                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 08-3617
                                ___________

Kenneth Rohrbough,                      *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
Luther Hall; Anna Kimble; Mary          * Appeal from the United States
Nelson, Board of Police                 * District Court for the
Commissioners for the City of St. Louis;* Eastern District of Missouri.
Susan Rollins, Board of Police          *
Commissioners for the City of St. Louis;*
Bartholomew Saracino, Board of Police *
Commissioners for the City of St. Louis *
Francis Slay, Board of Police           *
Commissioners for the City of St. Louis;*
Mark Smith, Board of Police             *
Commissioners for the City of St. Louis,*
                                        *
             Appellants.                *
                                  ___________

                           Submitted: September 24, 2009
                               Filed: November 9, 2009 (Corrected 11/12/09)
                               ___________

Before BYE, ARNOLD, and SMITH, Circuit Judges.
                            ___________
ARNOLD, Circuit Judge.

       Kenneth Rohrbough brought an action under 42 U.S.C. § 1983 and Missouri
law against St. Louis police officers Luther Hall and Anna Kimble, as well as the
members of the St. Louis Board of Police Commissioners. Mr. Rohrbough sought
damages under § 1983 based on claims that Officers Hall and Kimble used excessive
force against him, failed to intervene, unlawfully seized him without probable cause,
and conspired to violate his civil rights and that the Board failed to instruct, supervise,
discipline, and otherwise control their subordinate officers, all in violation of the
fourth and fourteenth amendments.              See U.S. Const. amends. IV, XIV.
Mr. Rohrbough also brought state law tort claims against the officers.

       The defendants moved for summary judgment contending, inter alia, that the
officers were entitled to qualified immunity. The district court1 granted the motion
in part but, as relevant here, denied summary judgment as to the excessive force claim
against Officer Hall and the failure to supervise claim against the Board. In this
interlocutory appeal, the defendants maintain that the district court should have
granted Officer Hall qualified immunity on Mr. Rohrbough's excessive force claim
and should have granted summary judgment to the Board on the related claim that the
Board's failure to supervise caused the officer to use excessive force. (Although
Officer Kimble is named in the notice of appeal, she has not raised any issues before
this court.)

        Initially, the defendants assert that the district court erred by considering
portions of Mr. Rohrbough's deposition testimony that contradicted his earlier sworn
testimony. For purposes of summary judgment, however, we resolve any conflicting
testimony in favor of Mr. Rohrbough unless "the inconsistency represents only an
effort ... to manufacture a sham issue of fact." Roberts v. Park Nicollet Health Servs.,

      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.

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528 F.3d 1123, 1126-27 (8th Cir. 2008). The district court believed that any
contradictions in Mr. Rohrbough's testimony were attributable to his mental condition,
and the defendants have not shown that the testimony at issue was an effort by
Mr. Rohrbough to manufacture nonexistent issues of fact rather than a by-product of
his mental condition. We view all of the evidence in the light most favorable to Mr.
Rohrbough, drawing all reasonable inferences in his favor. See Burnham v. Ianni, 119
F.3d 668, 673 (8th Cir. 1997) (en banc).

       The evidence viewed favorably to Mr. Rohrbough reveals the following.
A store owner approached Officers Hall and Kimble on the street and told them that
a man had just created a disturbance in her optometry shop. The woman then
identified Mr. Rohrbough to them as the man in question as Mr. Rohrbough walked
away from the store. While Officer Kimble stayed with the woman, Officer Hall
followed Mr. Rohrbough and instructed him to stop. Mr. Rohrbough turned and
greeted Officer Hall. Mr. Rohrbough's arms were raised but he did not make a fist or
assume a fighting stance. At this point, Officer Hall pushed Mr. Rohrbough. After
Mr. Rohrbough returned the push, Officer Hall punched Mr. Rohrbough in the face;
Officer Hall then pushed Mr. Rohrbough again, took him to the ground face down,
landed on top of him, and handcuffed him. At this point, Officer Hall sat
Mr. Rohrbough on the curb. According to Mr. Rohrbough, an unknown second
officer then hit him several times with a club; Officer Hall attested, however, that no
other officer was present. Although Mr. Rohrbough was arrested for disturbing the
peace and resisting arrest, he was taken straight to the hospital and discharged three
days later. Mr. Rohrbough suffered a subconjunctival hemorrhage on his left eye,
orbital swelling, a fractured rib, and other lacerations.

      The denial of summary judgment based on qualified immunity is immediately
appealable, and we review it de novo. See Sexton v. Martin, 210 F.3d 905, 909
(8th Cir. 2000). Officer Hall is entitled to qualified immunity unless the evidence
viewed favorably to Mr. Rohrbough supports a finding that Officer Hall's conduct

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violated a constitutional right, and that constitutional right was so "clearly established"
at the time of the alleged violation that a reasonable officer would have known that
his conduct was unlawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated
on other grounds by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). In Pearson,
129 S. Ct. at 818, the Supreme Court held that courts may address these two aspects
of qualified immunity in the order most suited to the particular case.

       Mr. Rohrbough has made a sufficient showing that Officer Hall used excessive
force in violation of the fourth amendment. "Not every push or shove ... violates the
Fourth Amendment," but force is excessive when the officers' actions are not
"objectively reasonable in light of the facts and circumstances confronting them."
Graham v. Connor, 490 U.S. 386, 396-97 (1989) (internal quotation marks and
citations omitted); see Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002). Objective
reasonableness depends on the facts and circumstances of the case, " 'including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.' " Mann v. Yarnell, 497 F.3d 822, 825-26 (8th Cir. 2007)
(quoting Graham, 490 U.S. at 394). "A court may also evaluate the extent of the
suspect's injuries." Mann, 497 F.3d at 826.

       Here, as we have said, Mr. Rohrbough attested that he responded to Officer
Hall's instruction to stop by turning and greeting him. Mr. Rohrbough did not attempt
to resist or evade arrest, and his actions did not pose an immediate threat to the safety
of Officer Hall. Officer Hall initiated the physical confrontation by pushing
Mr. Rohrbough; when Mr. Rohrbough pushed back, Officer Hall punched him in the
face and wrestled him to the ground. Mr. Rohrbough sustained injuries to his eye,
ribs, and face requiring him to spend three days in the hospital, and assuming the facts
in the light most favorable to Mr. Rohrbough, as we must in the present procedural
posture, a jury could conclude that these injuries resulted from Officer Hall's use of
force and that the force was excessive, even given the fact that Mr. Rohrbough pushed

                                           -4-
Officer Hall – a push that may have been de minimis or inconsequential. In other
words, we believe that Mr. Rohrbough's evidence created genuine issues of material
fact concerning whether the force used was "objectively reasonable in light of the
facts and circumstances confronting" Officer Hall. See Graham, 490 U.S. at 397.

       We think that our prior cases are clear that the matter of whether the
constitutional right at issue was "clearly established" is a question of law for the court
to decide. See, e.g., Littrell v. Franklin, 388 F.3d 578, 584-85 (8th Cir. 2004). We
have explicitly held that in deciding this kind of case, the conduct "was either
'reasonabl[e] under settled law in the circumstances,' or it was not, and this is a
determination of law." Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.
2000) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam)). Although
language from our recent case, Nelson v. Correctional Medical Services, No. 07-2481,
2009 WL 3151208, at *4 (8th Cir. Oct. 2, 2009) (en banc), seems to suggest that the
question is one for a "reasonable factfinder," we went on in Nelson to determine the
matter for ourselves, id. at *7-*10. We do not believe, then, that Nelson, in making
an isolated reference to a "reasonable factfinder," intended to overrule our precedents
establishing that qualified immunity is a question of law, an issue that we have
previously described as "clear." Littrell, 388 F.3d at 584. Once the facts are
established, "a court should always be able to determine as a matter of law whether
or not an officer is eligible for qualified immunity – that is, whether or not the officer
acted reasonably under settled law given the particular set of facts." Pace, 201 F.3d
at 1056.

       After careful consideration, we conclude that the constitutional right involved
in this case was clearly established at the time of the alleged violation. The
dispositive inquiry is whether "it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. In
other words, although "[t]he right to be free from excessive force is a clearly
established right," Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998), we must make

                                           -5-
a "fact-intensive inquiry ... in light of the specific context of the case" to determine
whether Officer Hall is entitled to qualified immunity. Samuelson v. City of New Ulm,
455 F.3d 871, 875 (8th Cir. 2006) (internal quotation marks and citations omitted).
"There is no requirement that the very action in question has previously been held
unlawful, but rather, in the light of pre-existing law the unlawfulness must be
apparent." Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir. 2001) (internal quotation
marks and citations omitted).

       The Supreme Court explained over three years before Mr. Rohrbough's arrest
that the reasonableness of an officer's conduct when stopping or arresting a suspect
depends, inter alia, on the crime's severity, the suspect's dangerousness, and the
likelihood that the suspect will flee, Graham, 490 U.S. at 394, and these
considerations all weigh in favor of Mr. Rohrbough: The complaint against him was
that he was causing a disturbance and when Officer Hall told him to stop, he turned
around and said, "Good morning, Officer." Although Mr. Rohrbough returned the
officer's push, the severity of that reaction is a matter for the jury. A jury could
conclude, for instance, that Mr. Rohrbough's push was de minimis or inconsequential,
and so a reasonable officer, when faced with the present circumstances, would have
known that responding by punching Mr. Rohrbough in the face, taking him to the
ground face down, landing on top of him and thereby causing him serious injury was
illegal. The district court therefore properly denied summary judgment based on
qualified immunity.

       We note that Officer Hall's account of what happened between him and
Mr. Rohrbough differs significantly from the facts assumed for purposes of summary
judgment. Summary judgment is not appropriate where, as here, a dispute remains
regarding facts material to the qualified immunity issue. Pace, 201 F.3d at 1056. But
Officer Hall may continue to assert qualified immunity at trial, where the factual
issues will be resolved by a jury. See Littrell, 388 F.3d at 585-86.



                                          -6-
      In light of this outcome, Mr. Rohrbough's related failure to supervise claim
against the Board is not "inextricably intertwined" with Officer Hall's interlocutory
appeal because a resolution of the qualified immunity issue does not "necessarily
resolve" the claim against the Board. See Wright v. Rolette County, 417 F.3d 879,
883-84 (8th Cir. 2005), cert. denied, 546 U.S. 1173 (2006). We accordingly do not
have jurisdiction over that claim. See id.

       Based on the foregoing, we affirm the district court's denial of qualified
immunity to Officer Hall on the excessive force claim and dismiss the Board's appeal
of the court's denial of summary judgment on the failure to supervise claim for lack
of jurisdiction.
                         ______________________________




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