“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Eighth Circuit judges Ralph Erickson and David Stras affirmed a lower court that granted qualified immunity and dismissed a lawsuit against two police officers accused of using excessive force against an individual, including tasing him three times. The August 2020 case is Kohorst v. Smith.

Two Burnsville, Minnesota police officers were sent in response to a 911 call about two intoxicated men who were wandering neighborhood streets and, according to a computer dispatch, were suspected of participating in an altercation at a movie theater earlier that evening. Officer Thomas Smith approached one of the men, Brett Kohorst. Although there was later some dispute about exactly what happened, at one point Smith “took Kohorst to the ground,” tried to handcuff him, and told him he would be tased if he did not place his hands behind his back. Kohorst placed one hand behind his back while his other hand was underneath him, and Smith tased him and again tried to handcuff him. Kohorst continued to lie on his back with one hand behind him, rather than on his stomach with both hands behind him, and Smith pushed Kohorst down so that Kohorst’s face “hit the pavement, splitting his chin.” Smith tased Kohorst twice more, and Smith then handcuffed him and placed him in the back of his squad car. When Officer Steven Stoler wanted to adjust Kohorst’s handcuffs because they were in an awkward position, he pulled Kohler out of the car and “dropped him to the ground”, where body-cam footage showed he landed “with a loud thud.”

Kohorst was not charged with any offense, but sued Smith and another officer for using excessive force. Doctors diagnosed Kohorst as suffering from a concussion, retrograde amnesia, multiple bruises, and facial lacerations. A lower court granted qualified immunity to both officers and granted summary judgment against Kohorst, who then appealed.

In a 2-1 opinion written by Trump judge Erickson and joined by Trump judge Stras, the Eighth Circuit affirmed the grant of qualified immunity to both officers. The majority found there was no genuine dispute as to Smith’s contention that he was aware that Kohorst was suspected of participating in the theater fight, which it concluded justified some of the force used against him. They ruled that Smith’s takedown of Kohorst was not unreasonable because he “at least appeared to be resisting” They also held that the tasings were also justified because “a reasonable officer in Smith’s position could have perceived Kohorst to be resisting arrest and could have feared for his safety,” although they acknowledged that the takedowns and “repeated tasings” appeared to be “on the hazy border between excessive and acceptable force.” With respect to Stoler, the majority claimed that Kohorst was “at least passively resisting” and that it was not “clearly established” that Stoler’s use of force against a “resisting, non-compliant suspect” was improper.

Judge Jane Kelly firmly dissented. Initially, she explained that viewing the facts most favorably to the party who lost on summary judgment, as the law requires, there was a “genuine dispute” as to whether Smith knew Kohorst was a suspect in a fight when he threw him to the ground and tased him, based on Smith’s initial incident report and other evidence that Smith did not see the part of the computer message about the fight.  In addition, she went on, based on a partial video of the encounter, a “jury reasonably could conclude that Smith did not issue a command that Kohorst defied” before Smith tased him, and that Kohorst offered no more than “inconsequential” resistance, which did not justify Smith’s takedown and repeated tasings. As to Stoler, Kelly pointed out, a reasonable jury could conclude that his use of force against a subdued and handcuffed individual was a “gratuitous and completely unnecessary act of violence” in violation of “clearly established” law. Overall, Kelly concluded, it should have been up to a jury to decide these issues about the officers’ use of force.

As a result of the decision by Erickson and Stras, however, Brett Kohorst will have no opportunity to present his claims of police misconduct and excessive use of force to a jury to decide. The case is yet another example of Trump judges refusing to allow a jury to even consider a complaint of police violence and misconduct.