                     UNITED STATES COURT OF APPEALS

                         FOR THE EIGHTH CIRCUIT

                             _________________

                                No. 95-1574
                             _________________


David Habiger,                         *
                                       *
     Plaintiff - Appellant     *
                                       *   Appeal from the United States
     v.                                *   District Court for North Dakota.
                                       *
City of Fargo; Ann Alzheimer,      *
in her official capacity and           *
as an individual; Mike Kjera,      *
in his official capacity and           *
as an individual; Scott                *
Stenerson, in his official             *
capacity and as an individual;     *
Don Lawyer, in his official            *
capacity and as an individual;     *
Mark Lykken, in his official           *
capacity and as an individual,     *
                                       *
     Defendants - Appellees.           *

                             _________________

                      Submitted: October 18, 1995

                          Filed: April 4, 1996
                            _________________

Before WHITE,* Associate Justice (Ret.), McMILLIAN and LOKEN, Circuit
Judges.

                             _________________

WHITE, Associate Justice (Ret.).




     *
      The Honorable Byron R. White, Associate Justice of the
United    States Supreme Court, (Ret.), sitting by
          designation, pursuant to 28 U.S.C. § 294(a).
                             I. INTRODUCTION


      Plaintiff-Appellant David A. Habiger ("Habiger") appeals from the
district court's entry of partial summary judgment and a jury verdict
against him in his Section 1983 action brought in the wake of his arrest
for violating a temporary restraining order ("TRO").   The district court
rejected his unlawful arrest claim, ruling for the police officers on
qualified immunity grounds and dismissing the claim against the City of
Fargo ("the City") based on its alleged failure to train its police
officers.   Habiger v. City of Fargo, No. A3-93-81 (D.N.D. filed Jan. 23,
1995).   A jury then found that neither the City nor its officers were
liable for using excessive force in arresting Habiger.        Habiger now
appeals, complaining that the district court erred in (1) granting summary
judgment to the officers on qualified immunity grounds; (2) dismissing the
illegal arrest/failure to train claim against the City; and (3) refusing
to instruct the jury that it should consider the legality of the arrest in
determining whether the officers' use of force in arresting Habiger was
objectively reasonable.   For the reasons stated below, we reject each of
these claims of error, and AFFIRM the judgment of the district court.


                             II. BACKGROUND


                                   A.


     On October 28, 1991, a North Dakota state trial court issued a TRO
restricting the protesting activity of pro-life demonstrators in the
immediate vicinity of the Fargo Women's Health Organization, Inc. ("FWHO"
or "the clinic").   Fargo Women's Health Organization, Inc. v. Lambs of
Christ, No. 91-1953 (Cass County Dist. Ct. filed Oct. 28, 1991).        The
operative provisions of the TRO enjoined the pro-life protestors from:




                                   -2-
           (a). trespassing on, sitting in, blocking, impeding or
     obstructing ingress or egress from FWHO facilities and the
     homes and residences of Plaintiffs Miks, Wicklund, and Bovard,
     as well as the homes and residences of any staff (paid or
     volunteer) or patients of FWHO.
           (b). harassing, intimidating or physically abusing
     persons entering, leaving or working at FWHO facilities;
           (c). obstructing the work of the persons located at FWHO
     facilities by any means -- including singing, chanting,
     yelling, shouting, or screaming -- that substantially
     interferes with the provision of medical services including
     counseling, with[in] such facility;
           (d). going within 100 feet of the property line of FWHO
     during such times as they are open for business, except that
     one person may quietly and peacefully picket such facility, so
     long as that person does not interfere with the operations of
     said facility as provided herein.
           (e). following, harassing, photographing, videotaping,
     and intimidating, or speaking to staff and patients of FWHO who
     have indicated that they do not wish to be spoken to.
           (f). distributing leaflets or brochures to any person who
     has indicated orally or by gesture that such person does not
     wish to receive such literature.
           (g). inducing, encouraging, or directing others to take
     any of the actions described in paragraphs (a). - (f). above.

                                  . . .

           IT IS FURTHER ORDERED THAT THE Cass County Sheriff, Fargo
     Police Department, and any other Law Enforcement Authority may
     enforce this order and may make arrests for the violation of
     this order.

Id. at 2-4.
    The pro-life protestors challenged the constitutionality of the TRO,
but the North Dakota Supreme Court, ten months after the arrest challenged
in this case, upheld those provisions of the TRO that are directly involved
in this case.   See Fargo Women's Health Organization, Inc. v. Lambs of
Christ, 488 N.W.2d 401 (N.D. 1992).1   Specifically,




     1
      More precisely, the North Dakota Supreme Court reviewed the
preliminary injunction that superseded the TRO and that contained
the identical provisions. See Fargo Women's Health Org., 488
N.W. 2d at 405. For the sake of convenience, we shall refer to
the injunction as a TRO.

                                   -3-
the court upheld the excessive noise restriction contained in paragraph
(c), supra, which is involved here, on the ground that the noise created
by the protestors had been so loud and invasive as to substantially
interfere with the provision of medical services. Id. at 409-10.   On this
appeal, Habiger does not challenge this judgment and does not contest the
facial validity of paragraph (c) or any other provision of the TRO.2


     In its opinion, the North Dakota Supreme Court described the events
leading up to the issuance of the TRO:
           Since 1981, the Fargo Women's Health Organization has
     operated a clinic which provides a full range of gynecological
     medical   services   including   first  trimester   abortions.
     Approximately 75 demonstrations by anti-abortion protestors
     have been held in the vicinity of the clinic. It appears that
     most of these demonstrations were peaceful, consisting of
     picketing, leafleting, and speaking to people in the area near
     the clinic. Beginning March 29, 1991, the character of the
     protests changed. On that day, 26 people stormed the clinic,
     broke down a door, occupied its rooms, and locked themselves
     together using bicycle locks.    The demonstrators refused to
     leave, were arrested, and were removed by Fargo police after
     their locks were removed by a locksmith.

           On nine other occasions in the ensuing seven months,
     demonstrators were arrested for criminal acts committed in
     conjunction with anti-abortion protests. As a result of these
     actions, patients were confronted and jostled as they attempted
     to walk to the clinic. Some patients were able to reach the
     clinic only with the assistance of




     2
      As for the other provisions of the TRO, the North Dakota
Supreme Court upheld paragraph (b), as well as paragraph (e) as
construed, except for its "speaking" prohibition, which was
stricken. Fargo Women's Health Org., 488 N.W.2d at 410-11. The
court also determined that the 100-foot place restriction in
paragraph (d) was content neutral and served a "significant
governmental interest." Id. at 407-09. However, the court
concluded that paragraph (d) was not narrowly tailored as
required by the First Amendment, and thus, remanded that
provision for sufficient narrowing. Id. at 409. In any event,
the area restriction is not involved in this appeal. Finally,
the court invalidated paragraph (f) in its entirety. Id. at 411.
Paragraphs (a) and (g) were apparently not challenged.

                                  -4-
volunteer "escorts" or professional security officers who
walked them through groups of hostile, screaming protestors
that surrounded them, stood in their way, forced leaflets into
patients' hands and otherwise impeded patients' access to the
clinic. Protestors struck, pushed, and threatened escorts and
guards with physical harm. One protestor was arrested trying
to climb the clinic's fence in order to reach a patient using
the clinic's rear entrance.

      Patients who attempted to drive to the clinic were
confronted at the entrance to the clinic parking lot.
Protestors stood in the way of the cars, climbed onto the
vehicles' hoods or under the cars. Some protestors attempted
to fasten themselves to the frames of cars in order to delay
their removal from the site.      On one occasion, protestors
placed blocks against the tires and attempted to cut a cable in
order to disable a car after they succeeded in stopping it in
the clinic's driveway. On another occasion, protestors waited
across the street from the clinic for a car to approach the
parking lot at which point they rushed into the street, stopped
the car, and blocked the public road. As a result of these
tactics, the clinic was effectively blockaded; patients and
staff could not enter or leave the clinic for hours at a time.

      The protestors called these blockades "rescues." At
anti-abortion rallies held after the "rescues" began, spokesmen
for the associations asked volunteers to participate by being
jailed for rescuing babies. The rescues were to be part of a
two-year campaign to force the clinic to close.

      Away from the clinic, protestors followed clinic staff
members in cars, and into grocery stores, airports, and other
public buildings. Their activities were particularly intense
against one of the clinic's doctors.      During a five month
period, groups as large as 30 demonstrated at the gate of her
home, congregating in predawn hours, shouting and honking car
horns, and attempting to block the departure of the doctor and
her family members. Some protestors roamed on the doctor's
property, leaving a banner draped over a car, a baby stroller
and basket on her porch. During times when the protestors were
near the site, the doctor's house and garage were vandalized.
Protestors followed the doctor in cars as she drove to Fargo or
to the airport.     Groups waited for the doctor in airport
parking ramps and rushed at her, yelling and flashing cameras.
They leafleted cars at the school of the doctor's daughter, and
two protestors were asked to leave the school building when
they attempted to obtain a photo of her daughter. A car full
of protestors also followed the daughter of one of the clinic's
volunteers.




                             -5-
Id. at 404-05.

                                      B.


        On the morning of October 31, 1991, Habiger and approximately
seventy-five other individuals participated in a protest near the clinic
to protest the issuance of the TRO.        During the protest, several police
officers, including Sergeant Don Lawyer ("Lawyer") were in front of the
clinic to enforce the TRO.     After Habiger walked over to Lawyer, Lawyer
told him that he could not cross the red-line marking the 100 foot radius
around the clinic.   Habiger responded that, "this is quite a country we got
here.    We're living on the edge of socialism.    It's more like a communist
regime." Habiger, slip op. at 5.


        After several of the protestors refused to stand behind the line,
approached within 80 feet of the clinic property, sat down, and refused to
move, the police officers began arresting them for violating the terms of
the TRO.    About the time that the officers began arresting the protestors,
Habiger, from behind the line, began to criticize loudly the officers'
conduct.    Lawyer repeatedly asked Habiger to quiet down.   Despite Lawyer's
requests, Habiger continued to condemn the police officers in loud tones:


        This is a dictatorship in this town. An evil city. You work
        for evil people that are killing human beings in there. You
        don't care. If you had any guts, you'd get out of that uniform
        and take a stand for life. What's that job mean to you? It
        ain't gonna mean nothing when your life is over. Take a stand
        for Jesus Christ. They're killin' human beings in there and
        nobody cares.    And you stand there with that smirk on your
        face. When you stand before God, you're going to answer for
        it.

Id. at 6.    Lawyer again asked him to quiet down.     This provoked an even
more emphatic response from Habiger:
        I can talk all I want. It's a free country. I'm behind the
        line. If you guys had any guts, you'd take them




                                     -6-
       uniforms off and we'd all storm that place and close it down.
       They're killing children in there. Yet nobody does nothin'.
       Everybody stands back. They're killing children. This town's
       a dictatorship. Its a communistic-it's communistic. You're
       evil. You're all evil. They're standing up for murderers.
       They're killing children that have a right to live. We had, we
       got a right to our lives. I don't care.

Id. at 6-7.      Finally, Lawyer told Habiger that he was under arrest.
Habiger asked "For what?, " and Lawyer responded, "Court order." Habiger
then stated, "For what? I'm just talking." Lawyer replied, "You're yelling
too loud." Id. at 7.        Habiger resisted the arrest, and several other
officers (Lawyer's co-defendants in this action) came to assist Lawyer in
restraining Habiger.


        After the police brought Habiger to the ground and completed the
arrest, he complained of pain in his arm, and the police called an
ambulance to assist him.       After he was treated at a local hospital, police
officers brought Habiger to jail.        The following day, Habiger was charged
with    disorderly   conduct    and   preventing   arrest.     Habiger   posted   the
necessary bond, but as a condition of his release, he was ordered to stay
away from the clinic.      On or about March 25, 1992, the Cass County State
Attorney's    Office    dismissed      the   charges   on    First   Amendment    and
insufficiency of the evidence grounds.


       On May 7, 1993, Habiger filed this 42 U.S.C. § 1983 action, claiming
that several of the City's police officers and the City violated his First
and Fourth Amendment rights.      As to the officers, Habiger alleged that they
arrested him for violating the noise restriction contained in paragraph (c)
of the TRO without probable cause and that they used excessive force in
arresting him.   As to the City, Habiger charged that its failure to train
the defendant officers led to his unconstitutional arrest.                Habiger's
complaint also alleged state law claims of false arrest, false imprisonment




                                         -7-
and assault and battery.           Magistrate Judge Klein,3 on summary judgment,
concluded that the officers were protected by qualified immunity on the
probable cause and First Amendment issues and dismissed the claim against
the City for its alleged failure to train the officers.                 Similarly, Judge
Klein       ruled   that   the   state   law    claims   of   false   arrest    and   false
imprisonment were barred under North Dakota's immunity doctrine.


        The court, however, denied the summary judgment motion on Habiger's
excessive force and state law assault and battery claims, ruling that these
claims should be tried to a jury, which then occurred.                The jury found for
the officers and the City.         Habiger then filed this appeal.        He argues that
the district court erred in (1) granting summary judgment to the officers
on the unconstitutional arrest claims; (2) granting summary judgment to the
City on the alleged failure to train its officers; and (3) not instructing
the jury to consider the lawfulness of the arrest in determining whether
the officers, use of force was objectively reasonable.                         We exercise
jurisdiction under 28 U.S.C. § 1291, and we now AFFIRM.
                                    III.   DISCUSSION
            We begin by setting out the legal propositions that are not in
dispute.       First, to withstand a motion for summary judgment on qualified
immunity grounds, a civil rights plaintiff must (1) assert a violation of
a constitutional right; (2) demonstrate that the alleged right is clearly
established; and (3) raise a genuine issue of fact as to whether the
official would have known that his alleged conduct would have violated
plaintiff's clearly established right.               Foulks v. Cole County, Mo., 991
F.2d 454, 456 (8th Cir. 1993).           Second, Habiger had a clearly established
right under the Fourth Amendment not to be arrested unless there was
probable cause for his arrest.




        3
      This case was tried to a magistrate judge by consent of the
parties.

                                               -8-
Third, Habiger also had a clearly established right to express his views
about abortion in a public forum; but this right is not absolute since it
is subject to proper time, place and manner regulations, such as the
excessive noise prohibition contained in paragraph (c) of the TRO.   Fourth,
the validity of the TRO, of which Habiger had notice, is not in dispute;
hence, if the police officers had probable cause to believe that Habiger
was violating the TRO by yelling or screaming so as to substantially
interfere with the provision of medical services (e.g., counseling), his
arrest was valid and would not violate either the Fourth or the First
Amendment.   Fifth, "[t]he issue for immunity purposes is not probable cause
in fact but arguable probable cause," Myers v. Morris, 810 F.2d 1437, 1455
(8th Cir.), cert. denied, 484 U.S. 828 (1987), that is, whether the officer
should have known that the arrest violated plaintiff's clearly established
right, Foulks v. Cole County, Mo., 991 F.2d at 456.      Sixth, in granting
summary judgment in favor of defendant officers on immunity grounds, the
court did not need to rule on whether there was actual probable cause to
arrest Habiger.   Seventh, although the City may not be held liable for the
mistakes of its officers on a respondeat superior basis, it is not entitled
to the shield of qualified immunity afforded to its officers.   See Owen v.
City of Independence, 445 U.S. 622, 657 (1980).     Thus, if there was not
actual probable cause to arrest Habiger, the City could be held liable on
a failure to train theory unless its failure to train its officer did not
lead to Habiger's unlawful arrest, which the district court held was the
case and which is an issue in this appeal.
                     A.   THE QUALIFIED IMMUNITY ISSUE
     We review the district court's grant of summary judgment de novo.
Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993).     We
address first whether a reasonably competent officer could believe there
was probable cause to arrest Habiger.     As the district court recounted,
when officer Lawyer arrested Habiger, he stated that Habiger was violating
the court order by "yelling too loud."    Thus, Lawyer




                                    -9-
must have thought that Habiger's repeated yelling substantially interfered
with the clinic's operation and violated the noise restriction contained
in paragraph (c) of the TRO.            The court posed the issue as whether " a
reasonable police officer could have believed that Habiger's yelling was
substantially interfering with the operation of the clinic." Habiger, slip
op. at 21.     The court concluded that "[a] reasonable police officer fearing
a   magnification      of    the   volatile   situation    could    have   believed   that
Habiger's speech, delivered while many of his fellow demonstrators were
being arrested for violating the court order, substantially interfered with
clinic operations." Id. at 22.           Thus, the court ruled that the officers
were immune from suit.
      We agree with the district court.              Habiger was screaming at the top
of his voice from a point some thirty-three yards from the clinic property.
Whether Habiger could be heard inside the clinic or by patients seeking to
enter the clinic was a judgment call on Lawyer's part, the kind of a
decision that police officers must repeatedly make.             The qualified immunity
doctrine allows officers to make reasonable errors so that they do not
always "err on the side of caution." Hunter v. Bryant, 502 U.S. 224, 229
(1991) (per curiam) (internal quotation omitted).4                    Furthermore, the
"substantial interference" standard had yet to be interpreted, and an
officer   on    duty    in    the    field    is    entitled   to   make   a   reasonable
interpretation




      4
       We have previously explained that:

      Law enforcement officers should not, on pain of having
      to pay damages out of their own pockets, be required to
      anticipate how appellate judges will apply maxims of
      constitutional adjudication about which even those
      judges sometimes disagree [-] it would be unworkable
      for the officers to await interpretations from federal
      appellate judges rendered long after the orders were
      executed to learn whether they will be civilly liable
      for performing an assigned duty.

McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir. 1987) (internal
quotation omitted).

                                             -10-
of the law he is obligated to enforce.    See Gorra v. Hanson, 880 F. 2d 95,
97-98 (8th Cir. 1989).   Thus, given Habiger's loud and repeated yelling,
we conclude that the district court correctly held that the officers
arguably had probable cause for Habiger's arrest and were immune from suit.
In doing so, we reject three First Amendment arguments that Habiger claims
foreclose or fatally infect the district court's judgment.


    First, Habiger contends that the district court failed to consider the
import of paragraph (i) of the TRO, which cautions that nothing in the TRO
should be construed to abridge the lawful exercise of one's First Amendment
rights.   But Habiger does not challenge the constitutionality of the noise
restriction.   An arrest for violating that provision is not barred by the
First Amendment, nor does an officer's reasonable mistake about the
legality of the arrest disentitle the officer to qualified immunity.
     Second, Habiger asserts that the arrest was pretextual; that is, he
argues that the officers arrested him not to enforce the TRO, but because
of their disagreement with his views on abortion.    This matter of intent,
it is submitted, should not have been disposed of on summary judgment.   On
the facts of this case, however, we seriously doubt that this claim of
pretext, even if proved, would nullify the finding of probable cause to
believe that Habiger was violating the TRO; nor would it disentitle the
officers to qualified immunity. See U.S. v. Bloomfield, 40 F.3d 910, 915
(8th Cir. 1994) (en banc), cert. denied., 115 S. Ct. 1970 (1995) ; Foster
v. Metropolitan Airports Comm 'n. , 914 F. 2d 1076, 1081 (8th Cir. 1990).
In any event, we need not consider this issue since Habiger has plainly
failed to support his claim of pretext by demonstrating a genuine issue of
material fact on this question.
     Third, Habiger points to the district court's conclusion that "a
reasonable police officer fearing a magnification of the volatile situation
could have believed that Habiger's speech,     delivered while




                                   -11-
many of his fellow demonstrators were being arrested for violating the
Order, substantially interfered with clinic operations."             He asserts that
this conclusion disregards the First Amendment by considering the emotive
effect his speech might have on his fellow demonstrators.           In similar vein,
Habiger points to what Officer Lawyer said in his affidavit:                Habiger was
"very emotional and disruptive" and "made it much more difficult to control
the crowd."      App. 105-106, 110.        Habiger supports his legal argument by
quoting from Texas v. Johnson, 491 U.S. 397, 409 (1989).

       we have not permitted the government to assume that every
       expression of a provocative idea will incite a riot, but have
       instead   required   careful   consideration   of  the   actual
       circumstances surrounding such expression, asking whether the
       expression "is directed to inciting, or producing imminent
       lawless action and is likely to incite or produce such action."
       Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

See Reply Br. at 5.

       We do not belittle this basic constitutional principle.         As we see it,
this principle was not violated either by the officers' conduct or by the
district court's opinion and judgment.            The circumstances faced by the
officers and leading to Habiger's arrest are adequately clear.              Habiger was
one of 75 or so protestors gathered in front of the clinic.                 Some of the
demonstrators crossed the red line to within 80 feet of the clinic, sat
down and refused to move, asserting that they had a constitutional right
to be where they were.        At this point, Habiger, from behind the line but
in the midst of the protestors, began screaming invectives at the police
at   the   top   of   his   voice.    He    refused   to   quiet   down.      In   these
circumstances, Lawyer and his fellow officers could reasonably believe that
Habiger's extremely loud and emotional shouting was directed at inciting
imminent conduct expressly barred by the TRO and that his shouting was
substantially interfering with the business of the clinic.                 The officers
surely thought that they had probable cause to arrest Habiger.                 Even if
this




                                           -12-
was a mistake, the purpose of the qualified immunity doctrine is to provide
ample room for mistaken judgments and to protect "all but the plainly
incompetent or those who knowingly violate the law." Malley v. Briggs, 475
U.S. 335, 341 (1986). In our view, the officers' judgment was not "plainly
incompetent," and the district court did not err in referring to the
probable impact of Habiger's screaming on the other demonstrators and in
concluding that there was arguable probable cause to believe that Habiger
was substantially interfering with the business of the clinic.
                           B.    MUNICIPAL LIABILITY
       Habiger also argues that, if the officers arrested Habiger without
actual probable cause (even if there was arguable probable cause so as to
clothe them with qualified immunity), the City is liable for the illegal
arrest on a failure to train theory.         See Medina v. City of Denver, 960
F.2d   1493,   1499-1500   (10th    Cir.   1992)   (noting   that   there   is   no
inconsistency between granting qualified immunity to City officials and
holding the City liable).       First, Habiger claims that the district court
never addressed the question of actual probable cause because it did not
analyze the underlying constitutional violation (which it assumed) , but
merely focused on the presence of arguable probable cause.5         See Discussion
of Jury Instructions, App. at 172 ("I don't want to create the impression
that the Court has ruled that the arrest was valid because I've not ruled
either way.").6




       5
      The essence of Habiger's argument that the district court
ruled on immunity grounds and did not hold that the officers had
actual probable cause to arrest Habiger-is that "[i]f probable
cause was indeed present, it is not necessary to consider an
immunity defense." Foster v. Metropolitan Airports Comm'n, 914 F.
2d 1076, 1079 (8th Cir. 1990).
       6
      While this discussion of the jury instructions represents
Judge Klein's interpretation of her own order, the order itself
also appears to conclude that the police officers had arguable,
not actual, probable cause to make the arrest. See, e.g. , slip
op at 22 ("whether Habiger's passionate speech substantially
interfered with clinic operations is subject to debate"); id. at
23 ("[A] reasonable police officer
could have believed that Habiger's arrest was lawful.").

                                      -13-
In effect, Habiger continues, the district court wrongly applied the shield
of qualified immunity to the City.      See Owen, 445 U.S. at 657.


      This argument, even if sound, does not require us to reverse the
district court, for it also rejected Habiger's failure to train theory on
the ground that "[a] dditional specialized training on First Amendment
protections would not have influenced a reasonable police officer's
decision to arrest plaintiff for violating the [TRO]." Habiger slip op. at
39-40; id. at 39 ("inadequate training was not the proximate cause of
plaintiff's alleged constitutional injury."). Moreover, with specific
reference to the TRO, the district court explained that, since the TRO only
went into effect three days before Habiger's arrest, the Department did not
have time to train its officers how to handle these specific protests. Id.
at 40.   Thus, because Habiger has failed to demonstrate how the City's
failure to train its officer caused the violation of his constitutional
rights, we affirm the district court's judgment that the City cannot be
held liable on a failure to train theory.
                C.      JURY INSTRUCTIONS ON EXCESSIVE FORCE
     Finally, Habiger argues that the district court erred by instructing
the jury that the objective reasonableness of the force
used in arresting him did not turn, at least in part, on whether          the
                    7
arrest was legal.       In support of this contention, Habiger suggests




     7
      Specifically, Habiger challenges Jury Instruction No. 8.
That instruction provided:

     You will not be asked to decide whether plaintiff's
     arrest was valid or not, or whether he was legitimately
     exercising his right to free speech at the time of his
     arrest. The court has already resolved these issues
     and you should not consider them.

App. at 199.

                                      -14-
that Graham v. Connors focus on "the severity of the crime" as a factor
justifying the use of force suggests that the legality of the arrest can
make the use of force unreasonable. 490 U.S. 386, 396 (1989). We reject
this argument because the "severity of the crime" does not necessarily
encompass whether there was actual probable cause to arrest the defendant
for   that   alleged   crime.    The    touchstone   of   Graham   is   objective
reasonableness, and the force used to effect a good faith, though false,
arrest is not necessarily more likely to be unreasonable than a good faith,
though legal, arrest.8     The jury instructions reflected this essence of
Graham and the jury correctly focused on the severity of alleged crime and
the other factors outlined in Graham.          Therefore, we affirm the jury
instructions on the excessive force count.


                                IV.    CONCLUSION


      For the reasons stated above, we AFFIRM the judgment of the district
court.
      A true copy.
             Attest:
                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




      8
      Indeed, we are inclined to believe that the presence of
actual or arguable probable cause is irrelevant to the objective
reasonableness of the force used to effect an arrest. That is,
if the identical force is used to arrest two defendants suspected
of committing the identical crime, the objective reasonableness
of the use of force does not depend on whether the arrest was
based on actual or arguable probable cause.

                                       -15-
