CA8: On totality, stomping ptf’s ankle and breaking it when six officers were trying to control him was covered by QI

While six officers were wrestling plaintiff, this one’s stomping plaintiff’s ankle and breaking it was on the surface unreasonable, but under all the circumstances, it was all hazy enough on the law to require qualified immunity. Shelton v. Stevens, 2020 U.S. App. LEXIS 21274 (8th Cir. July 8, 2020)*:

We think Stevens’s action falls within the zone described as the “sometimes hazy border between excessive and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (internal quotation omitted). The district court’s treatment of three officers suggests the haziness: Robinson and Lansing were granted qualified immunity for a blow to Shelton’s head and a brief chokehold, respectively, because they were trying to “subdue a non-compliant, potentially armed suspect.” But the court reasoned that Stevens’s stomp, no more than two seconds later, violated a clearly established right because “Shelton was being restrained by at least five other officers” who “appeared to have Shelton substantially under control.”

As we see it, all three officers confronted a suspect who was being restrained by several other officers, and all three were trying to subdue a non-compliant, potentially armed suspect. Is it obvious that a chokehold with its potential for asphyxiation, or blunt force to the skull with the attendant risk of head injury, is more suitable to the situation than a hard step on the talus? As it turned out, given how the officers applied the tactics here, Shelton was able to resume breathing after the choke, did not suffer brain injury from the blow to the cranium, but assumedly sustained a fractured ankle from Stevens’s act. Some use of force was reasonable, and constitutional distinctions among a chokehold, a radio-bang to the head, and an unreasonable ankle-stomp—all objectively designed to prompt Shelton to surrender his hands—are hazy enough to warrant qualified immunity for Stevens.