Submitted: June 15, 2018
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
late evening hours of June 6, 2012, police officers responded
to a call that a witness had seen a man retrieve a gun from a
black sedan parked outside of Born's Bar, a tavern
located on Rice Street in Saint Paul, Minnesota. At the
scene, the officers discovered a black sedan containing three
occupants, none of whom perfectly matched the description of
the suspect. After apprehending the driver, the officers
commanded Appellee Robin Neal and another passenger to get
out of the car with their hands up.
scene, which was captured on video, was chaotic. Music blared
from Born's Bar. A police dog barked incessantly.
Multiple officers, guns drawn, shouted multiple commands.
Neal alighted from the sedan as directed with his hands
up-but immediately began to act somewhat erratically. He
spent a minute wandering around the sedan, dropped his hands
at least five times, and failed to promptly follow a command
that he walk towards the officers.
appellant, Officer Daniel Ficcadenti, commanded Neal to come
to him with his hands up. Neal finally complied. As Neal got
within arm's reach, Officer Ficcadenti conducted an
abrupt arm-bar takedown, injuring Neal. Neal brought this 42
U.S.C. § 1983 action alleging that Officer Ficcadenti
applied excessive force when he brought Neal to the
ground. The district court denied qualified immunity to
Officer Ficcadenti, finding that the evidence when viewed in
a light most favorable to Neal showed that in 2012 it was
clearly established that the use of an arm-bar takedown
technique on a suspect who was neither threatening nor
resistant violated the Fourth Amendment's prohibition
against unreasonable searches and seizures.
jurisdiction over this interlocutory appeal of a denial of
qualified immunity because the issue of a violation of a
clearly established constitutional right is a question of
law. See Jackson v. Gutzmer, 866 F.3d 969, 975 (8th
Cir. 2017). The question may be pursued in an interlocutory
fashion because qualified immunity is an immunity from suit
that is effectively lost if the case is permitted to
erroneously proceed to trial. Payne v. Britten, 749
F.3d 697, 700 (8th Cir. 2014) (citing Scott v.
Harris, 550 U.S. 372, 376 n.2 (2007)). We agree with the
district court that, viewed in a light most favorable to
Neal, the facts give rise to a question of unreasonable and
excessive force for the ultimate finder of fact. We affirm.
the facts in a light most favorable to Neal, the non-moving
party. On June 6, 2012, a witness contacted 911 to report
that a heavy-set black male in his forties wearing a red and
white shirt and a baseball cap had retrieved a gun from a
black four-door sedan parked outside of Born's Bar in St.
Paul, Minnesota. The witness reported that the suspect had
placed the gun in his waistband and that he was currently
leaning against a wall. Born's Bar is located on Rice
Street in a rough area of the city. Police officers have
frequently been dispatched to the area to address criminal
activity, including violent activity.
and his companions, Anthony Lee and Kevin O'Bannon, had
arrived at Born's Bar earlier in the evening to watch a
basketball game. None of the men matched the suspect's
physical description. All three men were in their fifties.
Neal was a slender man dressed in jean shorts and a black
shirt. Both Lee and O'Bannon wore blue shirts.
O'Bannon sported a baseball cap. Unfortunately, the
hapless trio had arrived in a black four-door sedan driven by
O'Bannon. The car was parked a couple of car lengths from
the entrance of the bar. During the game, the three friends
consumed alcohol. Neal was tested after the incident and had
a blood alcohol concentration of 0.231.
prior to the time that officers arrived at the scene, the
three men left Born's Bar and got into O'Bannon's
black sedan. O'Bannon was in the driver seat, Neal in the
front passenger seat, and Lee in the rear passenger seat.
Before the car moved, Saint Paul police officers began to
arrive in number. Officer Michael DeTomaso was one of the
first to arrive on the scene. He was soon followed by a
number of officers, including Officer Ficcadenti. The
officers established a horseshoe formation around
O'Bannon's sedan and exited their cars. Most had
their guns unholstered and pointed at the sedan. The scene
was captured on squad videos from Officers DeTomaso, Tschida,
and Ficcadenti. It was 11:22 p.m.
DeTomaso loudly commanded O'Bannon to get out of the
vehicle with his hands up and walk towards the officer.
O'Bannon complied and was quickly taken into custody and
about this time, the scene became more chaotic as the loud
music from the bar was joined by a police dog barking
persistently and multiple officers screaming commands at Neal
and Lee. The two men were directed to get out of the car with
their hands up. Neal stepped out, followed immediately by
Lee. An officer yelled out "One at a time!" Lee
froze with his hands in the air ...