### The Honorable Byron R. White, Associate Justice of the * 

### United States Supreme Court, (Ret.), sitting by

designation, pursuant to 28 U.S.C. § 294(a).

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

_________________ No. 95-1574

_________________ David Habiger, * * Plaintiff - Appellant * * Appeal from the United States v. * District Court for North Dakota. * City of Fargo; Ann Alzheimer, * in her official capacity and * as an individual; Mike Kjera, * in his official capacity and * as an individual; Scott * Stenerson, in his official * capacity and as an individual; * Don Lawyer, in his official * capacity and as an individual; * Mark Lykken, in his official * capacity and as an individual, * * Defendants - Appellees. *

_________________ Submitted: October 18, 1995 Filed: April 4, 1996

_________________ Be fore WHITE, Associate Justice (Ret.), McMILLIAN and LOKEN, Circui t * Judges.

_________________ WHITE, Associate Justice (Ret.).

### -2- I. INTRODUCTION

Plaintiff-Appellant David A. Habiger ("Habiger") appeals from th e distric t court's entry of partial summary judgment and a jury verdic t against him in his Section 1983 action brought in the wake of his arrest for violating a temporary restraining order ("TRO"). The district court rejecte d his unlawful arrest claim, ruling for the police officers o n qua lified immunity grounds and dismissing the claim against the City o f Fargo ("t he City") based on its alleged failure to train its polic e officers. Habiger v. City of Fargo, No. A3-93-81 (D.N.D. filed Jan. 23, 1995). A jury then found that neither the City nor its officers wer e liable for using excessive force in arresting Habiger. Habiger no w appeals, complaining that the district court err ed in (1) granting summary judgment to the officers on qualified immunity g rounds; (2) dismissing the illegal arrest/failure to train claim against the City; and (3) refusing to instruct the jury that it should consider the legality of the arrest in det ermining whether the officers' use of force in arresting Habiger wa s objectivelyreasonable. For the reasons stated below, we reject each of these claims of error, and AFFIRM the judgment of the district court.

II. BACKGROUND

A.

On October 28, 1991, a North Dakota state trial court issued a TR O
re stricting the protesting activity of pro-life demonstrators in th e immediate vicinity of the Fargo Women's Health Organization, Inc. ("FWHO"

or "t he clinic"). Fargo Women's Health Organization, Inc. v. Lambs o f Chr ist, No. 91-1953 (Cass County Dist. Ct. filed Oct. 28, 1991). Th e operative provisions of the TRO enjoined the pro-life protestors from:

### More precisely, the North Dakota Supreme Court reviewed the 1 

### preliminary injunction that superseded the TRO and that contained the identical provisions. See Fargo Women's Health Org. , 488 N.W. 2d at 405. For the sake of convenience, we shall refer to the injunction as a TRO.
-3-

(a). trespassing on, sitting in, blocking, impeding o r obst ructing ingress or egress from FWHO facilities and th e homes and residences of Plaintiffs Miks, Wicklund, and Bovard, as well as the homes and residences of any staff (paid o r volunteer) or patients of FWHO. (b). harassing, intimidating or physically abusin g persons entering, leaving or working at FWHO facilities; (c). obstruc ting the work of the persons located at FWHO faci lities by any means -- including singing, chanting , yel ling, shouting, or screaming -- that substantiall y interferes with the provision of medical services includin g counseling, with[in] such facility; (d). going within 100 feet of the property line of FWH O during such times as they are open for business, except tha t one person may quietly a nd peacefully picket such facility, so long as that person does not interfere with the operations of said facility as provided herein. (e ). following, harassing, photographing, videotaping , and intimidating, or speaking to staff and patients of FWHO who have indicated that they do not wish to be spoken to. (f). distributing leaflets or brochures to any person who has indicated orally or by gesture that such person does no t wish to receive such literature. (g). inducing, encouraging, or directing others to tak e any of the actions described in paragraphs (a). - (f). above.

. . . IT IS FURTHER ORDERED THAT THE Cass Cou nty Sheriff, Fargo Police Department, and a ny other Law Enforcement Authority may enforce this order and may make arrests for the violation o f this order.
Id . at 2-4. The pro-life pro testors challenged the constitutionality of the TRO, but the North Dakota Supreme Court, ten months a fter the arrest challenged in this case, upheld those provisions of the TRO that are directly involve d in this case. See Fargo Women's Health Organization, Inc. v. Lambs o f Christ, 488 N.W.2d 401 (N.D. 1992). Specifically, 1

### As for the other provisions of the TRO, the North Dakota 2 

### Supreme Court upheld paragraph (b), as well as paragraph (e) as construed, except for its "speaking" prohibition, which was stricken. Fargo Women's Health Org., 488 N.W.2d at 410-11. The court also determined that the 100-foot place restriction in paragraph (d) was content neutral and served a "significant governmental interest." Id . at 407-09. However, the court concluded that paragraph (d) was not narrowly tailored as required by the First Amendment, and thus, remanded that provision for sufficient narrowing. Id . at 409. In any event, the area restriction is not involved in this appeal. Finally, the court invalidated paragraph (f) in its entirety. Id . at 411. Paragraphs (a) and (g) were apparently not challenged.
-4- the co urt upheld the excessive noise restriction contained in paragrap h (c), supra , which is involved here, on the ground that the noise created by the pr otestors had been so loud and invasive as to substantiall y interfere with the pr ovision of medical services. Id . at 409-10. On this appeal, Habiger does not challenge this judgment and does not contest the facial validity of paragraph (c) or any other provision of the TRO. 2

In its opinion, the North Dakota Supreme Court described the events leading up to the issuance of the TRO:

Since 1981, the Fargo Women's Health Organization ha s operated a clinic which provides a full range of gynecological medi cal services including first trimester abortions

. Ap proximately75 demonstrations by anti-abortion protestor s have been held in the vi cinity of the clinic. It appears that most o f these demonstrations were peaceful, consisting o f picketing, leafleting, a nd speaking to people in the area near the cli nic. Beginning March 29, 1991, the character of th e protests changed. On that day, 26 people stormed the clinic, bro ke down a door, occupied its rooms, and locked themselve s together using bicycle locks. The demonstrators refused t o lea ve, were arrested, and were removed by Fargo police afte r their locks were removed by a locksmith.
On nine other occasions in the ensuing seven months , demonstrators were arrested for criminal acts committed i n conjunction with anti-ab ortion protests. As a result of these actions, patients were confronted and jostled as th ey attempted to wal k to the clinic. Some patients were able to reach th e clinic only with the assistance of

### -5- vol unteer "escorts" or professional security officers wh o walked them through groups of hostile, screaming protestor s that surrounded them, st ood in their way, forced leaflets into patients' hands and otherwise impeded patients' access to the clinic. Protestors stru ck, pushed, and threatened escorts and guards with physical harm. One protestor was arrested trying to climb the clinic's fence in order to reach a patient using the clinic's rear entrance.
Patien ts who attempted to drive to the clinic wer e con fronted at the entrance to the clinic parking lot

. Protestors stood in the way of the cars, climbed onto th e vehicles' hoods or under the cars. Some protestors attempted to faste n themselves to the frames of cars in order to dela y the ir removal from the site. On one occasion, protestor s placed blocks against the tires and attempted to cu t a cable in order to disable a car after they succeeded in stopping it in the clinic's driveway. On another occasion, protestors waited ac ross the street from the clinic for a car to approach th e parking lot at which point they rushed into the str eet, stopped the car, and blocked the public road. As a result of thes e tactics, the clinic was effectively blockaded; patients an d staff could not enter or leave the clinic for hours at a time.
The protestors called these blockades "rescues." A t anti-abortion rallies held after the "rescues" bega n, spokesmen for the associations asked volunteers to participate by being jailed for rescuing babies. The rescues were to be part of a two-year campaign to force the clinic to close.
Awayfrom the clinic, protestors followed clinic staf f members in cars, and into grocery stores, airports, and other public buildings. Their activities were particularly intense against one of the clinic's doctors. During a five mont h period, groups as large as 30 demonstrated at the gate of her home, congregating in predawn hours, shouting and honking car horns, and attempting to block the departure of the doctor and her family members. Some protestors roamed on the doctor' s property, leaving a banner draped over a car, a baby stroller and basket on her porch. During times when the pro testors were near the site, the doctor's house and garage were vandalized. Protestors followed the doctor in cars as she drove to Fargo or to the a irport. Groups waited for the doctor in airpor t parking ramps and rushedat her, yelling and flashing cameras. They leafleted cars at the school of the doctor's d aughter, and two protestors were asked to leave the school building whe n theyattempted to obtain a photo of her daughter. A car full of protestors also followed the daughter of one of the clinic's volunteers.

### -6-

Id . at 404-05.

B.

On the morning of October 31, 1991, Habiger and approximatel y seventy-five other individuals participated in a protest near the clinic to protes t the issuance of the TRO. During the protest, several polic e off icers, including Sergeant Don Lawyer ("Lawyer") were in front of th e clinic to enforce the TRO. After Habiger walked over to Lawyer, Lawye r told him that he coul d not cross the red-line marking the 100 foot radius around the clinic. Habiger responded that, "this is quite a country we go t here. We're living o n the edge of socialism. It's more like a communist regime." Habiger, slip op. at 5.

After several of the protestors refused to stand behind the line , approached within 80 feet of the clinic property , sat down, and refused to move, the police offi cers began arresting them for violating the terms of the TRO. About the time that the officers beganarresting the protestors, Habiger, from behind the line, began to criticize loudly the officers ' conduct. Lawyer repeatedly asked Habiger to qui et down. Despite Lawyer's requests, Habiger con tinued to condemn the police officers in loud tones:

This is a dictatorship in this town. An evil city. You work for evil people that are killing human beings in there. Yo u don't care. If you had any guts, you'd get out of that uniform and t ake a stand for life. What's that job mean to you? I t ain't gonna mean nothingwhen your life is over. Take a stand for Jesus Christ. They're killin' human beings in there an d nobody cares. And you stand there with that smirk on you r face. W hen you stand before God, you're going to answer fo r it.
Id

. at 6. Lawyer again asked him to quiet down. This provoked an eve n more emphatic response from Habiger: I can talk all I want. It's a free country. I'm behind th e line. If you guys had any guts, you'd take them

### -7- uniforms off and we'd all storm that place and close it down. The y're killing children in there. Yet nobody does nothin'

. Everybody stands back. They're killing children. This town's a dict atorship. Its a communistic-it's communistic. You'r e evil. You're all evil. They're standing up for murderers

. They're killing children that have a right to live. We had, we got a right to our lives. I don't care.
Id

. at 6- 7. Finally, Lawyer told Habiger that he was under arrest

. Habiger asked "For what?, " and Lawyer responded, "Court order." Habiger then stated, "For what? I'm just talking." Lawye r replied, "You're yelling
too lo ud." Id . at 7. Habiger resisted the arrest, and several othe r officers (Lawyer's co -defendants in this action) came to assist Lawyer in restraining Habiger.

After t he police brought Habiger to the ground and completed th e arrest, he complained of pain in his arm, and the police called a n ambulance to assist him. After he was treated a t a local hospital, police officers brought Habi ger to jail. The following day, Habiger was charged with d isorderly conduct and preventing arrest. Habiger posted th e necessary bond, but a s a condition of his release, he was ordered to stay awayfrom the clinic. On or about March 25, 1992, the Cass County State Atto rney's Office dismissed the charges on First Amendment an d insufficiency of the evidence grounds.

On May 7, 1993, Habiger filed this 42 U.S.C. § 1983 action, claiming that several of the City's police officers and t he City violated his First and Fourth Amendment rights. As to the officers, Habiger alleged that the y arrested him for violating the noise restriction contained in paragraph (c ) of the TR O without probable cause and that they used excessive force i n arresting him. As to the City, Habiger charged that its failure to train the de fendant officers led to his unconstitutional arrest. Habiger' s complaint also alleged state law claims of false arrest, false imprisonmen t

### This case was tried to a magistrate judge by consent of the 3 

### parties.
-8- and assault and battery. Magistrate Judge Klein, on summary judgment , 3

con cluded that the officers were protected by qualified immunity on th e probable cause and Fi rst Amendment issues and dismissed the claim against the City for its alle ged failure to train the officers. Similarly, Judge Klein r uled that the state law claims of false arrest and fals e imprisonment were barred under North Dakota's immunity doctrine.

The court, however, denied the summary judgment motion on Habiger's excessive force and state law assault and battery claims, ruling that thes e claims should be tried to a jury, which then occ urred. The jury found for the officers and the City. Habiger then filed this appeal. He argues tha t the district court er red in (1) granting summary judgment to the officers

on the unconstitutional arrest claims; (2) granting summary judgment to th e City on the alleged failure to train its officer s; and (3) not instructing the jury to consider the lawfulness of the arrest in determining whether the officers, use of force was objectively reasonable. We exercis e jurisdiction under 28 U.S.C. § 1291, and we now AFFIRM. III. DISCUSSION We begin by setting out the legal propositions that are not i n dispute. First, to withstand a motion for summary judgment on qualified immunity grounds, a c ivil rights plaintiff must (1) assert a violation of a constitutional righ t; (2) demonstrate that the alleged right is clearly establ ished; and (3) raise a genuine issue of fact as to whether th e official would have known that his alleged conduct would have violate d pla intiff's clearly established right. Foulks v. Cole County, Mo., 99 1 F.2d 454, 456 (8th Ci r. 1993). Second, Habiger had a clearly established righ t under the Fourth Amendment not to be arrested unless there wa s probable cause for his arrest.

### -9-

Third, Habiger also had a clearly established right to express his views about abortion in a p ublic forum; but this right is not absolute since it is s ubject to proper time, place and manner regulations, such as th e excessive noise prohibition contained in paragraph (c) of the TRO. Fourth , the validity of the TRO, of which Habiger had notice, is not in dispute; hence, if the police officers had probable cause to believe that Habiger

was violating the TRO by yelling or screaming so as to substantiall y interfere with the provision of medical services (e.g., counseling), his

arr est was valid and would not violate either the Fourth or the Firs t Amendment. Fifth, "[t]he issue for immunity purposes is not probable caus e in fact but arguable probable cause," Myers v. M orris, 810 F.2d 1437, 1455 (8th Cir.), cert. denied, 484 U.S. 828 (1987), that is, whether the office r should have known that the arrest violated plain tiff's clearly established right, Foulks v. Cole County, Mo., 991 F.2d at 456. Sixth, in grantin g summaryjudgment in favor of defendant officers on immunity grounds, the court did not need to rule on whether there was actual probable cause to arrest Habiger. Seventh, although the City may not be held liable for the mistakes of its officers on a respondeat superior basis, it is not entitle d to the shield of qualified immunity afforded to its officers. See Owen v. City of Independence, 445 U.S. 622, 657 (1980). Thus, if there was no t actual probable cause to arrest Habiger, the City could be held liable on a failure to train th eory unless its failure to train its officer did not lead to Habiger's unlawful arrest, which the district court held was the case and which is an issue in this appeal. A. THE QUALIFIED IMMUNITY ISSUE We review the district court's grant of summary judgment de novo

. Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993). We address first whether a reasonably competent officer could believe there

was probable cause to arrest Habiger. As the district court recounted , when officer Lawyer arrested Habiger, he stated that Habiger was violating the court order by "yelling too loud." Thus, Lawyer

### We have previously explained that: 4 

### Law enforcement officers should not, on pain of having to pay damages out of their own pockets, be required to anticipate how appellate judges will apply maxims of constitutional adjudication about which even those judges sometimes disagree [-] it would be unworkable for the officers to await interpretations from federal appellate judges rendered long after the orders were executed to learn whether they will be civilly liable for performing an assigned duty. McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir. 1987) (internal quotation omitted).
-10- must have thought that Habiger's repeated yellin g substantially interfered with the clinic's operation and violated the noise restriction contained in paragraph (c) of the TRO. The court posed the issue as whether " a reasonable police officer could have believed that Habiger's yelling was substantially interfering with the operation of the clinic." Habiger, slip
op. at 21. The court concluded that "[a] reasonable police officer fearin g
a magn ification of the volatile situation could have believed tha t Habige r's speech, delivered while many of his fellow demonstrators wer e being arrested for violating the court order, substantially interfered wit h clinic op erations." Id . at 22. Thus, the court ruled that the officer s were immune from suit. We agree with the district court. Habiger was screaming at the top of his voice from a point some thirty-three yards from the clinic property

. Whether Habiger could be heard inside the clinic or by patients seeking to enter the clinic was a judgment call on Lawyer's part, the kind of a decision that police officers must repeatedly make. The qualified immunit y doctr ine allows officers to make reasonable errors so that they do no t always "err on the side of caution." Hunter v. Bryant, 502 U.S. 224, 229 (1991 ) (per curiam) (internal quotation omitted). Furthermore, th e 4 "subst antial interference" standard had yet to be interpreted, and a n office r on duty in the field is entitled to make a reasonabl e interpretation

### -11-

of the law he is obligated to enforce. See Gorr a v. Hanson, 880 F. 2d 95, 97-98 (8th Cir. 1989). Thus, given Habiger's loud and repeated yelling,

we c onclude that the district court correctly held that the officer s arguably had probable cause for Habiger's arrest and were immune from suit

. In doing so, we reject three First Amendment arg uments that Habiger claims foreclose or fatally infect the district court's judgment.

First, Habiger contends that the district court failed to consider th e import of paragraph (i) of the TRO, which cautio ns that nothing in the TRO should be construed to abridge the lawful exercise of one's First Amendmen t rights. But Habiger does not challenge the cons titutionality of the noise restriction. An arre st for violating that provision is not barred by the First Amendment, nor does an officer's reasonable mistake about th e legality of the arrest disentitle the officer to qualified immunity. Second, Habiger asserts that the arrest was pretextual; that is, he argues that the offic ers arrested him not to enforce the TRO, but because of their disagreement with his views on abortion. This matter of intent, it is submitted, should not have been disposed o f on summary judgment. On the facts of this case, however, we seriously doubt that this claim o f pretext, even if proved, would nullify the finding of probable cause t o believe that Habiger was violating the TRO; nor would it disentitle th e officers to qualified immunity. See U.S. v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en b anc), cert. denied., 115 S. Ct. 1970 (1995) ; Foster v. Metropolitan Airpo rts Comm 'n. , 914 F. 2d 1076, 1081 (8th Cir. 1990). In any ev ent, we need not consider this issue since Habiger has plainl y failed to support his claim of pretext by demons trating a genuine issue of material fact on this question. Third, Habiger points to the district court's conclusion that " a reasonable police officer fearing a magnification of the volatile situatio n could have believed that Habiger's speech, delivered while

### -12-

manyof his fellow demonstrators were being arrested for violating th e Order, substantially interfered with clinic operations." He asserts that this conclusion disre gards the First Amendment by considering the emotive effect his speech might have on his fellow demonstrators. In similar vein , Habiger points to wha t Officer Lawyer said in his affidavit: Habiger was "very emotional and disruptive" and "made it much more difficult to contro l the crowd ." App. 105-106, 110. Habiger supports his legal argument b y quoting from Texas v. Johnson, 491 U.S. 397, 409 (1989).

we have not permitted the government to assume that ever y expression of a provocative idea will incite a riot, but have instead required careful consideration of the actua l circumstances surrounding such expression, asking whether the expression "is directed to inciting, or producing imminen t lawless action and is likely to incite or produce s uch action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See Reply Br. at 5. We do not belittle this basic constitutional principle. As we see it , this principle was no t violated either by the officers' conduct or by the district court's opinion and judgment. The circumstances faced by th e officers and leading to Habiger's arrest are adequately clear. Habiger wa s
one of 75 or so protestors gathered in front of the clinic. Some of the demonstra tors crossed the red line to within 80 feet of the clinic, sa t down and refused to move, asserting that they had a constitutional right to be where they were. At this point, Habiger, from behind the line but in the midst of the protestors, began screaming invectives at the police at the to p of his voice. He refused to quiet down. In thes e circumstances, Lawyer and his fellow officers could reasonably believe tha t Habiger's extremely loud and emotional shouting was directed at inciting immin ent conduct expressly barred by the TRO and that his shouting wa s substantiallyinterfering with the business of the clinic. The officers surely th ought that they had probable cause to arrest Habiger. Even i f this

### The essence of Habiger's argument that the district court 5 

### ruled on immunity grounds and did not hold that the officers had actual probable cause to arrest Habiger-is that "[i]f probable cause was indeed present, it is not necessary to consider an immunity defense." Foster v. Metropolitan Airports Comm'n, 914 F. 2d 1076, 1079 (8th Cir. 1990). While this discussion of the jury instructions represents 6 

### Judge Klein's interpretation of her own order, the order itself also appears to conclude that the police officers had arguable, not actual, probable cause to make the arrest. See, e.g. , slip op at 22 ("whether Habiger's passionate speech substantially interfered with clinic operations is subject to debate"); id . at 23 ("[A] reasonable police officer could have believed that Habiger's arrest was lawful.").
-13- was a mistake, the purpose of the qualified immunity doctrine is to provid e ample room for mistaken judgments and to protect "all but the plainl y incompetent or those who knowingly violate the l aw." Malley v. Briggs, 475 U.S. 335, 341 (1986). In our view, the officers' judgment was not "plainly inco mpetent," and the district court did not err in referring to th e probable impact of Habiger's screaming on the other demonstrators and in concluding that there was arguable probable cause to believe that Habiger was substantially interfering with the business of the clinic. B. MUNICIPAL LIABILITY Habiger also argues that, if the officers arrested Habiger withou t actual probable cause (even if there was arguable probable cause so as to clothe them with qualified immunity), the City is liable for the illegal

arres t on a failure to train theory. See Medina v. City of Denver, 96 0 F.2d 1 493, 1499-1500 (10th Cir. 1992) (noting that there is n o inconsistency between granting qualified immunity to City officials an d holding the City liable). First, Habiger claims that the district court

never addressed the question of actual probable cause because it did not analyze the underlying constitutional violation (which it assumed) , but merely focused on the presence of arguable probable cause. Se e Discussion 5 of Jury Instructions, App. at 172 ("I don't want to create the impression that the Court has ru led that the arrest was valid because I've not ruled either way."). 6

### Specifically, Habiger challenges Jury Instruction No. 8. 7 

### That instruction provided: You will not be asked to decide whether plaintiff's arrest was valid or not, or whether he was legitimately exercising his right to free speech at the time of his arrest. The court has already resolved these issues and you should not consider them. App. at 199.
-14- In effect, Habiger continues, the district court wrongly applied the shiel d of qualified immunity to the City. See Owen, 445 U.S. at 657.

Th is argument, even if sound, does not require us to reverse th e district court, for i t also rejected Habiger's failure to train theory on the gr ound that "[a] dditional specialized training on First Amendmen t prote ctions would not have influenced a reasonable police officer' s decision to arrest plaintiff for violating the [ TRO]." Habiger slip op. at 39-40; id

. at 39 ("inadequate training was not the proximate cause o f pla intiff's alleged constitutional injury."). Moreover, with specifi c reference to the TRO, the district court explained that, since the TRO onl y went into effect three days before Habiger's arrest, the Department did no t have time to train its officers how to handle th ese specific protests. Id

. at 40. Thus, because Habiger has failed to demonstrate how the City' s fai lure to train its officer caused the violation of his constitutiona l rights, we affirm the district court's judgment that the City cannot b e held liable on a failure to train theory.

C. JURY INSTRUCTIONS ON EXCESSIVE FORCE Finally, Habiger argues that the district court erred by instructing the jury that the objective reasonableness of the force

use d in arresting him did not turn, at least in part, on whether th e arrest was legal. In support of this contention, Habiger suggests 7

### Indeed, we are inclined to believe that the presence of 8 

### actual or arguable probable cause is irrelevant to the objective reasonableness of the force used to effect an arrest. That is, if the identical force is used to arrest two defendants suspected of committing the identical crime, the objective reasonableness of the use of force does not depend on whether the arrest was based on actual or arguable probable cause.
-15- that Gr aham v. Connors focus on "the severity of the crime" as a facto r justifying the use of force suggests that the legality of the arrest can make the use of force unreasonable. 490 U.S. 386, 396 (1989). We rejec t this argument because the "severity of the crime" does not necessaril y encompass whether the re was actual probable cause to arrest the defendant for th at alleged crime. The touchstone of Graham is objectiv e reasonableness, and the force used to effect a good faith, though false, arrest is not necessarily more likely to be unreasonable than a good faith , thou gh legal, arrest. The jury instructions reflected this essence o f 8 Graham and the jury correctly focused on the sev erity of alleged crime and the other factors outlined in Graham. Therefore, we affirm the jur y instructions on the excessive force count.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court. A true copy. Attest:

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