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Kasiah v. Crowd Systems, Inc.

United States Court of Appeals, Eighth Circuit

February 14, 2019

David Kasiah Plaintiff - Appellant
Crowd Systems, Inc. Defendant

          Submitted: September 27, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.


         A 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's[1]order granting summary judgment to the officer and the board of police commissioners on his 42 U.S.C. § 1983 claims. We affirm.

         I. Background

         A. Appellant's Injury

         Except 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 "looks."[2]

         While 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.

         As 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.[3] 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."

         As 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.

         B. Procedural History

         Two 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.

         The 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.[4] 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] ...

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