                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3203
                         ___________________________

                                    Troy Rokusek

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Cody Jansen, individually

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                              Submitted: June 15, 2018
                               Filed: August 8, 2018
                                   ____________

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

GRUENDER, Circuit Judge.

       South Dakota State Trooper Cody Jansen appeals the district court’s1 denial of
summary judgment on Troy Rokusek’s claim under 42 U.S.C. § 1983. The district
court determined that Trooper Jansen was not entitled to qualified immunity because

      1
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
the evidence, construed in Rokusek’s favor, showed that Jansen violated his clearly
established right to be free from excessive force. We affirm.

       On the night of April 14, 2015, Jansen arrested Rokusek for driving while
impaired and transported him to a garage at the courthouse in Clay County, South
Dakota. Once there, Jansen removed the handcuffs from Rokusek, who consented to
having his blood drawn. Though a medical technician was in the garage to perform
the blood draw, Rokusek preferred a more sanitary environment and withdrew his
consent. Jansen ordered Rokusek to stand so that he could handcuff him again before
obtaining a warrant to draw blood. Despite Jansen’s three requests, Rokusek refused
to comply. Jansen, who was 6’4” and weighed at least 180 pounds at the time of the
incident, pulled Rokusek, who was 5’6” and weighed 135 pounds, to a standing
position. He then placed him in a “double-chicken-wing hold” by putting his arms
around Rokusek’s arms and interlocking them behind Rokusek’s back. As is evident
from a video recording of the incident, the hold immobilized the much smaller
Rokusek. The two remained in this position until Jansen suddenly threw Rokusek
face-first to the ground. Because his arms were immobilized, Rokusek was unable
to brace his fall and lost two teeth.

       We review de novo the district court’s denial of qualified immunity on
summary judgment, viewing the record in the light most favorable to Rokusek and
drawing all reasonable inferences in his favor. See Shannon v. Koehler, 616 F.3d
855, 861-62 (8th Cir. 2010). To overcome Trooper Jansen’s claim of qualified
immunity, Rokusek must show the violation of a constitutional right that was clearly
established at the time of the violation. See Gilmore v. City of Minneapolis, 837 F.3d
827, 832 (8th Cir. 2016). “To establish a constitutional violation under the Fourth
Amendment’s right to be free from excessive force, the test is whether the amount of
force used was objectively reasonable under the particular circumstances.” Brown
v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). A right is clearly
established if “every reasonable official would have understood that what he is doing

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violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation
marks omitted).

       Trooper Jansen argues that the district court did not consider his point of view
in evaluating the reasonableness of his actions. While reasonableness is an objective
standard, it must account “for the fact that police 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.”
Graham v. Connor, 490 U.S. 386, 396-97 (1989). An officer need not “pursue the
most prudent course of conduct as judged by 20/20 hindsight vision.” Retz v. Seaton,
741 F.3d 913, 918 (8th Cir. 2014). With these principles in mind, we consider several
factors, including the severity of the suspect’s crime, whether the suspect was
threatening the officers or others, and whether the suspect was actively resisting or
fleeing. Graham, 490 U.S. at 396.

       Under these factors, Jansen’s use of force was not objectively reasonable under
the circumstances. Rokusek was an unarmed, nonviolent offender. He was not
threatening Jansen or the technician, and he was not actively resisting or fleeing.
Nonetheless, the much larger Jansen lifted him off the ground and slammed his head
into the floor, causing him to lose two teeth. Though Jansen testified that Rokusek
pushed back against him while he was in the double-chicken-wing hold, the video
makes clear that any contact was slight.

       Jansen argues that we sanctioned a comparable takedown under similar
circumstances in Vester v. Hallock, 864 F.3d 884 (8th Cir. 2017). But in finding that
the officer in Vester had not used excessive force, we relied on “the very real
possibility that [the suspect] still had a concealed knife on his person.” Id. at 887.
Rokusek posed no such danger. The situation Jansen faced also differed from that in
Ehlers v. City of Rapid City, 846 F.3d 1002, 1007, 1011 (8th Cir. 2017), where an
officer took a fleeing arrestee to the ground after he ignored repeated warnings to put

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his hands behind his back. While Rokusek had disobeyed Jansen’s three prior orders
to stand up, he has denied that he continued to ignore Jansen’s commands. Jansen
had him fully under control. Construing the evidence in Rokusek’s favor, Jansen
used more than “the force necessary” to handcuff Rokusek. See id. at 1011.

       We now turn to the second prong of the qualified immunity test: whether the
right was clearly established at the time of the violation. Jansen correctly emphasizes
that Rokusek bears the burden of showing that the law was clearly established. See
Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013). The Supreme Court has warned
that we must not “define clearly established law at a high level of generality,” and a
right’s contours must be “sufficiently clear” so that “every reasonable official would
have understood that what he is doing violates that right.” al-Kidd, 563 U.S. at 741-
42 (internal quotation marks omitted). But as the Court has explained, “[A] general
constitutional rule already identified in the decisional law may apply with obvious
clarity to the specific conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741
(2002).

       Here, several cases establish that every reasonable official would have
understood that he could not throw Rokusek—a nonviolent, nonthreatening
misdemeanant who was not actively resisting—face-first to the ground. See Small v.
McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya v. City of Flandreau, 669
F.3d 867, 873 (8th Cir. 2012); see also Brown, 574 F.3d at 499; Rohrbough v. Hall,
586 F.3d 582, 586-87 (8th Cir. 2009). While none of these cases involve a fact
pattern precisely like the one at issue here, there is no requirement that Rokusek must
find a case where “the very action in question has previously been held unlawful,” see
Rohrbough, 586 F.3d at 587, so long as “existing precedent [has] placed the statutory
or constitutional question beyond debate,” al-Kidd, 563 U.S. at 741. Jansen had “fair
warning” that he should not have thrown a nonviolent, nonthreatening suspect who
was not actively resisting face-first to the ground. See Hope, 536 U.S. at 741.



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     Accordingly, we affirm the district court’s order denying Jansen summary
judgment on the basis of qualified immunity.
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