Brewer v. Jonesboro Police Department et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Judgment is entered for defendant Jeremy Wheelis, and against plaintiff Jerry Todd Brewer. Signed by Chief Judge Brian S. Miller on 7/21/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JERRY TODD BREWER
CASE NO. 3:12CV00315 BSM
in his Individual Capacity
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was tried to the bench on July 13, 2015. Having listened to the testimony
and reviewed the exhibits introduced into evidence, judgment is entered for defendant
Jeremy Wheelis, and against plaintiff Jerry Todd Brewer.
I. FINDINGS OF FACT
Plaintiff Jerry Todd Brewer was at the home he shared with a female roommate when
she and his girlfriend came to the residence drunk. Brewer was on parole and his girlfriend
was on probation, so he was upset that his roommate had taken his girlfriend out and gotten
drunk. Consequently, he began to argue with his roommate, who called the police.
By the time Jonesboro police officers Jeremy Wheelis and Rick Davis responded to
the call, Brewer had left the residence, so Wheelis drove around the neighborhood to locate
him. When Wheelis returned to the residence, Brewer was standing against the house.
Wheelis called Brewer’s parole officer, who informed him that, per the terms of Brewer’s
parole and his girlfriend’s probation, they were not supposed to be together. Davis entered
the house to take Brewer’s girlfriend into custody, while Wheelis approached Brewer.
Although Brewer did not recognize Wheelis, the officer recognized Brewer from a previous
arrest. Neither man had ever had a bad encounter with, nor harbored ill-will toward, the
Wheelis told Brewer he was under arrest, and placed him into handcuffs. He then
stood behind Brewer and removed Brewer’s hat from his head. In doing so, Wheelis
inadvertently pulled on some of Brewer’s hair, which caused Brewer to instinctively jerk his
head forward. Believing Brewer to be agitated, Wheelis pushed Brewer against a vehicle that
was parked in the driveway and then attempted to turn Brewer around and take him to the
ground. In doing so, Wheelis was unable to support Brewer’s body weight and Brewer fell
hard to the concrete “like a sack of potatoes” and injured his nose and knee. Wheelis helped
Brewer into a chair, found a rag to staunch the bleeding on Brewer’s nose, and called an
ambulance. Brewer was transported to the hospital for treatment and then placed into
Both Brewer and Wheelis were credible witnesses and neither appeared to give
testimony with the intent to mislead the fact-finder. Moreover, apart from a few details, their
accounts of the arrest are very similar.
II. CONCLUSIONS OF LAW
Judgment is entered for Wheelis because Brewer did not suffer a constitutional
violation. Further, even if Brewer suffered a constitutional violation, judgment would be
entered for Wheelis because he is immune from this lawsuit.
42 U.S.C. section 1983 is not a source of substantive rights, but is merely a vehicle
to vindicate rights elsewhere conferred. See Roach v. City of Fredericktown, Mo., 882 F.2d
294, 297 (8th Cir. 1989). Negligence, even gross negligence, does not amount to a section
1983 claim. See id. Thus, the initial inquiry is whether Brewer suffered the violation of a
constitutional right through Wheelis’s use of force, which Brewer contends was excessive.
The standard for determining excessive force is whether the force used was
objectively reasonable under the particular circumstances. See Coker v. Arkansas State
Police, 734 F.3d 838, 842 (8th Cir. 2013). Reasonableness is judged from the perspective
of a reasonable officer on the scene, without the benefit of hindsight. Id. During an arrest,
an officer is permitted to use some degree of physical coercion or threat. Id. Additionally,
a court must balance an individual’s Fourth Amendment interests against the relevant
governmental interests. Id. Relevant considerations may include:
[T]he severity of the crime; whether the suspect poses a threat of harm to
others; whether the suspect is resisting arrest . . . whether the situation is
‘tense, uncertain, and rapidly evolving,’ which would force an officer to make
‘split-second judgments’ about how much force is necessary.
Id. at 842–43. The severity of the plaintiff’s injuries may also be considered, as well as
whether the police used standard procedures. Mann v. Yarnell, 497 F.3d 822, 826 (8th Cir.
Brewer’s excessive force claim is based on three of Wheelis’s acts. In the first act,
Wheelis snatched Brewer’s hat from his head and accidently pulled Brewer’s hair. When,
as a reflex, Brewer jerked his head, Wheelis committed the second and third acts, which were
pushing Brewer against a vehicle and then taking him to the ground. Wheelis contends that,
at most, he may be guilty of negligence. Brewer agrees that Wheelis did not attempt to hurt
him when Wheelis took him to the ground, and that Wheelis probably did not realize how
heavy Brewer was and lost control.
Judgment is entered for Wheelis because neither pulling Brewer’s hat off his head, nor
pushing Brewer into the vehicle rise to the level of excessive force, especially given the
circumstances. Further, although the take-down could, under different circumstances,
possibly rise to the level of excessive force, there is agreement that Wheelis did not intend
to hurt Brewer and that, at most, his actions were negligent, which is not actionable under
section 1983. See Roach, 882 F.2d at 297. Finally, judged from the perspective of a
reasonable officer on the scene, none of Wheelis’s actions, even when taken together,
constitute excessive force. If Wheelis’s conduct were to be considered excessive force,
nearly every arrest would result in a constitutional violation.
Wheelis is also entitled to qualified immunity. In considering whether to grant
qualified immunity, a determination must be made as to: (1) whether the facts shown by the
plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right
was clearly established at the time of the defendant’s alleged misconduct. Estate of Morgan
v. Cook, 686 F.3d 494, 496 (8th Cir. 2012). Brewer has not shown that Wheelis’s conduct
resulted in the violation of a clearly established constitutional right. Simply put, there is no
clearly established constitutional right for an arrestee to be free from hat removal, being
placed against a car, or being taken to the ground under the circumstances of this case.
Consequently, judgment is entered in favor of Wheelis and an appropriate judgment
shall accompany this order.
IT IS SO ORDERED this 21st day of July 2015.
UNITED STATES DISTRICT JUDGE
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