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Tasing of Resistant Rancher Found Objectively Reasonable by Eighth Circuit
You could say the scene painted by Judge Loken (writing for Judges Colloton and Kelly) in Brossart v. Janke, No. 16-1412 (8th Cir. June 16, 2017), belongs to a bygone era. A North Dakota county Sheriff received word that the Brossarts were refusing to return cattle they had found on their land to the rightful owner. The Brossarts were admittedly demanding payment as a condition for the release of the cattle, which apparently violates the state's estray laws. When the Sheriff arrived to investigate, the Brossarts refused to recognize his authority to intervene and refused to allow him on the property. The Sheriff moved to handcuff Brossart and he resisted. The scuffle escalated quickly, with Brossart instructing one of his sons to retrieve a gun from a nearby truck. Meanwhile, after several warnings, the Sheriff tased Brossart. Despite yet further warnings, Brossart refused to relent and the Sheriff tased him again. This pattern repeated a couple of times. Brossart was eventually detained and later convicted of "preventing arrest."
When the Sheriff returned the next day to serve a search warrant, another confrontation occured, this time with Brossart's sons. As they approached the ranch, law enforcement officers were met by the Brossarts, each of which was armed. One of the sons, Thomas, told the officers to leave because they were trespassing. Presumably hoping to avoid a shootout, the officers left. A day later, the Sheriff and others went to the old missile silo on the Brossart ranch where the cattle were reportedly being held. Thomas and two of his brothers approached the officers. The officers drew their weapons and ordered the sons to the ground. After they were handcuffed, the Sheriff began putting Thomas and his brothers into a cruiser. As they were being loaded, Thomas refused an instruction to move into the middle seat and the Sheriff tased him.
Eventually, (and ironically) the Brossarts sued the Sheriff and others under 42 U.S.C. Sec. 1983 alleging the use of excessive force in violation of the Fourth Amendment. The District Court dismissed the claims, finding the sheriff was shielded by qualified immunity because Brossart had neither suffered a violation of a constitutional or statutory right nor was there any right at issue that was clearly established at the time of the incident. The Eighth Circuit affirmed, finding that Brossart's tasing was objectively reasonable and, even if it wasn't, the Sheriff's actions did not violate any clearly established law given Brossart's lawless conduct and continued resistance after each tasing.
The majority opinion did draw a dissent from Judge Kelley as to Thomas's claims. To the dissent, the fact that Thomas was restrained and seated in the cruiser at the time of the tasing made Brossart's action objectively unreasonable. Judge Kelley was not convinced, as was the majority, that the standoffs and resistance the Brossarts had displayed in the days before outweighed those basic facts.
Beyond the merits of the holdings, there are a couple of noteworthy points in this opinion. First, the Eighth Circuit seems to have passed on the chance to make some new law. The Sheriff had argued that because Brossart's resistance resulted in a conviction for resisting arrest, under Heck v. Humphrey, 512 U.S. 477 (1994) no finding of excessive force could be made as a matter of law. Given its holdings under the qualified immunity standard, the Court decided against making that broader ruling.
Second, and here's our Practice Tip, the court reminds us that waiver arguments themselves can be waived. On appeal, the Brossarts argued that the Sheriff had waived his immunity defense by not timely raising it below. But the Court refused to hear it, noting that the argument was not made in response to the Sheriff's motion for summary judgment or anywhere else in the district court record.