Submitted: February 13, 2019.
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, COLLOTON, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Johnson sued Sergeant Patrick McCarver and Officer John
LaLuzerne under 42 U.S.C. § 1983, alleging that the
officers violated his constitutional rights by carrying out
an arrest without probable cause and in retaliation for
speech, falsifying a police report, using excessive force
against him, and conspiring to violate his rights. The
officers unsuccessfully moved for summary judgment, and they
appeal the district court's denial of qualified immunity.
We affirm in part and reverse in part.
is a 6-foot 3-inch, 284-pound professional football player,
who most recently played defensive tackle for the Minnesota
Vikings. Because this appeal arises from the denial of a
motion for summary judgment, we recite any disputed facts in
the light most favorable to Johnson.
October 5, 2014, around 2:15 a.m., Johnson was waiting inside
the lobby of a nightclub called "Seven" for a
parking attendant to return with his car. The club had closed
at 2:00 a.m, but Johnson, along with other patrons, remained
inside. Bryant Webster, the club's lead security doorman,
approached Johnson. According to Johnson, Webster told
Johnson that he needed to leave because his boots violated
the dress code. Johnson argued that he should be allowed to
wait in the lobby, and Webster walked away.
subsequently told Sergeant Patrick McCarver, an off-duty
police officer working for the club, that Johnson needed to
leave. McCarver approached Johnson and told him to leave.
Johnson explained to McCarver that he was waiting for his car
and showed him a valet parking receipt. He questioned why
McCarver was singling him out when others were also waiting
for their cars. McCarver's fellow off-duty officer, John
LaLuzerne, walked over and also told Johnson he needed to
put his hand on Johnson's tricep and nudged him towards
the door. Johnson began walking backward toward the door,
telling the officers, "you don't have to put your
hands on me," and asking them, "why are you
touching me"? The officers guided Johnson toward the
door, and McCarver then shoved him against it. Johnson
pressed against the door, which opened slightly, and then
bounced back towards the officers. McCarver directed pepper
spray at Johnson, and both officers then pushed him out the
the club, Johnson called a car to drive him home. While
waiting for the car to arrive, Johnson sat on a planter
directly outside the club. More than fifteen minutes later,
the officers walked out of the club, and Johnson began
filming them with his cell phone camera. McCarver saw
Johnson, approached him, and asked for his identification.
Johnson said that he possessed his identification, but was
not going to give it to McCarver, because he had not
"done anything wrong."
slapped the cell phone out of Johnson's hand, and the
phone hit the ground and shattered. Johnson stood up, bent
over, picked up the phone, and sat back down. Both officers
turned on their taser guns, and McCarver tased Johnson in the
back, pulling the trigger twice. The first time McCarver
squeezed the trigger for nine seconds; the second time for
five. Johnson fell to the ground, and the officers put him on
officers handcuffed Johnson and took him to the Hennepin
County Jail for booking. The county attorney charged Johnson
with trespass, disorderly conduct, and obstructing legal
process. After a week-long trial, a jury acquitted him of all
Johnson sued McCarver, LaLuzerne, and the City of
Minneapolis, alleging claims under federal and state law. He
voluntarily dismissed his claim against the City and his
state-law claim against the officers. The officers moved for
summary judgment on the federal claims, arguing that
qualified immunity precluded the lawsuit. The district court
denied the motion, concluding that there were genuine
disputes of material fact that required a trial.
initial matter, Johnson contends that because the district
court determined that factual disputes precluded summary
judgment, we lack jurisdiction to review those rulings. We
ordinarily lack jurisdiction to decide "which facts a
party may, or may not, be able to prove at trial,"
Johnson v. Jones, 515 U.S. 304, 313 (1995), and we
are "constrained by the version of the facts that the
district court assumed or likely assumed in reaching its
decision." Thompson v. Murray, 800 F.3d 979,
983 (8th Cir. 2015). But we do have "authority to decide
the purely legal issue of whether the facts alleged by the
plaintiff are a violation of clearly established law."