 396 (internal quotations and citations omitted). Furthermore, our inquiry is an
objective one, "without regard to [the officers'] underlying intent or motivation." Id.
at 397 (citations omitted).

     The facts, viewed in the light most favorable to Samuelson, demonstrate he was
compliant with the officers' requests and did not resist arrest. He kneeled on the
ground and placed his hands on his head. During his conversation with Brennan,
Samuelson made no sudden movements. Despite his compliance, Samuelson alleges
an officer stood on top of him and punched him on the side of the head, ribs, side, and
back of the neck with "hard blows" more than ten times. While being punched,
Samuelson twice asked the officers what he had done, but an officer only responded:
"You know what you did. And if you keep it up, you will really get a beating." Then
other officers piled on top of Samuelson. One officer affixed handcuffs to
Samuelson's left wrist and placed his foot on the side of Samuelson's head and applied
pressure for five to ten seconds in order to release his other arm from under his body.
The police also lifted Samuelson up to his knees by his pinky fingers on more than
one occasion after he was in restraints, placing all of his weight on these two fingers,
causing strain on his arms and shoulders.

       Based on this evidence, we find a genuine issue of material fact exists
concerning whether the amount of force used against Samuelson both in restraining
him and after he was retrained was excessive. We also find a genuine issue of
material fact exists concerning whether he resisted arrest. Further, we disagree with
the district court's findings his injuries were de minimus. Crumley v. City of St. Paul,
324 F.3d 1003, 1007 (8th Cir. 2003) (holding "a de minimus level of force or injury
is insufficient to support a finding of a constitutional violation"). Medical evidence
in the record demonstrates Samuelson sustained injuries to his shoulder serious

                                          -6-
enough to require surgery. These injuries arose "as a direct result of the alleged
incident," i.e., the confrontation with the police; he had not suffered prior shoulder
problems. Although he was not placed on work restrictions following his surgery, he
continued to suffer pain in his shoulder in December 2003, almost a year after the
incident. Thus, we reject the district court's contention these injuries are merely de
minimus. See Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) (noting de
minimus injuries include "minor scrapes and bruises and the less-than-permanent
aggravation" of a prior injury); Foster v. Metro. Airports Comm'n, 914 F.2d 1076,
1082 (8th Cir. 1990) (holding "allegations of pain as a result of being handcuffed,
without some evidence of more permanent injury," are insufficient to establish a
Fourth Amendment violation).1

                                          B

       Defendants argue they are entitled to qualified immunity even if the force used
in seizing Samuelson was unreasonable because his rights were not clearly
established. See Littrell, 388 F.3d at 583 ("For a right to be deemed clearly
established, the 'contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.'") (citation
omitted). "In other words, if the officers' mistake as to what conduct the law required
is reasonable, they are entitled to the immunity defense." Kuha, 365 F.3d at 602
(citing Saucier, 533 U.S. at 205). "Defendants will not be immune, however, if, on
an objective basis, it is obvious that no reasonably competent officer would have
concluded that the defendant should have taken the disputed action." Id. (internal
quotations and citations omitted). Thus, qualified immunity operates to protect
officers from the sometimes "'hazy border between excessive and acceptable force,'

      1
       Samuelson also contends the police acted unreasonably in detaining him at all.
The defendants argue, and we agree, this is essentially an argument the police lacked
probable cause to seize Samuelson. Under these circumstances, we find the police did
have probable cause and conclude Samuelson's argument is without merit.
                                         -7-
and to ensure that before they are subjected to suit, officers are on notice their conduct
is unlawful." Id. (quoting Saucier, 533 U.S. at 206).

       "[T]he right to be free from excessive force in the context of an arrest is a
clearly established right under the Fourth Amendment's prohibition against
unreasonable seizures." Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006).
Under the facts of this case, we believe a genuine issue of material fact exists
concerning whether the force used was "objectively reasonable in light of the facts and
circumstances confronting" the officers. Kukla v. Hulm, 310 F.3d 1046, 1050 (8th
Cir. 2002). The evidence, viewed in the light most favorable to Samuelson, shows the
officers stepped on his head while handcuffing him. The evidence also shows he was
beaten, hit, and kicked, although he was not resisting arrest, and the police picked him
up by his pinky fingers after being restrained. Based on this evidence, we hold the
district court erred in granting the defendants' motion for summary judgment on the
basis of qualified immunity. See Thompson v. Zimmerman, 350 F.3d 734, 735 (8th
Cir. 2003) (holding factual questions precluded summary judgment on qualified
immunity grounds where an inmate alleged he was sitting quietly in his cell and did
not resist when officers entered his cell and attacked him); Kukla, 310 F.3d at 1050
(holding the district court properly denied summary judgment on excessive force
claim when plaintiff alleged during a traffic stop officer forced the plaintiff against a
truck, twisted his arm and raised it high above his back, injuring his collar bone,
shoulder, neck and wrist, although plaintiff did not resist); Lambert v. City of Dumas,
187 F.3d 931, 934, 936 (8th Cir. 1999) (finding summary judgment inappropriate on
excessive force claim when the plaintiff claimed he was violently shoved and kicked
into a police car even though he did not resist).

                                           IV

      Samuelson also contends the defendants violated his constitutional rights by
transporting him to the hospital against his will where he was placed on seventy-

                                           -8-
two-hour psychiatric hold. Defendants argue they acted reasonably pursuant to the
police officers' community caretaking function.

       "[P]olice officers are not only permitted, but expected, to exercise what the
Supreme Court has termed 'community caretaking functions.'" Winters v. Adams, 254
F.3d 758, 763 (8th Cir. 2001) (quoting United States v. King, 990 F.2d 1552, 1560
(10th Cir. 1993). These functions include seizing a citizen "in order to ensure the
safety of the public and/or the individual, regardless of any suspected criminal
activity." Id. However, there are limits to the community caretaking function.
"Whether the seizure of a person by a police officer acting in his or her
noninvestigatory capacity is reasonable depends on whether it is based on specific
articulable facts and requires a reviewing court to balance the governmental interest
in the police officer's exercise of his or her 'community caretaking function' and the
individual's interest in being free from arbitrary government interference." Id. at 767
(Bye, J., concurring) (quoting King, 990 F.2d at 1560).

       We believe when the facts and reasonable inferences are viewed in Samuelson's
favor, a jury could not find the officers' actions objectively unreasonable. The
transcript of his phone call to 911 demonstrates he was not speaking in a coherent
manner. The officers discovered his garage had a solvent smell, and he admitted to
varnishing a table earlier in the day. The officers also believed he was hallucinating
because, although he reported there were individuals burglarizing his garage, the
garage was secure and the officers uncovered no traces of a burglary. Additionally,
he asked an officer why the wheels were turning on a stationary police car.2 Based on


      2
        The officers' beliefs are substantiated by the testimony of examining physician
Dr. Rysdahl. Dr. Rysdahl stated the following about Samuelson: "His mind would all
of a sudden not track. He would be saying one thing, and then he would forget.
Another time he was talking about something and then all of a sudden he talked about
if there's too many trees. He does not make any sense. It is like his mind is not
tracking."
                                         -9-
this evidence, we find no genuine issue of material fact as to whether the officers'
actions in transporting him to the hospital to be screened for a seventy-two-hour hold
were objectively unreasonable.

                                          V

       In an official immunity action, if the plaintiff has not raised any genuine issue
of material fact tending to show the officers willfully or maliciously violated the
plaintiff's rights, the officers are entitled to summary judgment. State by Beaulieu v.
City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). Malice is "the intentional
doing of a wrongful act without legal justification or excuse, or, otherwise stated, the
willful violation of a known right." Carnes v. St. Paul Union Stockyards Co., 205
N.W. 630, 631 (Minn. 1925).

        Samuelson contends the officers are not entitled to official immunity on his
state law claims because a rational trier of fact could conclude from the evidence the
officers acted maliciously during his apprehension For the same reasons discussed
above, we agree this is a reasonable inference a jury could make from the facts as
presented by Samuelson. See Craighead v. Lee, 399 F.3d 954, 963 (8th Cir. 2005).

                                          VI

      The order of the district court is affirmed in part and reversed in part. The case
is remanded for further proceedings in accordance with this opinion.
                       ______________________________




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