                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3389
                         ___________________________

                                    Kirk D. Vester

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                      Daniel Hallock, in his Official Capacity

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                               Submitted: June 7, 2017
                                Filed: July 25, 2017
                                   ____________

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

      Kirk D. Vester appeals the district court’s1 grant of summary judgment as to his
excessive-force claim against Deputy Sheriff Daniel Hallock. Vester argues that
Hallock’s use of an “arm bar technique” was objectively unreasonable and that he is

      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
therefore not entitled to qualified immunity. Having jurisdiction under 28 U.S.C.
§ 1291, we affirm.

       On May 30, 2013, Hallock was dispatched to the 101 Bar & Grill in Hadar,
Nebraska, in response to a report that a man had threatened to stab several patrons
with a knife. The dispatcher advised Hallock that the suspect had been disarmed but
warned that he had threatened to get another knife from his car. Hallock was also told
that the man drove a black 1997 Chevy Camaro.

       Several minutes later, Hallock arrived at the scene and discovered Vester, who
matched the suspect’s description, sitting in a black Camaro outside the bar. Hallock
ordered Vester to get out of the vehicle five times before he finally complied.
Hallock then issued three separate commands for Vester to get on either the ground
or his knees. Vester ignored these instructions, instead opting to turn his back to
Hallock and place his hands on the car. Concerned that Vester might have a weapon,
Hallock wanted to get him to the ground, as his experience suggested that it would
be safer to disarm him in a prone position. Accordingly, Hallock approached Vester
from behind, seized his right arm, and used the arm-bar technique to take him swiftly
to the ground. Vester was unable to use his free arm to brace the fall and landed face-
first on the ground, sustaining contusions, abrasions, and lacerations to his head and
hand. After securing Vester, Hallock noticed his injuries and immediately called for
a rescue squad. Vester was then taken to the emergency room for medical treatment.

       Vester subsequently brought the present action under 42 U.S.C. § 1983,
alleging that Hallock used excessive force to effect his arrest in violation of the
Fourth and Fourteenth Amendments of the U.S. Constitution. After filing an answer,
Hallock moved for summary judgment based on qualified immunity. The district
court agreed that Hallock was entitled to qualified immunity and granted his motion
for summary judgment, finding that it was not clearly established that Vester had a



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right to be free from Hallock’s use of the arm-bar technique under these
circumstances. Vester timely appealed.

       We review a district court’s grant of summary judgment de novo. Bishop v.
Glazier, 723 F.3d 957, 960-61 (8th Cir. 2013) (citation omitted). “Summary
judgment is proper if, after viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmovant, no genuine issues of material
fact exist and the movant is entitled to judgment as a matter of law.” Johnson v.
Carroll, 658 F.3d 819, 825 (8th Cir. 2011) (citations omitted); Fed. R. Civ. P. 56.
Although Vester identifies several purported factual disputes, the parties appear to
agree as to all material facts, so we read his argument as one focused on the legal
question of whether Hallock was entitled to qualified immunity. See McKenney v.
Harrison, 635 F.3d 354, 359 (8th Cir. 2011) (“Once the predicate facts are
established, the reasonableness of the official’s conduct under the circumstances is
a question of law.” (citation omitted)).

        “Qualified immunity shields government officials from liability for civil
damages and the burdens of litigation insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Id. at 358 (quotation omitted). “We analyze qualified immunity in two
steps: (1) whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right; and (2) whether the right at issue was clearly established at the
time of [the] defendant’s alleged misconduct.” Peterson v. Kopp, 754 F.3d 594, 598
(8th Cir. 2014) (alteration in original) (quotation omitted). As we recently reaffirmed,
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.” Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017) (alteration
in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other
words, to lose the shield of immunity, an officer must have been “plainly



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incompetent” or must have “knowingly violate[d] the law.” See Gladden v.
Richbourg, 759 F.3d 960, 964 (8th Cir. 2014) (citation omitted).

       Vester contends that Hallock infringed his Fourth Amendment right to be free
from unreasonable seizures by using excessive force in arresting him. See Chambers
v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011) (noting that an excessive-force claim
related to an arrest “is most properly characterized as one invoking the protections of
the Fourth Amendment” (citations omitted)). In evaluating this sort of constitutional
claim, “the test is whether the amount of force used was objectively reasonable under
the particular circumstances.” Johnson, 658 F.3d at 825 (quotation omitted). “The
‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
at 826 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). For example, we
have considered as relevant “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.” Id. (citation omitted).

       Based on the circumstances Hallock confronted upon arriving at the 101 Bar
& Grill, his use of the arm-bar technique fell short of the level of force required to
constitute a constitutional violation. Although Vester neither visibly possessed a
weapon nor attempted to resist arrest prior to the takedown, a variety of factors
suggest that the amount of force Hallock employed was reasonable under the
circumstances. Particularly relevant are the severity of Vester’s criminal conduct of
threatening to stab various individuals, his refusal to comply with Hallock’s repeated
commands, the very real possibility that he still had a concealed knife on his person
after exiting the vehicle, the resulting potential threat to Hallock’s safety, and the fact
that Hallock was making the arrest without any backup. Cf. Hicks v. Norwood, 640
F.3d 839, 842 (8th Cir. 2011) (finding reasonable an officer’s determination that the
arrestee-plaintiff’s refusal to change into a jail uniform and his aggressive leap off of



                                           -4-
a booking-room bench constituted a safety threat and therefore affirming grant of
qualified immunity).

       However, even assuming that Hallock’s use of the arm-bar technique rose to
the level of a constitutional violation, we reject Vester’s claim that his right to be free
from such force in this factual context was clearly established at the time of his arrest.
In demonstrating that a right is clearly established, “[i]t is unnecessary to have ‘a case
directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.’” Parker v. Chard, 777 F.3d 977, 980 (8th
Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Vester primarily
argues that the general “right to be free from excessive force[, which] dates back to
the adoption of the Bill of Rights,” compels us to reverse the grant of qualified
immunity. However, as the district court correctly noted, “‘Qualified immunity is no
immunity at all if clearly established law’ can be defined at such a ‘high level of
generality.’” See City & Cty. of S.F., Calif. v. Sheehan, 135 S. Ct. 1765, 1776 (2015);
see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (“[W]e have repeatedly
told courts . . . not to define clearly established law at a high level of generality since
doing so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.” (quotation and citation omitted)).

       Alternatively, Vester contends that relevant precedent demonstrates as clearly
established his right to be free from the use of the arm-bar technique in these
circumstances. First, he points to two unpublished district court opinions from a
different district to suggest that Hallock’s deployment of the arm-bar technique was
unlawful. See B.J.R. ex rel. Garcia v. Golgart, 2013 WL 3455598 (D. Minn. July 9,
2013) (unpublished); Stockton v. Auren, 2008 WL 1994992 (D. Minn. May 5, 2008)
(unpublished). Second, Vester cites two Eight Circuit opinions for the proposition
that “a reasonable officer would conclude it is inappropriate to use force on a
noticeably unarmed suspect who does not actively resist or threaten the officer.” See
Shekleton v. Eichenberger, 677 F.3d 361 (8th Cir. 2012); Johnson, 658 F.3d at 819.

                                           -5-
Although each of these cases can be distinguished on a number of factual bases, the
most significant consideration that separates this case is that Hallock had every
reason to think that Vester might have retrieved a second knife from his vehicle and
thus reasonably believed that Vester presented a serious risk to his safety. Much
more apposite than the cases cited by Vester is our recent decision in Ehlers v. City
of Rapid City. In Ehlers, we reversed the denial of qualified immunity to an officer
who employed a similar takedown maneuver based on our finding that the officer
reasonably interpreted as resistance Ehler’s refusal to comply with two commands to
back away while his son was being taken into custody. 846 F.3d at 1011. Although
Ehlers was unarmed, we held that another officer was reasonable in considering
Ehler’s free hand to be a potential threat during his subsequent arrest. Id. at 1012.
Comparatively, the circumstances Hallock confronted were far more threatening.
Vester repeatedly refused to comply with Hallock’s commands, which were issued
after it was reported that he had threatened to stab several individuals and had told
them he was going to retrieve a second knife from his car. Moreover, unlike the three
officers involved in Ehlers’s arrest, Hallock was required to take Vester into custody
without backup. Thus, especially in light of our holding in Ehlers that the use of the
arm-bar technique did not violate a clearly established right, we reject Vester’s claim
that his right to be free from such force was clearly established under the more
dangerous circumstances Hallock confronted in this case.

      Accordingly, the district court’s grant of summary judgment based on its
finding of qualified immunity is affirmed.
                       ______________________________




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