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 The HONORABLE WILLIAM BREVARD HAND, United States District

Court for the Southern District of Alabama, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-4138SD

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Clyde M. Lawson, *

*

Plaintiff/Appellee *

* Appeal from the United States

v. * District Court for the

* District of South Dakota

Andrew Hulm and Darron Hanzlik, *

Individually and in their Official * TO BE PUBLISHED 

Capacities as State Troopers, *

*

Defendants/Appellants. * 

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Submitted: June 13, 2000

Filed: August 18, 2000

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Before LOKEN and BRIGHT, Circuit Judges, and HAND,1 District Judge.

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PER CURIAM

Andrew Hulm and Darron Hanzlik, Troopers with the South Dakota Highway

Patrol, appeal the district court's denial of their motion for summary judgment. We

conclude that the Troopers were entitled to qualified immunity in this case. We

therefore reverse and remand for the entry of such judgment.
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This action involves an incident which occurred on April 10, 1998, at around

noon, on a sidewalk in front of B.B. Cody's Restaurant in Deadwood, South Dakota.

Clyde Lawson was employed by a gaming establishment located next door to B.B.

Cody's. On the day in question, a co-employee had brought a chicken to share for

lunch but there was no suitable knife on the premises to cut up the chicken. Lawson

went to B.B. Cody's and borrowed a small knife which was approximately six inches

long including its four inch handle. Lawson exited B.B. Cody's with his arms at his

side and the knife concealed in the palm of his right hand. 

At the same time Lawson exited B.B. Cody's, three uniformed Troopers with the

highway patrol were leaving the same restaurant where they had been eating lunch.

The first to exit was Trooper Troy Boone who had a drug dog with him. Lawson

contends that the dog caught his attention and he approached Boone to talk with him.

 Boone did not see the knife Lawson was carrying but backed away as Lawson walked

toward him. Lawson concedes that Boone retreated and surmises that it was because

he was invading Boone's personal space.

Troopers Hulm and Hanzlik exited B.B. Cody's about a minute after Trooper

Boone. Trooper Hanzlik observed Lawson talking to Trooper Boone. Lawson was not

known to any of the Troopers. Troopers Hulm and Hanzlik both observed the knife

in Lawson's hand and Trooper Boone backing away from Lawson. Boone's arms were

crossed in a defensive position. It appeared to Troopers Hulm and Hanzlik that

Lawson was attempting to conceal the knife. In Trooper Hanzlik's opinion, it presented

a dangerous and threatening situation and reminded him of another trooper who's throat

had been cut a few years back. In Trooper Hulm's opinion, Lawson was having a

confrontation with Trooper Boone. 

Troopers Hulm and Hanslik tried to stay in a position behind Lawson where they

would not be noticed by Lawson and could get Trooper Boone's attention to warn him

of the knife so that he could get out of Lawson's reach. Trooper Hulm made eye
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 The diagnosis in May 1999 of a torn rotator cuff is too remote in time and not

sufficiently connected to the incident or the more contemporaneous emergency room

evaluation which was submitted by Lawson as the only other evidence of alleged

physical injury.

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contact with Trooper Boone and pointed down towards the knife in Lawson's hand.

Trooper Hulm came up behind Lawson and told him to drop the knife. Lawson

contends that he immediately dropped the knife while the Troopers contend that

Lawson first turned towards them at which point Trooper Hanzlik grabbed Lawson's

left arm and Hulm grabbed Lawson's right wrist. According to the Troopers, they

disarmed Lawson and handcuffed him with his hands behind his back. Although

Lawson contends that the amount of force used in placing his hands and body in a

position to be handcuffed was excessive because he contends he never struggled with

the Troopers, he never disputes that the entire incident lasted only 30 to 45 seconds and

that the Troopers had probable cause to believe that Trooper Boone was in danger

under the circumstances. Lawson further contends that one of the Troopers pushed his

head down while grabbing his left arm and positioning it behind his back and that he

was pulled down the sidewalk and slammed into an adjoining building during the

handcuffing process. Lawson conceded that, after he was frisked and after a brief

investigation, he was immediately released from the handcuffs and not charged with

any crime. Although Lawson contends that he went to the emergency room the next

day with neck, shoulder and back pain and was prescribed pain medication and muscle

relaxant, he also asserts that he never had the prescriptions filled and continued to work

at his job, including all required lifting, for some months. It was not until March 1999

that Lawson was declared by a treating physician to be unable to perform his job.

Lawson was diagnosed with a torn rotator cuff in his right shoulder in May of 1999,

almost one year following the incident at issue in this litigation.2

We review de novo the legal issue relating to the existence of qualified immunity.

Guite v. Wright, 147 F.3d 747, 749 (8th Cir. 1998). The district court correctly
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identified the applicable qualified immunity standard and analysis but erred in its

conclusion that those facts disputed by the parties were material and precluded

summary judgment in favor of the Troopers on their immunity claim. Particularly

applicable to this case is the principle that "[s]ummary judgment is appropriate against

a party who has the burden of proof at trial and has failed to make a sufficient showing

to establish the existence of an element essential to h[is] case." Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986);

Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997). 

As recently emphasized by this court, a motion for summary judgment on

qualified immunity grounds is only precluded when the plaintiff has "(1) assert[ed] a

violation of a constitutional right; (2) demonstrate[d] that the alleged right is clearly

established; and (3) raise[d] a genuine issue of fact as to whether the official would

have known that his alleged conduct would have violated the plaintiff's clearly

established right." Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999), quoting,

Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.), cert. denied, 519 U.S. 1011,

117 S.Ct. 518, 136 L.Ed.2d 407 (1996). Lawson contends only that the Troopers

violated his constitutional right to be free from excessive force. Although there can

be no question that the Fourth Amendment prohibits unreasonable seizures of the

person, it is also well established that "not every push or shove violates the Fourth

Amendment." Guite, 147 F.3d at 750, citing, Graham v. Conner, 490 U.S. 386, 396,

109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). The applicable test is "whether the

force used to effect a particular seizure is 'reasonable'." Id. In the context of a claim

of excessive force, the 'reasonableness' inquiry must be an objective one in that the

court must only evaluate "whether the officers' actions are 'objectively reasonable' in

light of the facts and circumstances confronting them, without regard to their underlying

intent or motivation." Guite, 147 F.3d at 750, citing, Graham, 490 U.S. at 397, 109

S.Ct. at 1872. It is also important to recognize that:
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The " 'reasonableness' of a particular use of force must be

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight."

Graham, 490 U.S. at 396, 109 S.Ct. at 1872; Krueger [v.

Fuhr], 991 F.2d [435,] at 439 [(8th Cir. 1993)]. "The

calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make judgments

-- in circumstances that are tense, uncertain, and rapidly

evolving -- about the amount of force that is necessary in a

particular situation." Graham, 490 U.S. at 396-97, 109

S.Ct. at 1872.

Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993). 

Upon consideration of the record in this action, we must hold that Troopers

Hulm and Hanzlik could reasonably have believed that Lawson was concealing a

weapon capable of harming Trooper Boone and that Trooper Boone's life was in

imminent danger. Lawson concedes as much. Consequently, it is not constitutionally

unreasonable for Troopers Hulm and Hanzlik to have prevented that harm by seizing,

disarming and restraining Lawson, even if such actions had been taken without warning

to Lawson and even in the absence of any resistance by Lawson. No reasonable and

competent law enforcement officer could conclude that the actions taken by Troopers

Hulm and Hanzlik against Lawson under these circumstances were excessive or

otherwise unlawful. There exists no other issue of fact material to the appellants'

entitlement to immunity in this case. Summary judgment should have been granted.

Accordingly, we reverse the district court's order denying the defendant's motion

for summary judgment on qualified immunity grounds. The case is remanded with

instructions that summary judgment be entered in favor of Troopers Andrew Hulm and

Darron Hanzlik.
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A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.