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Johnson v. McCarver

United States Court of Appeals, Eighth Circuit

November 1, 2019

Tom Johnson, Plaintiff- Appellee,
Patrick McCarver, in his individual and official capacity as an officer of the City of Minneapolis; City of Minneapolis for John LaLuzerne, Deceased, Defendants - Appellants, City of Minneapolis, Defendant.

          Submitted: February 13, 2019.

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         Tom 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.


         Johnson 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.

         On 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.

         Webster 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 leave.

         McCarver 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 door.

         Outside 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."

         McCarver 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 his side.

         The 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 charges.

          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.


         As an 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." Frankli ...

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