Kim Shultz, et al v. Bryan Buchanan, et al

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4427446] [15-1854]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1854
___________________________
Kim Shultz,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Bryan Buchanan, individually and in his official capacity; John Does, 1-5,
individually and in their official capacities as Highland City Police Officers and
6-10, individually and in their official capacities as Sharp County Deputies; City
of Highland,
lllllllllllllllllllll Defendants - Appellees,
Mark Counts,
lllllllllllllllllllll Defendant.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Batesville
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Submitted: January 13, 2016
Filed: July 19, 2016
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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Kim Shultz sued Officer Bryan Buchanan and the City of Highland, Arkansas,
pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act. He alleged that
Buchanan violated his rights under the Fourth Amendment by entering his home
unlawfully and by using excessive force against him during an arrest. He also
asserted, as relevant to this appeal, that the City was liable for maintaining an
unconstitutional policy governing its officers. He brought state-law claims of felony
battery and the tort of outrage against Buchanan. On motion for summary judgment,
the district court* determined that Buchanan was entitled to qualified immunity on the
federal claims, that Shultz failed to present any evidence supporting his claim against
the City, and that the state-law claims had no merit. We affirm.
I.
On March 20, 2011, Buchanan was dispatched to Shultz’s residence in
response to a citizen complaint that a man had trespassed on the citizen’s property
and attempted to start a fight. Before Buchanan arrived at Shultz’s home, Shultz and
his friend, William Vaughn, had been in an altercation with two other men near a
former resort community called “the beach club.”
Vaughn had entered an abandoned building looking for a string or wire to use
as a leash for his dog and was confronted by a man who shoved Vaughn and
threatened harm if Vaughn did not leave the property. Vaughn met Shultz on the road
near the abandoned building and told him what happened. The man from the building
and a companion then started to walk up a hill toward Shultz and Vaughn while
shouting threats at them. In response, Shultz told the men: “You need to keep your

*

The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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asses down at the bottom of the hill ’cause if you come up here fucking with me,
you’re making a mistake.” The approaching men said they were going to call the
police; Shultz and Vaughn left for Shultz’s house.
Buchanan arrived at Shultz’s home thirty to forty-five minutes later. Shultz
and Vaughn were sitting under the carport. Shultz’s wife, Jennifer, was sitting in a
truck in front of the house, listening to music. The Shultzes’ three children were also
home.
Shultz was upset when Buchanan arrived. He knocked his chair over when he
stood up, but claimed that he was “very quiet.” Buchanan believed (correctly) that
both Shultz and Jennifer had been drinking, and he observed blood on Shultz’s shirt.
Shultz and Jennifer approached Buchanan near his patrol car. Buchanan asked Shultz
what had happened at the beach club. Shultz replied that two men had confronted
them, and that Shultz had told the men “that they needed to stay down at the bottom
of the hill because, if they come up here fucking with me, they’re making a mistake.”
Buchanan told Shultz to control his attitude and asked Shultz again what
happened. Shultz gave the same response, and Buchanan again told Shultz to control
his attitude. Shultz, Jennifer, and Buchanan talked further, and Shultz asked
Buchanan if he was under arrest. Buchanan replied that Shultz was not under arrest,
and Shultz walked into his house.
After Shultz entered the house, Buchanan called for backup and asked Jennifer
to go into the house and ask Shultz to come back outside. According to Jennifer,
Buchanan said that he would not arrest Shultz if he came outside before the backup
officers arrived. Buchanan did not believe that Shultz posed a danger to Jennifer,
because they had been “getting along.”

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Jennifer went inside and relayed Buchanan’s message to Shultz. Shultz raised
his voice, told Jennifer to “shut the fucking door,” and said that if Buchanan came
into the house, “it would be his badge.” Shultz moved toward the bedroom, tripped
over a jug of cat litter, and “slung” it off to the side. Buchanan heard yelling and
screaming coming from inside the house. He heard “a loud thud” that caused the
windows to shake and observed children run out of the house screaming. Buchanan
also heard Shultz yell that he was not coming out without a blood bath.
Buchanan then entered the house and asked Shultz if he was going to come
back outside to speak with him. Shultz declined to go outside or continue speaking
with Buchanan. Jennifer testified that Buchanan shoved her against a wall to move
her out of the way as he followed Shultz into the bedroom. Buchanan said that when
he attempted to grab Shultz to take him outside, Jennifer got between the two men
and tried to push Buchanan back.
Shultz testified that Buchanan followed him into his bedroom with a Taser
drawn and pointed the device at Shultz. Buchanan told Shultz that he was going to
arrest him. Shultz asserted that he put his hands in the air “in surrender position” and
said “that’s not necessary.” According to Shultz, however, Buchanan stood
approximately four feet from him, said “you asked for it,” and deployed the Taser.
Buchanan, by contrast, states that Shultz refused to comply with orders, and that he
warned Shultz that he would be tased if he did not stop resisting.
The probes of the Taser made contact with Shultz’s arm, and he fell back onto
the bed. Shultz sat up on the bed and moved as if to pull the Taser’s probes out of his
arm. Buchanan testified that Shultz broke the leads off the Taser. Shultz asserted
that Buchanan yelled at him not to remove the probes, told Shultz that he “better
fucking comply,” and deployed the Taser a second time. Shultz testified that
Buchanan deployed the Taser again a third time, applying the Taser directly to
Shultz’s thigh. Five to seven officers then entered Shultz’s home, tackled him off of
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his bed, and handcuffed him. Jennifer corroborated Shultz’s account of the events,
asserting that she witnessed the tasing and screamed at Buchanan to stop.
Shultz was arrested and charged with resisting arrest, fleeing, and disorderly
conduct. The officers also arrested Jennifer and charged her with obstructing
government operations. Shultz and Jennifer pleaded no contest to a charge of public
intoxication, and the State declined to pursue the other charges. Shultz suffered some
temporary marks on his legs and arms from the Taser, but neither Shultz nor Jennifer
sustained any permanent injuries, and neither missed any work.
The Shultzes sued Buchanan, the City, and several other law enforcement
officials. The district court eventually dismissed all claims, and only Shultz’s claims
against Buchanan and the City are at issue on appeal. The district court ruled that
Buchanan was entitled to qualified immunity on claims that he illegally entered the
home and that he used excessive force. The court also determined that Shultz failed
to present sufficient evidence to support his claim against the City. Exercising
supplemental jurisdiction, the court also granted summary judgment on the state-law
tort claims.
We review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to Shultz. Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir.
2012). Summary judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
II.
“[Q]ualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
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Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). As the Supreme Court has emphasized, “qualified immunity protects all
but the plainly incompetent or those who knowingly violate the law.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation omitted). To defeat
qualified immunity, the evidence must support a finding that Buchanan violated a
clearly established constitutional right. “The dispositive question is whether the
violative nature of particular conduct is clearly established.” Id. (internal quotation
omitted). “This inquiry must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (internal quotation omitted).
A.
We first consider whether Buchanan was entitled to qualified immunity on
Shultz’s claim that the officer unlawfully entered his home. Buchanan argues that
Shultz is barred from challenging the reasonableness of Buchanan’s entry under the
rule of Heck v. Humphrey, 512 U.S. 477 (1994). Heck held that if judgment in a
plaintiff’s favor in a § 1983 action for damages would necessarily imply the invalidity
of his conviction or sentence, then the claim is not cognizable unless the conviction
or sentence previously has been set aside in another forum. Id. at 486-87. Success
on Shultz’s Fourth Amendment claim, however, would not demonstrate the invalidity
of his conviction for public intoxication. All of the conduct relating to the public
intoxication offense necessarily occurred in public and before Buchanan’s entry into
Shultz’s home. See Ark. Code Ann. § 5-71-212. Shultz’s claim is thus not barred by
Heck.
Searches of a home without a warrant are presumptively unreasonable,
Michigan v. Fisher, 558 U.S. 45, 47 (2009) (per curiam), but there are exceptions.
One exception allows law enforcement officers to enter a home without a warrant to
provide emergency assistance to an injured person or to protect a person from

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imminent injury. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Buchanan
invokes that justification here.
We conclude that the scenario confronting Buchanan was close enough to the
line of a valid entry that he is entitled to qualified immunity. When Buchanan arrived
at the residence, Shultz had been drinking. He was upset and knocked his chair over
as he rose to approach Buchanan. After Shultz entered the home and Jennifer
followed to see if he would come back outside, Buchanan heard Shultz yelling,
children screaming, and a loud thud that sounded like someone threw something or
punched the wall. Buchanan was not required to have “ironclad proof of a likely
serious, life-threatening injury to invoke the emergency aid exception.” Fisher, 558
U.S. at 49 (internal quotation marks omitted). Under these circumstances, a
reasonable officer in Buchanan’s position could have concluded that there were
reasonable grounds to believe that a person in the Shultz home was in need of
immediate aid. See Anderson v. Creighton, 483 U.S. 635, 641-43 (1987). The entry
thus did not violate Shultz’s clearly established rights.
Shultz argues alternatively that Buchanan’s entry was unreasonable because
Buchanan impermissibly created the exigency by sending Jennifer into the house. In
Kentucky v. King, 563 U.S. 452 (2011), the Supreme Court held that the “exigent
circumstances rule justifies a warrantless search when the conduct of the police
preceding the exigency is reasonable” within the meaning of the Fourth Amendment.
Id. at 462. Buchanan’s conduct met that standard. By asking Jennifer to go into her
home and ask Shultz to come outside for further discussion, he did “no more than any
private citizen might do.” See id. at 469. Because Buchanan “did not create the
exigency by engaging or threatening to engage in conduct that violates the Fourth
Amendment,” he is entitled to rely on the emergency aid exception to justify his
entry. Id. at 462.

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B.
We next consider whether Buchanan was entitled to qualified immunity on
Shultz’s excessive force claim. Shultz argues that Buchanan used excessive force by
deploying his Taser multiple times because Shultz’s crimes were not serious or
violent, he did not pose a threat, and he was not resisting arrest. Shultz also contends,
relying on precedent concerning cruel and unusual punishment under the Eighth
Amendment, that Buchanan unlawfully used the Taser to inflict punishment on him.
See Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993).
Shultz asserts that his claim, like those of pretrial detainees alleging
unconstitutional uses of force, should be governed by the Due Process Clause of the
Fourteenth Amendment. See Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir.
2014); Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir. 2001). The conduct at
issue here, however, occurred before and during Shultz’s arrest, and it is therefore
governed by the Fourth Amendment and the prohibition on unreasonable seizures.
“Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one invoking
the protections of the Fourth Amendment . . . .” Graham v. Connor, 490 U.S. 386,
394 (1989); see Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011); Brown
v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009).
We may assume for the sake of analysis that Shultz has presented a genuine
issue of fact concerning whether Buchanan’s use of the Taser was unreasonable under
the Fourth Amendment. As of March 2011, however, it was not clearly established
that an officer violated the rights of an arrestee by applying force that caused only de
minimis injury. LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013);
Chambers, 641 F.3d at 908. Before our June 2011 decision in Chambers clarified the
analytical distinction between de minimis force and de minimis injury, “a reasonable
officer could have believed that as long as he did not cause more than de minimis
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injury to an arrestee, his actions would not run afoul of the Fourth Amendment.”
Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013) (quoting Chambers, 641 F.3d
at 908). Although a Taser has a “unique capability to cause high levels of pain
without long-term injury, ‘we have not categorized the Taser as an implement of force
whose use establishes, as a matter of law, more than de minimis injury.’”
Hollingsworth v. City of St. Ann, 800 F.3d 985, 990-91 (8th Cir. 2015) (quoting
LaCross, 713 F.3d at 1158).
The evidence presented by Shultz about consequences of the tasing are
consistent with effects that we have characterized as de minimis injury. Shultz
sustained temporary marks on his arms and legs, but suffered no permanent scarring.
He did not miss any work. Shultz argues that he experienced anxiety, nervousness,
and distrust of the police as a result of the incident, but acknowledged that he had not
seen a doctor or taken any medication for these symptoms. Accordingly, Shultz has
not shown that he suffered more than de minimis injury as a result of Buchanan’s
actions. See Ziesmer v. Hagen, 785 F.3d 1233, 1237-38 (8th Cir. 2015) (stating that
contusions and scrapes that heal without medical intervention are de minimis);
Peterson v. Kopp, 754 F.3d 594, 601 (8th Cir. 2014) (determining that temporary pain
and discomfort from pepper spray was de minimis where defendant had not sought
medical care and the injuries resolved themselves without medical intervention);
LaCross, 713 F.3d at 1157-58 (concluding that Taser marks for which no treatment
was sought and increased anxiety was de minimis). Buchanan is thus entitled to
qualified immunity on Shultz’s excessive force claim.
III.
Shultz argues briefly that the district court erred in dismissing his claim that the
City of Highland maintained an unconstitutional policy. He points to a statement by
the City’s mayor that even if one believed Shultz’s account of the incident,
Buchanan’s actions were consistent with city policy. Even assuming that the City’s
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policy granted officers discretion that might be employed in an unconstitutional
manner, Shultz did not present evidence that the City’s policy directed Buchanan to
act unconstitutionally or otherwise caused a deprivation of Shultz’s rights. See
Szabla v. City of Brooklyn Park, 486 F.3d 385, 390 (8th Cir. 2007) (en banc).
Therefore, the district court properly dismissed this claim.
Shultz also contends that the district court should have dismissed his state-law
claims without prejudice so that he could proceed in state court. “A district court’s
decision whether to exercise [supplemental] jurisdiction after dismissing every claim
over which it had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc.
v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). The district court did not abuse its
discretion in electing to consider the merits of Shultz’s state claims at the same time
that it resolved federal claims arising from the same facts. See Brown v. Mortg. Elec.
Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013). Shultz does not challenge
the district court’s decision on the merits, and we therefore affirm the dismissal of the
state-law claims.
*

*

*

The judgment of the district court is affirmed.
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