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Date: 10-28-2018

Case Style:

Gabriel A. Storz v. Samuel J. Norlin

Case Number: 17-2527

Judge: Wollman

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of Minnesota (Hennepin County)

Plaintiff's Attorney: Kathryn Bennett, Robert Bennett, Paul Dworak, Joseph Flynn

Defendant's Attorney: Patrick Collins


Brittany Karels brought an action under 42 U.S.C. § 1983 against Gabriel Storzand Samuel Norlin, in their individual capacities as officers of the Big Lake,Minnesota, Police Department. Karels alleged, inter alia, that the officers usedexcessive force in effectuating her arrest in violation of her Fourth Amendmentrights. After the officers moved for summary judgment, Karels withdrew her claimagainst Norlin. As relevant here, the district court1 determined that Storz was notentitled to qualified immunity on the excessive force claim and denied summaryjudgment as to Storz. We affirm.
I. Background
Karels rented a room in the basement of Jennifer and Robert Owens’ multilevelhome in Big Lake, Minnesota. The house has an attached garage with two stepsleading from the garage into the house. Karels is five feet, five inches tall and hasdescribed herself as being out of shape. At the time of her arrest, she weighedapproximately 185 pounds and smoked cigarettes regularly.
On Friday, March 27, 2015, Karels drank a six-pack of beer after putting herfive-year-old son to bed. Later that night, Jennifer reluctantly agreed to watchKarels’s son while Karels went to purchase cigarettes.
Karels left the house around 1:30 a.m. on March 28. After she purchasedcigarettes, Karels stopped at a bar in a nearby town, where she had two shots of liquorand smoked marijuana in the parking lot. Karels took a taxi home sometime after2:30 a.m. and discovered that Jennifer had gone out to look for her. Karels calledJennifer, who soon returned to the house. The two women began arguing loudlyoutside the house. When the still-arguing women entered the house, Robert told
1The Honorable David S. Doty, United States District Judge for the District of
Karels to go to her room. As the women continued to argue, he called 911 to reportKarels as “a drunk that’s being ignorant.” He gave the dispatcher the address to hishome and described Karels as “a friend living here.”
Officers Storz and Norlin were dispatched to the scene. At that time, Storz hadbeen a police officer for approximately ten months. He was thirty-three years old,more than six feet tall, and physically fit. Norlin also was tall and fit.
Karels and Jennifer were still arguing in the house when Storz and Norlinarrived. The Owenses told the officers that they did not feel threatened by Karels, butthat they wanted her to go to her room because she had been drinking and was beingargumentative. Storz spoke to Karels outside as she smoked a cigarette. Karelscursed loudly, but then lowered her voice upon being instructed by Storz to do so. After Karels told Storz her side of the story, they returned to the house.
Storz then asked Karels for her identification. Karels did not rememberwhether she complied with his first request, but she testified that when she handed herdriver’s license to Storz, he poked her in the collarbone repeatedly and yelled, “calmdown” or “back off.” Karels then demanded to speak to the supervising officer. When the officers informed her that there was no supervisor on duty, Karels went intothe garage to smoke another cigarette. Norlin followed her, while Storz remained inthe house.
While in the garage, Karels called 911 twice to request a police sergeant or adeputy sheriff. According to the call transcripts, Karels told the dispatcher that twoBig Lake police officers would not leave her alone and had assaulted her. Thedispatcher told Karels that there was nothing she could do and that Karels could filea complaint with the police chief on Monday morning. It is undisputed that Karelswas yelling and cursing at the dispatcher during the 911 calls.
During the second call, dispatch relayed to the officers that Karels kept calling911 and making demands. After dispatch asked whether the officers planned to arrestKarels, Storz exited the house, went down the concrete steps, and entered the garage,where Karels was holding a lit cigarette in her right hand. An empty coffee can thatserved as an ashtray was located near the steps. Storz informed Karels that she wasunder arrest and instructed her to put her hands behind her back.
According to Karels, Storz quickly grabbed her left wrist and brought it behindher back. Karels tried to tell the officers that she was going to put the cigarette in thecoffee can. She testified that Norlin had grabbed her right wrist, guiding it toward thecoffee can, and away from Storz, so that she could dispose of the cigarette. As Storzfelt Karels pull away from him, he commanded her to stop resisting arrest, to whichKarels responded, “I’ve got a lit cigarette in my hand.” Immediately after Norlinextinguished the cigarette and as she was reaching toward the coffee can, Storztwisted her left arm behind her and body-slammed her onto the concrete steps,causing Norlin to lose his grip on her wrist. She felt her left arm “twisted up almostwhere the bra strap line would be.” Karels landed on her left side and felt searingpain in her left arm. Her glasses flew off her face. The back of her head hit the door,which slammed open and then shut, hitting Karels a second time. Storz landed on theground next to her. Karels testified that mere seconds passed between the time Storzentered the garage to the time he slammed Karels onto the ground.
Storz disputes Karels’s account of events leading up to his use of force, citingevidence that Karels was loud, aggressive, argumentative, and resistant. Accordingto Storz, upon being informed that she was being arrested for disorderly conduct,Karels retorted that she would not do anything until she finished smoking hercigarette. Norlin then extinguished the cigarette and the officers grabbed hold ofKarels’s wrists. Storz was able to place Karels’s left wrist in handcuffs. WhenKarels began swinging her shoulders, trying to pull her arms away from the officers,she lunged forward and broke Norlin’s grip from her right arm. By that time, Storz
held only the handcuffs that were secured to Karels’s left wrist and had no hold of herleft arm. Storz’s incident report states that he and Karels tripped over a concrete stepas Karels pulled away from him, and that they then fell to the ground.
The officers placed Karels in handcuffs, pulled her to a standing position, andescorted her to the squad car. When they searched Karels, they found a marijuanapipe and a small amount of marijuana.
Karels complained repeatedly about her left arm. She later described the painas feeling “like a very strong vise clamping down on my upper left arm.” She thoughtthat she was being restrained in a new style of handcuffs that secured the upper arm,so she repeatedly asked the officers to move or loosen the handcuffs. Karelsrequested medical attention, but refused to allow the paramedics to examine her whenan ambulance arrived.
Norlin transported Karels to the county jail, where she continued to complainabout left arm pain and numbness. During booking, a sergeant examined Karels andfelt a grinding in her left arm, which is indicative of a broken bone. He refused toaccept custody of Karels because she needed medical attention. The sergeant placedher arm in a splint, and Norlin transported her to a nearby hospital, where an X-rayrevealed that Karels had a fracture of the left humerus bone. Karels was thentransported to a hospital in St. Cloud, Minnesota, for emergency surgery on what wasfound to be a spiral, comminuted shaft fracture, with the radial nerve interposed at thefracture site and wrapped around a fracture fragment.
Karels was charged with the following misdemeanors: disorderly conduct,obstruction without force, possession of marijuana, and possession of paraphernalia. She pleaded guilty to disorderly conduct and the remaining charges were dismissed. Norlin’s use-of-force review form indicated that force was used to “effect an arrest”and listed “active resistance” as the suspect’s actions.
In denying the motion for summary judgment, the district court rejected Storz’sargument that his use of force was justified because Karels was resisting arrest. Thecourt concluded that “there is a genuine issue as to whether and to what degree Karelswas resisting arrest, and, if Karels did resist, whether Storz’s use of force wasreasonable.” D. Ct. Order of June 8, 2017, at 14.
II. Discussion
We have jurisdiction over this interlocutory appeal under the collateral orderdoctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Our jurisdiction is limited,however, to “abstract issues of law” and does not extend to the “determination thatthe evidence is sufficient to permit a particular finding of fact after trial.” Johnsonv. Jones, 515 U.S. 304, 314, 317 (1995). Accordingly, we accept as true the facts thatthe district court found were adequately supported, as well as the facts that the districtcourt likely assumed, to the extent they are not “blatantly contradicted by the record.” Burnikel v. Fong, 886 F.3d 706, 709 (8th Cir. 2018) (quoting Scott v. Harris, 550U.S. 372, 380 (2007)). We review de novo the issues of law. Id.
Qualified immunity shields a law enforcement officer from liability in a § 1983action “unless (1) the evidence, viewed in the light most favorable to [the plaintiff],establishes a violation of a constitutional or statutory right, and (2) the right wasclearly established at the time of the violation, such that a reasonable official wouldhave known that his actions were unlawful.” Blazek v. City of Iowa City, 761 F.3d920, 922-23 (8th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Storz first argues that he did not use excessive force in effectuating Karels’sarrest. An excessive force claim arises under the Fourth Amendment, so we apply areasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). “The
Fourth Amendment requires us to ask, based on the perspective of a reasonableofficer on the scene, ‘whether the officers’ actions are “objectively reasonable” inlight of the facts and circumstances confronting them, without regard to theirunderlying intent or motivation.’” Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir.2015) (quoting Graham, 490 U.S. at 397). Circumstances relevant to thereasonableness of the officers’ conduct include “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.
Considering the circumstances surrounding the seizure and arrest of Karels, weare not convinced that Storz’s use of force was objectively reasonable as a matter oflaw. The officers responded to a report of a person who was drunk and argumentativein a home where she was living at the time, which is not necessarily a crime. Karelsdid not attempt to physically harm the officers or the Owenses, who told the officersthat they did not feel threatened by Karels. Norlin’s use-of-force review form statedthat force was necessary to “effect an arrest,” not because the officers needed toprotect themselves or others. The officers cited Karels with four nonviolent, non-severe misdemeanor offenses. In pleading guilty to disorderly conduct, Karelsadmitted only that her loud and obnoxious behavior had caused others to becomealarmed, angry, and resentful. See Minn. Stat. § 609.72 subd. 1(3).
Viewing the evidence in the light most favorable to Karels, we reject Storz’sargument that his use of force was justified because a reasonable officer in Storz’sposition would have viewed Karels’s behavior as resisting arrest. Karels testified thatshe was not given time to comply with the command to put her hands behind herback. Moreover, she “informed defendants she needed to put her cigarette out.” D.Ct. Order of June 8, 2017, at 5 n.1. Although Karels conceded that it might have feltlike she was pulling away from Storz as “Norlin pulled her right arm towards anempty coffee can, and away from Storz, to put out the cigarette,” id. at 5, a reasonable
officer in Storz’s position would have realized that Karels was extinguishing hercigarette, with the other officer’s help, just as she intended to do. A jury thus couldfind that a reasonable officer in Storz’s position would not have perceived Karels’sactions as resistance.
Storz contends that we have sanctioned the use of force when an officerinterprets an arrestee’s actions as resistance, even if the arrestee did not intend toresist. He cites Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012), a case in which thearrestee was having a stroke, and Ehlers v. City of Rapid City, 846 F.3d 1002 (8thCir. 2017), a case in which the arrestee claimed that he did not hear the officer’scommands. In Carpenter, the officers knew that a man had chased first respondersfrom his home with a baseball bat and that he had access to a rifle. 686 F.3d at 647. Officers took him down after he ignored both a command to stop moving and a threatthat an officer would deploy his taser. Id. In Ehlers, “an officer took a fleeingarrestee to the ground after he ignored repeated warnings to put his hands behind hisback.” Rokusek v. Jansen, 899 F.3d 544, 547 (8th Cir. 2018) (summarizing Ehlers). The officers in Carpenter and Ehlers faced noncompliant arrestees and circumstancesthat were fraught with danger and unpredictability. In contrast, a jury could find thata reasonable officer in Storz’s position would not have interpreted Karels’s actionsas noncompliance and would have known that Karels posed neither an immediatethreat to anyone’s safety nor a flight risk. In light of the circumstances surroundingthe take-down, the district court properly concluded that genuine disputes of materialfact precluded summary judgment.2
2In so holding, we have considered Karels’s injury as evidence of the amount
and type of force used by Storz in effectuating Karels’s arrest. See Chambers v.
Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (explaining that “[t]he degree of injury
is certainly relevant insofar as it tends to show the amount and type of force used”).
Storz next argues that his use of force did not violate any clearly establishedFourth Amendment right. “A clearly established right is one that is ‘sufficiently clearthat every reasonable official would have understood that what he is doing violatesthat right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v.Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alterationomitted)). We may not “define clearly established law at a high level of generality,”but rather must determine “whether the violative nature of particular conduct isclearly established.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Storz contends that it was not clearly established on March 28, 2015, thattaking down Karels would constitute excessive force because her “behavior [could]be interpreted as resistance.” Appellant’s Br. 22. He relies primarily on Blazek v.City of Iowa City, 761 F.3d 920 (8th Cir. 2014). In Blazek, officers drew their gunsand entered the apartment of a federal parolee. They encountered the parolee’sroommate, who was “‘belligerent,’ refused to identify himself except as ‘theroommate,’ and would not stay seated as directed.” Id. at 922. To handcuff the man,an officer “grabbed his arm, twisted the arm up behind him, and threw him to theground.” Id. We held that it was not clearly established that the officer’s use of forcewas unconstitutional, id. at 923, comparing the take-down in Blazek to the one usedby the officer in Wertish v. Krueger, 433 F.3d 1062 (8th Cir. 2006). In Wertish,officers initiated a traffic stop of a vehicle that reportedly had forced another motoristoff the road. Instead of stopping, the vehicle continued to drive erratically anddangerously. When the vehicle finally came to a stop, the officers approached thedriver with guns drawn and ordered him to exit the vehicle. He did not comply, soan officer “‘forcefully threw’ the plaintiff to the ground, pinned him down, and placedhis weight into the plaintiff’s back before handcuffing him.” Blazek, 761 F.3d at 923(quoting Wertish, 433 F.3d at 1068 (Bye, J., concurring)). We concluded that theofficers’ use of force was objectively reasonable, explaining that “[w]hen a suspect
is passively resistant, somewhat more force may reasonably be required.” Wertish,433 F.3d at 1066-67 (majority opinion).
Blazek and Wertish do not establish that the slightest resistance justifies anysubsequent use of force by an officer, as Storz seems to argue. They instead establishthat an officer may use “somewhat more force” on a “passively resistant” suspect. The evidence here would support a finding that Karels was not “passively resistant.” A jury could find that she did not have time to comply with Storz’s command to puther hands behind her back before he used significant force against her. A jury couldalso consider Norlin’s use-of-force review form, on which he did not check the boxmarked “passive resistance” in describing Karels’s actions. Whether a reasonableofficer would have interpreted Karels as being resistant—either passively oractively—is a disputed question of fact that a jury must decide. As set forth above,a jury could find that Karels did not resist at all and that a reasonable officer wouldhave known that she was not resisting.3
Viewing the facts in the appropriate light, several cases establish that everyreasonable officer would have understood that he could not forcefully take downKarels—a nonviolent, nonthreatening misdemeanant who was not actively resistingarrest or attempting to flee—in the allegedly violent and uncontrolled manner thatStorz did. See Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya v.City of Flandreau, 669 F.3d 867, 873 (8th Cir. 2012); Shannon v. Koehler, 616 F.3d
3In light of these disputed facts, this court’s recent decision in Kelsay v. Ernst
does not control the outcome here. In Kelsay, we held that “[i]t was not clearly
established in May 2014 that a deputy was forbidden to use a takedown maneuver to
arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued
to walk away from the officer.” No. 17-2181, 2018 WL 4622711, at *3 (8th Cir.
Sept. 27, 2018). Unlike the plaintiff in Kelsay, it is disputed whether Karels ignored
Storz’s commands or physically resisted arrest and whether a reasonable officer
would have interpreted her actions as noncompliance or resistance.
855, 864-65 (8th Cir. 2010); see also Michael v. Trevena, 899 F.3d 528, 533 (8th Cir.2018); Rokusek, 899 F.3d at 548; Atkinson v. City of Mountain View, 709 F.3d 1201,1213 (8th Cir. 2013); Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir.2009); Rohrbough v. Hall, 586 F.3d 582, 586-87 (8th Cir. 2009). To the extent Storzargues that these cases present different facts and circumstances, “there is norequirement that [the plaintiff] must find a case where ‘the very action in question haspreviously been held unlawful,’ see Rohrbough, 586 F.3d at 587, so long as ‘existingprecedent [has] placed the statutory or constitutional question beyond debate,’ al-Kidd, 563 U.S. at 741.” Rokusek, 899 F.3d at 548 (second alteration in original).

Outcome: We affirm the district court’s order denying Storz’s summary judgment motion.

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