                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 17-2633
                           ___________________________

                                  Robin Kirkland Neal

                                   Plaintiff - Appellee

                                             v.

Daniel Ficcadenti, in his individual capacity as an officer of the St. Paul Police Department

                                  Defendant - Appellant

                                     City of St. Paul

                                        Defendant
                                      ____________

                       Appeal from United States District Court
                      for the District of Minnesota - Minneapolis
                                     ____________

                                Submitted: June 15, 2018
                                  Filed: July 12, 2018
                                     ____________

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

       In the late evening hours of June 6, 2012, police officers responded to a call
that a witness had seen a man retrieve a gun from a black sedan parked outside of
Born’s Bar, a tavern located on Rice Street in Saint Paul, Minnesota. At the scene,
the officers discovered a black sedan containing three occupants, none of whom
perfectly matched the description of the suspect. After apprehending the driver, the
officers commanded Appellee Robin Neal and another passenger to get out of the car
with their hands up.

      The scene, which was captured on video, was chaotic. Music blared from
Born’s Bar. A police dog barked incessantly. Multiple officers, guns drawn, shouted
multiple commands. Neal alighted from the sedan as directed with his hands up—but
immediately began to act somewhat erratically. He spent a minute wandering around
the sedan, dropped his hands at least five times, and failed to promptly follow a
command that he walk towards the officers.

      The appellant, Officer Daniel Ficcadenti, commanded Neal to come to him with
his hands up. Neal finally complied. As Neal got within arm’s reach, Officer
Ficcadenti conducted an abrupt arm-bar takedown, injuring Neal. Neal brought this
42 U.S.C. § 1983 action alleging that Officer Ficcadenti applied excessive force when
he brought Neal to the ground.1 The district court2 denied qualified immunity to
Officer Ficcadenti, finding that the evidence when viewed in a light most favorable
to Neal showed that in 2012 it was clearly established that the use of an arm-bar
takedown technique on a suspect who was neither threatening nor resistant violated
the Fourth Amendment’s prohibition against unreasonable searches and seizures.

       We have jurisdiction over this interlocutory appeal of a denial of qualified
immunity because the issue of a violation of a clearly established constitutional right
is a question of law. See Jackson v. Gutzmer, 866 F.3d 969, 975 (8th Cir. 2017). The


      1
        Neal also brought a failure-to-train claim against the City of St. Paul, which
is not at issue on this appeal.
      2
      The Honorable Susan R. Nelson, United States District Judge for the District
of Minnesota.

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question may be pursued in an interlocutory fashion because qualified immunity is
an immunity from suit that is effectively lost if the case is permitted to erroneously
proceed to trial. Payne v. Britten, 749 F.3d 697, 700 (8th Cir. 2014) (citing Scott v.
Harris, 550 U.S. 372, 376 n.2 (2007)). We agree with the district court that, viewed
in a light most favorable to Neal, the facts give rise to a question of unreasonable and
excessive force for the ultimate finder of fact. We affirm.

      I.     Background

       We view the facts in a light most favorable to Neal, the non-moving party. On
June 6, 2012, a witness contacted 911 to report that a heavy-set black male in his
forties wearing a red and white shirt and a baseball cap had retrieved a gun from a
black four-door sedan parked outside of Born’s Bar in St. Paul, Minnesota. The
witness reported that the suspect had placed the gun in his waistband and that he was
currently leaning against a wall. Born’s Bar is located on Rice Street in a rough area
of the city. Police officers have frequently been dispatched to the area to address
criminal activity, including violent activity.

      Neal and his companions, Anthony Lee and Kevin O’Bannon, had arrived at
Born’s Bar earlier in the evening to watch a basketball game. None of the men
matched the suspect’s physical description. All three men were in their fifties. Neal
was a slender man dressed in jean shorts and a black shirt. Both Lee and O’Bannon
wore blue shirts. O’Bannon sported a baseball cap. Unfortunately, the hapless trio
had arrived in a black four-door sedan driven by O’Bannon. The car was parked a
couple of car lengths from the entrance of the bar. During the game, the three friends
consumed alcohol. Neal was tested after the incident and had a blood alcohol
concentration of 0.231.

       Immediately prior to the time that officers arrived at the scene, the three men
left Born’s Bar and got into O’Bannon’s black sedan. O’Bannon was in the driver

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seat, Neal in the front passenger seat, and Lee in the rear passenger seat. Before the
car moved, Saint Paul police officers began to arrive in number. Officer Michael
DeTomaso was one of the first to arrive on the scene. He was soon followed by a
number of officers, including Officer Ficcadenti. The officers established a
horseshoe formation around O’Bannon’s sedan and exited their cars. Most had their
guns unholstered and pointed at the sedan. The scene was captured on squad videos
from Officers DeTomaso, Tschida, and Ficcadenti. It was 11:22 p.m.

      Officer DeTomaso loudly commanded O’Bannon to get out of the vehicle with
his hands up and walk towards the officer. O’Bannon complied and was quickly
taken into custody and handcuffed.

       At about this time, the scene became more chaotic as the loud music from the
bar was joined by a police dog barking persistently and multiple officers screaming
commands at Neal and Lee. The two men were directed to get out of the car with
their hands up. Neal stepped out, followed immediately by Lee. An officer yelled out
“One at a time!” Lee froze with his hands in the air near the rear passenger door and
stood fixed in that place and position throughout the encounter.

       Neal, on the other hand, failed to comply. While he exited with his hands up,
he failed to come towards one of the officers, instead wandering around the sedan.
He dropped his hands five times. He looked in an apparently confused manner at
Lee. All the while, officers hollered at Neal. The officers told Neal, who they
repeatedly referred to as “black shirt,” to step onto the street and to come to them with
his hands up. Officer Ficcadenti was specifically directing Neal to stop circling the
sedan and to come to him with his hands up, saying, “Hey, guy in the black shirt, no,
no, no! Hey black shirt!” and “Come here!” At one point Neal dropped his hands and
lifted his shirt, as if to show he was unarmed.




                                          -4-
      Eventually Neal complied. As he was walking towards Officer Ficcadenti, he
dropped his arms to chest level and then motioned towards the officer as if trying to
motion that he was coming towards the officer. He was directed to “come here.”
Neal continued walking towards Officer Ficcadenti. As soon as Neal was within
arm’s reach, he was forcefully brought to the ground by what the officer describes as
an “arm-bar takedown.” The video shows that Officer Ficcadenti abruptly grabbed
Neal’s left arm and forcibly slammed him face-down into the pavement. Officer
Ficcadenti testified at his deposition that while he often uses less forceful techniques
such as having arrestees place their arms behind their backs or kneel with their hands
on their heads, he used the more forceful approach on Neal as first resort. The entire
episode, from the time Neal exited the sedan until he was slammed onto the pavement
face-down, took one minute and six seconds.3 All parties agree that at the time the
arm-bar takedown was effectuated Neal was compliant.

       Officer Ficcadenti asserts that the force used was reasonable and necessary
because Neal was initially non-compliant, he feared that someone had a gun, and it
was imperative that Neal be handcuffed as soon as possible so that attention could be
re-directed to Lee and officers could completely defuse the situation.

      During his deposition, Neal explained that his delayed responses may have
been the result of the chaos on the scene, particularly the multiple officers directing
him. He opined that he may have dropped his hands temporarily at times because he
was anticipating an officer to come and handcuff him. Officer Ficcadenti agreed
during his deposition that Neal ultimately complied by walking towards Officer
Ficcadenti with his hands up.


      3
       Ironically, as Neal was walking towards Officer Ficcadenti, the dispatcher
informed the police that the “Male with the gun just walked out the front door.” The
suspect was arrested and searched. He was found to be in possession of a hammer.
No gun was found.

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      II.    Discussion

       We review de novo a district court’s ruling on qualified immunity, viewing the
record in the light most favorable to the non-moving party and drawing all reasonable
inferences in favor of the non-moving party. Langford v. Norris, 614 F.3d 445, 459
(8th Cir. 2010) (citing Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)). To
determine whether an officer is entitled to qualified immunity, we ask: (1) whether
the facts the plaintiff has presented, when viewed in his favor, show that the conduct
of the officer violated a constitutional right, and (2) whether that constitutional right
was clearly established at the time of the incident such that a reasonable officer would
have known his or her actions were unlawful. Tatum v. Robinson, 858 F.3d 544, 547
(8th Cir. 2017) (citing Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014)).

             A.     Violation of a Constitutional Right

       In an excessive force case, “[a]n officer’s use of force violates the Fourth
Amendment if it is objectively unreasonable in light of the facts and circumstances
of the particular case, as ‘judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Hollingsworth v. City of St.
Ann, 800 F.3d 985, 989 (8th Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)). We evaluate the objective reasonableness of the use of force by looking
at the particular circumstances of each case, including “the severity of the crime at
issue, whether the suspect pose[d] an immediate threat to the safety of the officer or
others, and whether he [wa]s actively resisting arrest or attempting to evade arrest by
flight.” Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (quoting Graham,
490 U.S. at 396).

      When first arriving on the scene, officers had reason to be on high alert. They
were responding to a call that a witness had seen a man grab a gun from a black sedan
parked near Born’s Bar, place the gun in his waistband, and stand outside near the

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bar. It was nighttime, and the bar and surrounding area were well-known to officers
because they were frequently called there to address criminal activity. When the
officers arrived, they found an occupied black sedan parked outside the bar. Even
though possession of a gun in itself is not a crime, the officers faced an uncertain,
possibly dangerous, situation.

       Even so, a reasonable officer is not permitted to ignore changing circumstances
and information that emerges once arriving on scene. See Ngo v. Storlie, 495 F.3d
597, 603 (8th Cir. 2007) (“[E]ven though Storlie was responding to a severe crime—a
fellow officer had been shot—a reasonable officer arriving at the scene would have
recognized that Ngo did not pose an immediate threat to the officers’ safety or the
safety of others.”). In this case, it became immediately apparent that none of the men
detained in this encounter matched the description of the suspect. None of them were
a heavy-built black man in his forties wearing a baseball cap and red and white shirt.
Officer Ficcadenti’s repeated reference to Neal as “black shirt” makes clear that he
quickly realized that Neal was not dressed similarly to the suspect. Likewise, a
reasonable officer would have recognized that Lee did not match the physical
description. O’Bannon was already in custody.

       While the appellant makes much of Neal’s wandering, any danger caused by
Neal wandering around the sedan was mitigated by the fact that O’Bannon had been
apprehended; Lee stood in one place with his hands up; Neal mainly kept his hands
up as he walked; and several officers were on the scene with guns drawn and pointed
in the direction of the sedan. For these reasons, the first two factors—the severity of
the crime and the threat to safety—weigh against the reasonableness of the force used
by Officer Ficcadenti.

       We turn to the question of whether Neal resisted arrest. Officer Ficcadenti
asserts that this case presents a passive resistance case in which the use of force is
justified, noting that we have previously stated: “[w]hen a suspect is passively

                                         -7-
resistant somewhat more force may reasonably be required.” Wertish, 433 F.3d at
1066-67. The passive resistance involves Neal’s initial failure to follow commands,
which Neal explains was the result of natural confusion arising out of the chaotic
conditions. Law enforcement officers are not required to read a suspect’s motivations
in failing to obey commands—it is enough that the officer reasonably perceives that
the suspect is not following orders as given. Officer Ficcadenti was reasonable in his
initial inference that Neal was engaged in an act of passive resistance. This changed
when Neal approached Officer Ficcadenti with his hands up in complete compliance
with the orders being given to him. Officer Ficcadenti admitted in his deposition that
at the time the arm-bar takedown was effectuated Neal was in full compliance with
his orders.

       The officer also asserts that under our precedent in Hosea v. City of St. Paul,
867 F.3d 949 (8th Cir. 2017), the force used was neither unreasonable nor excessive.
We disagree. In Hosea, an alleged domestic violence victim was within reach of
Hosea, Hosea had only reluctantly begun to partially comply with the orders, and the
situation remained fluid and dangerous. Neal, on the other hand, was fully compliant
with his hands above his head when the force was imposed on him.

       Neal has provided adequate evidence that he neither posed a threat to anyone’s
safety nor resisted arrest at the time that Officer Ficcadenti executed the arm-bar
takedown. We are satisfied that these facts, construed in a light most favorable to
Neal, establish a violation of a constitutional right to be free from unreasonable and
excessive force.

      B.     Clearly Established Right

      We turn now to the question of whether or not the constitutional right that
Officer Ficcadenti allegedly violated was clearly established as of June 6, 2012. We
have said many times that “[t]he right to be free from excessive force in the context

                                         -8-
of an arrest is clearly established under the Fourth Amendment’s prohibition against
unreasonable searches and seizures.” Shannon v. Koehler, 616 F.3d 855, 864
(8th Cir. 2010) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir.
2009)). The “salient question” is whether the state of the law at the time the force
was exerted gave Officer Ficcadenti “fair warning” that his alleged treatment of Neal
was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

       In June 2012, the state of the law would have given a reasonable officer fair
warning that using physical force against a suspect who was not resisting or
threatening anyone was unlawful. See, e.g., Montoya v. City of Flandreau, 669 F.3d
867, 873 (8th Cir. 2012) (“[T]he contours of the right at issue were sufficiently clear
to inform a reasonable officer in Officer Hooper’s position it was unlawful for him
to perform a ‘leg sweep’ and throw to the ground a nonviolent, suspected
misdemeanant who was not threatening anyone, was not actively resisting arrest, and
was not attempting to flee.”).

       After construing the facts in a light most favorable to Neal, i.e. that he was
fully compliant at the time that Officer Ficcadenti applied the arm-bar takedown
maneuver on him, that conduct violated a clearly established constitutional right on
June 6, 2012. The district court correctly concluded that this is one of those relatively
rare cases in which a question of fact is presented for the ultimate finder of fact and
qualified immunity does not apply.

      III.   Conclusion

     For the foregoing reasons, we affirm the district court’s order denying summary
judgment on the basis of qualified immunity.
                      ______________________________




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