                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2091
                                   ___________

Norman Jay Carpenter,                  *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Western District of Arkansas.
Deputy Harold D. Gage; Deputy          *
Kenneth D. Paul; Benton County,        *
Arkansas; Sheriff Keith Ferguson,      *
Benton County,                         *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: November 16, 2011
                                Filed: July 27, 2012
                                 ___________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

      Norman Jay Carpenter brought a civil rights action under 42 U.S.C. § 1983
against two deputy sheriffs in Benton County, Arkansas, alleging that they unlawfully
entered his home, detained him, employed excessive force against him, and denied
him emergency medical care. Carpenter also asserts a failure-to-train claim against
Benton County and its sheriff. The district court1 granted summary judgment for the
defendants. The court ruled that Carpenter had not presented sufficient evidence to
prove a constitutional violation, and that the defendants were thus entitled to qualified
immunity. Carpenter appeals, and we affirm.

                                           I.

      On April 4, 2008, Carpenter was sleeping at his home in Benton County with
Connie Gunem, his girlfriend. When Gunem awoke, she saw that Carpenter “looked
horrible.” Carpenter was slurring his speech to the point of incomprehensibility. His
face was drawn, saliva was dripping from his mouth, and he kept falling over. After
Gunem said she would call an ambulance, Carpenter argued with her, so Gunem went
outside to call 911. When the first responders arrived, one paramedic started to enter
the house behind Gunem. At that point, Carpenter met them in a front hallway,
denied that he needed medical aid, and ordered them to leave his house, saying “I got
a baseball bat that says you will get out of here.” Gunem and the first responder
backed out through the door.

       Harold Gage, a Benton County deputy sheriff, arrived shortly thereafter. Gage
responded to a call from a dispatcher that first responders had been threatened with
a baseball bat. Gage spoke with Gunem, who said she believed that Carpenter may
have suffered a stroke. Gunem informed Gage that Carpenter had a rifle in the house,
but that she did not know where he kept it. The first responders told Gage that
Carpenter had chased them out of the house with a baseball bat. Gage pulled his car
to the front of the house, walked up to the porch, and knocked on the door.




      1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.

                                          -2-
       Meanwhile, Kenneth Paul, another Benton County deputy sheriff, arrived in
response to the same information that Gage had received. Paul learned that Carpenter
might have a rifle in his house, and joined Gage on the porch. Carpenter eventually
answered the door, and Gage identified himself. Paul then asked Carpenter what was
the problem. Carpenter responded by pointing to Paul’s badge and saying, “that’s the
f---ing problem right there.” Carpenter stepped back inside the house, and the two
deputies followed him. Both deputies testified that they entered because they feared
Carpenter could be retrieving a weapon.

       Once inside, Gage ordered Carpenter to stop moving about and threatened to
deploy a taser gun if Carpenter refused to comply. Gage and Paul claim that
Carpenter took a swing at them; Carpenter denies ever raising his hand or swinging
at the deputies. In either case, the deputies took Carpenter to the ground and told him
to give them his hands so he could be handcuffed. All parties agree that Carpenter
neither remained still nor presented his hands to the deputies. According to Paul,
Carpenter resisted and would not offer his hands. Carpenter explains that he tried to
use the couch for support because he could not breathe. Paul then deployed his taser
against Carpenter; the taser strike caused Carpenter to begin to buckle. Paul deployed
the taser again, and the deputies were able to restrain Carpenter.

       Following the scuffle, a first responder entered the house and looked over
Carpenter. The deputies then transported Carpenter to jail, where he was processed,
cited for third degree assault, and released.

      Gunem told Carpenter’s children what had happened. The children drove
down from Michigan and took Carpenter to the hospital. An emergency room doctor
determined that Carpenter had suffered a stroke, and admitted him to the hospital.
Carpenter alleges that the stroke caused permanent damage to his vision and hearing,
which in turn has limited his employment and undermined interpersonal relationships.



                                         -3-
       Carpenter brought claims under 42 U.S.C. § 1983 against Deputies Gage and
Paul, Sheriff Keith Ferguson, and Benton County itself. Five claims are the subject
of this appeal: (1) that Gage and Paul unlawfully entered Carpenter’s home; (2) that
the deputies lacked probable cause to detain or arrest Carpenter; (3) that the deputies’
physical contact with Carpenter and use of a taser constituted an excessive use of
force; (4) that the deputies’ failure to obtain treatment for Carpenter’s stroke
unlawfully denied him emergency medical care; and (5) that Sheriff Ferguson and the
county failed properly to train Gage and Paul how to recognize and treat a person
exhibiting symptoms of a stroke. The district court granted summary judgment for
the defendants. The court cited qualified immunity, but actually concluded that
Carpenter failed to establish that either Gage or Paul deprived him of a constitutional
right, and that the absence of an underlying constitutional violation defeated
Carpenter’s failure-to-train claims.

                                          II.

       We review de novo the district court’s order granting summary judgment and
view the evidence in the light most favorable to Carpenter, drawing all reasonable
inferences in his favor. Schoelch v. Mitchell, 625 F.3d 1041, 1045 (8th Cir. 2010).
In § 1983 claims, qualified immunity shields government officials from liability and
the burdens of litigation unless their conduct violated a clearly established
constitutional or statutory right of which a reasonable official would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To overcome the deputies’ assertion
of qualified immunity, Carpenter must produce sufficient evidence to create a genuine
issue of fact as to whether they violated a clearly established right.

                                          A.

      Carpenter first argues that the deputies entered his house in violation of the
Fourth Amendment. Absent consent, an officer’s entry into a home generally requires

                                          -4-
a warrant. See Payton v. New York, 445 U.S. 573, 589-90 (1980). An “exigent
circumstances” exception to the warrant requirement, however, permits a warrantless
entry when the needs of law enforcement are so compelling that a warrantless search
is objectively reasonable. Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). Such
exigencies include the need to render emergency aid to an injured occupant, hot
pursuit of a fleeing suspect, and the need to prevent the destruction of evidence.
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). A warrantless entry is lawful if
officers reasonably believed that exigent circumstances existed. Anderson v.
Creighton, 483 U.S. 635, 641 (1987).

       A reasonable deputy sheriff could have believed that exigent circumstances
justified entering Carpenter’s home without a warrant. Deputies Gage and Paul both
received reports that Carpenter had threatened first responders with a baseball bat.
Although Carpenter denies wielding a bat while ordering the first responders out of
his house, the relevant question is whether the deputies reasonably believed that he
had used a baseball bat. See Radloff v. City of Oelwein, Iowa, 380 F.3d 344, 348 (8th
Cir. 2004). Here, the deputies were advised by a reliable source that Carpenter had
done so. The deputies also were advised by Carpenter’s companion that Carpenter
kept a rifle in the home. In light of these facts and Carpenter’s belligerence toward
the first responders and the deputies, it was reasonable for Gage and Paul to believe
that Carpenter may have withdrawn abruptly into his home to retrieve a gun. As
neither deputy knew where Carpenter’s rifle was located, it was reasonable for them
to fear that they lacked time to make a safe retreat. A reasonable officer therefore
could have concluded that allowing Carpenter to go unaccompanied back into his
home posed a threat to the lives of the law enforcement officers and first responders
outside the house. See United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). For
these reasons, the district court correctly dismissed Carpenter’s claim alleging an
unreasonable search under the Fourth Amendment.




                                         -5-
                                         B.

      Carpenter also asserts that Gage and Paul lacked probable cause to arrest him,
and that the seizure violated the Fourth Amendment. Carpenter argues that there is
a genuine issue for trial because he disputes the deputies’ account that he swung at
them.

       Regardless of whether Carpenter assaulted the deputies, there was probable
cause to arrest Carpenter based on his conduct toward the first responders. Both
Gage and Paul reported to the scene based on information that Carpenter had
threatened first responders with a baseball bat. Although neither deputy witnessed
this conduct, officials may rely on hearsay statements to determine that probable
cause exists. See Illinois v. Gates, 462 U.S. 213, 241-42 (1983). The report from the
dispatcher provided reasonably trustworthy information that Carpenter had assaulted
the first responders, so the deputies had probable cause to arrest him. That the
deputies’ subjective reason for arresting Carpenter may have been different does not
invalidate the arrest. Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

                                         C.

      Carpenter next claims that the deputies violated the proscription on
unreasonable seizures by employing excessive force against him. In evaluating
whether a particular use of force was excessive, we consider whether it was
objectively reasonable under the circumstances. Brown v. City of Golden Valley, 574
F.3d 491, 496 (8th Cir. 2009). We also rely on the perspective of a reasonable officer
present at the scene rather than the “20/20 vision of hindsight.” Graham v. Connor,
490 U.S. 386, 396 (1989).

        When the deputies attempted to arrest Carpenter, he resisted. Deputy Paul
testified as follows:

                                         -6-
      [W]e couldn’t get to his arms. The entire time, Mr. Carpenter had his
      arms underneath him, just huddled up under his chest laying on top of
      them. We screamed several times, give us your hands, give us your
      hands, give us your hands, stop resisting. Deputy Gage couldn’t get his
      hands out from underneath him, it was a struggle. Officer Johnson
      couldn’t get his right hand, based off the location he was at. Mr.
      Carpenter wouldn’t give them to us. So during that time, I removed the
      cartridge from my tazer, and I said, if you do not give us your hands, I
      will drive stun you in the back. And he didn’t do it—did not cooperate,
      did not comply. I initiated the tazer and drive stunned him on his back
      for a five-second cycle.

       Paul testified that after the taser strike, Carpenter continued to resist. The
deputies yelled at Carpenter to stop resisting, but he was “physically fighting” and
“bucking,” trying to throw off Deputy Gage. Deputy Paul then stunned Carpenter
with the taser a second time in the lower back. At that point, Carpenter complied by
putting his arms to his side, and an officer applied handcuffs.

       The reasonableness of a use of force depends on the particular facts and
circumstances, 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.” Graham, 490 U.S. at 396.
Law enforcement officers may use physical force to subdue an arrestee when he fails
to comply with orders to lie still during handcuffing. See Mann v. Yarnell, 497 F.3d
822, 826 (8th Cir. 2007).

      It is undisputed that Carpenter refused to offer his hands when ordered to do
so, and Carpenter himself testified that he reached for the couch in an effort to lift
himself from the floor. Carpenter does not dispute that he was directed to give his
hands to the deputies, that he was warned about use of the taser, or that he refused to
comply, but he characterizes his struggles merely as an effort to breathe. Even if
Carpenter’s motive was innocent, the deputies on the scene reasonably could have

                                          -7-
interpreted Carpenter’s actions as resistance and responded with an amount of force
that was reasonable to effect the arrest. See McKenney v. Harrison, 635 F.3d 354,
360 (8th Cir. 2011). Gage and Paul are therefore entitled to qualified immunity
against Carpenter’s excessive force claim.

                                          D.

      Carpenter also argues that the deputies exhibited deliberate indifference to his
medical needs in violation of his constitutional rights. Because the alleged violation
occurred after Carpenter was arrested, our cases suggest that it is properly analyzed
under the Due Process Clause of the Fourteenth Amendment. McRaven v. Sanders,
577 F.3d 974, 979 (8th Cir. 2009); Spencer v. Knapheide Truck Equipment Co., 183
F.3d 902, 905 & n.3 (8th Cir. 1999); cf. Graham, 490 U.S. at 395 n.10 (noting an
unresolved question whether the Fourth Amendment applies to an excessive force
claim after an arrest ends and pretrial detention begins). Carpenter cites authorities
applying due process analysis, and he does not invoke the Fourth Amendment, so we
consider his argument on that basis. But cf. Ortiz v. City of Chi., 656 F.3d 523, 530
(7th Cir. 2011); Barrie v. Grand County, Utah, 119 F.3d 862, 870-71 (10th Cir. 1997)
(Briscoe, J., dissenting).

       This court has said that the due process analysis applicable in this situation
parallels that under the Eighth Amendment, because pretrial detainees are entitled to
the same protection as imprisoned convicts. Davis v. Or. Cnty., Mo., 607 F.3d 543,
548 (8th Cir. 2010). And we have said that any distinction between a “pretrial
detainee” and an “arrestee” does not affect the analysis. Spencer, 183 F.3d at 905 n.3.
To establish a claim based on deliberate indifference, therefore, Carpenter must
demonstrate that he suffered an objectively serious medical need, and that the
deputies had actual knowledge of those needs but deliberately disregarded them. See
Williams v. Kelso, 201 F.3d 1060, 1064 (8th Cir. 2000). A showing of negligence is
not sufficient to meet this burden. Farmer v. Brennan, 511 U.S. 825, 835 (1994).

                                          -8-
       Gage acknowledges that when he arrived at the residence, Connie Gunem said
she thought Carpenter was having a stroke. Carpenter asserts that Gage, having been
so advised, was deliberately indifferent to his serious medical need, and that Deputy
Paul also was deliberately indifferent.

        Before the deputies could consider responding to Carpenter’s medical needs,
they had to subdue him and secure the premises. Once this was accomplished, and
Carpenter was arrested, first responders examined him briefly. There are conflicting
accounts of exactly what happened, but the upshot was that the paramedics did not
administer emergency treatment for a stroke, and the deputies transported Carpenter
to jail rather than to a hospital.

       Paul testified that one of the first responders told Carpenter that they wanted
to take him to the hospital for examination, but that Carpenter refused to go. The
responders wanted Carpenter to sign a form stating that he refused transportation for
medical treatment, but Paul did not want to remove Carpenter’s handcuffs. So,
according to Paul, he and the first responders asked Carpenter orally whether he
refused medical treatment. When Carpenter reaffirmed that he refused treatment,
Paul noted the refusal on a form, and the first responders left the residence.

       Carpenter denies that he refused medical treatment, but he also denies that the
paramedics suggested that he should be transported to the hospital. In Carpenter’s
version, the deputies asked Carpenter after the arrest whether a paramedic could
examine him. A paramedic then looked at Carpenter and asked a colleague what
should be done with Carpenter. One of the deputies declared that he was “taking him
in for an assault.” According to Carpenter, the paramedic did not object and say that
Carpenter needed to go to the hospital or tell Carpenter “that there was any problem.”

      Although the two narratives differ, neither scenario supports a claim of
deliberate indifference by the deputies. In Paul’s version, the paramedics suggested

                                         -9-
transportation to a hospital, but then acquiesced in Carpenter’s refusal of medical
treatment. They never urged the deputies to bring Carpenter to a hospital for medical
treatment over his objections. In Carpenter’s scenario, the paramedics never even
recommended hospitalization. To prove deliberate indifference, Carpenter must show
that the deputies had actual knowledge that failing to provide Carpenter immediate
medical treatment posed a substantial risk of serious harm. See Farmer, 511 U.S. at
842. Where the medical professionals either acquiesced in Carpenter’s refusal of
medical treatment, or, under Carpenter’s own version, never even suggested that
treatment was warranted, there is insufficient evidence that a need for medical
treatment was so obvious that the sheriff’s deputies exhibited deliberate indifference
by taking Carpenter to jail. See Christian v. Wagner, 623 F.3d 608, 614 (8th Cir.
2010).

                                           E.

       In his final claim, Carpenter contends that Sheriff Ferguson and Benton County
are liable under § 1983 for failing to train deputy sheriffs adequately about how to
recognize and respond to symptoms of strokes. Without a showing that the deputies
violated the Constitution, however, there can be no liability for failure to train. City
of L.A. v. Heller, 475 U.S. 796, 799 (1986) (per curiam). The district court thus
correctly dismissed the claim against the sheriff and the county.

                                   *       *       *

      The judgment of the district court is affirmed.

SMITH, Circuit Judge, concurring in part and dissenting in part.

       I concur in the court's opinion except the portion that holds, as a matter of law,
that the officers did not use excessive force to arrest Carpenter. Supra Part II.C. Five

                                          -10-
officers entered Carpenter's home after being advised that Carpenter may have had
a stroke. Carpenter was agitated and moving back and forth in the room. At some
point, Gage raised his taser and instructed Carpenter to stop walking or Gage would
shoot; Carpenter did not comply. One of the officers grabbed Carpenter and took him
to the ground.

       According to Officer Paul, Carpenter landed face down in a corner between a
wall and a couch. Officer James Johnson was on his right side, next to the couch, and
"Deputy Gage was . . . by his left arm." "Carpenter had his arms underneath him."
Carpenter testified that, when he was thrown to the ground, he couldn't breathe, "so
[he] put [his right] arm up on the couch and [was told] to get [his] arm off there. [He]
told them [he couldn't] breathe," but "they just kept ta[s]ing [him] in the back." When
asked about the tasing, Carpenter responded:

      I was ta[s]ed several times. I can't tell you how many times. They just
      kept telling me to get my arm down and they just kept ta[s]ing me. I
      couldn't breathe when I took my arm down. I couldn't breathe and I kept
      telling them I couldn't breathe and they didn't care.


Counsel asked Carpenter, "Did you put your hands behind your back to be handcuffed
when they commanded you to do so?" He replied:

      I think I was on my belly, so I don't know how my hands got back there.
      I had one hand kind of under me, and one up on the couch, so I don't see
      how I could have put my hands back there. They were sitting on me, so
      how could you? I know with them sitting on me with this arm, I know
      my left arm was underneath me, how could I put it behind me?


      "Viewing the record and drawing all reasonable inferences in the light most
favorable to [Carpenter], while simultaneously viewing the facts from the perspective


                                         -11-
of a reasonable officer on the scene, we cannot say [the officers'] use of force was
objectively reasonable as a matter of law." Montoya v. City of Flandreau, 669 F.3d
867, 871 (8th Cir. 2012) (quotation, citation, and alteration omitted). The officers
threw Carpenter to the floor face down with his arms under him and sat on top of him.
He told the officers repeatedly that he could not breathe and attempted to use his right
arm to elevate himself enough to catch his breath. Once Carpenter told the officers
that he could not breathe, reasonable officers sitting on top of him would not
conclude that his attempts to elevate himself constituted resisting arrest.

        Moreover, it defies reason that five police officers in control of a single subject
would need to tase him repeatedly in order to handcuff him. The majority cites Mann
for the proposition that "officers may use physical force to subdue an arrestee [who]
fails to comply with orders to lie still during handcuffing," supra Part II.C (citing
Mann, 497 F.3d at 826), but that case is distinguishable. Mann involved the arrest of
a suspect high on methamphetamine who officers forced out of his house with tear
gas. Once he was outside, officers "ordered [the defendant] to come under a fence, get
down on his stomach, and put his hands behind his back." Mann, 497 F.3d at 824.
"After [the defendant] disregarded the repeated instructions to get on his stomach" by
continuing to twist onto his side, one of the officers ordered his canine to bite and
hold the defendant's leg for 15 seconds so they could handcuff him. The defendant
"knocked the handcuffs out of [the officer's] hands, and grabbed the barrel of [the
officer's] gun." Id. He then "rose . . . and . . . continued to resist their attempts to
handcuff him." Id. One officer struck the defendant five times while two other
officers handcuffed him. Id. In that case, the defendant offered no evidence to support
his version of the facts, and video taken of the arrest did not contradict the officers'
factual assertions.

       Viewing the facts in the light most favorable to Carpenter and crediting his
testimony, officers were on top of him and were holding him face down prior to
tasing him. Carpenter was moving, but he repeatedly told the officers he could not

                                           -12-
breathe. Given this evidence, a genuine issue of material fact remains as to whether
a reasonable officer would believe that Carpenter was resisting arrest when the
officers tased him and, thus, whether the officers used excessive force. See Brown v.
City of Golden Valley, 574 F.3d 491, 496–98 (8th Cir. 2009) (court not convinced
that officer's use of taser on passenger in vehicle stopped after police chase was
objectively reasonable; although passenger refused a direct order to get off of the
phone, she posed a minimal security threat and was not resisting arrest or attempting
to flee, officer was not faced with split-second decision, and circumstances did not
constitute tense, uncertain, and rapidly evolving situation).

      This does not end our analysis. "Our second inquiry in considering the denial
of qualified immunity is whether the right violated was clearly established." Brown,
574 F.3d at 499.

             The [t]aser is a relatively new implement of force, and case law
      related to the [t]aser is developing. Several of our sister circuits have
      considered whether the deployment of a [t]aser during an arrest
      constitutes excessive force in violation of the Fourth Amendment. See,
      e.g., Parker v. Gerrish, 547 F.3d 1, 8–11 (1st Cir. 2008) (upholding jury
      verdict that officer used excessive force in [t]asering an arrestee who
      had insulted the officers but also had complied with their requests and
      did not resist arrest); Zivojinovich v. Barner, 525 F.3d 1059, 1071–73
      (11th Cir. 2008) (per curiam) (use of a [t]aser to subdue a suspect who
      had repeatedly ignored police instructions and continued to act
      belligerently found to be reasonably proportionate to the need for force);
      Casey v. City of Fed. Heights, 509 F.3d 1278, 1282–87 (10th Cir. 2007)
      (use of a [t]aser and related force against a nonviolent misdemeanant
      who did not flee or actively resist arrest found to be excessive) . . . .


Id. at 498 n.5. We recently held that "an officer's use of a taser on a nonviolent,
nonfleeing misdemeanant was an excessive use of force" in violation of clearly
established law. Shekleton v. Eichenberger, No. 11-2108, slip op. at 8 (8th Cir. May

                                        -13-
3, 2012). We also found it clearly established "[t]hat the level of force used must be
justified in light of 'the severity of the crime at issue,' the suspect's flight risk, and the
immediacy of the risk posed by the suspect to the safety of officers and others." Id.
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

       Viewing the facts in the light most favorable to Carpenter, no reasonable
officer would believe that Carpenter was a flight risk—he was on the floor with five
officers nearby or on top of him. And no reasonable officer would believe that he
posed a safety risk—he was pinned to the floor with such force that he could not even
catch his breath. The majority's opinion points out that "Carpenter refused to offer his
hands" in spite of repeated orders to do so. Supra Part II.C. But Carpenter in his
deposition indicated that he was unable to offer his hands because "[the officers] were
sitting on [him]." Contra. Brown v. Cwynar, No. 11-1948, 2012 WL 2045764, at *2
(3rd Cir. Jun. 7, 2012) (finding that, even if a plaintiff's Fourth Amendment rights
were violated, the officer was entitled to qualified immunity because the plaintiff
"resist[ed] arrest" by lying on top of both of his hands and failing to heed multiple
warnings that "if he did not comply, he would be tased"); Hoyt v. Cooks, 672 F.3d
972, 975 (11th Cir. 2012) (holding that an arrestee who was "lying on the ground,"
"continued to resist[,] and would not allow both arms to be put behind his back" did
not have his constitutional rights violated by officers who tased him repeatedly before
handcuffing him).

      Because genuine issues of material fact remain, summary judgment is
inappropriate. I therefore respectfully dissent.
                        ______________________________




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