Appeal from United States District Court for the Western District of Missouri - Springfield.
For Duke Grider, Kami Lee Grider, Plaintiffs - Appellees: Stephen Sherman Wyse, Wyse Law Firm, Columbia, MO.
For B. Bowling, Defendant - Appellant: Amanda Rose Callaway, Daniel R. Wichmer, City of Springfield, City Attorney's Office, Springfield, MO.
Before BYE, BEAM, and SMITH, Circuit Judges.
BYE, Circuit Judge.
Duke Grider (" Grider" ) and Kami Lee Grider filed this action pursuant to 42 U.S.C. § 1983 and Missouri state law claiming officers of the Springfield Police Department violated Grider's statutory and constitutional rights, in part by using excessive force. The parties filed motions for summary judgment. As relevant to this appeal, the district court found Officer Brandon Bowling was not entitled to qualified immunity on the excessive force claim. Officer Bowling appeals. We reverse.
Pursuant to the proper standard of review, described below, the following are the facts as most favorable to the Griders. Grider, his wife Kami Grider, and his son were at a Taco Bell when an argument occurred between Grider and another patron. The police were called, and the Griders crossed the street to eat their food in their vehicle. Officer Bowling was the first officer to arrive. Officer Bowling approached Grider, who was wearing a knife on his hip, and asked Grider to exit his vehicle; Grider declined. Officer Bowling forcibly removed Grider, placed Grider on the ground with his knee on Grider's back, and handcuffed Grider.
While Grider was held on the ground by Officer Bowling, Officer Eric Reece arrived in his vehicle. Officer Reece ran toward Officer Bowling and Grider and kicked Grider in the head. Officers Bowling and Reece did not communicate before the kick and Officer Bowling did not act to prevent the kick. Grider suffered contusions and abrasions on his face, and the kick caused neck pain and restriction of movement which persisted at least two years. Kami Grider suffered emotional distress and problems with her pregnancy. Officer James Dougherty arrived at the scene sometime after Grider was handcuffed and the kick had occurred. Grider had an open fifth of whiskey in his vehicle which the officers poured out at the scene.
The Griders filed the present civil rights suit alleging various violations of their constitutional rights and of state law, including excessive force, unlawful arrest, and unlawful seizure. The suit named as defendants the City of Springfield, Police Chief Paul Williams, and the three officers present at the scene: Bowling, Reece, and Dougherty. The defendants moved for summary judgment, arguing they were entitled to qualified immunity. The Griders filed a cross-motion for partial summary judgment. The district court denied the Griders' motion for partial summary judgment, and granted in part and denied in part the defendants' motion for summary judgment. The district court's order left remaining (1) the Griders' Fourth Amendment claim for excessive force against Officers ...