1

 The HONORABLE JOHN F. NANGLE, Senior United States District Judge

for the Eastern District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 00-3061

 

Bradley Lee Winters, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the Northern

Robert Adams and Craig Prahm, * District of Iowa, Central Division

*

Appellants. *

____________

Submitted: April 13, 2001

 Filed: June 25, 2001 

____________

Before BYE, BEAM, Circuit Judges, and NANGLE,1 Senior District Judge.

____________

NANGLE, Senior District Judge.

Robert Adams and Craig Prahm appeal from the final judgment entered in favor

of plaintiff/appellee in the District Court for the Northern District of Iowa. The

appellants argue that they were entitled to judgment in their favor for three reasons: (1)

the trial court erred in ruling that appellants violated appellee’s Fourth Amendment

rights by extending an investigatory encounter based on a community caretaking

standard; (2) the trial court erred in finding that appellant Adams used excessive force
2At the hearing, appellant Officer Prahm testified that appellee’s vehicle was the

only vehicle in the area at the time he arrived.

3 The parties dispute whether appellant Adams initially approached the driver’s

side and then proceeded to the passenger side, or visa versa. The Court finds that the

resolution of that fact dispute is not relevant for purposes of this appeal.

2

against appellee when Adams struck appellee in the eye; and (3) the appellants contend

that they are entitled to qualified immunity. For the following reasons, we agree with

appellants’ contentions. Accordingly, we reverse and dismiss appellee’s complaint in

its entirety. 

I. BACKGROUND 

Plaintiff/appellee Bradley Winters brought this action pursuant to 42 U.S.C. §

1983, alleging an unreasonable seizure and an excessive use of force by

defendants/appellants, who are police officers, in violation of his Fourth Amendment

rights. On the evening of July 22, 1995 between 10:30 p.m. and 11:30 p.m.,

dispatchers at the Mason City, Iowa Police Department received a complaint

concerning an unknown individual in a residential area of the city. The complaint

indicated that this person was possibly intoxicated and was observed exiting and

reentering a vehicle that was parked on a dead-end street. Mason City police officers

were sent to investigate. Appellant Officer Robert Adams arrived and observed an

individual seated behind the wheel of a car parked in the location matching the

described location of the vehicle.2 That appellants later identified that individual as

appellee Winters. 

Appellant Adams approached the vehicle and inquired as to appellee’s

circumstances. Appellee responded that he was waiting for a push to start his car.

Officer Adams then asked appellee for identification. In response, appellee raised the

car window, locked the door and stated that he wished to be left alone. Adams then

walked around to the passenger side,3 and appellee raised that window as well and
3

locked the passenger side door. At this point, Adams testified that he had not observed

specific criminal activity, but he continued to ask appellee to exit the vehicle and

produce identification. 

Appellant Adams testified that appellee was agitated and evasive when Adams

approached the vehicle. Adams further testified that appellee kept his head lowered

and wore a wide brimmed hat. According to Adams’s testimony, appellee “was trying

his darnedest to not make eye contact . . . .” App. at 55. Adams described appellee

as appearing to be in a highly agitated state, and appellee began moving “wildly” about

the car. App. at 57. Adams testified that appellee was moving about the vehicle and

was “just not able to sit still.” App. at 61. 

Shortly thereafter, appellant Officer Prahm arrived, responding to the same

dispatch. Adams informed Prahm that appellee was “acting strangely” and would not

exit the vehicle or talk to Adams. App. at 80. Prahm also testified that Adams

informed him that appellee would not identify himself and refused to make eye contact.

According to appellant Prahm, Adams did not convey a concern for appellee’s health

at that time. Officer Prahm characterized appellee as “extremely hyper.” App. at 82.

Although Adams testified that he did not believe that appellee was “[i]ntoxicated by

use of an alcoholic beverage” (App. at 57), after appellant Prahm arrived, the officers

began to suspect that appellee “ingested or used some type of illegal drug and maybe

used too much and was overdosing.” App. at 61. Prahm reiterated Adams’s testimony

that the officers began to conclude that appellee was “under some sort of influence.”

App. at 83. Appellee became increasingly agitated with the officers and yelled at them

to leave him alone.

Both officers testified that given the possibility of intoxication as noted in the

initial dispatch, they were initially concerned with determining appellee’s physical

condition in order to ensure that “he would not be able to drive and hurt someone.”

App. at 54, 87. The officers decided that they should attempt to enter the vehicle to
4

determine “just how far under the influence this subject may be.” App. at 84.

Appellant Prahm attempted to unlock one of the doors with the assistance of a “Slim

Jim,” while Adams attempted to divert appellee’s attention toward the other side of the

vehicle. Appellee jumped from side to side in order to keep the doors locked until he

finally stretched across the vehicle so he could hold both locks down at the same time.

At this point, neither officer had called an ambulance, and Prahm and Adams both

testified that they did not know what action they would have taken had they

successfully gained entry into the vehicle. Adams testified that he did not recall asking

appellee whether he was in need of medical attention. Prahm’s repeated attempts to

gain entry into the vehicle proved unsuccessful. 

Appellant Adams testified that while the officers were attempting to gain entry

into appellee’s car, Adams notified his shift commander, Lieutenant Richard Jensen,

and informed him of the situation. Jensen arrived at the scene shortly thereafter.

Jensen testified that appellee “was sweating, he was very agitated, [and in a] very

animated state. He did not want us anywhere near the vehicle . . . .” App. at 100.

Jensen further testified that he quickly concluded that appellee was seriously “mentally

impaired” or under the influence of some type of controlled substance and in need of

medical assistance. App. at 100-01. Jensen then made the decision that appellee

should be taken to the hospital. 

Jensen testified that at that point, he had witnessed no illegal activity by appellee.

However, Jensen stated that he felt that he had a responsibility to protect appellee and

“the public at large to make sure this person can’t hurt anyone else.” App. at 102.

Accordingly, Jensen decided to break the passenger window of the car with his

nightstick, in order to remove appellee from the vehicle. Jensen called an ambulance

before breaking the window. Additionally, prior to breaking the window, Jensen

attempted to contact the owner of the vehicle in order to obtain a key. 
4 The trial court determined that appellant Adams did indeed strike appellee

Winters in the eye after Winters himself either punched or kicked Adams in the face

during the struggle in the vehicle. In their brief, the appellants state that they do not

challenge this factual determination. Appellants’ Br. at 18. The Court will assume that

Adams struck Winters in the right eye for purposes of this appeal.

5 The trial court specifically found that the force used by the officers after

appellee was outside of the vehicle was appropriate “to subdue a violently

uncooperative subject.” Appellants’ Br. at Addendum at 13 (Zoss opinion).

5

As the window broke, appellee crawled into the hatchback area behind the front

seats of the vehicle. With the window out, the officers were able to unlock the front

doors. Appellants Adams and Prahm entered the front seats and attempted to remove

appellee from the car. Adams testified that appellee’s resistance was “extremely

violent.” Adams further testified that appellee “was thrashing around trying to fend us

off and fight with us. And when we would try to grab him, [appellee] would kick us

or kick at us or punch us or whatever he could do to keep us away from him.” App.

at 72. While Adams was attempting to remove appellee from the vehicle, appellee

contends that Adams called him a “little bastard” and then Adams punched appellee in

the eye. App. at 22. Adams denies punching appellee.4 

Once the officers opened the rear hatch, appellant Adams testified that appellee

attempted to flee. Lieutenant Jensen and several other officers became involved in the

attempt to detain appellee. Ultimately, appellee was forcibly taken to the ground and

then handcuffed. Appellee contends that he was grabbed around the neck and

“slammed” to the gravel road surface.5 App. at 24. The first time the police were able

to identify appellee Winters was after appellants finally removed him from the vehicle

and placed him into restraints. The appellee was then transported by ambulance to the

hospital emergency room. At the hospital, appellee was characterized by staff as

becoming “extremely physically violent towards staff when approached.” App. at 141.
6 One of the physicians at the emergency room indicated that appellee “cannot

be taken to the county prison in this wild combative state.” App. at 142.

7

 In Terry v. Ohio, 392 U.S. 1, 20-22 (1968), the Supreme Court recognized that

effective crime prevention and detection requires that an officer be allowed to detain

individuals briefly even though there is no probable cause to arrest them. To justify

those brief detentions, the officer must have a reasonable suspicion that criminal

activity is afoot. Id. at 30. In this context, the Fourth Amendment requires only some

minimal level of objective justification for the officer’s actions, measured in light of the

totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 7-8 (1989).

6

Consequently, appellee had to be restrained in leather straps.6 His diagnosis was

“methamphetamine intoxication.” App. at 122. 

II. DISCUSSION

A. The Investigatory Encounter

The appellants argue that the district court erred in ruling that they violated

appellee’s Fourth Amendment rights “by extending an investigatory encounter based

on suspicion that [appellee] posed a threat to himself or to the public safety due to his

physical or mental condition.” Appellants’ Br. at 8. According to appellants, even

though both officers admit that they did not possess a reasonable suspicion of criminal

wrongdoing when they initially approached appellee’s vehicle, they were nevertheless

justified in detaining appellee under the officers’ “community caretaking” function, in

order to investigate appellee’s physical and mental condition and competence to

operate his motor vehicle. Id. at 8-10. Appellee disagrees, arguing that the trial court

properly found that the officers were required to end the encounter and simply

withdraw and survey, absent a reasonable suspicion of criminal wrongdoing,7 once

appellee refused to answer any questions. Appellee’s Br. at 8-9.

The Supreme Court discussed the community caretaking functions of police

officers in Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). In Cady, the Supreme
7

Court held that a search of a trunk of a disabled car was not unreasonable under the

Fourth and Fourteenth Amendments, even though the local police officer conducting

the search had not previously obtained a search warrant. Cady, 413 U.S. at 446. In

so holding, the Court explained that local police officers frequently “engage in what,

for want of a better term, may be described as community caretaking functions, totally

divorced from the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute.” Id. at 441. The Court further stated that “[t]he fact that

the protection of the public might, in the abstract, have been accomplished by ‘less

intrusive’ means does not, by itself, render the search unreasonable.” Id. at 447. The

Eighth Circuit has recognized the existence of this community caretaking function. See

United States v. Smith, 162 F.3d 1226, 1226 (8th Cir. 1998) (citing Cady, 413 U.S. at

441; United States v. King, 990 F.2d 1552, 1560-61 (10th Cir. 1993)).

In United States v. King, 990 F.2d at 1560, the Tenth Circuit applied the

Supreme Court’s reasoning in Cady to the seizure of an individual. The Tenth Circuit

noted that “police officers are not only permitted, but expected, to exercise what the

Supreme Court has termed ‘community caretaking functions.’” Id. at 1560 (quoting

Cady, 413 U.S. at 441). The King court further explained that “[i]n the course of

exercising this noninvestigatory function, a police officer may have occasion to seize

a person . . . in order to ensure the safety of the public and/or the individual, regardless

of any suspected criminal activity.” Id. (citing United States v. Rideau, 949 F.2d 718,

720 (5th Cir. 1991), reversed on other grounds 969 F.2d 1572 (5th Cir. 1992)).

In the case of United States v. Rideau, the Fifth Circuit also adopted the

community caretaking analysis. Rideau, 949 F.2d at 720. In that case, police officers

asked for identification from an individual after they observed him stumble as he

stepped from the road. Id. at 719. The individual, later identified as defendant Rideau,

was wearing dark clothing and was standing in the road at about 10:30 p.m. Id. The

Fifth Circuit held that the officers were justified in detaining Rideau, even without

suspicion of criminal activity, noting that “local police engage in ‘community
8

 In Rideau, the Fifth Circuit also relied on the ABA Standards for Criminal

Justice, Standard § 1-2.2 at 31-32 (2d ed.1980), which states that “officers must ‘aid

individuals who are in danger of physical harm,’ ‘assist those who cannot care for

themselves,’ and ‘provide other services on an emergency basis.’” Rideau, 949 F.2d

at 720. The court further noted:

Reading Terry’s language narrowly, Rideau argues that

officers cannot detain an individual unless they suspect him

of being involved in some sort of criminal activity. We

refuse to give Terry such a cramped interpretation. Terry

held that an officer may briefly detain an individual whom

he suspects is involved in criminal activity. It did not

exclude the possibility that an officer may stop an individual

for other reasons consistent with the Fourth Amendment.

Indeed, the opinion states that “in justifying the particular

intrusion the police officer must be able to point to specific

and articulable facts which . . . reasonably warrant [an]

intrusion” into the individual’s liberty. [Terry,] 392 U.S. at

21, 88 S.Ct. at 1880. Terry focused on the officer’s

suspicion that the defendant was involved in criminal

activity only because that was the justification the officer

gave for the detention.

Rideau, 949 F.2d at 720.

8

caretaking functions, totally divorced from the detection, investigation, or acquisition

of evidence relating to the violation of a criminal statute.’” Id. at 720 (quoting Cady,

413 U.S. at 441).8 The Fifth Circuit, on rehearing, explained, “Terry recognizes that

‘[e]ncounters are initiated by the police for a wide variety of purposes, some of which

are wholly unrelated to a desire to prosecute for crime.’” United States v. Rideau, 969

F.2d 1572, 1574 (5th Cir. 1992) (quoting Terry, 392 U.S. at 13). 

The Court finds that the reasoning set forth in King and Rideau is sound. King,

990 F.2d at 1560; Rideau, 949 F.2d at 720. In the instant case, the appellee argues that

the police officers were required simply to walk away from appellee’s vehicle, thus
9 Although the appellee argues that the vehicle was immobilized, the officers

could have reasonably determined that appellee was lying when he stated that he was

waiting for a push start. Additionally, the record contains evidence which suggests that

the keys were in the ignition. 

10 Although the appellants failed to argue this point in their brief, the Court also

finds that the officers likely had reasonable suspicion to detain appellee and request his

identification. Although an informant’s anonymous tip, standing alone, is insufficient

to establish reasonable suspicion (see Florida v. J.L., 529 U.S. 266, 274 (2000); United

States v. Wells, 223 F.3d 835, 839 (8th Cir. 2000)), the evidence suggests that both

Officers Adams and Prahm also observed the appellee exhibiting erratic behavior

indicative of intoxication from ingestion of a controlled substance. Additionally,

appellee’s presence in a parked car on a dead-end street in a purely residential

neighborhood at 11:30 p.m. might also have contributed to a finding of reasonable

suspicion. See Adams v. Williams, 407 U.S. 143, 147-48 (1972) (holding that

surrounding circumstances are relevant in determining whether the requisite suspicion

exists to warrant further investigation).

9

perhaps permitting a possibly intoxicated individual to drive the vehicle,9 potentially

harming himself and other citizens. The Court simply cannot conclude that the

strictures of Terry and its progeny compel such a result.10 Like the officers in Rideau,

this Court finds that Officers Adams and Prahm “would have been derelict in their

duties” had they not detained appellee Winters. Rideau, 949 F.2d at 720. Accordingly,

this Court reverses the district court on this issue. 

B. Excessive Force Claim

Appellants also argue that the district court erred in ruling that Officer Adams

used excessive force when he struck appellee in the right eye with his closed fist during

the struggle inside of the vehicle. Appellants contend that “a single blow struck with

a fist during violent resistance by an unrestrained subject does not rise to the level of

excessive force under the Fourth Amendment.” Appellants’ Br. at 18. Appellants

argue that the trial court placed too much emphasis on the admission by appellant

Adams that he had, on a prior occasion, “lost control and punched another arrestee in
11 In Graham, the Court explained that “[a]n officer’s evil intentions will not

make a Fourth Amendment violation out of an objectively reasonable use of force; nor

will an officer’s good intentions make an objectively unreasonable use of force

constitutional.” Graham, 490 U.S. at 397. 

10

the face.” Id. at 21. Thus, appellants, contend that the trial court improperly employed

a subjective standard, rather than the objective reasonableness standard set forth in

Graham v. Connor, 490 U.S. 386, 397 (1989), in determining whether Adams

employed excessive force. Appellants’ Br. at 22. 

Appellee contends that a punch to the face is always excessive force, unless the

officer is acting in self-defense. Appellee’s Br. at 11. Appellee argues that Adams’s

punch was also impermissible because appellee had not been charged with a crime at

the time of the punch and “the officers could have placed themselves in safety at any

time by withdrawing from the vehicle.” Id. at 12. 

The Court holds that the district court erred in finding that appellant Adams used

excessive force in this instance. All claims that law enforcement officers have used

excessive force in the course of an arrest or investigatory stop of a free citizen should

be analyzed under the reasonableness standard of the Fourth Amendment. Graham,

490 U.S. at 388. “[T]he question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation.” Id. at 397.11 “The calculus of reasonableness

must embody allowance for the fact that police officers are often forced to make

split-second judgments–in circumstances that are tense, uncertain, and rapidly

evolving–about the amount of force that is necessary in a particular situation.” Id. at

396-97. In making an assessment of objective reasonableness, the Supreme Court

stated that certain factors should be balanced, “including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or
11

others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id. at 396. 

A review of the facts at issue reveals that appellant Adams’s actions were

objectively reasonable in light of the surrounding circumstances. The evidence

demonstrates that appellee Winters was behaving quite erratically both before and after

Lieutenant Richard Jensen broke the passenger window and Adams and Prahm

attempted to remove appellee from the vehicle. The district court specifically found

that appellee was kicking and flailing at the officers in an attempt to prevent the officers

from removing him from the car. The district court also found that appellee struck

appellant Adams in the face prior to being struck himself. Further, when appellee was

taken to the hospital, he continued to act in an unresponsive and violent manner and

had to be restrained in leather straps at the hospital for several hours for the protection

of the staff. Appellee was diagnosed with “methamphetamine intoxication.” Under the

totality of the circumstances, the Court finds that Adams’s single blow to appellee’s

eye was objectively reasonable. Thus, this Court reverses the district court’s ruling on

this issue.

C. Qualified Immunity

Even if the appellants had violated the appellee’s Fourth Amendment rights by

unreasonably detaining him or by employing excessive force, this Court holds that the

officers are nevertheless entitled to qualified immunity for their actions. 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). “[G]overnment officials performing discretionary

functions, generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). 
12

The determination of whether an officer is entitled to qualified immunity requires

consideration of the “objective legal reasonableness” of the officer’s conduct in light

of the information he possessed at the time of the alleged violation. Id. at 819.

“Defendants will not be immune if, on an objective basis, it is obvious that no

reasonably competent officer would have concluded” that the defendant should have

taken the disputed action. Malley v. Briggs, 475 U.S. 335, 341 (1986). “As the

qualified immunity defense has evolved, it provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Id. 

Even if this Court had determined that the appellants were not permitted to

detain appellee under the community caretaking function, the Court finds that the

appellants were reasonable in their beliefs that this duty permitted them to briefly detain

and investigate the identity and circumstances of appellee. As discussed earlier in this

opinion, the availability of the community caretaking function as an alternative to

reasonable suspicion under Terry v. Ohio is still a subject of debate in the courts. Thus,

the appellants’ conduct cannot be found to have violated “clearly established statutory

or constitutional rights of which a reasonable person would have known,” Harlow, 457

U.S. at 818, and the appellants are therefore entitled to qualified immunity on the

Fourth Amendment illegal detention claim. 

Additionally, the Court finds that appellant Adams is entitled to qualified

immunity on the excessive force claim. “The right to be free from excessive force is

a clearly established right under the Fourth Amendment’s prohibition against

unreasonable seizures of the person,” Guite, 147 F.3d at 750, “and the test is whether

the amount of force used was objectively reasonable under the particular

circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).

This Court finds it incredulous that “no reasonably competent officer” would have

concluded that appellant Adams was justified in striking appellee in the eye during the

fracas in the vehicle. Accordingly, the Court reverses the district court’s ruling on the

issue of qualified immunity.
13

III. CONCLUSION

The Court finds that the trial court erred in determining that the appellants

violated appellee’s Fourth Amendment rights by detaining him for investigatory

purposes. Further, the trial court erred in determining that appellant Adams used

excessive force in striking appellee Winters in the eye with a closed fist during a

resisted attempt to remove appellee from his vehicle. With regard to both issues, this

Court also holds that the officers were entitled to qualified immunity. Thus, the Court

hereby reverses the district court’s ruling and dismisses appellee’s complaint in its

entirety.

BYE, Circuit Judge, concurring in the judgment.

Though I disagree with much of the majority's reasoning, I respectfully concur

in the judgment of the court.

The majority correctly holds that police officers must exercise a community

caretaking function, as described in United States v. King, 990 F.2d 1552, 1560 (10th

Cir. 1993). However, as the King court noted, there are limits on the exercise of this

function, as with any police function:

[A] person's Fourth Amendment rights are not eviscerated simply because

a police officer may be acting in a noninvestigatory capacity for "[i]t is

surely anomalous to say that the individual. . . [is] fully protected by the

Fourth Amendment only when the individual is suspected of criminal

behavior." [Camara v. Municipal Court, 387 U.S. 523, 530 (1967)]. . .

. Whether the seizure of a person by a police officer acting in his or her

noninvestigatory capacity is reasonable depends on whether it is based on

specific articulable facts and requires a reviewing court to balance the

governmental interest in the police officer's exercise of his or her

"community caretaking function" and the individual's interest in being free

from arbitrary government interference.
14

Id. 

Officers Adams and Prahm argue that they reasonably believed that Winters

posed a danger to himself and others due to his erratic behavior. According to the

district court's findings of fact, however, nearly all of Winters's erratic behavior

surfaced when the officers persisted in their efforts to communicate with him and began

their efforts to gain entry into his car. The district court concluded that, at the time

Winters asked to be left alone, "Adams had no justification either to arrest Winters or

to force his way into Winters's vehicle. Nevertheless, Adams, and later Prahm,

continued their efforts to identify Winters and to persuade him to get out of the car."

We must accept a district court's findings of fact unless we determine that they

are clearly erroneous. See Milligan v. City of Red Oak, Ia., 230 F.3d 355, 359 (8th

Cir. 2000) (stating standard of review). I do not believe the district court erred in

describing the chronology of Winters's increasingly erratic behavior. Nor does the

majority state that the district court's findings of fact on this point are clearly erroneous.

Nevertheless, the majority would find that Adams and Prahm were justified in

continuing to pester Winters, and in attempting to break into his car. In my opinion,

the officers' actions, which were not based on "specific articulable facts," King, 990

F.2d at 1560, were unreasonable. I would affirm the district court on the illegal seizure

question.

I also disagree with the majority's reason for granting qualified immunity for the

illegal seizure claim (part II-C). Specifically, I disagree with the majority's view that

the law on community caretaking is not clearly established. As we recently noted,

"[o]ur circuit subscribes to a 'broad view' of what constitutes clearly established law;

'[i]n the absence of binding precedent, a court should look to all available decisional

law, including decisions of state courts, other circuits and district courts.'" Tlamka v.

Serrell, 244 F.3d 628, 634 (8th Cir. 2001) (quoting Buckley v. Rogerson, 133 F.3d
12I question, however, why we are considering qualified immunity at all at this

stage in the proceedings. The officers did not raise qualified immunity as a defense

until trial. Qualified immunity is an immunity from suit, rather than a defense to

liability. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). As such, it should be

decided by a motion to dismiss or for summary judgment prior to discovery. Id. The

Fifth Circuit has determined that a failure to raise qualified immunity prior to trial does

not constitute a waiver of the qualified immunity defense. Spann v. Rainey, 987 F.2d

1110, 1114 (5th Cir. 1993). But when qualified immunity is discussed alongside the

merits, the two become confused, and the power of the qualified immunity defense is

diluted.

15

1125, 1129 (8th Cir. 1998)). I believe that the law concerning the community

caretaking function and its limitations was clearly established in King and other circuit

decisions. 

That said, I believe that the officers are entitled to qualified immunity. The facts

of this case present a close call. There is, in my opinion, a fine line between the

officers' conduct that did not violate Winters's Fourth Amendment rights and their

conduct that did violate his rights. In the end, I do not believe the officers knowingly

crossed that line, see Malley v. Briggs, 475 U.S. 335, 341 (1986), and therefore I agree

they are entitled to qualified immunity.12
16

A true copy.

Attest:

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