Pollreis v. Marzolf

9 F.4th 737

Casondra POLLREIS, on behalf of herself and her minor children, W.Y. and S.Y., Plaintiff - Appellee

v.Lamont MARZOLF, Defendant - Appellant

Josh Kirmer, Defendant

No. 20-1745

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2021

Filed: August 16, 2021

Jo Alison Lee, NORWOOD & NORWOOD, Rogers, AR, Jonathan D. Nelson, JONATHAN D. NELSON, ATTORNEY AT LAW, Bentonville, AR, Norman Douglas Norwood, NORWOOD & NORWOOD, Springdale, AR, for Plaintiff - Appellee.

Gabrielle Denise Gibson, Sara Lynn Monaghan, ARKANSAS MUNICIPAL LEAGUE, Legal, North Little Rock, AR, for Defendant - Appellant.

Before KELLY, GRASZ, and KOBES, Circuit Judges.

GRASZ, Circuit Judge.

Arkansas police officer Lamont Marzolf challenges the district court's denial of qualified immunity to him as to four 42 U.S.C. § 1983 claims.

Those claims arose on a dark, rainy night in Springdale. That evening, the police were conducting a gang-related stakeout in a residential neighborhood. The stakeout eventually turned into a car chase that ended with a car crash. The driver and three passengers fled on foot. The police knew that one of the suspects often carried a gun. Nearby, while setting up a perimeter, Officer Marzolf stopped and questioned two boys—ages twelve and fourteen—at gunpoint. According to Officer Marzolf, W.Y. and S.Y. matched a vague description of two of the fleeing suspects: they wore hoodies, and one was shorter than the other. Officer Marzolf detained them on his sergeant's orders. He held them for seven minutes until backup arrived. Even though they complied with his orders, Officer Marzolf forced them to lay on the ground. And when backup arrived, he handcuffed and frisked them. All this even though the boys’ stepfather and mother identified them to Officer Marzolf at separate times during the encounter.

The issue before us in this interlocutory appeal is not whether Officer Marzolf could have done things differently when he stopped W.Y. and S.Y. Rather, the issue is whether Officer Marzolf violated the boys’ clearly established constitutional rights. Under the governing precedent, we conclude he did not. And so, we reverse.

I. Background¹

In January 2018, the Springdale Police received a tip that a woman with outstanding arrest warrants was staying in the house of a suspected gang member. During a stakeout to find that woman, an officer saw multiple people leave in a Chevy Cobalt, including two men—one smaller than the other. Another officer tried to stop the Cobalt. But the driver fled and eventually crashed the car. Four people ran from the scene: two went south and two north. Dispatch instructed officers to set up a perimeter around the site to stop the fleeing suspects.

Officer Marzolf responded to the dispatch call. As he approached an intersection near the crash site with his blue lights flashing, dispatch told him that when the police last encountered one of the four fleeing suspects he had a gun.

Soon after, Officer Marzolf saw two people (later identified as W.Y. and S.Y.) walking slowly toward him within the perimeter wearing hoodies and light-colored pants. One was taller than the other. Officer Marzolf turned on his headlights and angled his car toward the boys. He stopped and said, "Hey, what are you guys doing?" W.Y., the taller and older boy, responded by speaking and pointing past Officer Marzolf. The dash cam video does not convey his response. Officer Marzolf then said, "Hey, stop, stop, turn away, turn away from me." The boys did so with their arms at their sides. Then, Officer Marzolf entered the video frame with his gun pointed at the boys.

Officer Marzolf then asked, "What are your names?" He next pulled out his flashlight and pointed it at the boys’ backs. One of the boys said his name multiple times. Officer Marzolf confirmed the name and kept his gun trained on the boys.

Then, the boys’ mother, Casondra Pollreis, walked up and said, "Officer, officer, may I have a word with you?" While she said more, her exact words are unclear from the recording. Officer Marzolf then spoke into his radio: "45 Springdale, I've got [W.Y.] in front of me, I've got two juvenile individuals, dark hoodies and pants." Sergeant Kirmer responded, "OK, detain both of those." After confirming with Officer Marzolf that one was taller and the other was short and skinny, Sergeant Kirmer repeated, "Hold on to them please."

Officer Marzolf walked up to the boys with his gun pointed at them and told them to get on the ground. They complied. He then said, "Put your hands out." They complied. Pollreis walked toward Officer Marzolf and asked what happened. Officer Marzolf told her to step back multiple times. She said, "They're my boys." He then stepped toward her with his gun still pointed at the boys and said, "I am serious get back." He drew his taser, pointed it at her, and ordered her to go back to her house. She asked, "Are you serious? They're twelve and fourteen years old." Officer Marzolf responded, "And I'm looking for two kids about this age right now, so get back to your house." An upset Pollreis then exclaimed, "Oh, my god. You're OK guys, I promise."

Officer Marzolf continued to stand over the boys for nearly two minutes with his gun pointed at them. During those two minutes, he asked the boys for identification and requested backup.

The boys’ stepfather then approached and said, "Officer ... can I have a word with you?" Officer Marzolf declined. The stepfather stated, "Those are my kids," and Officer Marzolf responded, "OK." The stepfather explained, "We just left [Pollreis's] parents’ right there. When you guys passed with your lights on, they were walking behind my car. I also have witnesses if you want me to call them." Officer Marzolf responded, "That's fine, I just need to find out who these kids are right now." The boys’ stepfather stated their names.

Another officer, Adrian Ruiz, arrived at the scene. At the same time, W.Y. reached back to adjust his shirt or belt and Officer Marzolf yelled, "Hey, keep your hands out!" Both officers walked toward the boys with their guns pointed at them. While Officer Ruiz continued to point his gun at the boys, Officer Marzolf holstered his weapon and handcuffed W.Y. Officer Ruiz handcuffed S.Y. Officer Marzolf then told dispatch, "I've got black hoodies and khaki pants and jeans." Officer Ruiz said, "Black hoodie, and a white backpack ...."

Sergeant Franklin, the officer in charge, arrived next. He immediately asked the boys if they ran from the police. The boys said no and explained: "We were at our grandparents ... and we just started walking home." When Sergeant Franklin asked their names, they told him.

Officer Marzolf then frisked W.Y. and searched his pant pockets for weapons. Sergeant Franklin asked Officer Marzolf if they were running. Officer Marzolf replied, "No, they were just walking, sir." Sergeant Franklin responded, "OK. So these guys probably aren't them?" And Officer Marzolf said, "Probably not. I mean we had both parents come out."

The boys’ grandparents then walked up and identified the boys to the officers. At that time, Officer Ruiz searched S.Y.’s backpack. After speaking with the grandparents, Sergeant Franklin ordered the officers to remove the handcuffs and let the boys go. By then, around seven minutes had passed since Officer Marzolf first stopped the boys.

Pollreis sued Officer Marzolf and another officer. She asserted four § 1983 claims against Officer Marzolf on her boys’ behalf: (1) illegal seizure; (2) illegal arrest and detention; (3) illegal search; and (4) excessive force. She also brought claims on her boys’ behalf against another officer and claims on her own behalf against both officers. The officers moved for summary judgment, arguing that the district court should grant them qualified immunity because it was not clearly established that their actions violated the Constitution. The district court denied summary judgment on four of Pollreis's claims on behalf of her boys against Officer Marzolf for (1) prolonging an investigative detention; (2) illegally arresting the boys; (3) using excessive force against the boys; and (4) frisking W.Y. for weapons.² Officer Marzolf now challenges the denial of qualified immunity to him on those four claims.

II. Analysis

"Summary judgment is appropriate if the evidence, viewed in the light most favorable to [Pollreis] and giving [her] the benefit of all reasonable inferences, shows there is no genuine issue of material fact." Goffin v. Ashcraft , 977 F.3d 687, 690–91 (8th Cir. 2020) (quoting Morgan v. A.G. Edwards , 486 F.3d 1034, 1039 (8th Cir. 2007) ). "[A] district court's denial of summary judgment based on a public official's claim of qualified immunity may be appealed immediately." Bearden v. Lemon , 475 F.3d 926, 929 (8th Cir. 2007).

We review denials of qualified immunity de novo, Rush v. Perryman , 579 F.3d 908, 912 (8th Cir. 2009), but we may only address "purely legal [issues]: whether the facts alleged ... support a claim of violation of clearly established law." Wilson v. Lamp , 901 F.3d 981, 985 (8th Cir. 2018) (quoting Mitchell v. Forsyth , 472 U.S. 511, 528 n.9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ).

Qualified immunity "shields a government official from liability unless his conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Burns v. Eaton , 752 F.3d 1136, 1139 (8th Cir. 2014) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To defeat qualified immunity, Pollreis must prove that: "(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." Howard v....