                                   ___________

                                   No. 95-3989
                                   ___________


Elsie Marie Mayard,                    *
                                       *
           Appellant,                  *
                                       *
     v.                                *
                                       *
Tamara Joy Hopwood; Kernie Beam        *    Appeal from the United States
Miller; Terry Hyde,                    *    District Court for the
                                       *    District of Minnesota.
           Defendants,                 *
                                       *
Dennis Meyer; John Wright;             *
Karsten Winger,                        *
                                       *
           Appellees.                  *

                                   __________

                      Submitted:   October 23, 1996

                         Filed:    January 30, 1997
                                   __________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

                                   ___________


MAGILL, Circuit Judge.

     Elsie Mayard brought this 42 U.S.C. § 1983 action against officers
of the St. Paul, Minnesota, police department.        Mayard sought damages for
the alleged use of excessive force.        The district court granted summary
judgment to the police officers, and Mayard appeals.         Mayard argues that
the district court erred in granting summary judgment to the officers based
on her failure to
prove actual injury or the use of unreasonable force.1   We affirm in part
and reverse in part.


                                     I.


     Elsie Mayard attempted to open a liquor store in St. Paul, Minnesota,
in June 1992.    Pursuant to state law, the city of St. Paul denied Mayard
a liquor license because she was a nonresident alien, see Minn. Stat. §
340A.402 (1992), and Mayard was warned by the police not to attempt to sell
liquor without a license.      Mayard’s attorney subsequently attempted to
negotiate with the city to allow Mayard to open a liquor store.


     On June 10, 1992, Mayard sold liquor to an undercover police officer.
The police returned later that day to issue Mayard a citation for selling
liquor without a license.    Although the police did not intend to arrest
Mayard at that time, Mayard became very upset, shouting and screaming at
the police.   Mayard’s attorney arrived at the scene and attempted to calm
her, but was unable to do so.      She became extremely agitated when the
officers began removing her inventory as evidence.     She moved about the
store and activated a very loud alarm system.


     At this point, the officer in charge, Sergeant Joseph Neubergor,
directed Officers Dennis Meyer, John Wright, and Karsten Jeffery Winger to
arrest Mayard.   The officers took Mayard by the arms and escorted her out
of the store to a squad car.    She began




       1
        Mayard also argues that the district court erred (1) by
failing to find a Fourth Amendment violation when the police
entered the nonpublic areas of Mayard’s store and removed evidence
and (2) by applying the reasonableness standard in a Fourth
Amendment case when no warrant was obtained. Because these claims
were not properly raised before the district court, we decline to
consider them for the first time on appeal. See Renfor v. Swift
Eckrich, Inc., 53 F.3d 1460, 1464 (8th Cir. 1995) (this Court
ordinarily will not consider issues raised for the first time on
appeal unless exceptional circumstances exist).

                                    -2-
to struggle with them, attempting to pull away, and the officers handcuffed
her.    Because Mayard refused to get into the squad car, the officers picked
her up and put her face down on the rear seat.    Once in the car, she began
kicking, hitting an officer.     The officers responded by placing a hobble
restraint on her.     A hobble restraint is a nylon rope placed around the
legs that tightens when the detainee struggles.


        Mayard was then transported by Officer Meyer to police headquarters.
It is during this trip that Mayard alleges that Meyer slapped her in the
face, punched her in the chest, and used a racial epithet.      Mayard states
in her affidavit: “[W]hile I was in the car alone with Officer Meyer [sic]
he inflicted both physical and injury on me by slapping me in the face
twice, by punching me in my upper chest and [by] telling me ‘Shut up,
nigger, I’ve got to drive.’”    Appellant’s App. at A7, ¶ 26.   Upon arriving
at police headquarters, Officer Meyer noted that Mayard was foaming at the
mouth and grinding her teeth.    Paramedics were summoned to transfer her to
Ramsey Medical Center.


        At the hospital, Mayard was examined and treated for a seizure and
severe anemia.     She was not treated for any physical trauma.     Following
three days of observation, doctors placed her on a 72-hour psychiatric
hold.


        On January 15, 1993, a jury convicted Mayard of the illegal sale of
alcohol.    The Minnesota Court of Appeals affirmed.    In June 1994, Mayard
brought this § 1983 action against the arresting officers.      Discovery was
completed, and Officers Meyer, Wright, and       Winger were granted summary
judgment on the basis of qualified immunity.      Mayard appeals.




                                     -3-
                                     II.


     We review a district court's grant of summary judgment de novo,
applying the same standards as the district court.    See Disesa v. St. Louis
Community College, 79 F.3d 92, 94 (8th Cir. 1996).       “We will affirm the
decision if, viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.”     Zakrzewski v. Fox, 87
F.3d 1011, 1012 (8th Cir. 1996) (citing Fed. R. Civ. P. 56(c); Landreth v.
First Nat'l Bank of Cleburne County, 45 F.3d 267, 268 (8th Cir. 1995)).
Summary judgment is appropriate against a party who has the burden of proof
at trial and has failed to make a sufficient showing to establish the
existence of an element essential to her case.     Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).


     For Mayard to state a claim under § 1983, she must "allege the
violation of a right secured by the Constitution and laws of the United
States . . . ."     West v. Atkins, 487 U.S. 42, 48 (1988).    Specifically,
Mayard’s excessive force claim must allege that the defendants violated her
Fourth Amendment rights.    Graham v. Connor, 490 U.S. 386, 394 (1989).   An
officer’s conduct is evaluated under an objective reasonableness standard.
Id. at 395; Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994)
(“Claims that law enforcement officers used excessive force in making an
arrest are analyzed under the Fourth Amendment, and the test is whether the
amount of force used was objectively reasonable under the particular
circumstances.”).


     Viewing the evidence in the light most favorable to Mayard, we
conclude that the force used to take Mayard into custody and place her in
the squad car was objectively reasonable.       This is particularly true in
light of Mayard’s resistance.   See Foster v. Metropolitan Airports Comm’n,
914 F.2d 1076, 1082 (8th Cir. 1990).       Without the requisite showing of a
constitutional violation,




                                     -4-
summary judgment is proper because Mayard has failed to establish the
existence of an essential element of her case.


       However, accepting Mayard’s account of her treatment by Officer Meyer
while being transported to police headquarters, the force allegedly used
against Mayard by Officer Meyer while she was handcuffed and hobbled in the
rear of the squad car was not objectively reasonable.                  Thus, Mayard’s and
Officer Meyer’s conflicting accounts of events result in an issue of
material fact making summary judgment inappropriate.                See Zakrzewski, 87
F.3d at 1012.


       Respectfully, we cannot agree with the district court’s finding that
Mayard has failed to establish the existence of an essential element of her
case by not demonstrating any injury that rises to the level of a
constitutional injury.       See Mem. Op. at 9.        Although “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,      violates   the   Fourth     Amendment,”    Graham,      490   U.S.   at   396
(quotations and citation omitted), a police officer’s slapping in the face
and punching in the chest a handcuffed and hobbled prisoner while using a
racial epithet are actions that result in a cognizable constitutional
injury.     These    actions    are   of   such   a    nature   that    we   find   that   a
constitutional injury is presumed to flow from the wrong itself.                         See
Herrera v. Valentine, 653 F.2d 1220, 1228 (8th Cir. 1981) (presumed damages
are allowed when substantive constitutional rights have been violated); cf.
Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995) (“We have not decided
whether a plaintiff bringing a Fourth Amendment excessive force claim must
suffer some minimum level of injury. . . . Assuming without deciding that
the [plaintiff] must have suffered some minimum level of injury to proceed
with   their    Fourth    Amendment   excessive       force   claim,    we   conclude    the
necessary level of injury is actual injury.”).




                                            -5-
                                   III.


     Accordingly, we affirm in part and reverse in part.       The district
court's grant of summary judgment to John Wright, Karsten Winger, and
Dennis Meyer on Mayard’s claim of excessive force while being taken into
custody and placed in the squad car is affirmed.   Only the district court’s
grant of summary judgment to Dennis Meyer on Mayard’s claim of excessive
force while transporting her to police headquarters is reversed.   The case
is remanded to the district court for further proceedings.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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