                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2661
                         ___________________________

                                Mark Shane Bishop,

                       lllllllllllllllllllll Plaintiff - Appellant,

                                           v.

 Deputy Dale Glazier, in his individual and official capacities; Freeborn County,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

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

                             Submitted: March 14, 2013
                                Filed: July 30, 2013
                                  ____________


Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,1 District
Judge.
                        ____________

COLLOTON, Circuit Judge.




      1
      The Honorable P. K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
       Appellant Mark Shane Bishop brought this action against Deputy Sheriff Dale
Glazier of Freeborn County, Minnesota, pursuant to 42 U.S.C. § 1983. He alleged
that Glazier violated his rights under the Fourth Amendment by using excessive force
against him. The district court2 concluded that there was insufficient evidence of
excessive force and granted summary judgment for Glazier based on qualified
immunity. We affirm.

                                          I.

       Around 1:00 a.m. on December 12, 2010, Bishop was driving through Freeborn
County, Minnesota, on a trip from Michigan to Oklahoma. Bishop’s fiancée, Jessica
Leasure, and the couple’s daughter were in the vehicle with him. Blizzard conditions
made driving difficult, so Bishop decided to stop at a hotel for the night until the
weather cleared. He exited the highway and was proceeding westbound on Freeborn
County Road 46 toward the nearest hotel when his car hit a snow drift. The vehicle
slid across the roadway and became stuck in a snow bank, facing westbound in the
eastbound lane. Bishop unsuccessfully tried to free his vehicle from the snow bank.
He then called 911 and requested assistance. The dispatcher advised Bishop that she
would send a deputy to help.

       Approximately thirty minutes later, Glazier arrived in a four-wheel drive car,
which he parked behind Bishop’s vehicle. Glazier assisted Bishop in attempting to
free the vehicle by shoveling snow from around the front tires of Bishop’s car.
Glazier then pushed the car back and instructed Bishop to turn his wheel to the right
and to drive toward the road surface. Instead of turning the car, Bishop drove straight
back into the snow bank. Glazier testified that he shoveled out Bishop’s tires and



      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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pushed the car back “numerous times,” but that Bishop continued to drive straight
back into the snow bank.

       After these unsuccessful attempts to free Bishop’s vehicle, Glazier instructed
Bishop to shovel out the front tires himself and returned to his own car. Glazier then
radioed for assistance from police officers in the nearby city of Albert Lea. When
two Albert Lea police officers arrived on the scene with a tow rope, Glazier
positioned his car in front of Bishop’s vehicle. Glazier hooked one end of the tow
rope to the back of his car and offered Bishop the other end. After Bishop’s attempts
to attach the tow rope to his car were unsuccessful, he returned to his car and sat in
the driver’s seat. Bishop testified that Glazier was swearing at him during the
encounter, and he described Glazier as rude, demeaning, and aggressive.

       The parties dispute the details of what happened next. Bishop claims that
Glazier approached his car and opened the driver’s side door to speak with him.
Glazier, who “was screaming at” Bishop, said he would drive Leasure and the child
to the hotel while Bishop stayed with his car. Because he did not like the way Glazier
was treating him, Bishop asked if he could “go talk to” the Albert Lea police officers
who were parked nearby. When prompted to clarify exactly what he said to Glazier,
Bishop testified: “I believe I asked him if he could go get the other officers in the
vehicle or if we could deal with a different officer because he was being completely
rude.” Glazier denied Bishop’s request.

      Bishop said he did not believe he could leave his vehicle at this time, because
Glazier was physically blocking the driver’s side door with his body. But when
Glazier stepped back from Bishop’s car door, Bishop exited his vehicle with his
hands raised, stating, “I’m going to get another officer, I’d like another officer,
please.” At the time Bishop stepped out of his car, Glazier was standing between
Bishop and the open door, but there was sufficient space for Bishop to exit his vehicle
without coming into contact with Glazier. According to Bishop, Glazier “grabbed

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[him] by [his] throat and by [his] jacket” after he stepped out of the car and shoved
him against the side of the car. Bishop claims that Glazier applied pressure to his
throat for “[r]oughly 45 seconds to a minute,” that his breathing was restricted, and
that he had difficulty talking during that time. Bishop claims Glazier then “shoved”
him back into his car and told him to “shut the f*** up and sit the f*** down.”

      In contrast, Glazier contends that the only contact he had with Bishop was
when he grabbed Bishop’s left shoulder with his right hand, “pushed him back into
the car,” and told him “to remain in the car.” Glazier acknowledged that he used
“minimal” force to put Bishop back in his vehicle, but stated his actions were justified
by reasonable safety concerns.

       After Glazier pushed him back into his car, Bishop called 911 and reported that
Glazier had assaulted him. Bishop told the 911 operator that Glazier “grabbed [him]
by the throat and threw [him] up against [his] car . . . while [he] was calling out for
another officer.” The operator gave Bishop contact information for the Freeborn
County Sheriff’s Office and contacted a tow company. Glazier remained at the scene
until the tow truck driver arrived and pulled Bishop’s vehicle out of the snow bank.

         Days after the incident, Bishop spoke with an investigator from the Freeborn
County Sheriff’s Office. During the call, Bishop complained that Glazier had
“grabbed [Bishop] by the throat with one hand and with his other hand
he . . . slammed [Bishop] up against [his] car.” On December 29, 2010, Bishop filed
a complaint with the Freeborn County Sheriff’s Office. Bishop submitted a
typewritten statement he had prepared shortly after the incident, repeating his
allegation that Glazier had grabbed him by the throat. Leasure also submitted a
typewritten statement, in which she claimed that Glazier had “lunged at [Bishop],
slamming him up against the car with his hand around [Bishop’s] neck,” and that
Glazier then had forced Bishop into his car. As a result of the incident with Glazier,
Bishop suffered a “light cut” on his neck that took approximately a week and a half

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to heal. Bishop testified that the cut did not bleed, and that he did not seek any
treatment for the cut.

       Bishop filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that
Glazier violated his constitutional right under the Fourth Amendment to be free from
the use of excessive force. Glazier moved for summary judgment, arguing, inter alia,
that he is entitled to qualified immunity. The district court granted summary
judgment for Glazier, concluding that it was objectively reasonable for Glazier to use
force against Bishop and that the amount of force Glazier used was not
constitutionally excessive.

                                         II.

       We review the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). We may uphold a grant of summary judgment for any reason supported by
the record, even if different from the reasons given by the district court. Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). In § 1983 actions,
qualified immunity shields government officials from liability unless their conduct
violated a clearly established constitutional or statutory right of which a reasonable
official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When a defendant asserts qualified immunity at the summary judgment stage, the
plaintiff must produce evidence sufficient to create a genuine issue of fact regarding
whether the defendant violated a clearly established right. Chambers v. Pennycook,
641 F.3d 898, 904 (8th Cir. 2011).

      Bishop’s claim of excessive force is governed by the Fourth Amendment’s
prohibition against unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 395
(1989). An officer’s use of force violates the Fourth Amendment when it is

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objectively unreasonable, given 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.” Id. at 396-97. We must balance “the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against” the
countervailing governmental interests at stake. Tennessee v. Garner, 471 U.S. 1, 8
(1985). To defeat a claim of qualified immunity, a plaintiff alleging excessive use of
force must present sufficient facts to show both that the officer’s conduct violated a
constitutional right, and that the constitutional right was clearly established. Saucier
v. Katz, 533 U.S. 194, 201 (2001). We have discretion to decide which question
should be addressed first, Pearson v. Callahan, 555 U.S. 223, 236 (2009), and we
think it best in this case to start with the latter.

       “[W]hether the constitutional right at issue was ‘clearly established’ is a
question of law for the court to decide.” Rohrbough v. Hall, 586 F.3d 582, 586 (8th
Cir. 2009). For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). That is, the
unlawfulness of an officer’s conduct “must be apparent” in light of pre-existing law.
Id. While there is no requirement that “the very action in question has previously
been held unlawful,” id., Bishop can succeed only if earlier cases gave Glazier fair
warning that his alleged treatment of Bishop was unconstitutional. See Johnson v.
Carroll, 658 F.3d 819, 828 (8th Cir. 2011).

       Glazier argues that even if all that Bishop alleges were true, there would be no
violation of Bishop’s clearly established right to be free of excessive force, because
he suffered nothing more than de minimis injury. Bishop responds that Mayard v.
Hopwood, 105 F.3d 1226 (8th Cir. 1997), and Henderson v. Munn, 439 F.3d 497 (8th
Cir. 2006), clearly established that a plaintiff suffers a deprivation of a constitutional
right where an official uses excessive force, even when the injury is minor. Bishop
argues that there was a constitutional violation here, because even if Glazier “had the

                                           -6-
right to push [him] back inside his car,” no legitimate interest justified the alleged
choking. See Hemphill v. Hale, 677 F.3d 799, 801 (8th Cir. 2012). Mayard and
Henderson lend some support to Bishop’s position. But other precedents in place at
the time of this incident pointed in the other direction, suggesting that the presence
of only de minimis injuries may preclude a claim for excessive force. See Andrews
v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005); Crumley v. City of St. Paul, 324 F.3d
1003, 1007 (8th Cir. 2003).

       We surveyed this landscape in Chambers and concluded that it remained an
open question in this circuit “whether a plaintiff must demonstrate greater than de
minimis injury to establish a use of excessive force that violates the Fourth
Amendment.” Chambers, 641 F.3d at 904. We resolved that question by rejecting
a constitutional rule that turns on the arrestee’s degree of injury. According to
Chambers, the appropriate inquiry is whether the force used is objectively reasonable,
at least where the plaintiff shows some “actual injury.” Id. at 905-06 & n.2. While
“[t]he degree of injury is certainly relevant insofar as it tends to show the amount and
type of force used,” we reasoned, “it is logically possible to prove an excessive use
of force that caused only a minor injury.” Id. at 906.

       “The distinction between de minimis force and de minimis injury, however, was
not clear until Chambers was decided.” LaCross v. City of Duluth, 713 F.3d 1155,
1158 (8th Cir. 2013). As of December 2010, when Glazier encountered Bishop, “a
reasonable officer could have believed that as long as he did not cause more than de
minimis injury to an arrestee, his actions would not run afoul of the Fourth
Amendment.” Chambers, 641 F.3d at 908. Even if we assume for the sake of
analysis that Glazier grabbed Bishop by the throat for 45-60 seconds, and that
Bishop’s breathing and speaking were restricted during that time, Bishop’s only
injury was a “light cut” on his neck that did not bleed and for which he did not seek
any treatment. The amount of force that Glazier allegedly used did not cause more
than de minimis injury. See Wertish v. Kreuger, 433 F.3d 1062, 1067 (8th Cir. 2006)

                                          -7-
(concluding that “relatively minor scrapes and bruises” and “less-than-permanent
aggravation of a prior shoulder condition” were de minimis injuries.). Glazier is thus
entitled to qualified immunity, because he did not violate Bishop’s then clearly
established constitutional rights under the Fourth Amendment. See LaCross, 713
F.3d at 1158.

                                  *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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