Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MARK W. BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION..........................................................762 A. Factual Background...................................................762 1. The events giving rise to this lawsuit................................762 2. Koehler’s training.................................................764 3. The City and Chief Frisbie’s involvement............................765 B. Procedural Background................................................766 II. LEGAL ANALYSIS..................................... 767 A. Standards for Summary Judgment................... 767 B. Preliminary Matters ............................... 769 1. Bifurcation of claims ........................... 769 2. Navrkal’s statements in the record............... 770 a.Arguments of the parties.................... 770 i. The defendants’ initial arguments....... 770 ii. Shannon’s arguments in response ....... 771 iii. The defendants’ reply .................. 771 iv. Oral arguments........................ 772 3. Analysis....................................... 772 C. Qualified Immunity for Alleged use of Excessive Force 773 1. A violation of a constitutional right............. 773 a. Arguments of the parties.................... 773 i. The defendants’ initial arguments....... 773 ii. Shannon’s arguments in response ...... 774 iii. The defendants’ reply ................. 776 iv. Oral arguments........................ 776 b. Analysis................................... 777 i. Severity of the crime.................. 778 ii. Threat to Koehler or others ............ 780 iii. Resisting arrest....................... 782 iv. Other factors ......................... 783 v. Reasonableness of the force used....... 783 2. Reasonable official standard.................... 784 a. Arguments of the parties................... 784 b. Analysis.................................. 785 D. Monell Liability .................................. 786 1. Arguments of the parties....................... 786 a. The defendants’ initial arguments .......... 786 b. Shannon’s arguments in response........... 787 c. The defendants’ reply...................... 789 d. Oral arguments............................ 790 2. Analysis.....'................................. 790 a. Pattern of unconstitutional misconduct...... 790 b. Deliberate indifference or tacit authorization 802 c. Causation................................. 802 E. Assault and Battery............................... 803 1. Arguments of the parties....................... 803 a. The defendants’ initial arguments .......... 803 b. Shannon’s arguments in response........... 803 c. The defendants’ reply...................... 804 d. Oral arguments............................ 804 2. Analysis...................................... 804 III. CONCLUSION 805 The following is a brief description of the events involved in this controversy, which includes facts that are both undisputed and disputed: Police officer Michael Koehler, a defendant in this case, responds to a call for a disturbance between two females, at a bar, involving an injured person. Once Koehler arrives on the scene, he is greeted at the front door by a woman, Jill Murad, who allegedly states that one of the females inside had been “touched or grabbed by the male who was in the bar.” Koehler and Murad walk to the middle of the establishment. The plaintiff, Timothy Shannon, is behind the bar. Shannon walks out from behind the bar, toward Koehler, and strongly states to Koehler, using profanity, that he owns the bar, does not need Koehler, and orders him to get out of the bar. Shannon eventually comes within arms length of Koehler. Koehler alleges that Shannon pokes him, once, in the chest. Shannon denies this. Koehler uses both his hands to holster his flashlight on a ring in the back of his belt. As he is doing this, Shannon allegedly pokes Koehler a second time, which Shannon denies, and Koehler performs a takedown, which causes Shannon to hit a bar stool and land on the hardwood floor. Once Shannon is on the ground, Koehler places a handcuff on one of Shannon’s arms and, after using additional force, secures a second arm in the other handcuff. Koehler claims that the additional force was necessary because Shannon had tucked his arm under his body. Shannon denies being uncooperative and alleges that he was injured during his arrest. Shannon has filed a lawsuit with this court, as a result of these events. In Count 1 of Shannon’s lawsuit, he alleges that Koehler used excessive force in arresting him, in violation of the Fourth Amendment of the United States Constitution — Shannon brings a cause of action for this alleged violation under 42 U.S.C. § 1983. Shannon claims that Defendants City of Sioux City (“City”) and Sioux City’s Chief of Police at the time, Joseph Frisbie, are liable under § 1983 because they allegedly established, authorized, or tolerated policies and practices that were intended to and did encourage, endorse, and permit their agents and employees to violate Shannon’s, and other similarly situated individuals’, constitutional rights. In Count 2, Shannon alleges that all defendants, directly or through respondeat superior liability, committed assault and battery. This case is now before the court on the defendants’ motion for summary judgment. I. INTRODUCTION A. Factual Background The court will not attempt, here, an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, the court will set forth sufficient facts, both undisputed and disputed, to put the parties’ arguments in context concerning the defendants’ motion for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for purposes of summary judgment. Additional factual allegations and the extent to which they are or are not disputed or material will be discussed, if necessary, in the court’s legal analysis. 1. The events giving rise to this lawsuit This case arises from an incident that occurred on September 13, 2006, at Tom Foolery’s Pub and Grill (“Tom Foolery’s”) in Sioux City, Iowa. On September 12th, and the early morning of September 13th, Plaintiff Timothy Shannon had had several alcoholic drinks and believed himself to be intoxicated to the point where he could and should not drive a vehicle. At approximately 1:16 a.m., on the morning of September 13th, Christina Navrkal and Jill Murad visited Shannon at Tom Foolery’s. Murad had called Navrkal to transport her to Tom Foolery’s because Stacy, Murad’s sister, had informed Murad that Shannon had had too much to drink and needed help getting home — Murad needed Navrkal to drive her because Murad did not have a license. Navrkal, however, also knew Shannon because she had worked with him at the now defunct Steak Block restaurant in Sergeant Bluff, Iowa. When Murad and Navrkal arrived at Tom Foolery’s, they were intoxicated. The defendants claim that, once Navrkal and Murad arrived at Tom Foolery’s, the two women entered into an altercation with Shannon. In fact, the defendants claim that Shannon punched the left side of Navrkal’s face with a close fisted right punch. Navrkal grabbed the side of her face with her hand. Murad then shoved Shannon with both hands causing him to fall backward and onto the floor. After Murad shoved Shannon, she turned around, grabbed her beer, and walked to the front of the bar, near the door, with Navrkal. Navrkal continued to hold her face. Shannon remained on the floor, behind the bar, until a male bartender picked up the liquor bottles that Shannon knocked over in his fall and assisted Shannon to his feet. Murad continued yelling at both the male bartender and Shannon while Navrkal continued to walk around with her hand to her face. The male bartender left the bar at approximately 1:30 a.m. At approximately 1:40 a.m., Murad called 911 because she became concerned for Shannon’s well-being based on the head injury he received from the fall. Mu-rad advised the dispatcher that Shannon’s head was bleeding. This first 911 call ended, and Murad called 911 a second time and stated there had been an argument and to please send an ambulance. At approximately 1:46 a.m., Sioux City Police officers were dispatched to Tom Foolery’s. Two dispatches went out. The first was for a medical call requesting an ambulance. The second advised officers of a disturbance at the bar between two females and that there was an injured person there. Koehler volunteered to respond to the scene because he was only about a block away. Koehler was the first officer to arrive at Tom Foolery’s. Koehler was met at the door by Murad, who let him into the bar. According to the defendants, as Koehler was entering the bar, Murad stated that one of the females in the bar had been “touched or grabbed by the male who was in the bar.” However, Shannon alleges that he did not hear anyone make such a statement and claims that Murad has testified in her deposition that she does not know if she made such a statement to Koehler. Koehler walked to the middle of the bar with Murad and stopped. Murad pointed at Shannon. It is undisputed that Shannon walked out from behind the bar and toward Koehler. However, the defendants claim that, as Shannon approached Koehler, Shannon swore at him, kicked an overturned bar stool, demanded that Koehler leave the premises, and then aggressively approached Koehler with his right arm extended and with two fingers pointed at Koehler. The parties agree that, while approaching Koehler, Shannon stated something like, “I’m Tim Shannon, I own this bar, get out;” asked Koehler for a warrant; “strongly” told Koehler to leave; and probably used profanity. Shannon further admits that he probably came up to Koehler and told him to “get out ... I don’t need you ... I don’t want you in here ... I don’t need you, get out.” The parties agree that Shannon stopped his approach toward Koehler when he was approximately an arm’s length away. Although Shannon admits that he approached Koehler, Shannon claims that Koehler had asked him to approach. Shannon also claims that his approach toward Koehler was not aggressive and did not involve him kicking a bar stool. Instead, Shannon claims that he walked toward Koehler with his hands out so that Koehler could see them and that he had a finger pointed at Koehler. While Shannon and Koehler were at arm’s length, Murad and Navrkal were to Koehler’s right and Shannon’s left. The defendants claim that Shannon then poked Koehler in the chest with his two fingers, while Shannon denies that he touched Koehler. It is undisputed that shortly after Shannon neared Koehler, Koehler turned off his flashlight and placed both hands behind his back in order to holster his flashlight in the ring holder located in the middle of the backside of his belt. The defendants allege that Shannon then poked Koehler in the chest a second time, and it is undisputed that Koehler took Shannon down by pushing his upper body and sweeping his legs — the parties dispute whether Koehler performed a proper leg sweep. The defendants claim that Koehler learned the leg sweep technique at the police academy. However, Shannon claims that the leg sweep technique actually used by Koehler was not included in the Defensive Tactics Instructor School description (Defendants’ App. 118) and is not taught in police academies as an effective control and compliance measure. Because of Koehler’s actions in taking down Shannon, he fell backward onto a bar stool. Shannon claims that Koehler was aware that the bar stool was there. The defendants claim that Shannon had knocked over the stool and that Koehler did not know that it was there. After Shannon was on the ground, Koehler attempted to handcuff him. Koehler told Shannon to put his arms behind his back. Koehler grabbed Shannon by the arm, rolled him and was able to get his left arm behind his back. Koehler was able to get one handcuff on Shannon’s left arm. The defendants claim that Shannon tucked his right arm underneath his body and would not put it behind his back despite being ordered by Koehler to do so. The defendants also claim that, while Shannon was being handcuffed, he was belligerent. However, Shannon denies that he tucked his right arm underneath his body, denies not putting it behind his back, and denies that he was belligerent. Shannon claims that he received the following injuries on September 13, 2006: atelectasis in the base of the left lung (collapsed lung), multiple fractured ribs, a contusion to the head, a five centimeter laceration to the head, bruising on the left leg, left shoulder, left arm, and pelvis/hip, and a laceration to the right shoulder. The defendants claim, however, that the medical records from that night show that Shannon was only treated for a head laceration, which required stitches. Murad was interviewed by an officer at the scene — -this interview was audio taped. However, Murad refused to complete a voluntary written statement at Tom Foolery’s. She subsequently completed a written statement and was deposed, despite complications in serving her with a subpoena. Murad claimed that her memory of September 13, 2006, at the time of her deposition on May 18, 2009, was foggy. Navrkal was interviewed by a Sioux City Police Officer on an audio device and completed a written voluntary witness statement at the scene. Navrkal’s deposition has been scheduled four different times, and despite the defendants’ alleged best efforts, they have been unable to serve Navrkal with a notice of subpoena and ask the court to consider her an unavailable witness under the federal rules of evidence. 2. Koehler’s training Koehler was trained to use no more force than is reasonable and necessary under the circumstances. One of the techniques Koehler was taught to employ to that end, was a wrist flex, when finger-jabbed by a suspect. Shannon claims that Koehler disregarded his training by failing to perform a wrist flex procedure. In addition, Shannon alleges that Koehler violated his training by using both hands to put his flashlight away behind his back — -if he was reacting to what he believed to be an imminent threat of physical assault. Shannon also argues that using the leg sweep coupled with a push to the throat area was highly dangerous and excessive, even if Shannon had poked Koehler. The defendants claim that Koehler properly put his flashlight away, as officers are discouraged from using their flashlights as weapons, and that Koehler did not push Shannon’s throat. Shannon has an alleged expert, Joseph Stine, who opines that Koehler’s use of force was unreasonable, excessive, dangerous, and reckless. 3. The City and Chief Frisbie’s involvement From 2001 to 2008 there have been 42 complaints about the amount of force used by members of the Sioux City Police Department (“SCPD”). According to Shannon, the City and Chief Frisbie, by failing to properly investigate excessive force complaints, discourage the community from filing complaints. In addition, Shannon argues that the investigations are designed and intended to cover up and justify abuses of police authority and excessive/unreasonable force. Shannon also claims that Koehler was emboldened to use excessive force on Shannon because of the lack of fair and thorough investigations into excessive force complaints — Koehler knew that the City and Chief Frisbie would support him in his use of excessive force on Shannon. The defendants claim that there is no evidence that wrongdoing was covered up and that the investigations do meet numerous Commissions on the Accreditation for Law Enforcement Agencies (“CALEA”) standards. The defendants deny that Koehler used excessive force and deny that inadequate investigations into excessive force complaints caused Koehler to use excessive force. Koehler has been investigated six times for alleged code of conduct violations, and Shannon claims that two of the investigations were for excessive force complaints. It is undisputed that, from 2001 to 2008, the SCPD averaged 4.17 excessive force complaints per year per 100 full time officers. Shannon claims that this figure is consistent with the national average and indicates that the complaint process, at the intake point, is adequate. However, Shannon claims that the 2006 Department of Justice Report lists a probability that a complaint will be sustained at nine percent and that the zero percent of sustained complaints with the SCPD is statistically unlikely. Shannon relies on a second alleged expert, Dr. Zhongming Huang, for these opinions. It is undisputed that no professional standards division investigation occurred for Shannon’s complaint of excessive force — on October 31, 2006, Shannon, through counsel, sent a letter to the City, City Attorney Jim Abshier, and Chief Frisbie indicating that he believed Koehler used excessive force and that he intended to file suit against Koehler and the City. It is undisputed that Shannon did not receive a response to his letter. However, the defendants claim that the lack of a response and the lack of an investigation into Shannon’s claim was due to his assertion that he was going to sue Koehler and the City — when the department receives an intent to sue letter, the correspondence is forwarded to the City Legal Department for further handling because it indicates that an administrative investigation is no longer warranted and the matter has proceeded to litigation. B. Procedural Background On August 1, 2008, plaintiff Timothy Shannon filed a complaint with this court concerning the incident that took place on September 13, 2006, naming Officer Michael Koehler, the City of Sioux City, the Sioux City Police Department, and Police Chief Joseph Frisbie as defendants. Docket no. 2. In Count 1, Shannon alleges that Koehler used excessive force in arresting him, in violation of the Fourth Amendment of the United States Constitution — Shannon brings a cause of action for this violation under 42 U.S.C. § 1983. Shannon claims that Defendants City, SCPD, and Chief Frisbie, are liable under § 1983 because they allegedly established, authorized, or tolerated policies and practices that were intended to and did encourage, endorse, and permit their agents and employees to violate Shannon’s, and other similarly situated individuals’, constitutional rights. In Count 2, Shannon alleges that all defendants, directly or through respondeat superior liability, committed assault and battery. Id. On September 10, 2008, defendant SCPD filed its Rule 12(b)(6) Motion to Dismiss SCPD (docket no. 5), which this court granted on October 14, 2008. See docket no. 9. On March 30, 2009, Chief United States Magistrate Judge Paul A. Zoss granted the defendants’ motion to bifurcate the claims against the City and Chief Frisbie from the constitutional and state tort claims against Koehler. See docket no. 23. The court ordered that a separate trial would be held as to the claims against the City and Chief Frisbie after trial of the individual claims against Koehler. According to Judge Zoss, bifurcation would avoid any prejudice to the City and Chief Frisbie that might result from trying all of the claims together. Id. (citing Fed.R.Civ.P. 42(b) (“For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”)). This court finds this ruling clearly erroneous, as is discussed below. On August 25, 2009, Shannon filed his First Motion in Limine to Bar Reference to Certain Facts not Known at the Time of Plaintiffs Arrest (docket no. 30), which is now fully briefed. The court has not yet ruled on this motion. On August 31, 2009, the defendants filed their Motion for Summary Judgment and Request for Oral Argument and accompanying filings (docket no. 31). The defendants allege that Koehler is entitled to qualified immunity on all counts, including the state assault and battery charges. In addition, the defendants claim that, even if Koehler’s actions were unconstitutional, Shannon cannot meet his burden to demonstrate that the City or Chief Frisbie tolerated an unconstitutional policy, practice, or custom of failing to train and supervise officers. On October 8, 2009, Shannon filed his timely Resistance to Defendants’ Motion for Summary Judgment and filings in support (docket no. 40), resisting the defendants’ motion on all alleged grounds. On October 19, 2009, the defendants filed their timely Reply Brief in Support of Defendants’ Motion for Summary Judgment (docket no. 46-2) and associated filings (see docket nos. 47 and 49). On November 19, 2009, this court heard oral arguments on the defendants’ motion. Jason Gann of Berenstein, Moore, Berenstein, Heffernan & Moeller, L.L.P., argued on Shannon’s behalf. Jeff Wright of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl argued on behalf of the defendants. The arguments were spirited and both counsel were exceptionally well prepared and responsive to the court’s numerous questions. II. LEGAL ANALYSIS A. Standards for Summary Judgment Motions for summary judgment essentially “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1982, 167 L.Ed.2d 929 (2007); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.... ”). Any party may move for summary judgment regarding “all or any part” of the claims asserted in a case. Fed R. Crv. P. 56(a), (b) (allowing a claimant to move for summary judgment “at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party,” and allowing a defending party to move for summary judgment “at any time”). Summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Id. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”). A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, “the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving party’ on the question,” Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on “whether a reasonable jury could return a verdict for the non-moving party based on the evidence”). Evidence presented by the nonmoving party that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, such as a “scintilla of evidence,” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997), or evidence that is “merely colorable” or “not significantly probative,” Anderson at 249-50, 106 S.Ct. 2505, does not make an issue of material fact genuine. Thus, a genuine issue of material fact is not the “mere existence of some alleged factual dispute between the parties.” State Auto. Ins. Co. v. Lawrence, 358 F.3d 982, 985 (8th Cir.2004). “‘Instead, “the dispute must be outcome determinative under prevailing law.” ’ ” Mosley v. City of Northwoods, 415 F.3d 908, 910-11 (8th Cir.2005) (quoting Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992), in turn quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir.1989)). In other words, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Anderson, 477 U.S. at 248A19, 106 S.Ct. 2505. Essentially, a genuine issue of material fact determination, and thus the availability of summary judgment, is a determination of “whether a proper jury question [is] presented.” Id. at 249, 106 S.Ct. 2505. A proper jury question is present if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. Procedurally, the moving party does not have to “support its motion with affidavits or other similar materials negating the opponent’s claim,” Celotex, 477 U.S. at 323, 106 S.Ct. 2548, but the moving party does bear “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). Thus, a movant need only demonstrate the absence of a genuine issue of material fact and that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (“[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.CivP. 56(e); Mosley, 415 F.3d at 910 (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))). Thus, the movant must show the absence of a genuine issue of material fact as it relates to the substantive law, and the nonmovant must show the alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; In re Temporomandibular Joint, 113 F.3d at 1492. In considering whether a genuine issue of material fact is present the court must view all the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348; Mosley, 415 F.3d at 910. Further, the court must give such party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348. However, “because we view the facts in the light most favorable to the non-moving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir.2004). Rather than “attempting] to determine the truth of the matter ... the court’s function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir.1996). Of course, the facts are not the sole concern of the court; after all, a genuine issue of material fact necessarily depends on the substantive law. See Holloway, 884 F.2d at 366 (“The presence of a genuine issue of fact is predicated on the existence of a legal theory which can be considered viable under the nonmoving party’s version of the facts. The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.”). Thus, the relevant law concerning plaintiffs claims is pivotal. Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (“[T]he inquiry involved in a ruling on a motion for summary judgment ... necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”); see Brandon v. Lotter, 157 F.3d 537, 539 (8th Cir.1998) (“ ‘In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law.’ ” (quoting Hartnagel, 953 F.2d at 396)). Even if no genuine issue of material fact is present, summary judgment is not appropriate unless the governing law supports the moving party’s position. Fed. R.Crv.P. 56(c) (requiring the moving party to show that it “is entitled to judgment as a matter of law”). Moreover, summary judgment is particularly appropriate “where the unresolved issues are primarily legal rather than factual.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir.1996). B. Preliminary Matters 1. Bifurcation of claims On March 30, 2009, Chief United States Magistrate Judge Paul A. Zoss granted the defendants’ motion to bifurcate the claims against the City and Chief Frisbie from the constitutional and state tort claims against Koehler. See docket no. 23. The defendants had moved to bifurcate the claims, and Shannon did not resist bifurcation. According to Judge Zoss, bifurcation would avoid any prejudice to the City and Chief Frisbie that might result from trying all of the claims together. Id. (citing Fed. R. Civ. P. 42(b) (“For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”)). At the beginning of this court’s November 19, 2009, hearing, the court reconsidered — sua sponte — Judge Zoss’s order bifurcating the claims in this case. The defendants’ counsel claimed that he requested bifurcation because he thought it was in the best interest of his multiple clients to have the cases heard separately so that evidence regarding one claim did not influence the outcome of the other claim. Shannon’s counsel did not present any arguments concerning whether the claims should be bifurcated. As Judge Zoss explained, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed.R.Civ.P. 42(b). Courts have recognized that many factors may be relevant to the determination of whether or not to bifurcate proceedings pursuant to Rule 42(b). See O’Dell v. Hercules, Inc., 904 F.2d 1194, 1201-02 (8th Cir.1990) (“In exercising discretion, district courts should consider the preservation of constitutional rights, clarity, judicial economy, the likelihood of inconsistent results and possibilities for confusion.”); accord Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada, No. 4:00-CV-1073, 2006 WL 1026992, *2 (E.D.Mo.2006) (“Multiple factors govern whether bifurcation is appropriate in any given case, including the separability of the issues; simplification of discovery and conservation of resources; prejudice to the parties; and the effect of bifurcation on the potential for settlement.”) (citing F & G Scrolling Mouse, L.L.C. v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C.1999)); Eischeid v. Dover Constr., Inc., 217 F.R.D. 448, 466 (N.D.Iowa 2003) (citing O’Dell, 904 F.2d at 1201-02, as identifying pertinent factors, and noting, further, that Rule 42(b) expressly identifies “expedition” and “economy” as pertinent factors). However, the key issue is whether bifurcation is necessary to avoid prejudice. Athey v. Farmers Ins. Exchange, 234 F.3d 357, 362 (8th Cir. 2000) (because the movant could not show prejudice, the district court did not abuse its discretion by refusing to bifurcate claims); see also Kuiper v. Givaudan, Inc., 602 F.Supp.2d 1036, 1055 (N.D.Iowa 2009) (reciting the above standards). In this case, the defendants claim that their multiple clients may be prejudiced if the court does not hold separate trials. Although this possibility is often present when this court presides over cases with multiple defendants, especially where there are multiple criminal defendants, the defendants in this case have failed to sufficiently show how they would be prejudiced in this case if the claims were not bifurcated. In addition, the court does not find that separate trials would increase efficiency for either party. Rather, separate trials would be a waste of, at the least, judicial resources. As a result, this court finds that Judge Zoss’s finding that the claims should be bifurcated was clearly erroneous and the court reverses Judge Zoss’s Order (docket no. 23) to the extent it bifurcated claims in this lawsuit. See 28 U.S.C. § 636(b)(1)(A) (“[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court.... A judge of the court may reconsider any pretrial matter under this subparagraph ... where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.”) The jury trial for all claims in this case is set for January 11, 2010. 2. Navrkal’s statements in the record a. Arguments of the parties i. The defendants’ initial arguments. The defendants claim that Navrkal is an unavailable witness under Federal Rule of Evidence 804 and ask the court to consider her statements, that might otherwise be hearsay, as part of the factual record for their motion for summary judgment. The defendants claim that they have scheduled Navrkal’s deposition four times: April 13, 2009, May 18, 2009, May 28, 2009; and August 24, 2009. Deena Townley, counsel for the defendants, claims to have contacted Navrkal by phone, on May 19, 2009, but alleges that Navrkal immediately hung up once Townley informed her of the reason for the call. The defendants’ attorneys also claim to have contacted Navrkal’s former attorney, who may or may not currently represent her, to assist with scheduling the deposition, to no avail. The defendants’ attorneys allege that they have further employed several methods of attempting service of the subpoena on Navrkal, but none have been successful. The defendants claim that they have made a good faith and reasonable effort to locate Navrkal and that she is unavailable pursuant to Rule 804. The defendants argue that, as a result, the statements Navrkal made minutes after the events at issue are admissible and should be considered by the court in evaluating the defendants’ motion for summary judgment. ii. Shannon’s arguments in response. Shannon opposes the defendants’ request that the court consider Navrkal unavailable under Federal Rule of Evidence 804(a). In response to the defendants’ claim that they have made a good faith and reasonable effort to serve Navrkal with a deposition subpoena, Shannon claims that the effort did not amount to a good faith effort. Instead, Shannon alleges that the defendants only made two attempts to serve a deposition subpoena on Navrkal. The first attempt was on May 20, 2009, and the second was on July 31, 2009. In addition, Shannon claims that the July 31st attempt was not until the eve of their original summary judgment deadline, and even though the process server found out that Navrkal’s address was incorrect, the timing of the second attempt left no room for an additional attempt. Even if the court finds Navrkal unavailable under Rule 804(a), Shannon claims that the defendants have failed to argue what exception to the hearsay rule is applicable, under Rule 804(b). iii. The defendants’ reply. The defendants claim that the court need not declare Navrkal unavailable in order for her testimony to be admissible, as it would be admissible under the catch-all exception in Rule 807. The defendants argue that Navrkal’s recorded and written statements have substantial indicia of trustworthiness: her statement that Shannon “slammed” the ambulance guy (Koehler) is corroborated by the surveillance video; she was positioned approximately three feet from the parties and looking directly between them; she “clearly was not out to get Shannon” when making these statements as she immediately told the officer she did not want Shannon charged with assault; and her efforts to avoid giving sworn testimony — while remaining friends with Shannon — evidences her desire to avoid contradicting Shannon’s description of what occurred. The defendants also argue that Navrkal’s statements are admissible under Rule 803(2). The defendants claim that Navrkal’s recorded statement was made within fifteen minutes of the events and that the tone of her voice evidences her highly emotional state at the time of the recording. Again, the defendants claim that these statements have indicia of trustworthiness and are admissible regardless of whether the court finds Navrkal unavailable. iv. Oral arguments. The defendants’ counsel alleged, at oral arguments, that they had tried several times to take Navrkal’s deposition. However, counsel claims that the discovery deadline had passed, and counsel had given up his effort to obtain Navrkal’s deposition, for that reason. 3. Analysis Federal Rule of Evidence 804 provides certain hearsay exceptions when a declarant is found to be “unavailable.” See Fed. R.Evid. 804. However, the defendants have failed to explain what exception under Rule 804(b) is potentially applicable to Navrkal’s hearsay statements. As a result, the court finds it unnecessary to consider, at this time, whether Navrkal is an unavailable witness pursuant to Rule 804. In the defendants’ reply, they argue that Navrkal’s recorded and written statements are admissible under Federal Rules of Evidence 807 and 803(2). Rule 807, the “Residual Exception” to the hearsay rule, states: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. Fed.R.Evid. 807. In the defendants’ reply, they also ask the court to consider Navrkal’s recorded and written statements under the “Excited Utterance” exception to the hearsay rule, which provides hearsay statements, “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” are admissible even if the declarant is available as a witness. Fed.R.Evid. 803(2). The court declines to rule on the admissibility of Navrkal’s statements at this time. First, the defendants did not raise these additional grounds for considering Navrkal’s statements until their reply brief. Second, consideration of Navrkal’s statements would not impact this court’s ruling on the defendants’ motion for summary judgment — the defendants are asking the court to believe Navrkal’s statements that allegedly accuse Shannon of making physical contact with Koehler, when Shannon claims that he did not make physical contact with Koehler. This would be an impermissible credibility determination. See Kammueller, 383 F.3d at 784 (“because we view the facts in the light most favorable to the non-moving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.”) Lastly, as the court mentioned during oral arguments, it will extend the discovery deadline in order for the defendants to take Navrkal’s deposition, if requested. C. Qualiñed Immunity for Alleged use of Excessive Force The defendants claim that Koehler is entitled to qualified immunity for his alleged use of excessive force on September 13, 2006. The United States Supreme Court has explained the reasoning behind the concept of qualified immunity: “Qualified immunity balances two important interests- — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In fact, “[t]he protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’ ” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (KENNEDY, J., dissenting) in turn citing Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)). The Eighth Circuit Court of Appeals has recently repeated the two part test applicable to determining whether an official is entitled to qualified immunity: “To determine whether the defendants are entitled to qualified immunity, we ask (1) whether the facts alleged or shown, construed in the light most favorable to [the nonmoving party], establish a violation of a constitutional ... right, and (2) whether that constitutional right was clearly established as of [the date of the alleged incident], such that a reasonable official would have known that his actions were unlawful.” Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir.2009) (citing Pearson, 129 S.Ct. at 815-16); Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson, 129 S.Ct. at 818; Pearson, 129 S.Ct. at 815 (“The doctrine of qualified immunity protects government officials ‘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.’ ”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The official is entitled to qualified immunity unless the court affirmatively answers both of these inquiries. See id. 1. A violation of a constitutional right a. Arguments of the parties i. The defendants’ initial arguments. The defendants claim that Koehler’s actions in arresting Shannon were objectively reasonable under the circumstances. First, the defendants allege that Shannon’s background provided a threat to Koehler. Shannon is allegedly a highly trained, well respected, and decorated former police officer and soldier, who had attended no less than four police academies. The defendants cite Shannon’s own statements concerning how he is “extremely well trained” and “extremely well educated,” docket no. 31-2 (citing Defendants’ App. at p. 59), and is “as trained and probably better trained” than Koehler, id. (citing Defendants’ App. at 60), in support of their argument that Shannon was a threat to Koehler. The defendants allege that Koehler was aware of Shannon’s prior service in law enforcement and his training in defensive tactics. The defendants also argue that other circumstances that night posed a threat to Koehler and the two females present. The defendants claim that Shannon concedes that the police were dispatched to Tom Foolery’s for a “disturbance.” Docket no. 31-7 (citing Defendants’ App. at 4, ¶ 13). In addition, the defendants claim that the fact that there were two 911 calls, the time of the calls, the location of the disturbance, and the dimly lit bar indicates that the police were walking into a potentially volatile situation. The situation also included two females, one of which had been assaulted by Shannon earlier in the night. Once Koehler entered the bar, Shannon’s behavior also showed that Koehler’s and the two females’ safety was threatened by Shannon, according to the defendants. Shannon was allegedly arguing with the two females, could have had concealed weapons, approached Koehler in an aggressive manner, and came close enough to Koehler to assault him twice. The defendants argue that Shannon had ignored Koehler’s verbal control measures to attempt to diffuse the incredibly tense and uncertain situation. The defendants claim that these circumstances show that the situation was quickly evolving and had the potential to turn violent. Although the defendants claim that Shannon assaulted Koehler, twice, the defendants argue that, even if the court finds that Shannon did not touch Koehler, Koehler acted objectively reasonable in his use of force to arrest Shannon. The defendants claim that, absent an assault, Koehler was still faced with an immediate threat based on Koehler’s observations that: there was a disturbance in a bar near closing time; “a female in the bar had been touched or grabbed by Shannon;” docket no. 31-7 (citing Defendants’ App. 90, ¶ 4; Defendants’ App. 68, ¶ 3, Defendants’ App. 299); Shannon was in an argument with the two women at the bar; Shannon was belligerent and uncooperative with Koehler’s efforts to provide him with assistance; and Shannon opposed Koehler’s lawful authority. In other words, the defendants claim that Koehler found himself confronted with a belligerent drunk who had potentially harmed another person and required forcible detention. ii. Shannon’s arguments in response. Shannon claims that the defendants’ account of Koehler’s arrest of Shannon fails to view the facts in the light most favorable to Shannon and fails to properly consider only the facts that Koehler knew at the time of the arrest. Shannon argues that Koehler had responded to assist paramedics who had been called to care for “an injured party” and that there had been “a disturbance between two females.” Docket no. 40 (citing Defendants’ App. at 68). Once Koehler entered the bar and approached Shannon, Murad, and Navrkal, Shannon claims that the surveillance tape and other evidence shows that Koehler did not believe Shannon posed a threat to anyone. Shannon alleges the following: After Koehler entered the bar, he walked to the middle of the room without assuming a defensive posture. There was no sign that Koehler believed Shannon had a weapon, and Koehler still does not allege that he ordered Shannon to place his hands where he could see them. Koehler does not ask Murad or Navrkal to move away from him, or from Shannon, at the bar. Instead, Koehler asked Shannon to come out from behind the bar. While Shannon was approaching Koehler, Koehler did nothing to demonstrate that he believed Shannon was a threat — he maintained an upright position; did not move to a defensive posture; did not direct Shannon to back away; did not tell Shannon to put his hands in front of him or behind his head; did not direct Shannon to the ground; did not direct Shannon to submit to an arrest; and did not attempt to reposition Murad and Navrkal. Shannon told Koehler that his assistance was not needed, that he could leave, and asked for a warrant. At this point, Koehler did not use verbal judo or language to reassure Shannon that he was there to make sure that everyone was okay but instead contested the need for a warrant. As Shannon approached Koehler, Koehler continued to maintain his upright position, but he turned off his flashlight and, after allegedly being poked by Shannon, used both of his hands to place his flashlight in its holster, which Shannon claims is also inconsistent with Koehler’s claim that he was under assault and vulnerable to being punched at this point. From this defenseless position, Koehler suddenly, swiftly, and aggressively brought his hands back in front of him and grabbed Shannon by the throat and slammed him to the ground- — Shannon alleges that this move was not a leg sweep. This happened so quickly that there was no time for Shannon to have poked Koehler in the chest a second time, as Koehler alleges. Shannon claims that this account of what occurred should be considered by this court as these are the facts in the light most favorable to him. According to Shannon, a jury could conclude that these facts demonstrate that Koehler made the decision to throw Shannon to the floor the moment he came within reach of Koehler, without regard to the alleged pokes in the chest. Shannon also alleges that excessive force was used in securing his arrest, once he had been taken to the ground. Shannon claims that Koehler justifies the force he used once Shannon was on the ground based on Shannon’s refusal to comply with the handcuffing. However, Shannon claims that any noncompliance resulted from being thrown onto a bar stool, which left him completely incapacitated and dazed. Once Shannon was on the floor, he claims that Koehler proceeded to violently twist, turn, drag, knee, and shove Shannon’s limp body, including several head-bangs against the floor and one against the metal-covered edge of the step of a booth. In doing this, Shannon was allegedly turned 270 degrees from his original position and left with abrasions, cuts to his head, a broken rib, and a collapsed lung. Shannon claims that Koehler’s explanation of the arrest provided to another officer directly after the arrest shows that Koehler believed he had to exaggerate Shannon’s alleged assault in order to justify his use of force. Shannon also claims that Koehler’s statement that Shannon “lost” was equally telling. Shannon claims that he did not poke Koehler and that his force was excessive considering the situation was not “tense, uncertain, and rapidly evolving,” as Koehler claims, and that there was no need to make the alleged “split-second judgments.” Id. Shannon also claims that Koehler was not investigating a severe crime when he was called to Tom Foolery’s. Instead, Koehler was responding to a call to provide medical assistance and to a disturbance. According to Shannon, Koehler was certainly not investigating the crime of assaulting a police officer. However, Shannon alleges that the force was excessive, even if he had poked Koehler — a poke did not warrant a chest thrust or leg sweep resulting in an uncontrolled fall onto a hardwood floor. Koehler performed a violent leg sweep and chest thrust, causing Shannon to land on an overturned bar stool. After Shannon was on the ground, Koehler smashed Shannon’s head repeatedly onto a step and the hardwood floor, and Koehler drove his knee into Shannon’s back, while jostling Shannon and turning him almost 270 degrees. Shannon also alleges that he was not actively resisting arrest and did not pose a threat to Koehler or anyone else on the scene. Lastly, Shannon claims that Koehler’s actions were contrary to the training he received, as Koehler was allegedly trained to grab the finger of the suspect’s weak hand, bend the finger back in the opposite direction, and step back or to the side. iii. The defendants’ reply. The defendants claim that, even though Shannon has stated that he has no memory of the events of the night in question' — other than from watching a surveillance tape without sound — he suggests that he was a perfect gentleman. The defendants allege that Shannon’s characterization of the events contradict his own testimony that he was drunk, belligerent, and using profanity. The defendants also claim the surveillance video shows that Shannon was highly aggressive and had a belligerent attitude. The defendants argue that the question of whether Shannon assaulted Koehler is a fact question, but regardless of whether an assault took place, Shannon’s behavior, training in defensive tactics, and his level of intoxication cause Koehler’s actions to be reasonable under the standards articulated by excessive force jurisprudence. Docket no. 46-2 (citing Wertish v. Krueger, 433 F.3d 1062, 1066-67 (8th Cir.2006)); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004); Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1105 (8th Cir.2004). Concerning Shannon’s claim that excessive force was also used after Shannon was on the floor, the defendants argue that Shannon aggressively avoided being handcuffed by tucking his right arm beneath his body and that Koehler had to use necessary efforts to gain control of Shannon’s right arm. These efforts included lifting Shannon off the ground to pull out his arm. The defendants claim that Shannon was convicted of interference with official acts precisely because of these actions. According to the defendants, Koehler entered a dark bar at 1:45 a.m. knowing there were physical injuries and that Shannon had touched or grabbed one of the females, and then was, at a minimum, verbally assaulted by a known former law enforcement officer with defensive tactics training, who was highly intoxicated. The defendants argue that Koehler made a split-second judgment that was reasonable from the perspective of an officer at the scene. iv. Oral arguments. While conceding that whether Shannon poked Koehler is a fact question, the defendants’ counsel contested whether the question was material. According to counsel, Koehler’s use of force in arresting Shannon was reasonable regardless of whether Shannon made contact with Koehler, because Koehler was in a dark bar at 1:45 a.m., responding to a report of an injured party, informed that there was a disturbance, told at the door of the bar that a male had touched or grabbed one of the females, unaware of how many people were in the bar at that time, and confronted by an obviously intoxicated and infuriated Shannon. In addition, counsel claimed that Koehler knew that Shannon was a trained former officer. Counsel also alleged that Koehler told Shannon that he was in the bar to help, even though this claim was not previously argued. Counsel was unable to identify where the record supported his claim that Koehler stated he was in the bar to help Shannon. The defendants’ counsel also argued that Shannon was resisting arrest after he was taken to the ground and Koehler needed to use additional force to secure his arrest. Counsel claimed that Koehler stopped using force once he was able to secure the handcuffs. Shannon’s counsel asked the court to look at the facts in the light most favorable to Shannon. In doing so, counsel claims that Koehler used force on Shannon, at least in part, due to his profanity and argues that was insufficient grounds to use the force that he did. According to counsel, Koehler was not investigating a severe crime, Shannon was not a threat to Koehler’s safety, or that of Navrkal and Murad, and Shannon never attempted to flee or resist arrest. Counsel also emphasized that Shannon has provided evidence of more than de minimus injury resulting from Koehler’s alleged use of excessive force. According to counsel, Koehler had many options that he could have pursued rather than a take down, such as displacing. Once Shannon was on the ground, counsel claims that Koehler used excessive force in securing his arrest. Although Shannon has been found guilty of interference with official acts, counsel argues that the elements of interference with official acts under Iowa law are slightly different from the elements of excessive force and that he should be able to present this argument to the jury. b. Analysis The court’s initial inquiry in deciding whether Koehler is entitled to qualified immunity is to determine whether there was even a constitutional violation. Krout, 583 F.3d at 563-64 (Explaining the initial inquiry in a qualified immunity analysis as “whether the facts alleged or shown, construed in the light most favorable to [the nonmoving party], establish a violation of a constitutional or statutory right....”). “In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (U.S.,1989) (citations omitted). If “the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person.” Id. at 394,1871,109 S.Ct. 1865. Such claims should be “analyzed under the Fourth Amendment and its ‘reasonableness’ standard.... ” Id. at 395, 109 S.Ct. at 1871; see also Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.2009). “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Brown, 574 F.3d at 496 (quoting Henderson v. Munn, 439 F.3d 497, 502 (8th Cir.2006) in turn quoting Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir.2004) and Greiner v. City ofChamplin, 27 F.3d 1346, 1354 (8th Cir.1994)). It is well settled that this reasonableness standard “is viewed from the vantage point of the police officer at the time of arrest or seizure.” Gill v. Maciejewski, 546 F.3d 557, 562 (8th Cir.2008) (citing Wertish, 433 F.3d at 1066); see also Billingsley v. City of Omaha, 277 F.3d 990, 993 (8th Cir.2002) (“The aforementioned reasonableness of force is judged from the perspective of the officer on the scene, taking into consideration the facts known to him, as opposed to one possessing the illuminating power of hindsight.”) (citing Nelson v. County of Wright, 162 F.3d 986, 989 (8th Cir.1998)); Nelson, 162 F.3d at 990 (“The issue of reasonableness must be examined from the perspective of the facts known to the officer at the time of the incident.”) (citing Schulz v. Long, 44 F.3d 643, 648 (8th Cir.1995)). “This calculus allows ‘for the fact that police officers are often forced to make split-second decisions — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.’ ” Brown, 574 F.3d at 496 (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). “ ‘Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’ ” Howard v. Kansas City Police Dept., 570 F.3d 984, 989 (8th Cir.2009) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “Circumstances relevant to the reasonableness of the officer’s conduct include ‘the severity of the cr