Submitted: September 27, 2018
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
MELLOY, CIRCUIT JUDGE
concertgoer who was injured when an off-duty police officer
lifted him over a five-foot barrier and dropped him on his
neck asks us to reverse the district
court'sorder granting summary judgment to the
officer and the board of police commissioners on his 42
U.S.C. § 1983 claims. We affirm.
where noted, the following facts are undisputed or presented
in a light most favorable to the appellant. On September 27,
2013, Appellant David Kasiah attended the Buzz Beach Ball
concert in Kansas City, Missouri. While there, he engaged in
several acts of "crowd surfing." According to
Kasiah, crowd surfing involved being hoisted onto fellow
concertgoers' shoulders at the back of the venue and then
being passed hand to hand overhead by them and others toward
the stage. Some time after one these crowd-surfing episodes,
Kasiah was dancing behind a woman when he "bumped into
her." The woman became upset and began yelling at him.
Kasiah tried to ignore her, and, after a few seconds, they
resumed their separate dancing. Kasiah then crowd surfed
again, whereupon he returned and started dancing behind the
woman. He bumped into her a second time, and she responded by
yelling much more fiercely. After about thirty seconds of
yelling, the woman turned to the man she was with and
appeared to voice her frustration. She then ran off to talk
to security personnel, and the man and Kasiah exchanged
all of this was going on, Appellee Gilbert Carter, an
off-duty police officer for the Kansas City Police Department
("KCPD"), was working as a security guard for Crowd
Systems, Inc. ("CSI"), the company providing
security for the event. He was standing behind an
approximately five-foot tall metal barrier separating the
crowd from the stage. A CSI employee approached Carter and
explained that it looked like a fight might break out between
Kasiah and another man. Carter then stepped onto a step
approximately two feet off the ground, which put the top of
the barrier at his waist. From there, Carter watched Kasiah
and the other man for a moment and called his colleague,
Detective Kevin White, over to help him. White was also an
off-duty KCPD police officer working for CSI.
White drew near, Carter spoke to one of the patrons who
reported that Kasiah had been causing trouble all day. Carter
then saw what he believed to be a "disturbance in the
crowd" caused by the two men and motioned for Kasiah to
come to him. Kasiah walked toward Carter, who lunged to grab
Kasiah as Kasiah got close enough. Kasiah avoided the grab
and stepped or leaned back, away from Carter. The crowd
suddenly surged forward, and Kasiah was pushed toward Carter.
Carter then grabbed Kasiah by the shirt and the arm, made a
slight adjustment to his grip, and proceeded, with
White's assistance, to pull Kasiah up and over the
barrier. Kasiah was approximately five feet, eleven
inches tall and weighed around 160 pounds. Carter was a
"large," five-foot-four-inch, "stocky,"
wide-shouldered man. White had "a smaller-build,"
was approximately five feet, five inches tall, and appeared
to be in his "late 40s [or] early 50s."
Carter and White pulled Kasiah over the barrier, White began
to lose his grip. Kasiah was basically perpendicular to the
barrier at the time and not resisting. Without White's
help to support Kasiah's lower body, Carter lost his
balance and began to fall from the platform. Carter then
"pushed, turned, or 'threw'" Kasiah away
from him. Both men fell to the ground. Kasiah landed on his
head and shoulder and fractured two vertebrae in his neck.
Carter landed next to Kasiah or slightly on top of
Kasiah's lower body. Kasiah cried out that there was
something wrong with his neck, so Carter and White ensured
that Kasiah received immediate medical attention. Carter
later charged Kasiah with disorderly conduct.
years later, Kasiah brought suit against CSI and Carter in
Missouri state court for assault and battery, general
negligence, vicarious liability, negligent hiring, training,
and retention, and punitive damages. Nearly a year later, he
amended his petition to add Appellee Kansas City Board of
Police Commissioners ("the Board") as a party. He
also added claims under 42 U.S.C. § 1983 for wrongful
arrest and excessive force in violation of the Fourteenth
Amendment and the Missouri constitution. The defendants
removed the case to the district court, whereupon several
things happened. First, Kasiah settled his claim against CSI.
Second, the district court dismissed some of Kasiah's
claims and disposed of others through summary judgment-these
included all but the wrongful arrest, excessive force,
assault and battery, and general negligence claims. None of
the dismissals or prior summary judgment orders are before us
on appeal. Third, the parties completed discovery. Finally,
Carter and the Board filed motions for summary judgment on
the remaining claims, arguing that Carter was entitled to
qualified immunity and that the Board could not be held
derivatively liable for his alleged excessive use of force.
district court granted summary judgment in two orders.
Relevant to this appeal, the district court concluded that
Carter: (1) did not use excessive force in violation of
clearly established constitutional law; and (2) was immune
from the state-law tort claims under the doctrine of official
immunity. Regarding the claims against the Board, the
district court stated that Kasiah agreed summary judgment for
the wrongful arrest claim was appropriate. The district
court also held that the Board was not derivatively liable on
the excessive force claim because Carter did not use
excessive force. Alternatively, the district court held that
"[e]ven if Carter's use of force was
unconstitutional, [the Board was] ...