                United States Court of Appeals
                           For the Eighth Circuit
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                               No. 18-1045
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 Jerica Moore-Jones, Individually and as Parent and Next Friend of Dela Moore

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

     Anthony Todd Quick, Trooper, individually and in his official capacity

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                         Submitted: September 26, 2018
                           Filed: November 28, 2018
                                 ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Jerica Jena Moore-Jones sued Arkansas State Police trooper Anthony Todd
Quick under 42 U.S.C. § 1983 and state law, for excessive force and assault and
battery. The district court denied qualified and statutory immunity. Having
jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.
       On the evening of November 7, 2015, Moore-Jones was driving on a service
road next to the interstate. She passed Quick’s marked police car parked on the right
shoulder. He checked the car’s registration, found it was expired, and began a traffic
stop around 8:22:28 p.m., which was recorded on his dash-cam.

       Quick pulled right behind Moore-Jones, turned on his emergency lights at
8:23:27 p.m., sirens at 8:23:35 p.m., and spotlight at 8:23:38 p.m. She decelerated
to about 14 miles per hour and pulled onto the right shoulder, past a car that had
yielded. The shoulder was narrow, the area unlit and dark. She then pulled back on
the road, accelerating to 35-38 miles per hour, her speed for the rest of the pursuit.
The posted speed limit was 55 miles per hour. At 8:24:16 p.m., she continued past
the last exit before the nearest city a mile-and-a-half away. At 8:24:18 p.m., in the
paved area after the exit, Quick began a Precision Immobilization Technique (PIT)
maneuver. Quick struck her right-rear fender with his left-front bumper, causing her
car to spin into a ditch, hitting a cement culvert. Moore-Jones and her daughter
visited the hospital that night and were treated and released. She was cited for
expired tags and failure to yield to an emergency vehicle, both misdemeanors.

       Moore-Jones and her minor daughter sued Quick for excessive force and
assault and battery. Quick sought summary judgment, invoking qualified and
statutory immunity. The district court denied his motion. Quick appeals.

       This court reviews de novo a denial of summary judgment on the basis of
qualified immunity, viewing the record most favorably to the non-moving party.
Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir. 2017). Quick is entitled to qualified
immunity unless his “conduct violated a clearly established constitutional or statutory
right of which a reasonable officer would have known.” Cravener v. Shuster, 885
F.3d 1135, 1138 (8th Cir. 2018). To overcome qualified immunity, Moore-Jones
must prove: “(1) the facts, viewed in the light most favorable to [her], demonstrate the
deprivation of a constitutional or statutory right; and (2) the right was clearly

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established at the time of the deprivation.” Wilson v. Lamp, 901 F.3d 981, 986 (8th
Cir. 2018). Either prong may be addressed first. Pearson v. Callahan, 555 U.S. 223,
236 (2009).

       Moore-Jones claims that Quick’s PIT maneuver violated her Fourth
Amendment right to be free from excessive force. See Wilson, 901 F.3d at 989. For
a right to be clearly established, its contours must be “sufficiently definite that any
reasonable official in the defendant’s shoes would have understood that he was
violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam), quoting
Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). Failing to “identify a case where
an officer acting under similar circumstances . . . was held to have violated the Fourth
Amendment” is often fatal to a claim outside of obvious cases. White v. Pauly, 137
S. Ct. 548, 552 (2017) (per curiam). See id., citing United States v. Lanier, 520 U.S.
259, 271 (1997) (explaining a “general constitutional rule” can give fair warning
where it applies “with obvious clarity to the specific conduct in question”). A case
need not be “directly on point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curim), quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

       The right to be free from a PIT maneuver in these circumstances was not
sufficiently definite. The district court relied on the clearly established law that
“force is least justified against nonviolent misdemeanants who do not flee or actively
resist arrest and pose little or no threat to the security of the officers or the public.”
Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009). See Wilson, 901
F.3d at 990–91 (collecting cases). This general rule, however, does not apply with
obvious clarity to the specific conduct here, where Moore-Jones refused commands
to stop. See, e.g., Ehlers v. City of Rapid City, 846 F.3d 1002, 1012 (8th Cir. 2017)
(finding the Brown lines of cases “inapposite” where a suspect ignored two
commands) (analyzing law as of 2010). From a reasonable officer’s perspective, she
refused to comply with commands to pull over. In November 2015, Quick was

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justified in using some force to secure compliance. See Neal v. Ficcadenti, 895 F.3d
576, 581 (8th Cir. 2018) (“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.”) (analyzing
law as of 2012); Wertish v. Krueger, 433 F.3d 1062, 1066–67 (8th Cir. 2006)
(passive resistance can reasonably require “somewhat more force” to complete an
arrest).

       Quick decided to use a PIT maneuver from the right side of Moore-Jones’s car,
avoiding the dangers to her and other drivers from her car potentially spinning into
the parallel interstate. He waited until after the last exit before the nearest city, which
had space on the right shoulder for the maneuver.

        The issue is whether existing precedent put the reasonableness of his decision
“beyond debate.” See Mullenix, 136 S. Ct. at 308, quoting al-Kidd, 563 U.S. at 741.
Moore-Jones identifies one case, Marshall v. West, 559 F. Supp. 2d 1224 (M.D. Ala.
2008). There, a PIT maneuver constituted excessive force against a non-violent
misdemeanant who failed to pull over during a daylight pursuit, but did not pose an
immediate risk to the officers or bystanders. Marshall, 559 F. Supp. 2d at 1240.
However, Marshall turned on the fact that the defendants—plain-clothed officers
driving an unmarked car with a malfunctioning emergency light—“failed to
adequately identify themselves to Plaintiff as law enforcement officers.” Id. See
Atkinson v. City of Mtn. View, 709 F.3d 1201, 1213 (8th Cir. 2013) (an officer’s
failure to identify himself is evidence that a suspect is not “actively resisting arrest
[or] attempting to evade arrest by flight”), quoting Graham v. Connor, 490 U.S. 386,
396 (1989). The Marshall case implies that after adequately identifying himself, an
officer might be justified in using a PIT maneuver on a non-compliant motorist.
Here, it is undisputed that Quick, in a marked police car, had engaged his emergency
lights, sirens, and spotlight.


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       Other cases show that PIT maneuvers can reasonably be used. See Sharp v.
Fisher, 532 F.3d 1180, 1184 (11th Cir. 2008) (per curiam) (finding PIT maneuver
reasonable when used against a suspect fleeing at high speeds and driving erratically);
Abney v. Coe, 493 F.3d 412, 418 (4th Cir. 2007) (finding PIT maneuver reasonable
when used against motorcyclist endangering the public by recklessly fleeing down
narrow, winding roads). Cf. Scott v. Harris, 550 U.S. 372, 386 (2007) (PIT maneuver
authorized, instead officer struck suspect’s car from directly behind); Pasco ex rel.
Pasco v. Knoblauch, 566 F.3d 572, 581 (5th Cir. 2009) (intentionally bumping
recklessly-fleeing, intoxicated driver off the road was reasonable, even though no
other vehicles or pedestrians were encountered during the pursuit); Helseth v. Burch,
258 F.3d 867, 872 (8th Cir. 2001) (en banc) (finding unsuccessful PIT maneuvers
used against fleeing suspect during high-speed chase did not have a conscience-
shocking intent to harm the driver and passengers necessary for a Due Process Clause
violation).

       The circumstances here are somewhere between the Marshall case and the
other cases above. Taken together, they suggest Quick’s actions were in the “hazy
border between excessive and acceptable force.” Mullenix, 136 S. Ct. at 312, quoting
Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam). The district court erred
in concluding Moore-Jones’s right was clearly established. Quick is entitled to
qualified immunity.

      This also resolves Moore-Jones’s state-law, excessive-force claims. See
Baldridge v. Cordes, 85 S.W.3d 511, 514–15 (Ark. 2002) (noting Arkansas officers
and employees have immunity similar to federal qualified immunity for
non-malicious acts or omissions within the scope of their employment).

      This dismissal of the excessive-force claims does not resolve the claims of
common law assault and battery. See Arkansas State Med. Bd. v. Byers, 521 S.W.3d
459, 463–65 (Ark. 2017) (under immunity statute for state employees, analyzing

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malice allegations and state civil-rights claims separate from federal civil-rights
claims); Early v. Crockett, 436 S.W.3d 141, 150 (Ark. 2014) (“[A]n officer or
employee who acts maliciously . . . is not protected by [statutory immunity for state
employees.]”); Simons v. Marshall, 255 S.W.3d 838, 842 (Ark. 2007) (“[S]uits
against [state] officers and employees alleged to be malicious” leave them “liable to
the extent anyone would be liable under tort law.”); Grine v. Bd. of Trustees, 2
S.W.3d 54, 59 (Ark. 1999) (“Intentional torts overcome the immunity extended to
State officers and employees.”). Cf. Martin v. Hallum, 374 S.W.3d 152, 160 (Ark.
Ct. App. 2010) (granting immunity for excessive force claim but denying it for battery
under immunity statute for city employees, which has the same scope as statutory
immunity for state employees). On remand, the district court may determine whether
to exercise supplemental jurisdiction over these claims.

                                    *******

      The judgment is reversed, and the case remanded for proceedings consistent
with this opinion.
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