Matt Raeburn v. James Gibson, Individually

United States Court of Appeals
For the Eighth Circuit
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No. 20-2001
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Matt Raeburn
Plaintiff - Appellant
v.
James Gibson, Individually; and in his Official Capacity as a Police Officer for the
City Of Vilonia
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: May 13, 2021
Filed: August 31, 2021
[Unpublished]
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Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
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PER CURIAM.
Following his arrest at a high school baseball game, Matt Raeburn sued the
City of Vilonia and Vilonia Police Officer James Gibson under 42 U.S.C. § 1983 for
violations of his First and Fourth Amendment rights and under Arkansas state law.

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The district court1 granted summary judgment in favor of the City and Officer
Gibson on the § 1983 claims. The district court declined to exercise supplemental
jurisdiction over the state law claims and dismissed them without prejudice.
Raeburn appeals the grant of summary judgment on the § 1983 claims. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
On April 9, 2018, Matt Raeburn was attending his son’s baseball game at
Vilonia High School—the team for which his son played—in Vilonia, Arkansas,
when he got into a verbal altercation with a parent of the visiting school, Searcy High
School, and Butch Schucker, Searcy’s Athletic Director. Administrators from both
schools were concerned about the situation, particularly Raeburn’s behavior, and
Vilonia High School Vice Principal James “Rick” Kelley called the police. Vilonia
Police Officer James Gibson responded. When he arrived, Officer Gibson spoke to
Kelley and Schucker. They told Officer Gibson that Raeburn was the one who
started the incident and pointed Raeburn out. Officer Gibson asked Kelley what he
wanted done. Kelley told Officer Gibson to pull Raeburn to the side and ask him to
calm down, and if Raeburn could calm down and stay quiet, he could remain at the
game, but if he could not, he would have to leave.
Officer Gibson’s dash cam captured his interaction with Raeburn, and the
video footage was part of the summary judgment record. Officer Gibson approached
Raeburn and asked him to step to the front of Officer Gibson’s patrol car. Raeburn
was argumentative but eventually complied. Officer Gibson then attempted to
engage with Raeburn about why Officer Gibson was called there, but his attempts
were met with interruptions and argument from Raeburn. Officer Gibson then asked
for Raeburn’s identification. Raeburn complied slowly while continuing to argue
with and interrupt Officer Gibson. Officer Gibson had a warrant check run and then
1 The Honorable D.P. Marshall Jr., Chief Judge, United States District Court
for the Eastern District of Arkansas.

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instructed Raeburn to “leave.” Raeburn failed to comply and began to question
Officer Gibson. Officer Gibson repeatedly instructed Raeburn to “leave” and
Raeburn failed to do so. The third time he told Raeburn to leave, Officer Gibson
said, “You’re going to leave or you’re going to jail for criminal trespass.” Raeburn
still did not leave. Officer Gibson then produced his handcuffs and instructed
Raeburn once more to “leave.” After that final command, Raeburn said he was
leaving. Officer Gibson replied “it’s too late” and reached for Raeburn’s left arm.
Raeburn jerked his left arm away and moved away from Officer Gibson. Officer
Gibson then pushed Raeburn onto the hood of his patrol car, using his hands and
body to secure Raeburn on the hood. Raeburn struggled, avoiding Officer Gibson’s
attempts to handcuff him, but eventually he ceased resisting. Officer Gibson finally
handcuffed Raeburn’s hands behind his back and told him he was under arrest.
Officer Gibson cited Raeburn for disorderly conduct, resisting arrest, and trespass,
and he transported Raeburn to the Faulkner County Detention Center. After Raeburn
complained to the Vilonia Chief of Police, prosecutors dropped all charges against
Raeburn, and Officer Gibson was disciplined for violating department policies
regarding arrests and was assigned additional training.
Raeburn sued Officer Gibson in his individual and official capacities, alleging
violations of Raeburn’s constitutional rights under 42 U.S.C. § 1983 and violations
of state law. Raeburn alleged that Officer Gibson made an unlawful arrest and used
excessive force in violation of the Fourth Amendment; arrested Raeburn in
retaliation for Raeburn exercising his First Amendment rights; and committed
various state law violations. Raeburn also alleged that the City failed to adequately
train Officer Gibson.2
2 Under § 1983, “[a] suit against a government officer in his official capacity
is functionally equivalent to a suit against the employing governmental entity.”
Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Here, “the
employing governmental entity” is the City of Vilonia. The district court treated the
failure to train claim as a claim against the City, and it treated the other § 1983 claims
as claims against Officer Gibson in his individual capacity only. Raeburn has not
challenged this treatment of his claims in the district court or in this Court. To the
extent that Raeburn’s complaint could be read to allege an official capacity claim for

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The district court granted in part and denied in part Officer Gibson and the
City’s motion for summary judgment and dismissed all claims. The district court
granted the motion insofar as it dismissed the § 1983 claims with prejudice. The
district court found that Officer Gibson was entitled to qualified immunity on the
unlawful arrest claim because Raeburn’s arrest was supported by arguable probable
cause, and that Officer Gibson was entitled to qualified immunity on the excessive
force claim because the amount of force he applied to Raeburn was reasonable.
Additionally, the district court found that Raeburn’s retaliatory arrest claim failed
because Officer Gibson had arguable probable cause to arrest him, and that
Raeburn’s failure to train claim against the City failed because there was no
underlying constitutional violation. The district court denied the motion as to the
state law claims, declining to exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(c) and thus dismissing them without prejudice. Raeburn appeals only the
grant of summary judgment on the § 1983 claims.3
II.
“We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to [Raeburn] as the nonmoving party and
drawing all reasonable inferences in [his] favor.” Roebuck v. USAble Life, 992 F.3d
732, 735 (8th Cir. 2021). “Courts conduct a two-part inquiry to determine whether
qualified immunity protects a government official from liability: (1) whether the
facts taken in a light most favorable to [the plaintiff] make out a violation of a
unlawful arrest, excessive force, or First Amendment retaliation, Raeburn’s failure
to raise these arguments below means we will not consider them for the first time on
appeal. See Peter Kiewit Sons’, Inc. v. Wall St. Equity Grp., Inc., 809 F.3d 1018,
1022 (8th Cir. 2016).
3 Raeburn does not mention the state law claims in his Issues Presented, and
his brief contains a single passing reference to the Arkansas Civil Rights Act.
Because Raeburn has failed to meaningfully argue the state law claims on appeal,
any arguments regarding the state law claims are waived. See Ahlberg v. Chrysler
Corp., 481 F.3d 630, 638 (8th Cir. 2007).

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constitutional . . . right; and (2) whether that right was clearly established” at the
time of the official’s alleged misconduct. Hoyland v. McMenomy, 869 F.3d 644,
652 (8th Cir. 2017) (second alteration in original) (citation omitted). “The court may
consider these steps in any order, but ‘[u]nless the answer to both of these questions
is yes, the [official] [is] entitled to qualified immunity.’” Ehlers v. City of Rapid
City, 846 F.3d 1002, 1008 (8th Cir. 2017) (first alteration in original) (citations
omitted). “When properly applied, [qualified immunity] protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011) (citation omitted).
A.
Raeburn first argues that the district court erred in granting summary
judgment based on qualified immunity in favor of Officer Gibson on Raeburn’s
unlawful arrest claim. He also asserts that the dismissal of his charges has preclusive
effect in this litigation and operates to bar relitigation of the issue of probable cause
because it establishes that Officer Gibson’s arrest of Raeburn was not supported by
probable cause. “A warrantless arrest is consistent with the Fourth Amendment if it
is supported by probable cause, and an officer is entitled to qualified immunity if
there is at least ‘arguable probable cause,’” Ehlers, 846 F.3d at 1008-09 (citation
omitted), “that is, whether the officer should have known that the arrest violated
plaintiff’s clearly established right,” Habiger v. City of Fargo, 80 F.3d 289, 295 (8th
Cir. 1996) (White, J.). “Arguable probable cause exists even where an officer
mistakenly arrests a suspect believing it is based in probable cause if the mistake is
‘objectively reasonable.’” Ehlers, 846 F.3d at 1009 (citation omitted). “A court
properly applies collateral estoppel[, or issue preclusion,] to bar a party from
relitigating an issue actually and necessarily decided in a prior proceeding based on
the same or a different cause of action.” Devan v. City of Des Moines, 767 F.2d
423, 424 (8th Cir. 1985) (per curiam) (citation omitted) (discussing preclusion in a
federal civil rights action).

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The district court concluded that Officer Gibson was entitled to qualified
immunity on the unlawful arrest claim because he had arguable probable cause to
arrest Raeburn for obstructing governmental operations in violation of Ark. Code
Ann. § 5-54-102. We conclude that the district court correctly granted summary
judgment to Officer Gibson on the unlawful arrest claim, albeit for a different
reason. We find that Officer Gibson was entitled to qualified immunity because he
had arguable probable cause to arrest Raeburn for criminal trespass in violation of
Ark. Code Ann. § 5-39-203. See Christiansen v. W. Branch Cmty. Sch. Dist., 674
F.3d 927, 934 (8th Cir. 2012) (appellate court may affirm “on any ground supported
by the record” (citation omitted)).
Section 5-39-203 provides: “A person commits criminal trespass if
he . . . purposely enters or remains unlawfully in or upon . . . [t]he premises owned
or leased by another person.” Ark. Code Ann. § 5-39-203. Here, Officer Gibson
was informed by school officials that Raeburn had instigated a verbal altercation on
school property in the presence of high school students. Additionally, school
officials requested Officer Gibson’s assistance and specifically requested that
Raeburn be told to leave if he could not calm down. It was objectively reasonable
for Officer Gibson to believe that school officials had vested him with the authority
to decide whether Raeburn failed to calm down and should leave school property.
The video demonstrates that a reasonable officer could have perceived Raeburn’s
behavior to be uncooperative and not calm, again in the presence of high school
students. And Officer Gibson instructed Raeburn to leave school property numerous
times, but Raeburn repeatedly resisted these commands. Based on these
circumstances, it was not objectively unreasonable for Officer Gibson to believe that
Raeburn was “remain[ing] unlawfully” on school property when Raeburn refused to
obey Officer Gibson’s commands to leave. See id. Officer Gibson was not “plainly
incompetent,” nor did he “knowingly violate the law,” when he arrested Raeburn for
criminal trespass. See Ashcroft, 563 U.S. at 743 (citation omitted). And because
the question of whether there was probable cause (or arguable probable cause) to
arrest focuses on the circumstances existing at the time of the arrest, Raeburn has
not demonstrated that the later dismissal of his charges was an adjudication that no

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arguable probable cause existed to arrest him, and thus the dismissal has no
preclusive effect here. See Devan, 767 F.2d at 424; cf. Ehlers, 846 F.3d at 1009
(probable cause exists when circumstances “at the time of the arrest ‘are sufficient
to lead a reasonable person to believe that the defendant has committed or is
committing an offense’” (emphasis added) (citation omitted)). On this record, it was
not clearly established that the arrest violated Raeburn’s constitutional rights
because Officer Gibson had arguable probable cause to arrest Raeburn for criminal
trespass. See Habiger, 80 F.3d at 295. Accordingly, the district court did not err in
granting summary judgment to Officer Gibson based on qualified immunity on
Raeburn’s unlawful arrest claim.
B.
Raeburn next argues that the district court erred in granting summary
judgment in favor of Officer Gibson on the excessive force claim. We disagree. The
video shows that Raeburn was noncompliant and jerked away when Officer Gibson
attempted to arrest him, which justified Officer Gibson’s use of minimal force to
effectuate the arrest. See Ehlers, 846 F.3d at 1011 (officer did not use excessive
force when he executed a takedown on suspect who ignored two commands to put
his hands behind his back; suspect “at least appeared to be resisting” and thus officer
“was entitled to use the force necessary to effect the arrest”). Raeburn contends that
he was not actively resisting arrest, but we do not accept his version of the facts
because it is “blatantly contradicted by the record.” See Scott v. Harris, 550 U.S.
372, 380 (2007). Officer Gibson’s use of his hands, body, and patrol car in order to
secure Raeburn was not excessive. After Raeburn ceased resisting, Officer Gibson
removed his left hand and used only his body to hold Raeburn down to handcuff
him. Officer Gibson’s use of force was objectively reasonable under the
circumstances. See Carpenter v. Gage, 686 F.3d 644, 649-50 (8th Cir. 2012)
(deputies entitled to qualified immunity on excessive force claim where they
“reasonably could have interpreted [arrestee’s] actions as resistance and [they]
responded with an amount of force that was reasonable to effect the arrest”); Ehlers,
846 F.3d at 1011. Thus, we conclude that no constitutional violation occurred with

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respect to the force applied by Officer Gibson and that the district court did not err
in granting summary judgment on the excessive force claim.
C.
The district court also correctly dismissed the two remaining federal claims.
Raeburn’s First Amendment retaliatory arrest claim against Officer Gibson fails as
a matter of law because Officer Gibson had arguable probable cause to arrest him.
See Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014) (explaining that lack of
probable cause or arguable probable cause is an element of a retaliatory arrest
claim).4 And Raeburn’s failure to train claim against the City fails as a matter of
4 Raeburn argues that the existence of arguable probable cause does not bar his
retaliatory arrest claim because officers generally exercise their discretion not to
arrest in these circumstances, citing Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019)
(“Although probable cause should generally defeat a retaliatory arrest claim, a
narrow qualification is warranted for circumstances where officers have probable
cause to make arrests, but typically exercise their discretion not to do so.”). As proof
that officers generally exercise their discretion not to arrest in these circumstances,
Raeburn points to the Vilonia Chief of Police’s statements during Officer Gibson’s
internal investigation that (1) he did not think there was sufficient probable cause to
arrest Raeburn for disorderly conduct, and (2) he would not have charged Raeburn
with obstruction. But although the Supreme Court has held that the “no-probable-
cause requirement should not apply when a plaintiff presents objective evidence that
he was arrested when otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been,” id., Raeburn presented no such
objective evidence. Even if he did, Nieves was decided in May 2019, more than a
year after the events giving rise to Raeburn’s claims, and Nieves did not decide
whether the exception was clearly established when the plaintiff was arrested in
2014, cf. Rochell v. City of Springdale Police Dep’t, 768 F. App’x 588, 591 (8th
Cir. 2019) (Colloton, J., concurring) (agreeing that district court did not err in
denying qualified immunity in light of a 2018 case’s “definition of what was clearly
established law in [September] 2014,” when September 2014 was “more than a year
before the incident in this case”). Thus, Nieves did not clearly establish at the time
of Officer Gibson’s alleged misconduct (April 2018) that there is an exception to the
general rule that arguable probable cause defeats a retaliatory arrest claim. See
Reichle v. Howards, 566 U.S. 658, 663 (2012) (holding that officers were entitled to

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law because Officer Gibson is not liable. See Sinclair v. City of Des Moines, 268
F.3d 594, 596 (8th Cir. 2001) (per curiam) (“Because the police officers are absolved
of liability, the City cannot be held liable for their actions.”). Accordingly, the
district court did not err in granting summary judgment on the § 1983 claims.
III.
We affirm the district court’s judgment.
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qualified immunity on retaliatory arrest claim because “at the time of [plaintiff’s]
arrest, it was not clearly established that an arrest supported by probable cause could
violate the First Amendment”).

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