                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3496
                                   ___________

Jeffrey C. Rahn,                         *
                                         *
             Appellant,                  *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the Eastern
Vickie Hawkins, Officer; Craig Jansen, * District of Missouri.
Officer; Gerry Fitzgerald, Officer;      *
Timothy Burger, Detective;               *         [UNPUBLISHED]
Ed Wagner; Douglas McGarry,              *
Detective; Patrick Schierbecker,         *
Detective; Ronald Livingston, Sgt.;      *
Robert Cutt, Lt.; David Pacino, Lt.;     *
Carl Wolf, Chief of Police for the       *
City of Hazelwood,                       *
                                         *
             Appellees.                  *
                                    ___________

                         Submitted: May 27, 2003

                              Filed: August 26, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

     This is a civil-rights case. City of Hazelwood, Missouri police officers Vickie
Hawkins, Craig Jansen, and Gerry Fitzgerald shot and maced Jeffrey Rahn while
attempting to arrest him following a credit-union robbery. Mr. Rahn sued these
officers, as well as Lieutenant Robert Cutt, Sergeant Ronald Livingston, and Chief
of Police Carl Wolf, under 42 U.S.C. § 1983. He claimed that Officers Hawkins,
Jansen, and Fitzgerald used excessive force when they shot him eight times and
maced him twice; that Officers Hawkins, Jansen, Fitzgerald, Cutt, and Livingston
made false statements on police reports to justify their use of force and the issuance
of an arrest warrant on charges not supported by probable cause; that Officers
Hawkins, Jansen, and Fitzgerald conspired to arrest him on charges of kidnaping,
first-degree assault, and armed criminal action by falsifying their original police
reports; that Chief Wolf intimidated a bank-teller witness into including false
information in her official statement, and Officers Hawkins, Jansen, Fitzgerald,
Livingston, and Cutt conspired to conceal this witness’s information from the grand
jury to justify the officers’ use of force; and that Chief Wolf failed to train his
subordinates. The district court found the officers were entitled to qualified immunity
on the excessive-force claim and granted summary judgment to defendants on the
remaining claims.1 We reverse the grant of qualified immunity, and we affirm
otherwise.

       Mr. Rahn attested to the following facts. On July 17, 1998, Officers Hawkins
and Jansen responded to a police radio dispatch about an alarm at a credit union. As
the officers were walking outside the credit union, Mr. Rahn exited the rear door with
a gym bag in his hand. Officer Hawkins approached Mr. Rahn and ordered him to
drop the bag. Mr. Rahn immediately did so, raising his hands above his head in a
position of surrender. Officer Hawkins, ten feet from Mr. Rahn, then fired a
succession of shots at him. Mr. Rahn attempted to surrender to Officer Jansen, and

      1
        Mr. Rahn sued other police officers who were dismissed prior to service, and
asserted other claims which were disposed of by the district court at the summary
judgment stage. Mr. Rahn does not raise these matters on appeal. See Mahaney v.
Warren County, 206 F.3d 770, 771 n.2 (8th Cir. 2000) (per curiam) (claims not raised
in brief are waived).

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upon Officer Jansen’s command, took several steps toward him, keeping his arms
raised in surrender. Officer Jansen fired numerous times at Mr. Rahn. Shortly
thereafter, Officer Fitzgerald arrived on the scene and without warning, sprayed mace
in Mr. Rahn’s face. Convinced that police were attempting to murder him, Mr. Rahn
entered Officer Hawkins’s police car but not before Officer Fitzgerald shot him in the
leg. Mr. Rahn drove the car three to five miles before he lost consciousness. Officers
Fitzgerald and Livingston pursued him; Officer Fitzgerald again maced Mr. Rahn,
who was unconscious; and the officers handcuffed Mr. Rahn, pulled him out of the
window, and threw him on the ground. Because of his numerous gunshot wounds,
Mr. Rahn was hospitalized for thirteen months and had ten surgeries.

       We review de novo the grant of summary judgment based on qualified
immunity. See Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir. 2002). When
considering the qualified-immunity issue, we must first decide whether, viewed in the
light most favorable to Mr. Rahn, the facts alleged show that the officers’ conduct
violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
Claims that officers have used excessive force during an arrest are analyzed under the
Fourth Amendment and its “objective reasonableness” standard. See Seiner, 304 F.3d
at 812. The constitutionality of force used depends upon the facts and circumstances,
including the severity of the crime at issue, whether the suspect posed an immediate
safety threat to the officers or others, and whether the suspect actively resisted arrest
or attempted to evade arrest by flight. See Graham v. Connor, 490 U.S. 386, 395-96
(1989).

       We hold that Mr. Rahn has made out a constitutional violation. Mr. Rahn
attested that he immediately dropped the gym bag he was carrying when Officer
Hawkins ordered him to do so, and he raised both of his hands above his head in
surrender; that he attempted to surrender to Officer Jansen, took several steps toward
Officer Jansen upon command, and kept his arms raised in surrender while
approaching Officer Jansen; and that he had lost consciousness while driving the

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police car away from the credit union when Officer Fitzgerald maced him the second
time. Even though the bank teller informed Officer Hawkins that Mr. Rahn had a gun
when Officer Hawkins first came on the scene and Officer Hawkins relayed this
information to Officer Jansen (this fact is not in dispute), in the present procedural
posture of the case we are required to believe Mr. Rahn’s version of the events: that
he had dropped the bag he was carrying and had raised both of his arms in surrender
before Officers Hawkins and Jansen opened fire, and that he was unconscious in the
car when Officer Fitzgerald maced him a second time. Based on this version of the
events, we conclude that a reasonable officer would have known that Mr. Rahn did
not pose an immediate threat to the officers’ or the bank teller’s safety, and that
Mr. Rahn was not actively resisting arrest. See Saucier, 533 U.S. at 207 (excessive-
force claims are evaluated for objective reasonableness based upon information
officers had when conduct occurred); cf. Ribbey v. Cox, 222 F.3d 1040, 1043 (8th
Cir. 2000) (affirming denial of qualified immunity to police officer who shot and
killed passenger in car; other passenger’s version of events created genuine question
of fact regarding whether officer had probable cause to believe that deceased
passenger, who was turning reflexively down and away from breaking window, was
reaching for weapon and thus posed significant threat of danger or serious physical
harm to officer or others).

       We also hold that the constitutional right at issue was clearly established. See
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (salient question is whether state of law at
time of events at issue gave officers “fair warning” that their alleged treatment of
plaintiff was unconstitutional). In July 1998, at the time of the robbery, the law was
clearly established that using deadly force against a suspect who was attempting to
surrender, and macing an unconscious suspect, exceeded the Fourth Amendment’s
objective-reasonableness standard. See Tennessee v. Garner, 471 U.S. 1, 11-12
(1985) (if suspect threatens officer with weapon or there is probable cause to believe
suspect has committed crime involving infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to prevent escape, and if, where

                                         -4-
feasible, some warning has been given); Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir.
1993) (force that is reasonable while suspect poses threat is no longer reasonable once
threat is no longer present).

      Accordingly, we reverse the grant of qualified immunity to Officers Hawkins,
Jansen, and Fitzgerald, and we remand for further proceedings. We have carefully
reviewed the dismissal of Mr. Rahn’s remaining claims and his arguments on appeal.
We conclude that they lack merit; thus, we affirm in all other respects.

      A true copy.

             Attest:

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




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