No. 23-2656 ___________________________

Christopher Sean Drew

Plaintiff - Appellant

v.

City of Des Moines; Dana Wingert, Individually and in his official capacity with the City of Des Moines Police Department; Jason Hemsted, Individually and in his official capacity with the City of Des Moines Police Department; Jordan Ulin, Individually and in his official capacity with the City of Des Moines Police Department

Defendants - Appellees ____________

Appeal from United States District Court for the Southern District of Iowa - Central ____________

Submitted: March 12, 2024 Filed: August 2, 2024 ____________ Before BENTON, ERICKSON, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge.

While arresting Christopher Drew, Officer Jason Hemsted pepper sprayed him at close range without warning. Drew sued Officer Hemsted, among others, for violating his Fourth Amendment right to be free from unreasonable seizures. The district court 1 granted summary judgment to the defendants. We affirm.

I.

Officer Hemsted and Officer Jordan Ulin were sent to investigate a woman’s complaint of harassment from her next-door neighbor. She and her one-year-old daughter were sitting in the grass outside the apartment building when Officer Hemsted arrived. She told him that her neighbor, Drew, was “always trying to get into [her] apartment” and that he had threatened to kill her and “blow [the] place up.” That day, he had grabbed her shoulders and asked her, “Baby, why you . . . leaving me.” When he blocked her doorway and refused to let her leave, she called the building manager to intervene. With the manager standing between them, the woman scooped up her daughter and escaped—but not before Drew lunged at her more than once. She told Officer Hemsted that Drew was running around looking for her. She was fed up. Drew’s non-stop harassment left her feeling unsafe in her own home, and she wanted him arrested.

When Officer Ulin arrived, the two went inside and found the manager. She told them that Drew was “a drunken idiot” who “dogs all the single women” and that residents had to call police on him “sometimes five times a day.” She also said that there was a case pending against Drew after he “busted in” another female neighbor’s door. She thought Drew was in his apartment drinking, and as she led the officers to his unit, she warned that he “gets right up in your space.” They passed other residents on their way, one of whom commented, “I’m assuming [Drew] . . . as usual.”

When the trio got to Drew’s apartment, they could hear arguing inside. A woman yelled, “Get the fuck out of my way, bro!” After some more shouting, Drew

1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. -2- opened the door and let her out. She rushed past the officers, thanking them repeatedly and asking them to please let her leave. Drew remained in the doorway, acknowledged the officers, and then yelled toward the fleeing woman, “Bitch, if you ever come in my crib!”—but she was already down the stairs and out of sight.

What happened next took about 14 seconds. Officer Hemsted put his hand on Drew’s arm and asked, “Do you got anything on you, any drugs, any guns?” Drew shot back, “If you touch me one more goddamn time, we gonna have a problem.” Officer Hemsted unholstered his pepper spray and asked, “Is that right?” But Drew was firm—“Please. Do not touch me.”