Villebrun v. Nienaber

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anthony Randal-Ashley Villebrun,
Plaintiff,
v.
Brandon Keith Nienaber,
Defendant.
No. 24-cv-504 (KMM/LIB)
ORDER
This case arises from a traffic stop during which Defendant Brandon Keith Nienaber
(Officer Nienaber) tased Plaintiff Anthony Randal-Ashley Villebrun twice. Mr. Villebrun
brought this one-count action against Officer Nienaber under 42 U.S.C. § 1983, alleging
that his use of a taser constituted excessive force in violation of Mr. Villebrun’s Fourth
Amendment rights.
Before the Court is Officer Nienaber’s Motion for Summary Judgment (Dkt. 23), in
which he argues that he was not acting “under color of state law” when he pursued and
tased Mr. Villebrun. Alternatively, Officer Nienaber argues that he is entitled to qualified
immunity because he did not violate Mr. Villebrun’s clearly established constitutional
rights. For the reasons discussed below, the motion is denied.
BACKGROUND
On the evening of October 23, 2021, Officer Nienaber, a uniformed White Earth
tribal police officer, was patrolling the White Earth Reservation in a marked squad car that
indicated he was an employee of the White Earth Tribal Police Department. (Dkt. 29-2
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(“Nienaber Dep.”) at 17:14–171; Dkt. 24-5 at 3–4.) As a White Earth tribal officer, Officer
Nienaber was required to be licensed by the Minnesota POST Board, a state agency that
manages licensing for state officers. (Nienaber Dep. at 80:12–81:15.) He was also
“authorized, pursuant and subject to Minnesota [state law] to enforce the criminal laws of
the 	State 	of 	Minnesota” 	in 	certain 	circumstances. 	(Dkt. 	25-6 	(“Cooperative 	Law
Enforcement Agreement Between the White Earth Reservation of Chippewa Indians and
Becker County, Minnesota”).)
While patrolling, Officer Nienaber saw a car “come out of [a] parking lot rather
quickly, cross over the highway, and then continue down the road at a[n] accelerated rate.”
(Nienaber Dep. at 18:25–19:6.) He followed the car on suspicion of speeding and
eventually activated his emergency lights to initiate a traffic stop, but the driver sped away.
(Id. at 21:6–24:21.) According to Officer Nienaber, his basis for pursuing the car at that
point “turned into a . . . fleeing in a motor vehicle charge.” (Id. at 25:19–27:1.) At some
point, he saw the driver throw a “brown bag” out of the window. (Id. at 32:4–11.) The bag
“hit the ground and [its] contents,” which were “white in color, round items that rolled
away,” fell out. (Id.) Officer Nienaber suspected that the bag’s contents were narcotics. (Id.
at 33:17–25.)
Officer Nienaber continued to pursue the car on a high-speed chase until it drove
off the road into a wooded area on the tribal reservation. (Id. at 38:22–39:25; Dkt. 25-2
1 Generally, the Court cites to the pagination generated by the CM/ECF filing
system. With respect to deposition testimony, the Court cites to the deposition transcript’s
internal pagination and line numbers.
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(“Squad-Car Video”) at 8:31–8:35.) At the time, Officer Nienaber, who was the only
officer on the scene, “did not know if there was anybody else there” with the driver or “if
there w[ere] weapons in the car.” (Nienaber Dep. at 39:11–17, 92:19–21.) Officer Nienaber
testified that, in his experience, weapons tend to go “hand in hand” with “people who are
involved [with] illegal narcotics.” (Id. at 33:19–25.) The driver, later identified as
Mr. Villebrun, exited the car and began to run into the woods but “tripped and [fell].” (Id.
at 40:3–6.) As Mr. Villebrun “was attempting to get back up,” with his hands “down by his
waist,” Officer Nienaber got out of his squad car and ran towards Mr. Villebrun while
instructing him to stop moving. (Id. at 40:3–6, 41:3–13; Squad-Car Video at 8:36–8:47.)
Instead, Mr. Villebrun stood up and took a few steps away from Officer Nienaber. Officer
Nienaber repeated for him to “stop” and pointed his taser at Mr. Villebrun. (Squad-Car
Video at 8:47–8:50.) Mr. Villebrun eventually stopped walking and kneeled. (Id.)
While Mr. Villebrun knelt with his hands by his sides, Officer Nienaber told him,
“Don’t f--king move,” and to “get down on [his] belly.” (Id. at 8:50–8:52.) While repeating
those instructions, Officer Nienaber pushed Mr. Villebrun, who remained kneeling,
forward, but Mr. Villebrun placed his hands in front of himself on the ground so that he
did not fully fall forward. (Id. at 8:53–8:56.) As Officer Nienaber repeated, “Get on your
belly,” Mr. Villebrun pushed himself back up to his knees, placed his hands behind his
head, and remained still while facing away from Officer Nienaber. (Id. at 8:57–8:59.)
Officer Nienaber continued to tell Mr. Villebrun to “get down on [his] belly” with
the taser aimed at Mr. Villebrun’s back, but Mr. Villebrun stayed kneeling with his hands
behind his head. (Id. at 8:58–9:00.) As Mr. Villebrun remained in the same position without
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moving, despite Officer Nienaber’s commands to “get down on [his] belly now,” Officer
Nienaber tased him from behind without warning and said, “Taser deployed.” (Id. at 9:00–
9:04.) Officer Nienaber testified that pat searching or handcuffing Mr. Villebrun would
have “reduce[d] any potential threat of a weapon being used on him” but did not “because
[he] did not feel it was safe to do so[.]” (Nienaber Dep. at 46:1–13.) However, Officer
Nienaber also noted that Mr. Villebrun did not display “any sort of hostility or aggression,”
pose a flight risk, or “reach into his jacket[] at any point[.]” (Id. at 46:1–13, 47:2–5, 48:8–
19.) Moreover, Officer Nienaber did not make “[a]ny other observations, at that point, that
led to [his] use of the taser,” and Mr. Villebrun “appear[ed] to be submissive[.]” (Id. at
49:8–13.)
Upon being tased, Mr. Villebrun fell forward and rolled onto his back, at which
point Officer Nienaber grabbed Mr. Villebrun’s arms and rolled him onto his side.
(Squad-Car Video at 9:03–9:09.) As Mr. Villebrun lay still from the impact of the taser,
Officer Nienaber continued trying to get Mr. Villebrun onto his stomach and repeated, “Get
down on your f--cking belly.” (Id. at 9:00–9:09.) While he was on top of Mr. Villebrun,
who was on the ground on his back or on his side, Officer Nienaber deployed the taser a
second time (id. at 9:10–9:13), before eventually handcuffing and arresting Mr. Villebrun
(id. at 9:09–9:35).2 Mr. Villebrun received medical care after the incident, which left taser
probes and eventual scars in his back. (Villebrun Dep. at 21:11–23:1.)
2 Officer Nienaber’s body camera began recording after both times he deployed the
taser.
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In February 2024, Mr. Villebrun brought this action against Officer Nienaber under
42 U.S.C. § 1983, alleging that Officer Nienaber’s use of a taser constituted excessive force
in violation of Mr. Villebrun’s Fourth Amendment rights. 3 (Dkt. 1 ¶¶ 28–29.) The matter
is before the Court on Officer Nienaber’s Motion for Summary Judgment (Dkt. 21).
DISCUSSION
Officer Nienaber seeks summary judgment on Mr. Villebrun’s § 1983 claim on two
grounds. First, Officer Nienaber argues that he acted under color of tribal, not state, law
when he arrested Mr. Villebrun and tased him while doing so. Second, and alternatively,
Officer Nienaber claims that he is entitled to qualified immunity.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Dowden v.
Cornerstone Nat’l Ins. Co., 11 F.4th 866, 872 (8th Cir. 2021). The moving party bears the
burden of demonstrating that the material facts are undisputed. Celotex, 477 U.S. at 322.
A fact is “material” only if its resolution could affect the outcome of the suit under the
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Lankford v. City of Plumerville, 42 F.4th 918, 921 (8th Cir. 2022). And a dispute of fact is
3 Mr. Villebrun also claims that Officer Nienaber’s alleged use of excessive force
violated his Fourteenth Amendment rights. However, “the Fourteenth Amendment does
not apply to excessive force claims involving arrests, which are appropriately reviewed
under a Fourth Amendment analysis.” Jackson v. Stair, 944 F.3d 704, 709 (8th Cir. 2019).
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“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
In determining whether summary judgment is proper, courts must “view[] the facts
most favorably to the nonmoving party and giv[e] that party the benefit of all reasonable
inferences.” Nunn v. Noodles & Co., 674 F.3d 910, 913–14 (8th Cir. 2012) (citing Fed. R.
Civ. P. 56(c)); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–
88 (1986). Moreover, courts must not engage in “[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts,” which are “jury
functions[.]” Nunn, 674 F.3d at 914 (quoting Anderson, 477 U.S. at 255). At the same time,
for purposes of summary judgment, a court should not adopt a version of the facts that is
“blatantly contracted by the record, so that no reasonable jury could believe it[.]” Kampas
v. City of St. Louis, 157 F.4th 937, 941 (8th Cir. 2025) (cleaned up) (quoting Steed v. Mo.
State Highway Patrol, 2 F.4th 767, 770 (8th Cir. 2021)). Courts may consider video
evidence in the record. See Brown v. City of St. Louis, 40 F.4th 895, 899 (8th Cir. 2022).
I. 	“Under Color of State Law”
It is an “essential element[] of a § 1983 claim . . . that the defendant[] acted under
color of state law.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). To
have acted under state law for purposes of § 1983, a defendant “must have exercised power
possessed by virtue of state law and made possible only because the wrongdoer is clothed
with state authority.’” Yassin v. Weyker, 39 F.4th 1086, 1090 (8th Cir. 2022) (cleaned up)
(quoting West v. Atkins, 487 U.S. 42, 49 (1988)). The under-color-of-state-law inquiry,
which asks “whether the conduct is fairly attributable to the State,” entails examining “the
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nature and circumstances of the officer’s conduct and the relationship of that conduct to
the performance of . . . official duties.” Id. (quotations omitted). But it “does not require
that the defendant be an officer of the State.” DuBose v. Kelly, 187 F.3d 999, 1003 (8th
Cir. 1999) (quoting Dennis v. Sparks, 494 U.S. 24, 27 (1980)). It “is enough that he is a
willful participant in joint action with the State or its agents.” Id. (quoting Dennis, 494 U.S.
at 27). The under-color-of-state-law determination can be fact-intensive, but when the facts
are undisputed, it is ultimately a question of law. Yassin, 39 F.4th at 1089–90 (stating that
“as long as the underlying material facts are undisputed, courts can decide the question,
even when those undisputed facts point in different directions”).
Officer Nienaber argues that he was not acting “under color of state law” in part
because 	“each 	of 	[his] 	actions 	was 	authorized 	under 	White 	Earth 	Tribal 	law,
notwithstanding any concurrent state authority.” (Dkt. 23 at 8.) While the Eighth Circuit
has not addressed this exact issue, other courts have concluded that a tribal officer’s
possession of concurrent tribal and state authority to act does not preclude a finding that
the officer was acting under color of state law. See Pistor v. Garcia, 791 F.3d 1104, 1114–
15 (9th Cir. 2015) (noting prior decisions concluding that, under certain circumstances,
tribal officers could be found to be acting under color of state law where “they were
authorized to act under either” state or tribal law) (citing Bressi v. Ford, 575 F.3d 891,
896–97 (9th Cir. 2009)); Evans v. McKay, 869 F.2d 1341, 1347–49 (9th Cir. 1989)); see
also Black v. United States, No. C13–5415 RBL, 2014 WL 3337466, at *3 (W.D. Wash.
July 8, 2014) (quoting Evans, 869 F.2d at 1348) (“Generally speaking, tribal officers ‘who
act in concert with officers of the state are acting under the color of state law within the
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meaning of section 1983.’”). The Court agrees with this body of caselaw and concludes
that Officer Nienaber’s status as a White Earth officer does not automatically preclude the
application of § 1983.
It is undisputed that Officer Nienaber had the authority to enforce the state traffic
code and was exercising that authority when he tased Mr. Villebrun. More specifically, he
was performing his patrol duties as an officer of the White Earth Police Department, a role
that includes the enforcement of both tribal and state law. (See Dkt. 25-6 at 1–2 (providing
that “[t]he White Earth Reservation is authorized, pursuant and subject to Minnesota
Statute Section 626.93 to enforce the criminal laws of the State of Minnesota” when, as
here, certain conditions are satisfied); Nienaber Dep. at 80:12–81:22.) Officer Nienaber
followed a car he suspected of speeding, but it accelerated away in an attempt to flee. At
that point, Officer Nienaber had justification to pursue the vehicle and engaged in a high-
speed chase with the squad car’s siren and emergency lights activated. (See Nienaber Dep.
at 85:16–19; 95:18–24 (stating that once Mr. Villebrun sped away, “it turned into a fleeing
matter”).)
Even when Mr. Villebrun finally stopped and exited his vehicle, he fled on foot a
short distance before kneeling. It is clear that the ongoing reason for the pursuit was that
Mr. Villebrun had fled from a peace officer and was continuing to do so. (See Nienaber
Dep. at 26:15–23 (noting that when Officer Nienaber initially attempted to stop the vehicle,
the “original reason for the stop” was a suspicion of speeding but that “when the driver
sped away, it became a fleeing in a motor vehicle” charge).) And when Officer Nienaber
eventually deployed his taser, he was attempting to get Mr. Villebrun to comply with
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commands to get down on his belly so that he could arrest him for fleeing. There is no
provision in the White Earth Traffic Code criminalizing fleeing a peace officer in a motor
vehicle, but it is an offense under Minnesota law. Minn. Stat. § 609.487, subd. 3. Therefore,
Officer Nienaber could only have been acting under color of state law when pursuing and
ultimately arresting Mr. Villebrun for fleeing. Johnson v. Phillips, 664 F.3d 232, 239–40
(8th Cir. 2011) (quoting West, 487 U.S. at 49).
Officer Nienaber’s own understanding of the role he was fulfilling further supports
this conclusion. In a report he prepared after the incident, Officer Nienaber exclusively
cited violations of state law, including the fleeing charge. (Nienaber Dep. at 75:24–76:13;
Dkt. 25-4 at 1–2.) Even as a tribal officer, Officer Nienaber understood that he was required
to be licensed by a state agency and that he served “as both an officer under tribal law . . .
[and] also an officer under Minnesota law,” with authorized him to enforce state laws.
(Nienaber Dep. 81:16–22.) Together, the undisputed facts show that Officer Nienaber was
“exercis[ing] power possessed by virtue of state law and made possible only because [he
was] clothed with state authority.” Yassin, 39 F.4th at 1090 (quotation and alteration
omitted). In other words, the “nature and circumstances,” id., of his conduct bore a
relationship to state law such that Officer Nienaber acted as “a willful participant in joint
action with the State,” DuBose, 187 F.3d at 1003, when he pursued Mr. Villebrun for
violating a state law and tased him in the course of arresting him. Officer Nienaber’s
authority to perform state law enforcement functions, which is what he was doing at the
time, was derived exclusively from state law. Cf. United States v. Oakie, 12 F.3d 1436,
1440 (8th Cir. 1993) (focusing analysis, in the context of a Bivens claim, on whether a
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tribal officer “was performing federal investigative, inspection, or law enforcement
functions at the [relevant] time” (quotation omitted)); see also United States v. Martin, 163
F.3d 1212, 1215 (8th Cir. 1998) (citing Oakie to support the conclusion that a tribal officer
who performed federal functions was a federal officer). The Court concludes there is no
genuine dispute that Officer Nienaber was acting under color of state law.
In arguing otherwise, Officer Nienaber points out that Mr. Villebrun is a tribal
member who was driving on the White Earth reservation when the pursuit occurred.
(Villebrun Dep. 7:9–12, 20:6–10.) Officer Nienaber also cites the tribal laws under which
Mr. Villebrun could have been criminally charged. While it is true that officers “enforcing
tribal laws or managing tribal affairs” are not acting “under color of state law,” Holtz v.
Oneida Airport Hotel Corp., 826 F. App’x 573, 575 (7th Cir. 2020) (unpublished Order),
the facts emphasized by Officer Nienaber do not establish that he was enforcing tribal laws
during his final pursuit and arrest of Mr. Villebrun. The relevant question in determining
whether Officer Nienaber was acting under color of state law is not whether Mr. Villebrun
could have been charged with violations of tribal law. (Dkt. 23 at 12–13.) Rather, it is
whether Officer Nienaber, in stopping and arresting Mr. Villebrun, had the authority to do
so “by virtue of state law and made possible only because [he] [wa]s clothed with the
authority of state law.” See Johnson, 664 F.3d at 239–40 (quoting West, 487 U.S. at 49).
Stanko v. Oglala Sioux Tribe, which Officer Nienaber relies on, does not require a
different result. 916 F.3d 694 (8th Cir. 2019). In Stanko, the Eighth Circuit concluded that
the tribal officers were not acting under color of state law when they arrested and detained
a non-tribal offender who was driving on a “federally-maintained” highway within a tribal
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reservation. Id. at 696, 698. In doing so, the tribal officers were merely exercising their
“undisputed power” under tribal law “to exclude persons whom they deem to be
undesirable from tribal lands[,] . . . to restrain [non-Indians] who disturb public order on
the reservation, and if necessary to eject them.” Id. at 698 (quoting United States v. Terry,
400 F.3d 575, 579 (8th Cir. 2005)) (alteration in Stanko). Based on the scope of the officers’
tribal authority, and the fact that the plaintiff “did not allege that the [tribal officers] were
acting under color of state law, as § 1983 requires,” id., the Eighth Circuit determined that
the plaintiff’s claim was likely one arising under tribal law and that he should first “exhaust
tribal court remedies,” id. at 700. Here, in contrast, there is no genuine dispute that Officer
Nienaber exercised his state authority when he arrested Mr. Villebrun for fleeing the police
and used his taser.
The Court is likewise unpersuaded by Officer Nienaber’s focus on his tribal police
department uniform and marked squad car. (Dkt. 23 at 14; Dkt. 24-5 at ¶¶ 5–8.) He relies
on Howard v. Weidemann, which is distinguishable. No. 20-cv-1004 (ECT/LIB), 2021 WL
6063630 (D. Minn. Dec. 22, 2021). There, in addition to wearing a tribal police uniform
and driving a marked tribal police car, the tribal officer identified himself as a tribal officer,
issued a citation for a violation of the White Earth Traffic Code, and told the driver that the
citation “was for tribal court.” Id. at *3 (internal quotation omitted); id. at *4. Moreover,
the driver “voiced his disapproval of the White Earth Tribal Police Department throughout
the stop, showing his own awareness of the source of [the tribal officer’s] enforcement
authority.” Id. at *4. Those facts, taken together, were such that a reasonable jury could
only find that the officer was enforcing tribal laws and thus acting under color of tribal law.
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But here, the fact that Officer Nienaber’s squad car and uniform bore the White Earth Trial
Police Department’s logo, without more, does not require the same conclusion. See Yassin,
39 F.4th at 1090–91 (concluding that federal officer was not acting under color of state or
local law despite the fact that she introduced herself as a local police officer, filed an
incident report with a local police department, and used local practices, because these facts
did “not alter the federal character” of her work or “the motivation behind [her] actions,”
which was derived from federal law).
The Court therefore concludes that Officer Nienaber was acting under color of state
law when he tased Mr. Villebrun. Because this means that Mr. Villebrun’s § 1983 claim
can proceed, the Court turns to Officer Nienaber’s argument that he is entitled to qualified
immunity. (Dkt. 23 at 20.)
II. 	Qualified Immunity
“Qualified immunity provides some protection against suits for civil damages
against government officials.” Dundon v. Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023).
“[O]fficers are entitled to qualified immunity under § 1983 unless (1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
clearly established at the time.” District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018)
(quotation omitted); see also Martinez v. Sasse, 37 F.4th 506, 509 (8th Cir. 2022) (citing
Wesby). This determination entails “a two-pronged inquiry” that “first asks whether the
facts, taken in the light most favorable to the [plaintiff], show the officer’s conduct violated
a federal right.” Smith v. Conway County, 759 F.3d 853, 858 (8th Cir. 2014) (cleaned up).
Second is “whether the right in question was clearly established at the time of the
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violation.” Id. (cleaned up); Rudley v. Little Rock Police Dep’t, 935 F.3d 651, 653 (8th Cir.
2019) (same). “Qualified immunity is appropriate only if no reasonable factfinder could
answer yes to both of these questions.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th
Cir. 2009). A district court can address either question first. Pearson v. Callahan, 555 U.S.
223, 236 (2009).
A. 	Violation of a Constitutional Right
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S.
Const. amend. IV. This protection includes “[t]he right to be free from excessive force in
the context of an arrest.” Robinson v. Hawkins, 937 F.3d 1128, 1135 (8th Cir. 2019)
(quoting Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013). In this context, the
officer’s conduct “should be analyzed under an objective reasonableness standard.”
Jackson v. Stair, 944 F.3d 704, 710 (8th Cir. 2019) (citing Graham v. Connor, 490 U.S.
386, 394–96 (1989)). Stated otherwise, “the test is whether the amount of force used was
objectively reasonable under the particular circumstances” from “the perspective of a
reasonable officer on the scene.” Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir.
2012) (quotation omitted). In conducting this inquiry, courts must consider the totality of
the circumstances, including, among other things, “the immediate threat the suspect poses
to the safety of the officer or others[] and whether the suspect is actively resisting or
attempting to evade arrest by flight.” Id. (internal quotations omitted).
The Court analyzes the two deployments of Officer Nienaber’s taser separately. See
Gipp through Kopp v. Webb, 2025 WL 2630489, at *2 (8th Cir. Sept. 12, 2025) (citing
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Cartia v. Beeman, 122 F.4th 1036, 1041–43 (8th Cir. 2024)). The totality of the
circumstances surrounding Officer Nienaber’s first tasering of Mr. Villebrun includes the
following considerations. There is no doubt that by fleeing from Officer Nienaber,
Mr. Villebrun engaged in a serious felony offense. See Minn. Stat. § 609.487, subd. 3. It is
also true that Mr. Villebrun initially ignored Officer Nienaber’s commands by walking
away and failing to get on his belly as instructed. He also pushed himself up to his knees
when Officer Nienaber attempted to push him onto the ground and ordered him to lay
down. But, critically, at the point when Officer Nienaber first deployed his taser, the video
evidence supports Mr. Villebrun’s claim that any efforts he made to flee had ended. And,
as Officer Nienaber conceded, Mr. Villebrun never threatened Officer Nienaber and did
not make any furtive movements, nor is there any indication that he had a weapon.
(Nienaber Dep. at 46:1–13, 47:2–5, 48:8–19.) Indeed, by then, Mr. Villebrun was kneeling,
facing away from Officer Nienaber, remaining still, and had his hands behind his head
when the taser was deployed into his back. (Squad-Car Video at 8:50.) From these facts, a
reasonable factfinder could conclude that Officer Nienaber’s use of force was excessive.
See Shkleton v. Eichenberger, 677 F.3d 361, 366 (holding that officer’s use of a taser
violated the Fourth Amendment where the suspect was unarmed, “did not resist arrest, did
not threaten the officer, did not attempt to run from him, and did not behave aggressively
towards him[]”).
The same is true for the second time Officer Nienaber deployed the taser, although
it is a closer call. By that point, Mr. Villebrun had fallen forward from the first tasing and
was on the ground, visibly in pain as Officer Nienaber continued to yell at him. (Squad-
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Car Video at 8:59–9:10.) Even though Mr. Villebrun was still noncompliant with Officer
Nienaber’s orders to “[g]et down on [his] . . . belly,” he was lying on his back or side and
appeared to be mostly immobile from the impact of the previous tasing. (Id. at 9:03–9:12.)
And while he appeared to move his arm at some point, it is unclear whether he did so in an
attempt to actively resist arrest or as an involuntary response to the first tasing. (See id.)
Viewing the facts in the light most favorable to Mr. Villebrun, as the Court must at this
stage, see Smith, 759 F.3d at 858, requires the Court to draw the reasonable inference that
Mr. Villebrun was not actively resisting arrest based on this ambiguous movement.
The circumstances here are similar to Brown v. City of Golden Valley, where the
court held that an officer’s use of a taser violated a suspect’s Fourth Amendment rights,
there was “nothing to indicate that [Officer Nienaber] was faced with the need to make any
split-second decisions, nor can the circumstances fairly be described as constituting a
‘tense, uncertain, and rapidly evolving’ situation.” 574 F.3d 491, 497 (8th Cir. 2009)
(quoting Graham, 490 U.S. at 397). And, as in Brown, Mr. Villebrun’s “conduct did not
amount to a severe or violent crime.” Id. at 496; see Brown v. Golden Valley, 534 F. Supp.
2d 984, 992 (D. Minn. 2008) (noting that the suspect had fled from an officer in a motor
vehicle, which is a felony), aff’d 574 F.3d 491.4 Under the circumstances, a reasonable
4 Mr. Villebrun argues that the opinions of Officer Nienaber’s expert, Chief Mark
Bruley, “must be excluded because they opine on the ultimate issue of whether force was
reasonable.” (Dkt. 28 at 20; Dkt. 24-2 (expert report).) The Court notes that, at this stage,
the outcome would not change even if it considered the opinions offered by Chief Bruley.
The Court will address whether Chief Bruley can testify as an expert at trial, if necessary,
at a later stage of this litigation.
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factfinder could conclude that Officer Nienaber’s second deployment of the taser was also
objectively unreasonable. See Nelson, 583 F.3d at 528.
B. 	Clearly Established Right
It is not enough that Mr. Villebrun’s constitutional rights were violated. The right
at issue must also be clearly established for Mr. Villebrun to avoid summary judgment
based on Officer Nienaber’s qualified-immunity defense.
“For a right to be clearly established, the ‘contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[T]here does not need to
be a case directly on point,” Boudoin v. Harsson, 962 F.3d 1034, 1040 (quoting White v.
Pauly, 580 U.S. 73, 79 (2017) (per curiam)), or for “the very action in question [to have]
previously been held unlawful,” Meehan v. Thompson, 763 F.3d 936, 940–41 (8th Cir.
2014) (quotation omitted). Rather, it is enough that “existing precedent . . . placed the
statutory or constitutional question beyond debate.” White, 580 U.S. at 79 (quotations
omitted). At the same time, clearly established law “should not be defined at a high level
of generality.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). It “must be
particularized to the facts of the case.” Id. (quotation omitted); Rudley v. Little Rock Police
Dep’t, 935 F.3d 651, 653 (8th Cir. 2019) (requiring consideration of the specific facts of
each case in the excessive-force context). “[T]he dispositive question is whether there was
a fair and clear warning of what the Constitution requires.” Thompson v. City of Monticello,
894 F.3d 993, 1000 (8th Cir. 2018) (quotation omitted).
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When the disputed facts of this case are viewed in the light most favorable to
Mr. Villebrun, they demonstrate that both instances of Officer Nienaber’s deployments of
the taser violated clearly established law. See Kelley v. Pruett, 163 F.4th 1130, 1134 (8th
Cir. 2026) (explaining that courts should identify the disputed facts, construe them in the
light most favorable to the nonmoving party, and then “determine if those facts demonstrate
a constitutional violation that is clearly established” (quotation omitted)). With respect to
the first tasing, the parties dispute whether Mr. Villebrun was actively resisting arrest,
sufficiently following Officer Nienaber’s commands, and presented a safety threat.
Construing those disputed facts in Mr. Villebrun’s favor, the Court assumes that Mr.
Villebrun was making an effort to comply with Officer Nienaber’s commands by kneeling
and facing away from Officer Nienaber with his hands placed behind his head, without
actively resisting arrest or presenting a safety threat.5
The same is true of Mr. Villebrun’s behavior at the time of the second tasing. While
Mr. Villebrun was not lying on his stomach as Officer Nienaber commanded, the video
evidence shows that Mr. Villebrun was laying on the ground on his back or side, seemingly
in pain and unable to get up. (Id. at 9:02–9:10.) For both tasings, construing the evidence
in the light most favorable to Mr. Villebrun requires the Court to assume that he was not
actively resisting arrest, posed no safety threat to Officer Villebrun, and was not fleeing at
5 The Court notes that the video evidence and even Officer Nienaber’s deposition
testimony support Mr. Villebrun’s version of events regarding these disputed facts. (Squad-
Car Video at 8:38–9:05; Nienaber Dep. at 46:1–13, 47:2–5, 48:8–19, 49:8–13 (stating that
Mr. Villebrun did not display “any sort of hostility or aggression,” pose a flight risk, or
“reach into his jacket[] at any point,” and instead “appear[ed] to be submissive”).)
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the time. The next step is for the Court to evaluate “the constitutionality of the challenged
conduct” and determine whether it was clearly established that the Fourth Amendment
prohibits the use of a taser in the context of these facts. Kelley, 163 F.4th at 1134 (quoting
Shannon v. Koehler, 616 F.3d 855, 864 n.5 (8th Cir. 2011))
Clearly established law provides that no reasonable officer in Officer Nienaber’s
position would have believed that the Fourth Amendment supported the use of a taser in
either instance. Jackson v. Stair is instructive on this point. 944 F.3d 704 (8th Cir. 2019).
There, the court determined that the officer’s use of a taser on a suspect who “was writhing
on the ground, physically unable to walk away or flee”—in other words, while the suspect
“did not appear capable of posing a danger to law enforcement,” “was not actively resisting
arrest,” and “was not fleeing”—violated the suspect’s clearly established constitutional
rights. Id. at 713 (stating that this right was clearly established by 2013, when the relevant
events occurred); see also Shannon, 616 F.3d at 862–63 (holding that “more than de
minimis force” was unreasonable where suspect “was not threatening anyone, not resisting
arrest, and so on”). In doing so, the court distinguished “[d]ecisions concerning the use of
force against suspects who were compliant or engaged in passive resistance” from those
that “govern[] an officer’s use of force against a suspect who ignores a command and walks
away.” Jackson, 944 F.3d at 712 (citing Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019)).
As explained above, Mr. Villebrun’s behavior could only be described “passive
resistance,” like that of the suspect in Jackson. See id. When viewed in Mr. Villebrun’s
favor, the facts suggest that Mr. Villebrun “did not appear capable of posing a danger to
law enforcement” and “was not actively resisting arrest” when he was tased. Id. at 713.
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Insofar as Mr. Villebrun was “compliant or engaged in passive resistance,” id., the clearly
established law provided a clear warning that Officer Nienaber was constitutionally
prohibited from using more than a de minimis use of force. Shannon, 616 F.3d at 862–63,
let alone a taser.
Officer Nienaber relies primarily on McManemy v. Tierney, 970 F.3d 1034 (8th Cir.
2020), and urges the Court to accept that Mr. Villebrun’s stated reasons for not complying
with his commands is irrelevant. But McManemy is inapposite here. There, the court held
that it was reasonable for an officer to tase an uncuffed suspect who resisted arrest by
“flailing his legs and refusing to give up one of his arms,” even if the suspect had an
“innocent” reason for doing so. 970 F.3d at 1039. Even accepting Officer Nienaber’s point,
however, the analysis does not change. Regardless of his reasons for noncompliance, the
relevant fact is that, when the evidence is viewed in the light most favorable to
Mr. Villebrun, his noncompliance did not amount to actively resisting arrest. And based on
that inferred fact, the Court nevertheless concludes that the tasings violated Mr. Villebrun’s
clearly established right to be free from excessive force.
In sum, when the facts are viewed in the light most favorable to Mr. Villebrun and
all reasonable inferences are drawn in his favor, a reasonable factfinder could conclude that
both deployments of the taser by Officer Nienaber violated Mr. Villebrun’s clearly
established constitutional right to be free from excessive force.
ORDER
For the reasons discussed above, IT IS HEREBY ORDERED THAT Defendant
Brandon Keith Nienaber’s Motion for Summary Judgment (Dkt. 23) is DENIED.
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Date: March 23, 2026 	s/Katherine M. Menendez
Katherine M. Menendez
United States District Judge
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