Opinion handed down May 11, 2015
Duke and Kami Lee Grider filed a 42 U.S.C. § 1983 claim against the Springfield, Missouri Police Department, alleging the Department violated the Griders’ statutory and constitutional rights by using excessive force.[1] Both parties moved for summary judgment, and an interlocutory appeal followed.[2] The U.S. District Court for the Western District of Missouri held that Officer Brandon Bowling was not entitled to qualified immunity, and Officer Bowling appealed.[3] The U.S. Court of Appeals for the Eighth Circuit reversed, granting the officer qualified immunity.[4]
I. Facts and Holding
The Griders, along with their son, were at a Taco Bell restaurant when Mr. Grider got into an argument with another diner.[5] Someone called the police, and Officer Bowling arrived shortly thereafter.[6] The Griders had already decided to leave the restaurant and finish their meal in their vehicle.[7] Officer Bowling went to the vehicle and asked Mr. Grider to step out.[8] When Mr. Grider refused, Officer Bowling physically forced him out of the vehicle, put him on the ground with a knee in the back, and placed him in handcuffs.[9]
Just before Officer Bowling handcuffed Mr. Grider, Officer Reece arrived on the scene and ran over to where Officer Bowling had Mr. Grider pinned.[10] Officer Reece proceeded to kick Mr. Grider in the head.[11] The officers had said nothing to one another before this occurred, and Officer Bowling did not try to stop Officer Reece from effectuating the kick.[12] Mr. Grider “suffered contusions and abrasions on his face, and the kick caused neck pain and restriction of movement which persisted at least two years. Kami Grider suffered emotional distress and problems with her pregnancy.”[13] A third officer, Officer Dougherty, arrived at the scene at some point after Mr. Grider was kicked.[14]
The court held that Officer Bowling was entitled to qualified immunity as a matter of law, because the circumstances in this case did not give rise to liability for nonfeasance.[15]
II. Legal Background
Officers can be liable for nonfeasance if they “had the duty, opportunity, or the ability to intervene” to prevent another officer from using excessive force under the Fourth Amendment but failed to actually intervene.[16] Nonfeasance can be inferred "where the officer is aware of the abuse and the duration of the episode is sufficient to permit an inference of tacit collaboration."[17]
Summary judgment is appropriate “‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ In determining whether there is any genuine factual dispute, the court must look at the record and any inferences drawn therefrom in the light most favorable to the . . . non-moving party.”[18]
A police officer is entitled to qualified immunity unless he violates a plaintiff’s “clearly established statutory or constitutional rights.”[19]
If a denial of summary judgment regarding qualified immunity turns on an issue of law, the denial is immediately appealable under Brown v. Fortner.[20] Similarly, “When the question on appeal is whether, as a matter of law, no constitutional violation occurred, a legal question exists which th[e] Court can consider.”[21]
Review of a qualified immunity determination on summary judgment is de novo.[22]
III. Instant Decision
The court held that “Officer Bowling [was] entitled to qualified immunity unless he violated Grider’s ‘clearly established statutory or constitutional rights.’”[23]
Mr. Grider offered “several theories of liability: (1) Officer Bowling used excessive force by removing Grider from the vehicle and placing him on the ground; (2) Officer Bowling was liable for the kick of Officer Reece; and (3) Officer Bowling was liable for nonfeasance because of his failure to prevent the kick.”[24]
The dispositive question here was whether Officer Bowling’s conduct was “objectively reasonable under the circumstances, as judged from the perspective of a reasonable officer on the scene at the time the force was applied.”[25] The court noted that an individual’s injury can show the degree of force used, and Officer Bowling’s conduct resulted in no injury to Mr. Grider.[26] The court held that given the circumstances, Officer Bowling did not use excessive force by removing Mr. Grider from his vehicle, Officer Bowling was not responsible for the kick by Officer Reece, and that he was not aware that Officer Reece was going to do what he did and could not act to prevent the kick.[27]
The decision of the district court was reversed, and Officer Bowling was granted qualified immunity as a matter of law.[28]
IV. Comment
Obviously, the issue of police brutality and use of excessive force in dealing with citizens is more of a hot topic now than ever. However, the facts of this interlocutory appeal demonstrate that each situation must be dealt with on its unique set of facts. Given the facts on which the court reversed Officer Bowling’s denial of qualified immunity, the decision is correct. What Officer Reece decided to do was not the fault of Officer Bowling; certainly, it does not make it less shocking that the kick happened, but it is also not right to lump Bowling and Reece together simply because they are both police officers.
– Blair Bopp
[1] Grider v. Bowling, 785 F.3d 1248 (8th Cir. 2015).
[2] Id. at 1251.
[3] Id.
[4] Id. at 1253.
[5] Id. at 1251.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 1253.
[16] Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973).
[17] Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009).
[18] Grider, 785 F.3d at 1251 See also Fed. R. Civ. P. 56(a) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
[19] Grider, 785 F.3d at 1251.
[20] Id. See also Brown v. Fortner, 518 F.3d 552, 557 (8th Cir. 2008).
[21] Id.
[22] Grider, 785 F.3d at 1251.
[23] Id. at 1252 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[24] Grider, 785 F.3d at 1252.
[25] Id.
[26] id.
[27] Id.
[28] Id.
