Tyree Bell v. Officer Peter Neukirch

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1713
___________________________
Tyree Bell
lllllllllllllllllllllPlaintiff - Appellant
v.
Officer Peter Neukirch, in his individual capacity; Officer Jonathan Munyan, in his
individual capacity; Detective John Mattivi, in his individual capacity
lllllllllllllllllllllDefendants - Appellees
Sergeant John Doe, I, in his individual and official capacities; Captain John Doe, II,
in his individual and official capacities; John Doe, III, in his individual and official
capacities; Darryl Forte, in his former official capacity as Police Chief of the
Kansas City, Missouri Police Department
lllllllllllllllllllllDefendants
Leland Shurin, in his official capacity as President and a member of the Board of
Police Commissioners of Kansas City, Missouri
lllllllllllllllllllllDefendant - Appellee
Angela Wasson-Hunt, in her official capacity as Treasurer and a member of the
Board of Police Commissioners of Kansas City, Missouri; Michael Rader, in his
official capacity as a member of the Board of Police Commissioners of Kansas
City, Missouri
lllllllllllllllllllllDefendants
Nathan F. Garrett, in his official capacity as a member of the Board of Police
Commissioners of Kansas City, Missouri; Mayor Sylvester "Sly" James, in his
official capacity as a member of the Board of Police Commissioners of Kansas
City, Missouri; Luis Ortiz, in his individual and official capacities; Richard C.
Smith, Police Chief of the Kansas City, Missouri Police Department; Mark Tolbert,
in his official capacity as a member of the Board of Police Commissioners of
Kansas City, Missouri; Don Wagner, in his official capacity as a member of the
Board of Police Commissioners of Kansas City, Missouri
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 11, 2020
Filed: October 28, 2020
____________
Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
____________
SMITH, Chief Judge.
About seven minutes after a black juvenile male with a gun fled from police in
Kansas City, Missouri, officers arrested Tyree Bell a mile away from the scene. Bell
and the suspect shared only generic characteristics in common: black, juvenile, and
male. Bell, however, had several characteristics distinct from the suspect: he was taller
than the suspect; had distinguishable hair from the suspect; and wore shorts, shoes, and
socks that differed from those donned by the suspect. These distinctions are depicted
on a police video recording that the arresting officers reviewed. Three weeks later, with
Bell still in custody, a detective reviewed the video and concluded that Bell was not the
offender. Authorities promptly released Bell and dismissed all charges. Bell then sued
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the arresting officers, alleging that they seized him without probable cause. He also
raised claims against the detective and a sergeant who authorized the detention, and he
named the sergeant, the police chief, and members of the Board of Police
Commissioners of Kansas City as defendants in their official capacities based on
alleged failures to train and supervise the arresting officers.
The district court, describing it as a “difficult case,” ruled that the arresting
officers were entitled to qualified immunity, because a reasonable officer could have
believed that there was probable cause to arrest Bell. Bell v. Neukirch, 376 F. Supp. 3d
989, 1004 (W.D. Mo. 2019). We conclude, however, that the evidence, viewed in the
light most favorable to Bell, would support a finding that the arresting officers violated
Bell’s clearly established right to be free from an unreasonable seizure without
probable cause under the circumstances. We therefore reverse the dismissal of the
claims against those officers. We affirm the district court’s grant of summary judgment
in favor of the other defendants.
I. Background
Police in Kansas City received a 911 call just before 4:08 p.m. on June 8, 2016.
The caller reported that a couple of black juvenile males with guns were present with
four or five teenage girls outside a house on Marsh Avenue. He explained that the
males were pulling out the guns, hugging the girls, and playing with the weapons. The
caller expressed concern that someone could get hurt. He identified the first black
juvenile male as having dreads, wearing a white t-shirt and jeans, and having a gun in
his pocket. The caller identified the second black juvenile male as wearing a black shirt
and having a gun. The caller suggested that police could apprehend them. He also
advised that the police could contact him at the phone number he was calling from.
At approximately 4:10 p.m., Kansas City, Missouri Police Officers Peter
Neukirch and Jonathan Munyan responded to the call to investigate the suspicious gun
activity. At 4:13 p.m., while en route to the area, Officer Munyan called the 911 caller.
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The caller advised Officer Munyan that the suspects were no longer outside on the
corner but had entered the home located at the address.
At approximately 4:18 p.m., the officers arrived at the location and drove their
vehicle toward three black juvenile males who were walking along the side of the
street. Officer Neukirch sounded a siren briefly, and the young men looked at the
police car. As the officers exited their vehicle, one of the three males began to run.
Officer Munyan yelled for him to “drop the gun” and gave chase. The runner tossed
a gun over a fence on his left-hand side, continued to the end of the block, turned left
at the corner, and continued to flee. Officer Munyan followed around the corner, but
he could not catch the suspect.
Officer Munyan then announced a description of the fleeing suspect over a
police radio: “Black male. Dreads. Blue shorts.” Shortly thereafter, Officer Munyan
elaborated: “Juvenile black male, 17-18, about 5’10,” skinny, blue shorts, white t-shirt,
shoulder-length dreads. He was taking his shoes off. I’m not sure what kind of shoes
he had.” A video recording of the initial police encounter taken from the patrol car
shows that the fleeing suspect had all-black bushy hair that did not reach his neckline.1
The video also shows that he wore a plain white t-shirt; dark solid-colored shorts; and
long, striped gray socks that rose near mid-calf. The video reveals that the suspect was
not wearing basketball sneakers but instead a low-cut footwear, no more than ankle
high.
About a mile away at approximately 4:25 p.m.—seven minutes after the suspect
began to flee—Officer Chris Viesselman saw Bell walking along 87th Street and
talking on his cell phone. Officer Viesselman asked Officer Munyan by radio whether
he was sure that the suspect had removed his shoes and explained that he “[had] a
1
The video is inconclusive as to whether the suspect had dreadlocks, as the
officers claim.
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younger black male with . . . braids or dreads . . . approaching Blue Ridge, white shirt,
with black-and-white shorts.” Officer Munyan replied, “It’s probably worth a
ped[estrian] check. He was taking them off as I was running. But I didn’t see him toss
them. And I can’t find any shoes. So, he might have held them and put them back on.
I don’t know. Ped[estrian] check him and see if he runs.”
In the meantime, Bell had casually walked past Officer Viesselman’s parked
patrol car apparently unalarmed by his presence. Officer Viesselman backed up his car
so that Bell was in front of it. Bell did not run. Officer Viesselman exited his car and
called Bell over; Bell came right to Officer Viesselman. Officer Viesselman frisked
Bell and asked for identification. Bell said that he was not carrying identification and
that he was coming from his cousin’s house down the street. Officer Viesselman
decided to detain Bell and handcuffed him.
Video footage from Officer Viesselman’s dashcam and photographs of Bell
show Bell wearing a white t-shirt, black shorts with a wide white stripe on each side,
short black socks, and black Nike Air Jordan basketball shoes trimmed in red with a
red logo on the tongue. Bell’s hairstyle appears to be short dreadlocks above the
neckline, and his haircolor is black with brown-colored tips.
Bell asked why he was detained, and Officer Viesselman said that Bell matched
the description of a suspect who was carrying a gun during a foot chase with police.
Another officer asked Officer Viesselman by radio about Bell’s breathing and
sweating. The weather in Kansas City was sunny and about 86 degrees. Officer
Viesselman responded that Bell was “[a] little sweaty,” and that “[h]e’s breathing
normal, though.” Officer Munyan then interjected by radio that he would be able to
recognize the suspect if he could get to Officer Viesselman’s location. The supervising
officer, Sergeant Luis Ortiz, notified Officer Viesselman that Officer Munyan was on
his way.
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As they waited, Officer Viesselman questioned Bell. Looking at Bell’s feet,
Officer Viesselman asked, “How do you not lose your shoes? Those look real loose.”
He then added, “They[’re] on there pretty good?” Viesselman then questioned Bell
about his height. Bell said that he was 6’3,” to which Officer Viesselman commented,
“You[’re] a tall boy. Play basketball?” Officer Viesselman also asked Bell how much
he weighed; Bell said he weighed 155 pounds. Officer Viesselman remarked to Bell
that “[y]ou don’t seem like you’re really out of breath after a foot chase or anything,
so I don’t imagine it’s you, but you match what he’s wearing, so that’s why I gotta stop
you until we check.” Officer Viesselman added that “[y]ou’re the right age, too; he was
a juvenile.”
Officer Munyan arrived shortly thereafter, driving an unmarked pickup truck.
He pulled over on the opposite side of the street, about 30 feet from Officer
Viesselman and Bell. From his patrol vehicle, Officer Munyan identified Bell as the
fleeing suspect. As officers searched Bell, Officer Munyan said that he had “noticed
the red on his shoes when he was running and started to take them off.” Officer
Viesselman responded, “That’s why I was asking if he took them off ‘cause I knew
you’d said that.” Officer Munyan replied, “He’d taken them off at some point.” Bell
was placed in Officer Viesselman’s vehicle, where he insisted to the officer that “it
wasn’t me.”
Officer Munyan returned to the original scene to view the video recording of the
initial encounter while sitting in the vehicle that he shared with Officer Neukirch. A
log file for the camera system shows that the video was played back two times at 4:50
p.m. The log does not reveal how much of the video was played, but one of the replays
must have lasted less than one minute for a second playback to start during the same
minute at 4:50 p.m.
Bell waited in Officer Viesselman’s vehicle until Officer Neukirch told him to
exit at 5:13 p.m. Officer Neukirch took photographs of Bell. At 5:22 p.m., Officer
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Munyan played back the video two more times, with both replays beginning during the
same minute. Based on information provided by Officers Munyan and Neukirch, either
Sergeant Ortiz or Detective John Mattivi approved placing Bell on a 24-hour
“investigative hold.” Officers Neukirch and Munyan then drove Bell to the Juvenile
Justice Center, where he was interviewed by Detective Mattivi and detained. Officer
Neukirch played the video back four times, twice beginning at 5:52 p.m. and twice at
5:53 p.m. Officers Munyan and Neukirch again assured Detective Mattivi that they had
reviewed the patrol car video and identified Bell as the fleeing suspect.
Two of the juveniles detained at the initial scene were present when Officer
Viesselman brought Bell to the location. Neither Officer Munyan nor Officer Neukirch
asked the other two juveniles whether Bell was the third juvenile with the gun who fled
from police. Bell presented evidence that if officers had asked one of the juveniles
whether Bell was the fleeing male, the witness would have informed police that Bell
was not the suspect.
Officers Munyan and Neukirch also declined to ask the 911 caller to come to the
scene to identify Bell. Officer Neukirch averred that he decided not to summon the
caller because the caller had yelled at two of the juveniles earlier and threatened to kill
them, so Officer Neukirch was afraid of “an unnecessary verbal confrontation.” Bell
presented evidence that if officers had shown the 911 caller a picture of Bell, then the
caller would have said that Bell was not among the males on a nearby front porch
about whom he called the police.
Two days after the seizure, on June 10, a juvenile court judge determined that
there was probable cause to detain Bell for unlawfully carrying a gun and fleeing from
officers. The court conducted a second hearing on June 22 and ordered Bell’s
continued detention until a trial in August. The record does not show what information
was presented to the juvenile court judge at the two hearings.
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On June 29, after Bell had been detained for three weeks, Detective Mattivi
watched the patrol car video for the first time. He concluded that Bell was not the
suspect who possessed a gun and fled from police. He observed that Bell’s shorts were
different from the suspect’s shorts: the suspect’s shorts were “black or dark blue,”
while Bell’s had “a white colored pattern on the front/sides.” Detective Mattivi also
saw that the suspect wore “long grey colored socks that rode half way up his calves,”
while Bell’s socks “were short and black in color.” After Detective Mattivi reviewed
the information with a prosecutor, the authorities dropped the charges and released
Bell.
Bell later sued Officers Munyan and Neukirch, Detective Mattivi, Sergeant
Ortiz, the chief of police, and members of the Board of Police Commissioners
(“Board”). The district court concluded that Officers Munyan and Neukirch were
entitled to qualified immunity because they “could reasonably believe probable cause
existed to arrest” Bell. Bell, 376 F. Supp. 3d at 999. The court concluded that Detective
Mattivi enjoyed qualified immunity because he reasonably relied on information from
Officers Munyan and Neukirch. The court dismissed a claim against Sergeant Ortiz for
failure to supervise because there was insufficient evidence of deliberate indifference,
and it dismissed claims against the Board members, the police chief, and Sergeant
Ortiz in his official capacity for similar reasons.
II. Discussion
On appeal, Bell argues that the district court erred in granting qualified
immunity to Officers Munyan and Neukirch. According to Bell, Officers Munyan and
Neukirch arrested and detained him without probable cause and no reasonable officer
could have believed that probable cause existed. As a result, he contends, qualified
immunity does not bar his claims against the officers.
“We review the district court’s grant of summary judgment and qualified
immunity rulings de novo.” Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th
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Cir. 2006). Police officers are “entitled to qualified immunity unless (1) the facts,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a
constitutional or statutory right; and (2) the right was clearly established at the time of
the deprivation.” Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014) (quotation
omitted).
A. Constitutional Violation
The first question is whether Officers Munyan and Neukirch violated Bell’s
constitutional rights by arresting him without probable cause. See U.S. Const. amend.
IV. Whether the officers had probable cause to arrest Bell depends on whether they had
probable cause to believe that Bell was the same person who discarded a gun and fled
from police at the original scene near Marsh Avenue.
“In conformity with the rule at common law, a warrantless arrest by a law officer
is reasonable under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S.
146, 152 (2004). The existence of probable cause “depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” Id. The standard is a “practical, nontechnical conception” that calls for “facts
and circumstances sufficient to warrant a prudent man in believing that the (suspect)
had committed or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103,
111–112 (1975). “Finely tuned standards such as proof beyond a reasonable doubt or
by a preponderance of the evidence have no place in the probable-cause decision.”
Florida v. Harris, 568 U.S. 237, 244 (2013) (cleaned up). “Probable cause . . . is not
a high bar: It requires only the kind of fair probability on which reasonable and prudent
people, not legal technicians act.” Kaley v. United States, 571 U.S. 320, 338 (2014)
(cleaned up). But it is a bar. An arrest must be supported by more than a reasonable,
articulable suspicion that a person committed a crime. See United States v. Sokolow,
490 U.S. 1, 7 (1989). There must be a “fair probability” or a “substantial chance” that
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the person seized has committed an offense. Illinois v. Gates, 462 U.S. 213, 243 n.13,
246 (1983).
The probable cause requirement is designed “to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime.”
Brinegar v. United States, 338 U.S. 160, 176 (1949). “Because many situations which
confront officers in the course of executing their duties are more or less ambiguous,
room must be allowed for some mistakes on their part.” Id. at 176. “[S]ufficient
probability, not certainty, is the touchstone of reasonableness under the Fourth
Amendment.” Hill v. California, 401 U.S. 797, 804 (1971). As a result, probable cause
may justify an officer’s arrest of an otherwise innocent person when that person
reasonably fits the description of the suspect. See id. “But the mistakes must be those
of reasonable men, acting on facts leading sensibly to their conclusions of probability.”
Brinegar, 338 U.S. at 176. Police officers need not “always be correct,” but they must
“always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
Law enforcement officers are afforded “substantial latitude in interpreting and
drawing inferences from factual circumstances.” Kuehl v. Burtis, 173 F.3d 646, 650
(8th Cir. 1999). However, “such latitude is not without limits.” Id. “First, because the
totality of circumstances determines the existence of probable cause, . . . .[a]n officer
contemplating an arrest is not free to disregard plainly exculpatory evidence, even if
substantial inculpatory evidence (standing by itself) suggests that probable cause
exists.” Id. Under the Fourth Amendment, we must “analyze the weight of all the
evidence—not merely the sufficiency of the incriminating evidence—in determining
whether [an officer] had probable cause to arrest [an individual].” Id. Second, while
officers need not conduct a “mini-trial” before making an arrest, they “have a duty to
conduct a reasonably thorough investigation prior to arresting a suspect, at least in the
absence of exigent circumstances and so long as law enforcement would not be unduly
hampered if the agents wait to obtain more facts before seeking to arrest.” Id. (cleaned
up).
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Bell maintains that several obvious exculpatory factors nullified probable cause
in his case. We conclude that the totality of circumstances was insufficient to warrant
a prudent officer in believing that Bell was the suspect who possessed the gun and fled
the original scene.
Bell’s appearance and that of the suspect differ markedly. They are both black
male juveniles wearing white t-shirts, but their full descriptions diverge at that point.
First, Officer Munyan described the suspect’s height as 5-foot-10-inches; Bell was five
inches taller at 6’3.” Second, when Bell was apprehended a mile away from the scene
after only seven minutes, he had just completed a call on his cell phone, was breathing
normally, and appeared only a little sweaty—an unlikely condition if he had covered
that much ground so quickly in 86-degree heat. Third, Bell’s apparel was distinctly
different from the suspect’s apparel. Bell’s shorts were black with large white stripes
on the sides; the suspect’s were solid dark blue or black. Officer Munyan averred that
he could not determine definitively from the patrol car video whether there were white
stripes on the fleeing suspect’s shorts. But we have reviewed the video: the absence of
white stripes is obvious. Bell’s socks were short and black; the suspect’s socks were
gray and reached his calf. When Detective Mattivi later watched the video and noticed
these discrepancies, he promptly concluded that police had arrested the wrong person.
Fourth, Bell and the suspect had different hair styles and hair color. While both had
hair above their necklines, the suspect’s hair is all black and bushy; by contrast, Bell’s
hair is in short dreadlocks with colored tips. Fifth, the video footage shows the suspect
wearing low-cut shoes or sandals, while Bell wore black Nike Air Jordan basketball
shoes trimmed in red with a red logo on the tongue. Lastly, Bell’s relatively fresh
appearance is noticeably inconsistent with what a reasonably prudent officer would
expect to observe after running a mile in about seven minutes while changing shoes
and clothing as Officer Viesselman observed.
Where a seized person’s characteristics differ this substantially from what
reasonably would be expected from the suspect, an officer does not have probable
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cause for an arrest. In United States v. Evans, 851 F.3d 830 (8th Cir. 2017), for
example, there was no probable cause to arrest a man for rape, despite a height, build,
and shoes that matched a description of the attacker, where the arrestee lacked a scar
on his abdomen and tattoos on his neck and hands that were also part of the suspect’s
profile. Id. at 835–36. It was insufficient that the arrestee displayed a healed spider bite
on his abdomen, or that police thought the tattoos described by the victim could have
been removable hand stamps required for reentry to local entertainment clubs,
temporary tattoos, or reminder notes that the perpetrator wrote on his hands and
washed off. Id. at 833–34. Likewise, a “discrepancy of a generation” in age defeated
an assertion of probable cause where an undercover officer purchased drugs from a
female named “Mary Tilma” who “[l]ooked to be about 24,” but the sheriff arrested
41-year-old Mary Tillman, who lived in a trailer near the drug sale and turned out to
be the suspect’s aunt. Tillman v. Coley, 886 F.2d 317, 318, 321 (11th Cir. 1989).
Where officers were advised to seize a fleeing suspect wearing a black shirt and tan
pants, they lacked probable cause to arrest a subject walking toward them wearing a
light blue shirt and blue jeans. Sharp v. County of Orange, 871 F.3d 901, 910 (9th Cir.
2017). This case falls into the same category.
As previously discussed, our review of the video footage shows the suspect as
wearing low-cut shoes, as opposed to Bell’s black shoes with red trim and logos. But
the officers maintain that probable cause was bolstered by the red trim and logos on
Bell’s shoes, because Officer Munyan testified that he saw red on the suspect’s shoes
as he was fleeing. There is a genuine dispute of fact, however, about whether Officer
Munyan actually saw red coloring on the suspect’s shoes. First, the video footage does
not show any red trim on the suspect’s low-cut shoes. Second, when Officer Munyan
broadcast his description of the fleeing suspect, he said: “I’m not sure what kind of
shoes he had.” Only after he saw Bell’s shoes with red trim did Officer Munyan state
that he saw red on the fleeing suspect’s shoes. Officer Munyan argues that the two
statements are not inconsistent—that is, he could have seen red trim or logos on the
suspect’s shoes without knowing the “kind of shoes.” But given that the purpose of the
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radio broadcast was to assist in identifying the suspect, and the broadcast included
details about height, weight, hair style, shirt color, and shorts color, a reasonable jury
could find that if Officer Munyan really saw red on the fleeing suspect’s shoes, then
he would have included that information with the earlier description rather than saying
that he was “not sure” about the shoes.
The officers also rely on Officer Munyan’s assertion that one of the detained
juveniles at the scene “implied” that Bell was the fleeing suspect. According to
Munyan, he said to the other two juveniles, “You know we got him, right?,” and one
responded, “Yeah, I seen you when you pulled up.” But whether this dialogue occurred
is a disputed issue of material fact that depends on an assessment of Officer Munyan’s
recollection and credibility. Even assuming it happened, moreover, the record does not
show whether it was reasonable for Officer Munyan to believe that the other juveniles
were in a position to identify Bell when the police vehicle “pulled up.” More to the
point, the alleged statement is at best ambiguous about whether the quoted juvenile
meant to identify Bell as the fleeing suspect or whether he merely acknowledged that
the police had detained someone. Officers have a duty to conduct a “reasonably
thorough investigation” before making an arrest, Kuehl, 173 F.3d at 650. The officers
could have used readily available sources for corroborative identification such as the
juveniles and the 911 caller rather than rely on an ambiguous implication.
The officers submit that the discrepancy in shorts and socks could be explained
by their training and experience that suspects shed items of clothing during foot
pursuits to change appearance. Officer Munyan avers that in his experience, “fleeing
suspects frequently wear more than one shirt, more than one pair of pants or shorts, or
more than one pair of socks.” Officer Neukirch says that same thing, and adds that he
was trained at the police academy “that during foot pursuits, suspects will often wear
more than one shirt, pants, or pair of socks for the purpose of changing their
appearance.” On this view, the officers assert probable cause based on a substantial
chance that after Bell eluded Officer Munyan at the original scene, he shed a solid-
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colored pair of shorts that he wore over the black-and-white striped shorts, and
discarded a long gray pair of socks that covered a short pair of black socks, yet
prominently displayed a single white t-shirt throughout the supposed pursuit.
We think there is a genuine dispute of fact about whether the potential for
layered clothing supports a determination of probable cause under these circumstances.
The officers do not describe any particular occasion on which they experienced a
suspect who shed clothing during a foot chase. Officer Neukirch does not provide
detail about the police academy’s training on this subject. There is thus an unresolved
factual issue about the scope of the officers’ training and experience. It stands to reason
that a bank robber who plots a crime and a getaway might well plan to discard an outer
layer of clothing while making an escape. Even an unplanned effort at evasion might
lead a suspect who is naturally wearing multiple layers to shed, say, an outer jacket or
sweatshirt so that pursuing officers would see only an unfamiliar shirt. But the officers
have presented no evidence of training or experience to suggest that juvenile males
showing off a gun to teenage girls on a front porch during a warm afternoon in June
are likely to wear multiple pairs of shorts and socks, just in case they end up in a foot
chase with police.
Without evidence that officers have training or experience to expect a suspect
to shed clothing in comparable circumstances, we think the inference that Bell
discarded an outer pair of solid-colored shorts and an outer pair of long gray socks is
implausible. Not only was Bell’s clothing different from the suspect, but Bell’s height
was five inches different from Munyan’s description of the suspect, and Bell did not
exhibit the signs of exertion that a prudent officer typically should expect from a
suspect who had just traversed a seven-minute mile in the heat. Taken together, the
circumstances do not support a determination of probable cause.
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B. Clearly Established
Having determined that Officers Munyan and Neukirch violated Bell’s
constitutional rights by arresting him without probable cause, we must next determine
whether “the unlawfulness of their conduct was clearly established at the time.”
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation omitted). If their
unlawful conduct was clearly established, then they are not entitled to qualified
immunity. See id.“Clearly established means that, at the time of the officer’s conduct, the law was
sufficiently clear that every reasonable officer would understand what he is doing is
unlawful.” Id. (quotations omitted); see also Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018) (“An officer ‘cannot be said to have violated a clearly established right unless
the right’s contours were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating it.’” (quoting Plumhoff
v. Rickard, 572 U.S. 765, 779 (2014))). For a right to be clearly established, “existing
law must have placed the constitutionality of the officer’s conduct beyond debate.”
Wesby, 138 S. Ct. at 589 (quotation omitted). The “legal principle must have a
sufficiently clear foundation in then-existing precedent.” Id. “The rule must be settled
law, which means it is dictated by controlling authority or a robust consensus of cases
of persuasive authority.” Id. (cleaned up). Then-existing “precedent must be clear
enough that every reasonable official would interpret it to establish the particular rule
the plaintiff seeks to apply. Otherwise, the rule is not one that every reasonable official
would know.” Id. at 590 (cleaned up).
Under the clearly established prong, “the legal principle [must] clearly prohibit
the officer’s conduct in the particular circumstances before him. The rule’s contours
must be so well defined that it is clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. (quotation omitted). As a result, the rule
must be defined at “a high degree of specificity.” Id. (quotation omitted). “[C]ourts
must not define clearly established law at a high level of generality, since doing so
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avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.” Id. (quotation omitted). According to the Supreme
Court, “[a] rule is too general if the unlawfulness of the officer’s conduct does not
follow immediately from the conclusion that the rule was firmly established.” Id.(quotation omitted).
In the context of the Fourth Amendment, “the specificity of the rule is especially
important.” Id. (quotations omitted). “Probable cause turns on the assessment of
probabilities in particular factual contexts and cannot be reduced to a neat set of legal
rules.” Id. (cleaned up). Because the concept of “probable cause” is “imprecise,”
officers frequently may find it difficult to apply the general standard to a particular
situation. Id. Therefore, to overcome a defense of qualified immunity, it is often
important for a plaintiff “to ‘identify a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth Amendment.’” Id. (alteration
in original) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)).
“[E]xisting precedent must place the lawfulness of the particular arrest beyond debate”;
however, “there does not have to be a case directly on point.” Id. (quotations omitted).
Moreover, “there can be the rare ‘obvious case,’ where the unlawfulness of the
officer’s conduct is sufficiently clear even though existing precedent does not address
similar circumstances.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)
(per curiam)). “[G]eneral statements of the law are not inherently incapable of giving
fair and clear warning to officers, but in the light of pre-existing law the unlawfulness
must be apparent.” White, 137 S. Ct. at 552 (cleaned up). In the warrantless-arrest
context, “a body of relevant case law is usually necessary to clearly establish the
answer with respect to probable cause.” Wesby, 138 S. Ct. at 590 (quotations omitted).
In a case involving an arrest without probable cause, officers have qualified
immunity if they “reasonably but mistakenly conclude[d] that probable cause [wa]s
present.” Id. at 591 (alterations in original) (quoting Anderson v. Creighton, 483 U.S.
635, 641 (1987)). “This circuit often refers to this standard using the shorthand
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‘arguable probable cause.’” Michael v. Trevena, 899 F.3d 528, 534 n.3 (8th Cir.
2018). “Arguable probable cause exists even where an officer mistakenly arrests a
suspect believing it is based in probable cause if the mistake is objectively reasonable.”
Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir. 2011) (quotation omitted). In some
cases, “law enforcement officials will . . . reasonably but mistakenly conclude that
probable cause is present”; in those cases, the officials are entitled to qualified
immunity. Anderson, 483 U.S. at 641. Under the “arguable probable cause” standard,
“so long as [the officer] is reasonable, the governing standard for a Fourth Amendment
unlawful arrest claim ‘is not probable cause in fact but arguable probable cause . . . that
is, whether the officer should have known that the arrest violated plaintiff’s clearly
established right.’” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)
(alteration in original) (quoting Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.
1996)). The idea is that if probable cause was reasonably “arguable” or debatable, then
the officer’s action was objectively legally reasonable. See id. In other words, we must
determine whether it was “objectively legally reasonable” for an officer to conclude
that the arrest was supported by probable cause. Anderson, 483 U.S. at 641.
Bell argues that “fourteen obvious evidentiary reasons should have negated
probable cause” to believe that he was the fleeing suspect. In light of the exculpatory
evidence that distinguished him from the suspect, Bell maintains that no prudent
officer would have believed that there was probable cause to arrest him. “If all this was
objectively reasonable,” he asks, “what would be unreasonable?”
At the time of Bell’s arrest, existing precedent established the general
proposition that a warrantless arrest must be supported by probable cause. Habiger, 80
F.3d at 295. Kuehl fleshed out that standard by establishing that an officer must not
disregard plainly exculpatory evidence, even if substantial inculpatory evidence
suggests that probable cause exists. 173 F.3d at 650. Officers also have a duty to
conduct a reasonably thorough investigation before arresting a suspect. Id. There was
thus no probable cause in Kuehl to arrest a subject for assault where readily available
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exculpatory evidence showed that no offense was committed. Kuehl also cited
favorably a decision denying qualified immunity for officers who relied on a security
guard’s allegation of shoplifting to establish probable cause when a videotape viewed
personally by the officers showed that no crime occurred. Id. at 650 (citing Baptiste
v. J.C. Penney Co., 147 F.3d 1252, 1259–60 (10th Cir. 1998)).
Taking the evidence in the light most favorable to Bell, it was clearly established
at the time of Bell’s warrantless arrest that no reasonable officer in the position of
Officers Munyan and Neukirch could have believed that probable cause existed to
arrest Bell based on the plainly exculpatory evidence available to them. Bell wore
different shorts and socks than the suspect wore at the scene. His height varied by five
inches from Munyan’s real-time description of the suspect. Bell did not exhibit signs
of exertion that would be expected of a suspect who ran a mile in seven minutes on a
warm afternoon. Given the glaring differences, there was not arguable probable cause
to believe that Bell was the fleeing suspect. Bell’s right to be free from an arrest and
detention under the circumstances was clearly established. It is an obvious case of
insufficient probable cause.
The officers assert that they acted reasonably because they reviewed the video
recording of the suspect multiple times before confirming that Bell should be arrested.
There is a factual dispute over how thoroughly they reviewed the video. Given Officer
Munyan’s averment that he could not tell whether the suspect’s shorts included a broad
white stripe on the side, a reasonable jury could conclude that Officer Munyan did not
reasonably consider the video. But even assuming that the officers collectively watched
the video eight times as they claim, it should have been obvious to any reasonable
officer that Bell’s shorts and socks were different from the suspect’s shorts and socks
at the scene. Qualified immunity requires more than subjective good faith; it requires
objectively reasonable official conduct. Harlow v. Fitzgerald, 457 U.S. 800, 815–16
(1982). Simply scanning a video does not make conduct objectively reasonable if an
officer ignores or overlooks plainly exculpatory evidence. Baptiste, 147 F.3d at
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1259–60. Qualified immunity does not protect the “plainly incompetent,” Malley v.
Briggs, 475 U.S. 335, 341 (1986). An officer who repeatedly watched the video and
failed to take note of the substantial discrepancies between Bell and the suspect
demonstrates less diligence that what is expected of competent police officers about
to limit someone’s liberty by arrest.
The officers fall back on their claim that it was reasonable to think that Bell shed
an outer layer of shorts and socks, so they reasonably could have believed that there
was probable cause on that assumption. The record includes only a general undisputed
fact allegation that the officers had prior experience with suspects shedding an outer
layer of clothing in undefined circumstances. As we have said, unless there is evidence
that the officers had training or experience about suspects discarding layered clothing
in a situation reasonably comparable to this one, the inference that Bell dispensed with
a second pair of shorts and socks is implausible. Without more, it was not objectively
reasonable to believe that Bell may have attempted to change his appearance by
discarding solid dark-colored shorts in favor of underlying black-and-white shorts, and
by removing long gray socks to reveal short black socks, while retaining his single
white t-shirt and walking along the side of a road towards a parked patrol car during
the supposed getaway. Even the initial detaining officer found little suspicious about
Bell’s appearance or demeanor. “Judges are not required to exhibit a naivete from
which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (2d
Cir. 1977) (Friendly, J.).
The breadth of the officers’ position illustrates the obviousness of its
shortcoming. They contend that it was reasonable to believe that Munyan’s height
estimate of 5’10” could be off by five inches. They argue that it was reasonable to
believe that a fleeing suspect found a mile away after only seven minutes would breath
normally and sweat little on an 86-degree sunny afternoon. They maintain that it was
reasonable to mistake one pair of shoes for another. And they assert that it was
reasonable to believe that the suspect could be found wearing any combination of t-
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shirt, shorts, and socks, because suspects are known to change their appearance by
discarding layered clothing during foot pursuits. On that view, a reasonable officer
could have believed that there was probable cause to arrest any black male aged
approximately 17–18, with a dreadlock hair style2 and slender build, who was found
within a one-mile radius of the original scene, if the young man’s height ranged from
5’5” to 6’3” and he was wearing a white t-shirt, shorts, and socks of any color or
design. We cannot accept that such an implication represented an objectively
reasonable interpretation of the law at the time of Bell’s arrest.
C. Remaining Claims
As to the remaining claims, we affirm the district court’s dismissal. It was
objectively reasonable for Sergeant Ortiz and Detective Mattivi to rely on an assurance
of probable cause from two officers who witnessed the crime and who represented that
they had confirmed Bell’s identity as the suspect through video evidence. See
Borgman, 646 F.3d at 623. The claims against the official-capacity defendants fail
because there is insufficient evidence that this particular arrest was the result of an
official policy of the police department. Bell does not identify a pattern of
constitutional violations or otherwise support an allegation that the department was
deliberately indifferent to the need for its officers to ensure that arrests are supported
by probable cause. See Thiel v. Korte, 954 F.3d 1125, 1129 (8th Cir. 2020) (explaining
“violation must stem from an official municipal policy or custom” to hold government
officials liable).
III. Conclusion
For these reasons, the district court’s grant of summary judgment in favor of
Officers Munyan and Neukirch is reversed, and the case is remanded for further
proceedings on Bell’s claims against them under 42 U.S.C. § 1983 and the Fourth
Amendment. The judgment is otherwise affirmed.
2
Again, the video is inconclusive as to whether the suspect had dreadlocks.
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COLLOTON, Circuit Judge, concurring.
Whether police officers are entitled to qualified immunity in a Fourth
Amendment case depends on whether a given search or seizure, even if unlawful, was
“objectively legally reasonable.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
In a case alleging an unlawful arrest, therefore, officers are entitled to qualified
immunity if they “reasonably but mistakenly concluded that probable cause was
present.” District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018) (internal
quotation and alterations omitted). Where a constitutional rule is developed at a high
level of generality, and there are no decisions declaring a constitutional violation under
similar circumstances, an official frequently will be entitled to qualified immunity. Id.That is because without further definition of a general constitutional rule, it often will
be “objectively legally reasonable” for an officer to believe that his understanding of
the scope of the disputed right is correct. But it is also well established that “general
statements of the law are not inherently incapable of giving fair and clear warning.”
United States v. Lanier, 520 U.S. 259, 271 (1997). And “a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the specific
conduct in question, even though ‘the very action in question has [not] previously been
held unlawful.’” Id. (quoting Anderson, 483 U.S. at 640).
The district court recognized that this is a “difficult case,” and confronted
directly the dispositive question: whether “the officers could reasonably believe
probable cause existed to arrest Plaintiff.” R. Doc. 81, at 10. After careful review of
the record, our panel majority reaches a different conclusion about whether a
reasonable officer could have believed that there was probable cause to arrest appellant
Bell. But the panel majority and the district court apply a common analytical
framework.
The dissent, by contrast, would affirm the judgment without addressing whether
a reasonable officer could have believed that there was probable cause to arrest. (And
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by declining to address the first order question whether the officers had probable cause
to arrest, the dissent’s approach would allow officers qualified immunity to do the
same thing again in the future.) On this view, because there is no decision of the
Supreme Court or this court holding that an officer “acting under similar
circumstances” violated the Fourth Amendment, the officers have qualified immunity,
without an inquiry into whether their actions were objectively legally reasonable. The
dissent declines to address whether the existing constitutional rules were sufficient to
give fair and clear warning on these facts, because Bell’s appellate briefs did not
invoke the language of Wesby that this is “an obvious case where a body of relevant
case law is not needed.” Post, at 27 n.5.
That is not how qualified immunity analysis should work. When an arrestee
argues on a given set of facts that no reasonable officer could have believed that there
was probable cause to arrest, the argument brings up for our consideration whether the
officer’s seizure was objectively legally reasonable. That question includes whether
the existing constitutional rules apply with obvious clarity to the specific conduct in
question. Sometimes a plaintiff can prevail by arguing from general constitutional
standards that a right is clearly established on a given set of facts. Brosseau v. Hagen,
543 U.S. 194, 199 (2004) (per curiam). Bell argued that “fourteen obvious evidentiary
reasons should have negated probable cause,” asserted that the right in question was
clearly established, maintained that it was not objectively reasonable on these facts for
officers to conclude that there was probable cause, and employed a rhetorical
question—“If all this was objectively reasonable, what would be unreasonable?”—to
say, in effect, “it’s obvious.” We should not parse Supreme Court opinions as though
they were statutes, see Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979); nor should
we read them as though they implemented a code-pleading regime for qualified
immunity cases. We cannot avoid the issue of objective legal reasonableness in this
case by requiring the arrestee to use certain magic words in his appellate briefs.
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I join the opinion of the court and concur in the conclusion that “this is an
obvious case of insufficient probable cause.” Ante, at 18. Given the obvious
distinctions between the video-recorded suspect and the arrestee, and the implausibility
of Officer Munyan’s post-hoc assertion that the fleeing juvenile may have sought to
disguise himself by disposing of layered shorts and socks while retaining his white t-
shirt, any reasonable officer should have known that he lacked probable cause to arrest
and detain Bell.3
STRAS, Circuit Judge, concurring in part and dissenting in part.
Tyree Bell spent three weeks in custody due to a case of mistaken identity. The
district court held that the arresting officers were entitled to qualified immunity.
Because there is no clearly established law to support Bell’s claims against them, I
would affirm across the board.
I.
After receiving a report of teenagers “playing” with guns in a Kansas City,
Missouri neighborhood, officers were sent to the scene. When they arrived, one of the
teenagers tossed a gun over a nearby fence and fled on foot. Although Officer
Jonathan Munyan ran after him, he got away. The officers issued a be-on-the-lookout
3
In recent decisions, the Supreme Court has added the modifier “rare” when
discussing the “obvious case” in which the unlawfulness of an officer’s conduct is
sufficiently clear to deny qualified immunity without existing precedent that addresses
similar circumstances. One hopes that obvious constitutional violations are rare, but
it is not evident why rarity would be part of the legal standard; frequency seems to be
an empirical question that depends on the conduct of police officers. But accepting
that it should be a rare Fourth Amendment case in which qualified immunity is denied
without a prior decision involving similar circumstances, this one fits the bill: for me,
it is likely the first case in seventeen years to meet the standard.
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advisory for a “[j]uvenile [b]lack male, 17–18, about 5’ 10”, skinny, blue shorts, white
tee shirt, shoulder-length dreads . . . [who] was taking his shoes off.”
Just seven minutes after the teenager made a run for it, another officer, Chris
Viesselman, spotted Bell walking about a mile away. Although Bell did not match the
description perfectly, he was a black male, skinny, roughly the right age, and wearing
a white t-shirt. So Viesselman stopped him. While questioning him, Viesselman
noticed that he was only “[a] little sweaty” and was not short of breath, despite
allegedly covering a mile on foot in around seven minutes.
Munyan, who came over upon learning that Viesselman had apprehended
someone, identified Bell immediately from about 30 feet away as the same teenager he
had chased just minutes earlier. Only then did Viesselman place Bell under arrest.
Meanwhile, Bell continued to insist that he was innocent.
Between them, Munyan and his partner reviewed the patrol car’s dash-cam
video a total of eight times—four times at the scene and four more times later that
day—to make sure that Munyan’s eyewitness identification was accurate. According
to Munyan, he also spoke to the other two teenagers, one of whom answered “[y]eah,
I seen you when you pulled up,” in response to the question, “[y]ou know we got him,
right?”
Three weeks later, after a juvenile-court judge had ruled that there was probable
cause to hold Bell, a detective reviewed the dash-cam video. He concluded that the
fleeing suspect and Bell were two different people “because they had on different
shorts and different socks.” Bell was released not long thereafter.
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II.
This case is hardly the model of good police work, but the question for us is
whether Munyan and his partner were on “notice” that their conduct violated “clearly
established law.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)
(quotation marks omitted); see Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019)
(en banc) (laying out the two-step qualified-immunity analysis). If they were not, they
are entitled to qualified immunity regardless of whether they violated Bell’s rights. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts have “sound
discretion [to] decid[e] which of the two [requirements] of the qualified immunity
analysis should be addressed first”); Jacobson v. McCormick, 763 F.3d 914, 917 (8th
Cir. 2014) (declining to “decid[e the] potentially difficult question[]” of whether a strip
search “was reasonable” and holding that the law was not clearly established). Even
assuming a violation occurred, I remain unconvinced that the underlying constitutional
question was “beyond debate.” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also Hill v.
California, 401 U.S. 797, 802–04 (1971) (explaining that arresting the wrong person
does not violate the Fourth Amendment as long as the mistake was objectively
reasonable); Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir. 1996) (“The
evaluation of evidence to determine if probable cause exists is not an exact science.”).
Here are the circumstances that confronted Munyan and his partner. First, they
had both seen the suspect personally. Second, when Munyan later saw Bell, he
positively identified him. Third, the officers collectively watched the dash-cam video
eight times and decided that Bell was the same person who threw the gun and fled.
Fourth, Munyan heard one of the teenagers reply affirmatively when he said, “[y]ou
know we got him, right?” There was exculpatory evidence, to be sure, but Bell still has
to “identify a case where an officer acting under similar circumstances . . . was held
to have violated the Fourth Amendment.” Wesby, 138 S. Ct. at 590 (alteration in
original) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)); see also
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Kisela, 138 S. Ct. at 1152 (“Because the focus is on whether the officer had fair notice
that her conduct was unlawful, reasonableness is judged against the backdrop of the
law at the time of the conduct.” (quotation marks omitted)).
Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999), a case relied upon by both Bell
and the court, does not do the job. It involved an obstinate cop who did not see the
crime occur, yet “made up [his] mind” about the suspect’s guilt without speaking to
the key witness, truly interviewing the suspect, or examining crucial physical evidence.
Id. at 648–49; cf. Johnson v. City of Minneapolis, 901 F.3d 963, 969, 971 (8th Cir.
2018) (holding that Kuehl clearly established the violation because the officer did not
witness the event and failed to interview an eyewitness).
In this case, by contrast, the officers personally saw the fleeing suspect, reviewed
the dash-cam video multiple times, and thought that one of the teenagers had implied
that the officers had caught the person who had fled. They may well have placed too
little weight on the physical differences between the teenager depicted in the video and
Bell, but it does not follow that Kuehl gave them “fair notice that [their] conduct was
unlawful.”4 Kisela, 138 S. Ct. at 1152 (quotation marks omitted).
Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998), is not any closer,
because the officers there lacked evidence that a crime had even been committed.
They were not present at the time, and the surveillance video they watched did not
4
United States v. Evans, 851 F.3d 830 (8th Cir. 2017), relied upon by the court
to show what is necessary for probable cause, could not have given the officers “fair
notice that [their] conduct was unlawful” because it was decided nearly a year after the
events in this case happened. Kisela, 138 S. Ct. at 1152 (quotation marks omitted); see
also Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam) (stating that
cases that “post-date the conduct in question” are “of no use in the clearly established
inquiry”).
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“suggest” that the person they detained had committed a crime. Id. at 1254, 1257.
Under those circumstances, the court held that “a reasonable officer” could “not have
believed there was probable cause to” make an arrest. Id. at 1259.
Baptiste would have provided no guidance to these officers, who were
eyewitnesses to an actual crime. See Wesby, 138 S. Ct. at 589 (holding that the result
must be “dictated” by existing law); see also Mo. Rev. Stat. § 575.150 (resisting or
interfering with arrest). Besides, a single, nonbinding case cannot form the “robust
consensus . . . of persuasive authority” needed to clearly establish the law. al-Kidd,
563 U.S. at 742 (internal quotation marks omitted).
The bottom line is that neither Bell nor the court “have identified a single
precedent . . . finding a Fourth Amendment violation under similar circumstances.”
Wesby, 138 S. Ct. at 591 (internal quotation marks omitted).5 For this reason, I agree
with the district court that Officer Munyan and his partner are entitled to qualified
immunity.
______________________________
5
In his briefs, Bell never argues that this is “an obvious case where a body of
relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (internal quotation marks
omitted). So, unlike the court, I would not address this possibility. See Montin v.
Moore, 846 F.3d 289, 295 (8th Cir. 2017) (“[C]laims not raised in an opening brief are
deemed waived . . . .” (quotation marks omitted)). But were I to do so, it would be
difficult to conclude that this is one of those “rare” cases in which the officers’ conduct
was “obvious[ly]” unlawful. Wesby, 138 S. Ct. at 590 (quotation marks omitted); see
also id. at 591 (declaring without further analysis that the circumstances did not
present “an obvious case where a body of relevant case law is not needed” (internal
quotation marks omitted)).
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