Sandra Brown v. Rob Zarrett, etc. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1640
___________
Sandra Brown, *
*
Plaintiff/Appellee, *
*
v. *
* Appeal from the United States
City of Golden Valley, * District Court for the
* District of Minnesota.
Defendant, *
*
Rob Zarrett, Golden Valley Police *
Officer, *
*
Defendant/Appellant. *
___________
Submitted: December 12, 2008
Filed: July 22, 2009
___________
Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Golden Valley, Minnesota, Police Officer Rob Zarrett appeals from the district
court’s1 denial of his motion for summary judgment based upon qualified and official
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
immunity in Sandra Brown’s action against him arising from Zarrett’s application of
a Taser during a traffic stop.2 We affirm.
I.
Sandra Brown and her husband, Richard Brown (we will hereinafter refer to the
Browns individually by their first names), had plans to meet friends for dinner at a
downtown Minneapolis restaurant on Friday, October 8, 2005. After returning home
from work, the Browns each had a cocktail, which they finished drinking at the end
of their driveway. Rather than returning the glasses to the house, they put them in the
car and went to meet their friends.
The Browns arrived at the restaurant around 6:30 p.m. and had dinner.
Throughout the evening, Sandra had two more alcoholic drinks—a cocktail and a
glass of wine—as well as coffee and water. Richard had a couple glasses of wine.
They left the restaurant around midnight, with Richard driving and Sandra riding in
the front passenger’s seat.
Traveling west on Highway 394, the Browns noticed a squad car with flashing
lights behind their car, which was being driven in the left lane. The Browns did not
think that the squad car was attempting to stop them, so Richard moved to the right
lane to allow the squad car to pass. When the squad car followed the Browns into the
right lane, Richard slowed down and looked for a place to pull over. There was road
construction on Highway 394 and the right shoulder was barricaded and inaccessible,
so Richard moved into the left lane and pulled over onto what the Browns described
as the “sane lane.”
2
Ms. Brown voluntarily dismissed her claims against the city of Golden Valley
and her claim for false arrest against Zarrett.
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As Richard opened his door and began to step out of the car, an officer ordered
him to get back into the car. Richard complied with the order, pulling his leg back
into the car and closing the car door. He rolled down the window, whereupon three
officers came to his side of the car. One officer asked Richard if he knew why he had
been stopped, to which Richard replied that he did not. At that point, one of the
officers opened the door, pulled Richard out of the car, threw him against the side of
the vehicle, and handcuffed him. All the while, Sandra sat quietly in the passenger’s
seat.
As Zarrett was responding to a radio call in Golden Valley, he heard that a St.
Louis Park police officer was attempting to pull over a car on Highway 394 and that
the driver was not stopping. After clearing the Golden Valley call, Zarrett responded
to the St. Louis Park call. Before arriving on the scene, he heard a radio update that
the car had pulled over into the left lane and that the driver was getting out of the car
and refusing to get back into the car. As Zarrett arrived at the scene, two officers were
escorting Richard to a squad car.
The officers’ behavior and demeanor frightened Sandra. She thought that the
officers were aggressive and that the traffic stop was different from any that she had
previously witnessed. The officers did not ask for Richard’s license, registration, or
proof of insurance, and they did not tell him what illegality he had committed that
provoked the stop. Shortly after Richard was handcuffed, Sandra called 911 on her
cell phone. She explained what had happened to the operator and was transferred to
a different operator.
During her conversation with the second operator, Sandra heard someone yell,
“She is on 911. She is on 911.” As the 911 operator tried to reassure Sandra, Zarrett,
who was accompanied by two other officers, yanked open the passenger’s side door
and yelled, “Get off the phone.” Sandra replied that she was very frightened and that
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she wanted to stay on the phone with the 911 operator. Zarrett again ordered Sandra
to get off the phone, to which she repeated that she was frightened.
Without another word, Zarrett applied the prongs of his Taser to Sandra’s upper
right arm, grabbed her phone and some of her hair, and threw the phone out the
driver’s side door onto the shoulder. Sandra does not remember whether she or one
of the officers unfastened her seatbelt, but in any event Zarrett grabbed her right arm
and pulled her out of the car, bending her arm behind her back. At that point, a second
officer took her left arm and bent it behind her back. Zarrett and the other officer then
escorted Sandra to a police car. Sandra tried to walk on her tiptoes to alleviate the
pain from the escort hold. She described the escort as a mix between walking and
being lifted. In response to Zarrett’s command to stop resisting, Sandra replied that
she was not trying to resist. Upon reaching the police car, Sandra was handcuffed and
placed inside the car.
Sandra was taken to the Golden Valley police station. Richard, who had
refused the portable breath test offered at the traffic stop, was taken to the St. Louis
Park police station, where, after taking two breathalyzer tests, he was ticketed for
speeding. Sandra was charged with obstruction of legal process and an open bottle
violation. Following the booking procedures, the Browns took a taxi home.
The prosecution of the charges against Sandra was later suspended under an
agreement that the charges would be dismissed after successful completion of certain
conditions.
Sandra claims that she suffered extreme pain when Zarrett administered the
Taser shock. She felt a sharp pain where the Taser met her arm, with the pain
radiating from her upper arm and causing her muscles to clench. Sandra sustained
bruises on her wrists and arms and red welts or marks on her upper arm. On the
Monday after her arrest, she visited her primary care physician, who prescribed anti-
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anxiety medication. Sandra had never before been diagnosed with depression or an
anxiety disorder. After the incident, Sandra experienced problems with sleeping and
difficulty in focusing. She visited a psychologist twice. She is now afraid of the
police. When she sees them her heart rate increases, a rash sometimes breaks out, and
she occasionally hyperventilates.
Zarrett has a different recollection of the incident. After arriving at the scene,
he approached the driver’s side door with another officer, who ordered Sandra to get
off the phone. She refused. Zarrett noticed that there were two glasses at Sandra’s
feet, possibly containing alcohol. After the officers walked around to the passenger’s
side door, Zarrett ordered Sandra to get off the phone, only to be told that she would
not do so. Zarrett also says that he repeatedly told Sandra to unfasten her seat belt.
As Zarrett opened the passenger’s side door, Sandra scooted away from the door and
pulled her knees towards her chest. Zarrett thought Sandra looked disheveled and
believed that she might be intoxicated.
According to Zarrett, Sandra watched as he unholstered his Taser and removed
the air cartridge, and he told Sandra that he would use his Taser if she did not comply.
When Sandra was not looking, Zarrett grabbed her phone, threw it on the driver’s seat,
and applied the Taser in drive stun mode to Sandra’s upper right arm for an estimated
two to three seconds.3 Sandra then unfastened her seat belt, whereupon Zarrett
removed her from the car and arrested her. With the help of another officer, Zarrett
3
Zarrett testified that the Taser causes electrical muscular disruption and that a
full Taser cycle lasts five seconds and delivers a 50,000 volt shock. The Taser’s air
cartridge contains two darts that can be deployed and will penetrate the skin, causing
electrical muscular disruption between the two darts. Zarrett explained that if the air
cartridge is removed, the Taser may be operated in drive stun mode and used as a pain
compliance tool. In drive stun mode, the Taser’s electrical probes are applied directly
to the person and the electrical muscular disruption occurs between the two probes.
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escorted Sandra to his squad car. Sandra resisted the escort, despite repeated
commands that she cooperate.
II.
Qualified immunity shields government officials from liability in a § 1983
action unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known. Hope v. Pelzer, 536
U.S. 730, 739 (2002); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Henderson v.
Munn, 439 F.3d 497, 501 (8th Cir. 2006). We review de novo a district court’s denial
of summary judgment on the basis of qualified immunity. Henderson, 439 F.3d at
501. We view the facts in the light most favorable to the plaintiff, accepting as true
the facts that the district court found were adequately supported, as well as the facts
the district court likely assumed. Id.; see also Walker v. City of Pine Bluff, 414 F.3d
989, 991 (8th Cir. 2005).
Qualified immunity involves the following two-step inquiry: (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. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009) (holding that courts may exercise their discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first).
A.
Our initial inquiry is whether the facts alleged support Sandra’s contention that
Zarrett violated her Fourth Amendment right to be free from excessive force during
the course of the traffic stop and her arrest. We analyze excessive force claims in the
context of seizures under the Fourth Amendment, applying its reasonableness
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standard. Henderson, 439 F.3d at 502. The Supreme Court’s “Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). “To establish a
constitutional violation under the Fourth Amendment’s right to be free from excessive
force, the test is whether the amount of force used was objectively reasonable under
the particular circumstances.” Henderson, 439 F.3d at 502 (quoting Littrell v.
Franklin, 388 F.3d 578, 583 (8th Cir. 2004) and Greiner v. City of Champlin, 27 F.3d
1346, 1354 (8th Cir. 1994)) (internal quotations omitted).
We evaluate the reasonableness of an officer’s use of force “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396. This calculus allows “for the fact that police
officers are often forced to make split-second decisions—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation.” Id. at 397. The reasonableness inquiry, however, is an
objective one: “the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them.” Id.
Circumstances relevant to the reasonableness of the officer’s 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.” Id. at 396; see also Howard v. Kansas City Police Dep’t,
No. 08-2448, 2009 WL 1885495 at *3 (8th Cir. July 2, 2009).
Given the circumstances surrounding the Tasering and arrest, we are not
convinced that Zarrett’s use of force was objectively reasonable as a matter of law.
Sandra’s conduct did not amount to a severe or violent crime. Zarrett suspected that
Sandra had committed an open bottle violation, a misdemeanor punishable by not
more than ninety days’ imprisonment or a fine of not more than $1,000, or both.
Minn. Stat. §§ 169A.35 (open bottle law); 609.03(3) (punishment when not otherwise
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fixed). Zarrett contends that the district court failed to consider the seriousness of the
crimes of fleeing from an officer in a motor vehicle and driving while intoxicated.
Whatever the officers’ suspicions may have been with respect to Richard’s possible
intoxication, they had no reason to believe that Sandra had had anything to do with
the manner in which Richard had responded to their flashing lights. Accordingly, the
district court did not err in determining that the crime at issue was Sandra’s potential
violation of Minnesota’s open bottle law.
Sandra posed at most a minimal safety threat to Zarrett and the other officers
and was not actively resisting arrest or attempting to flee. In light of the fact that
Zarrett testified that he had ample time in which to come around from the driver’s side
of the car to the passenger’s side, there is nothing to indicate that he was faced with
the need to make any split-second decisions, nor can the circumstances fairly be
described as constituting a “tense, uncertain, and rapidly evolving” situation. Graham,
490 U.S. at 397. As for Zarrett’s argument that the two glass tumblers at Sandra’s feet
could be used as weapons, his deposition testimony that “It’s not something I would
rule out. It’s something easily accessible,” is hardly the description of an officer in
fear of being physically attacked. There was no indication that Sandra would use the
tumblers to harm the officers. She did not reach for them, and she did not threaten the
officers, verbally or physically. Zarrett’s contention that he thought Sandra might
kick him when she raised her knees to her chest while cowering in the car might be
accepted by a jury, but a jury could just as well interpret that conduct as an instinctive
self-protective reaction consistent with Sandra’s fear. In a word, then, nothing in the
record indicates that Sandra was actively resisting arrest as she sat in the car or that
she was attempting to evade arrest by flight. Her principal offense, it would appear,
was to disobey the commands to terminate her call to the 911 operator. Whether
Zarrett reasonably interpreted her refusal as a realistic threat to his personal safety or
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whether it constituted nothing more than an affront to his command authority is a
matter for a jury to decide.4
A threat to an officer’s safety can justify the use of force in cases involving
relatively minor crimes and suspects who are not actively resisting arrest or attempting
to flee. See, e.g., Lawyer v. City of Council Bluffs, 361 F.3d 1099 (8th Cir. 2004);
Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004). In Lawyer v. City of Council
Bluffs, two young men were pulled over for speeding in the early morning hours, and
the driver refused the officer’s orders to get out of his vehicle to sign the speeding
citation. 361 F.3d at 1101-02. The officer ultimately placed the driver under arrest,
but the driver continued to refuse to exit the vehicle. Id. at 1102. The officer tried to
open the door, only to find that it was locked. Id. The driver did not respond to
numerous requests to unlock the doors, causing the officer to reach inside the window
to unlock the door. Id. The window began to roll up onto the officer’s arm, and he
sprayed pepper spray inside the car as another officer stepped in to stop the window.
Id. We concluded that the officer did not use excessive force in deploying the pepper
spray because “it was objectively reasonable for [the officer] to believe that he was
in immediate danger, as he faced the possibility that he could be dragged down the
road with his arm trapped in the window if the vehicle began to move.” Id. at 1105.
4
We recognize that a late night traffic stop presents certain inherent risks to an
officer’s safety. Zarrett testified that officers generally park their squad cars behind
and closer to the passing traffic than the car in front of them. According to Zarrett,
parking this way creates a buffer, fanning the squad cars out from the stopped car. In
this case, four squad cars were parked behind Richard’s car, with Zarrett’s car located
the farthest back and to the right of the other cars. The squad cars and their lights
presumably alerted motorists to the traffic stop, but it was nonetheless dark outside.
There was also road construction in the area, and Richard had pulled the car into the
farthest lane on the left, meaning that Zarrett was standing near passing traffic as he
confronted Sandra. These facts alone do not justify Zarrett’s use of force. Accepting
Sandra’s version of the facts as true, she was merely sitting quietly with her seat belt
fastened, speaking to a 911 operator when Zarrett used summary force against her.
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The suspect in Lawyer posed an immediate threat to the officer’s safety, and the
circumstances were “tense, uncertain, and rapidly evolving.” See Graham, 490 U.S.
at 397. Taking the facts in the light most favorable to Sandra and judging the situation
from the perspective of a reasonable officer on the scene, the same cannot be said in
this case.
The facts in Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) are somewhat
similar to those in Lawyer, but we disagree with Zarrett’s contention that Draper is
apposite to the instant case. In Draper, the Eleventh Circuit held that the officer’s use
of a Taser gun to effectuate an arrest did not constitute excessive force. Id. at 1278.
The officer, Reynolds, had stopped a tractor trailer truck at approximately 11:30 p.m.
because its tag light was not appropriately illuminated. Id. at 1272. Reynolds
instructed the driver, Draper, to meet him behind the truck, a location in view of the
police camera. Id. at 1273. The police camera recording showed that Draper “was
hostile, belligerent, and uncooperative.” Id. at 1273, 1278. Draper paced back and
forth behind his truck, yelling at Reynolds, and refused to comply with five commands
to retrieve certain documents from his truck. Id. at 1273. Reynolds finally Tasered
Draper, and the back-up officer, who had arrived at about the time of the Tasering,
handcuffed him. Id. at 1273-74. After Draper was handcuffed, Reynolds stated that
he thought Draper was going “to fight me.” Id. at 1274.
Both Sandra and Draper were suspected of committing minor, nonviolent
crimes, and both were involved in late-night traffic stops, but the factual similarities
end there. Sandra was a frightened passenger who had disobeyed two orders to end
her phone call with a 911 operator, and four officers were handling the traffic stop.
Draper, on the other hand, was behind his truck, pacing, yelling, and swearing at
Reynolds, who at the time was the only officer on the scene. Draper posed a realistic
threat to Reynolds’s safety, but accepting Sandra’s version of the facts as true, she
posed no similar threat to Zarrett. In light of both the undisputed facts and Sandra’s
version of the disputed facts in this case, we cannot say that Zarrett’s use of force was
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reasonable as a matter of law, and we conclude that there is a genuine issue of material
fact as to whether Zarrett used excessive force in violation of Sandra’s constitutional
rights.5
B.
Our second inquiry in considering the denial of qualified immunity is whether
the right violated was clearly established. Whether the facts alleged support such a
claim is a legal question for the court to decide. Kahle v. Leonard, 477 F.3d 544, 549
(8th Cir. 2007). A right is clearly established if its contours are “sufficiently clear that
a reasonable official would understand that what he is doing violates that right. This
is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful.” Hope, 536 U.S. at 739
(quotation omitted). The standard does not require that there be a case with materially
or fundamentally similar facts. Brown v. Fortner, 518 F.3d 552, 561 (8th Cir. 2008).
“The relevant, dispositive inquiry is whether it would be clear to a reasonable officer
5
The Taser is a relatively new implement of force, and case law related to the
Taser is developing. Several of our sister circuits have considered whether the
deployment of a Taser during an arrest constitutes excessive force in violation of the
Fourth Amendment. See, e.g., Parker v. Gerrish, 547 F.3d 1, 8-11 (1st Cir. 2008)
(upholding jury verdict that officer used excessive force in Tasering an arrestee who
had insulted the officers but also had complied with their requests and did not resist
arrest); Zivojinovich v. Barner, 525 F.3d 1059, 1071-73 (11th Cir. 2008) (per curiam)
(use of a Taser to subdue a suspect who had repeatedly ignored police instructions and
continued to act belligerently found to be reasonably proportionate to the need for
force); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-87 (10th Cir. 2007) (use
of a Taser and related force against a nonviolent misdemeanant who did not flee or
actively resist arrest found to be excessive); Draper, 369 F.3d at 1277-78; Russo v.
City of Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir. 1992) (genuine issue of material
fact raised as to whether the use of a Taser on a potentially homicidal and suicidal
individual who was holding a knife in each hand and had made threatening statements
to police officers constituted excessive force).
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that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at
202. Accordingly, we must determine whether the facts alleged support a claim of
violation of Sandra’s clearly established right such that a reasonable officer would
have fair warning that his alleged conduct was unlawful. See id.; Howard, 2009 WL
1885495 at *5.
The district court held that “it was unreasonable to, without warning, taser a
nonviolent passenger who was not fleeing or resisting arrest and was suspected of a
minor, nonviolent crime, because she had disobeyed two orders to get off the
telephone with a 9-1-1 operator.” D. Ct. Order of Feb. 14, 2008, at 23. Zarrett argues
that it is not clearly established that an officer must issue a warning before deploying
a Taser, but he reads the district court’s holding too narrowly. The clearly established
right is not that Sandra was entitled to a warning, but rather that she was entitled to be
free from excessive force under the facts and circumstances presented in this case.
The right to be free from excessive force in the context of an arrest is clearly
established under the Fourth Amendment’s prohibition against unreasonable searches
and seizures. Graham, 490 U.S. at 396; Henderson, 439 F.3d at 503; Kukla v. Hulm,
310 F.3d 1046, 1050 (8th Cir. 2002); Guite v. Wright, 147 F.3d 747, 750 (8th Cir.
1998). Moreover, it is clearly established that force is least justified against
nonviolent misdemeanants who do not flee or actively resist arrest and pose little or
no threat to the security of the officers or the public. Casey, 509 F.3d at 1278 (citing
Graham, 490 U.S. at 396); Kukla, 310 F.3d at 1050 (citing Graham, 490 U.S. at 396);
see also Henderson, 439 F.3d at 503. At the time Zarrett deployed his Taser and
arrested Sandra, the law was sufficiently clear to inform a reasonable officer that it
was unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or
resisting arrest, who posed little to no threat to anyone’s safety, and whose only
noncompliance with the officer’s commands was to disobey two orders to end her
phone call to a 911 operator.
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We find further support for our holding in the Eighth Amendment context, in
which we have held that prisoners have a clearly established right to be free from a
Taser shock or its equivalent6 in the absence of a security threat. In Hickey v. Reeder,
12 F.3d 754 (8th Cir. 1993), a jail official shot an inmate with a stun gun after the
inmate refused to sweep his cell. Although the inmate posed no immediate threat, the
jail officials argued that the need to compel the inmate to sweep the floor after he had
been ordered to do so justified the force. Id. at 759. A review of Eighth Circuit case
law revealed that the use of force was justified when there was a concern for the safety
of the institution, the jailers, and the inmates. Id. (gathering cases). We noted that “a
stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large
muscles of the body, rendering the victim helpless,” and held that using a stun gun to
ensure compliance with housekeeping regulations is not a constitutionally permissible
option. Id. at 757, 759. In pepper spray cases, we have held that “[a] basis for an
Eighth Amendment claim exists when, as alleged here, an officer uses pepper spray
without warning on an inmate who may have questioned his actions but who
otherwise poses no threat.” Treats v. Morgan, 308 F.3d 868, 873 (8th Cir. 2002).
C.
It is the province of the jury to assess the credibility of the evidence, and if the
jury accepts Sandra’s account, it could fairly conclude that to apply a Taser in the
situation here presented would constitute the use of excessive force. Accepting
Sandra’s versions of the facts as true, we conclude that she has alleged a violation of
her clearly established right to be free from excessive force. See Littrell, 388 F.3d at
585 (holding that the district court properly submitted the issue of excessive force to
the jury, but erred when it submitted the question of whether the officer reasonably
believed that his actions were objectively reasonable in light of clearly established
6
Zarrett testified that the Taser and pepper spray are coequals on the use of force
continuum and that he believed that the Taser was the better implement of force to
gain compliance from Sandra.
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law); see also Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir. 1990)
(“The question for the jury is whether, judging from the perspective of a reasonable
officer at the scene of the arrest, the totality of the circumstances justifies the use of
the force used.”); McIntosh v. Weinburger, 810 F.2d 1411, 1431 n.8 (8th Cir. 1987)
(“The court, rather than the trier of fact, is to determine whether the facts alleged
support a claim of violation of clearly established law.” (internal quotations omitted))
cert. granted, judgment vacated on other grounds by Turner v. McIntosh, 487 U.S.
1212 (1988). The district court thus properly denied summary judgment on the basis
of qualified immunity.
III.
Under Minnesota law, official immunity prevents “‘a public official charged by
law with duties which call for the exercise of his judgment or discretion’ from being
held personally liable to an individual for damages.” Schroeder v. St. Louis County,
708 N.W.2d 497, 505 (Minn. 2006) (quoting Anderson v. Anoka Hennepin Indep.
Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004) and Elwood v. Rice County, 423
N.W.2d 671, 677 (Minn. 1988)). When an official is exercising such discretionary
functions, official immunity applies unless a “willful or malicious wrong is
committed.” Id. In the context of official immunity, “willful” and “malicious” are
synonymous, and the Minnesota Supreme Court has defined malice as “nothing more
than the intentional doing of a wrongful act without legal justification or excuse, or,
otherwise stated, the willful violation of a known right.” Rico v. State, 472 N.W.2d
100, 107 (Minn. 1991) (quoting Carnes v. St. Paul Union Stockyards Co., 205 N.W.
630, 631 (Minn. 1925)). “Whether or not an officer acted maliciously or willfully is
usually a question of fact to be resolved by the jury.” Johnson v. Morris, 453 N.W.2d
31, 42 (Minn. 1990).
Sandra presented sufficient evidence to preclude summary judgment on the
basis of official immunity on the alleged state tort claims. As set forth above, there
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is a fact dispute regarding whether Zarrett used excessive force during the Tasering
and arrest. Accepting Sandra’s account as true, a jury could find that Zarrett is not
entitled to official immunity because he wilfully violated her right to be free from
excessive force.
Conclusion
We affirm the district court’s order denying summary judgment on the basis of
qualified and official immunity.
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