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Neal v. Ficcadenti

United States Court of Appeals, Eighth Circuit

July 12, 2018

Robin Kirkland Neal Plaintiff- Appellee
v.
Daniel Ficcadenti, in his individual capacity as an officer of the St. Paul Police Department Defendant-Appellant City of St. Paul Defendant

          Submitted: June 15, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         In the 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.

         The 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.

         The 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.[1] The district court[2] 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.

         We have 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.

         I. Background

         We view 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.

         Neal 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.

         Immediately 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.

         Officer 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 handcuffed.

         At 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 ...


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