CA8 dissent from rehearing en banc: Panel misapplied qualified immunity on use of Taser

Two judges of the Eighth Circuit dissented from denial of rehearing en banc of 944 F.3d 704 (8th Cir. Ark. Dec. 3, 2019) that the panel misapplied qualified immunity. Jackson v. Stair, 2020 U.S. App. LEXIS 9540 (8th Cir. Mar. 26, 2020) (an order not on the court’s opinion page):

The Supreme Court has enunciated several principles that should guide a court in evaluating qualified immunity in a case involving alleged use of excessive force:

• The Court “has repeatedly told courts … not to define clearly established law at a high level of generality.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotation omitted); Kisela, 138 S. Ct. at 1152; District of Columbia v. Wesby, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018); White, 137 S. Ct. at 552; Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (per curiam); Sheehan, 135 S. Ct. at 1775-76; Plumhoff v. Rickard, 572 U.S. 765, 779, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014); Reichle v. Howards, 566 U.S. 658, 665 n.5, 132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012); al-Kidd, 563 U.S. at 742.

• “The dispositive question is whether the violative nature of the particular conduct is clearly established.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866, 198 L. Ed. 2d 290 (2017) (internal quotation omitted); Mullenix, 136 S. Ct. at 308; al-Kidd, 563 U.S. at 742.

• “[S]pecificity is especially important in the Fourth Amendment context, where … it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotation omitted); Kisela, 138 S. Ct. at 1152-53; Mullenix, 136 S. Ct. at 308.

• “Use of excessive force is an area of the law in which the result depends very much on the facts of the case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.” Emmons, 139 S. Ct. at 503 (emphasis added) (internal quotations omitted); Kisela, 138 S. Ct. at 1153.

All of these propositions were discussed and applied in this court’s recent en banc decision in Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019) (en banc), albeit with four judges dissenting. None of the propositions is even mentioned by the panel majority.