Dawson v Brown et al

Filing 60

OPINION: The Motion of Defendant Steve Stirmell for Summary Judgment 50 is ALLOWED. Count V is Dismissed. The claims in Count VI relating to Defendant Stirmell are Dismissed. The Clerk will terminate Defendant Stirmell as a party. (SEE WRITTEN OPINION). Entered by Judge Richard Mills on 2/25/2015. (GL, ilcd)

E-FILED

Thursday, 26 February, 2015 09:04:53 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
GEORGE H. DAWSON,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL BROWN, individually,
)
CHANCE WARNISHER,
)
individually, and STEVE STIRMELL, )
individually,
)
)
Defendants.
)

NO. 12-3330

OPINION
RICHARD MILLS, U.S. District Judge:
This is a civil rights action pursuant to 42 U.S.C. § 1983, wherein
Plaintiff George H. Dawson has filed a six-count Complaint asserting
excessive force, assault and battery, failure to intervene and conspiracy to
interfere with the Plaintiff’s civil rights against Michael Brown, Chance
Warnisher and Steve Stirmell in their individual capacities. Pending before
the Court is Defendant Steve Stirmell’s Motion for Summary Judgment.
I. FACTUAL BACKGROUND
A. George Dawson’s testimony

Plaintiff George Dawson resides at 2408 South Lowell Road in
Springfield, Illinois. On December 14, 2011, the Plaintiff answered a
knock on his door. There were a number of police officers present.
The police officers inquired if the Plaintiff knew where his son was.
The Plaintiff testified that one of the officers, a sheriff’s deputy, told him
that his son, Greg Dawson, was a drug dealer. On the evening in question,
the Plaintiff’s son was driving a 2010 Chevy pickup truck that belongs to
Country Market, the Plaintiff’s business. While the officers looked for his
son, the Plaintiff remained outside of his home talking to officers and
standing in his driveway. At some point, the Plaintiff became aware of an
altercation occurring near the side door of his home. He could not recall
how long this was after the officers knocked at his door. The Plaintiff
testified he went to the side of his house and observed Officer Chance
Warnisher, and perhaps another officer, attempting to subdue Greg
Dawson in the driveway by the side door of the home.
The Plaintiff alleges he observed Officer Warnisher use his taser on
Greg Dawson. He testified that while Warnisher or perhaps another officer

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was holding Greg Dawson down, the Plaintiff approached with his hands
raised. The Plaintiff claims he said, “Please don’t kill him.” The Plaintiff
testified that when he was three to four feet from Warnisher, the
officer–who was bent over Greg Dawson–kicked out at the Plaintiff and
struck him. Warnisher did not give the Plaintiff any warning that he was
about to kick him and the first notice he had is when the kick was
approaching. The Plaintiff testified that the kick did not cause him to fall
to the ground and that immediately after the kick another officer tackled
him from behind and took him to the ground. The tackle occurred one or
one and a half seconds after the kick. The Plaintiff believes it was Officer
Brown who tackled him from behind.
The Plaintiff testified that he never touched any of the officers before
being kicked by Officer Warnisher and tackled by the other officer. Except
for being kicked and then shoved or tackled thereafter, the Plaintiff was not
physically struck at any other time on the night of the incident. He does
not believe Officer Stirmell physically contacted him in any manner. There
were no words spoken by anyone between the time he was kicked and when

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he was struck from behind by Officer Brown.
B. Defendant Steve Stirmell’s testimony
On December 14, 2011, Steve Stirmell was employed as a police
officer for the Village of Jerome. Stirmell observed a pick-up truck speeding
at 10:28 p.m. He caught the pick-up truck speeding on Iles Avenue and
turned on his siren. Despite the siren, the truck did not stop. However,
the truck observed all road signs while being pursued. The truck eventually
stopped in the 2400 block of Lowell, in front of the residence belonging to
George Dawson. The driver of the truck got out and attempted to enter the
residence at 2408 Lowell and Officer Stirmell pursued him on foot. The
individual then took off running again and went over a fence in the
backyard.
After the suspect jumped over the fence, Officer Stirmell ceased
pursuit and began to search the white pick-up truck. During the search, a
Springfield police car driven by Officer Brown arrived on the scene.
Stirmell was informed by dispatch that the individual who was driving the
truck had a warrant out for his arrest for dangerous drugs. It was later

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determined that the information provided by dispatch did not, in fact,
apply to the Plaintiff’s son but rather to another individual named Greg
Dawson. Stirmell testified that the fact that an individual is wanted on a
warrant for dangerous drugs would not cause him to treat that person any
differently than any other individual who fled from a traffic stop.
Officer Warnisher eventually arrived on the scene. Based upon the
information provided by dispatch, Officer Stirmell advised Officers Brown
and Warnisher there was an outstanding warrant for Greg Dawson’s arrest
on a charge related to dangerous drugs.

Subsequently, Stirmell and

Warnisher knocked on the front of Mary and George Dawson’s home and
Warnisher advised them that Greg Dawson had fled from them and he was
wanted for dangerous drugs. The Dawsons did not know where Greg
Dawson was located.
Officers Brown, Warnisher, Sheriff’s Deputy Dickason and
Dickason’s canine partner, Dino, began a canine track for Greg Dawson in
the backyard of George Dawson’s residence. No more than two minutes
later, Stirmell heard Deputy Dickason yelling verbal commands. After

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hearing the verbal commands coming from the front of the residence,
Stirmell ran around to the side of the house and observed Warnisher
attempting to apprehend Greg Dawson in the driveway at 2408 South
Lowell. Warnisher had Greg Dawson up against the house and was trying
to get him to the ground. Defendant Stirmell contends the Plaintiff at this
time was at the back door of the home but within the residence. The
Plaintiff claims he was in the driveway. Office Brown was not present at
this point. In attempting to assist Warnisher in subduing Greg Dawson,
Stirmell grabbed his legs and the officers were able to get Greg on the
ground in the driveway, though he continued to struggle.
Defendant Stirmell alleges Officer Brown arrived on the scene and
deployed his taser on Greg Dawson. The Plaintiff claims he observed
Warnisher use his taser on Greg Dawson. By this time, the Plaintiff had
exited his home but was still near the side door. Stirmell asserts that as
Officers Stirmell and Warnisher continued to attempt to subdue Greg
Dawson, Stirmell felt the Plaintiff approach him from behind and rest his
hand on Stirmell’s back while saying “leave my son alone, leave my son

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alone, don’t hurt him.”

The Plaintiff contends that, as it appeared

Warnisher was about to tase the younger Dawson a second time, the
Plaintiff walked towards Warnisher with his hands held up to show he was
not holding any weapons. The Plaintiff claims that while approaching
Warnisher he said, “Please don’t kill him.” The Plaintiff testified he never
touched any of the officers.
Defendant Stirmell claims he is aware that Officer Brown took action
to get the Plaintiff away from Stirmell’s back but Stirmell did not actually
see Officer Brown contact the Plaintiff. Moreover, Stirmell did not see
Warnisher kick the Plaintiff.
C. Defendant Chance Warnisher’s testimony
On December 14, 2011, all that Springfield Police Officer Chance
Warnisher knew about the Plaintiff’s son prior to arriving at the scene was
that a Jerome unit was attempting to stop a truck and the truck was
refusing to stop. Warnisher learned this information from dispatch. At the
scene and prior to locating Greg Dawson, Officer Stirmell informed
Warnisher and Officer Brown that Greg Dawson was wanted on a warrant

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for dangerous drugs. Warnisher testified that in responding to a situation
where a suspect is fleeing, it would make no difference to him whether the
individual had a warrant for dangerous drugs or whether he was fleeing due
to intoxication.
Officer Warnisher testified that the video from Stirmell’s car showed
the officers talking to Plaintiff George Dawson and his wife, Mary, at the
door to 2408 Lowell Street at approximately 11:54 p.m. on December 14,
2011. The video and audio depict officers explaining to the Plaintiff and
his wife that they were looking for their son, Greg Dawson, because he was
wanted for dangerous drugs and had fled from police officers. In the video,
Warnisher told the Plaintiff that his son had fled from Stirmell.
Prior to any altercations with the Plaintiff, Deputy Dickason’s canine
partner, Dino, attempted to locate Greg Dawson. After Dino got his scent,
he was able to locate the suspect but, because it was not a forcible felony,
Dickason could not release his dog to attempt to apprehend Greg Dawson.
Accordingly, Officer Warnisher pursued Greg Dawson on foot. During the
foot chase, Warnisher deployed his Taser which he stated hit Greg Dawson

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but was ineffective. He continued to chase Greg Dawson until Greg entered
the Plaintiff’s yard and attempted to enter the side door of the home.
Warnisher testified that, while trying to subdue Greg Dawson, he had him
in a bear hug while trying to stop him from entering the side door to the
residence. He further testified that Plaintiff approached him yelling, “Let
go of my fucking son. Let go of my son.” The Plaintiff disputes that
testimony, saying he walked towards Warnisher and simply said, “Please
don’t kill him.”
Officer Warnisher also testified he attempted to turn so that Greg
Dawson was between him and the Plaintiff and, as the Plaintiff kept
approaching, he kicked him once in the lower stomach to get the Plaintiff
to back away. The Plaintiff alleges that when he was three to four feet
away, Warnisher kicked him in the torso.
The Defendants allege that after the kicking incident, Officer Stirmell
came on to the scene and attempted to help Warnisher wrestle the
Plaintiff’s son to the ground.

Warnisher estimated there were

approximately 10 or 11 seconds from the time that he kicked the Plaintiff

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until Stirmell arrived. The Plaintiff disputes this and alleges that Plaintiff
was still inside his residence when Stirmell arrived at the driveway.
Warnisher testified that he lost sight of the Plaintiff while he and Stirmell
attempted to continue subduing Greg Dawson. Warnisher testified he
believed that Plaintiff was trying to interfere with a lawful arrest and
refused to follow a verbal command. Warnisher further testified he did not
warn the Plaintiff that if he did not get back, he was going to kick the
Plaintiff. He simply told the Plaintiff to “get back.”
Officer Warnisher had no conversations with Officer Stirmell at any
time before the incident regarding the use of force to be used against the
Plaintiff. After kicking the Plaintiff and turning his attention back to Greg
Dawson, Warnisher heard Officer Brown warning the Plaintiff to get back
and saw him push the Plaintiff out of the corner of his eye. When he first
grabbed Greg Dawson near the side door, Warnisher did not see the
Plaintiff or Stirmell in the area. Warnisher testified 15 to 20 seconds
elapsed between the time he first made contact with Greg Dawson by the
side door until both Greg and the Plaintiff were in custody.

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D. Defendant Michael Brown’s testimony
Michael Brown has been employed by the City as a police officer since
April of 1998.

On December 14, 2011, Brown was assigned to the

operations division as a DUI patrol officer in the traffic service section of
the police department.

His main focus was on traffic enforcement.

However, Brown also answered any high priority calls for service and, if he
was in the area, he would usually respond to such calls.
On December 14, 2011, at approximately 11:50 p.m., Brown
responded to the Plaintiff’s residence to assist Stirmell. Brown had heard
over his radio that a vehicle had failed to stop. By the time he arrived at
the scene, Brown also knew that the driver of the vehicle had fled.
Brown testified the surveillance footage indicates Officer Stirmell
stated that Greg Dawson was “99," which means that a person is wanted on
a warrant. Moreover, Brown testified he does not believe he would change
his approach to responding to a call where a person had fled from an officer
just because the person had a warrant for dangerous drugs. He agrees
Stirmell told other officers at the scene that the person who fled the vehicle

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was wanted on a warrant for dangerous drugs.
Officer Brown testified that, during the period of the evening in which
Officers Warnisher and Stirmell had Greg Dawson on the ground and were
attempting to subdue him, he came upon the scene to see the Plaintiff
approaching Warnisher’s back with his hands outstretched. According to
Brown, Stirmell was on the ground with Warnisher trying to subdue Greg
Dawson at the time. The Plaintiff denies approaching Warnisher in that
manner.
Officer Brown further testified he did not know if Stirmell was aware
Brown was in the area while they were trying to subdue Greg Dawson. He
testified that at the time of the alleged push, Stirmell’s back would have
been facing Brown. Similarly, Brown did not yell anything out to Officers
Warnisher and Stirmell prior to pushing the Plaintiff.
Officer Brown testified he did yell out to Plaintiff George Dawson to
“get back” as Brown approached the scene. The Plaintiff claims he was
pushed by Brown towards Warnisher while Brown yelled, “get back.”
Brown did not threaten the Plaintiff as to what would happen if he did not

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follow that command. Although Brown contends the only physical contact
he had with the Plaintiff was a single push, the Plaintiff claims that he was
tackled from behind and driven into the cement driveway by Brown
following the push.
Officer Brown testified he was not aware of any physical contact
between Officer Stirmell and the Plaintiff. Brown estimated that possibly
two to three seconds elapsed between the time that he came around the
corner and first observed Stirmell and Warnisher attempting to subdue
Greg Dawson and the time that he pushed the Plaintiff.
Defendant Stirmell asserts that at no time during the evening was
there any discussion between the officers regarding any need to subdue the
Plaintiff. However, the Plaintiff alleges Warnisher and Brown discussed
and jointly decided that Plaintiff should be placed under arrest. The
criminal charge against the Plaintiff was dismissed soon thereafter.
The Plaintiff filed a six-count complaint.

Counts V and VI are

directed at Officer Stirmell. In Count V, the Plaintiff asserts Stirmell
violated his rights when he failed to intervene to prevent the use of

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excessive force or the false arrest of the Plaintiff. In Count VI, the Plaintiff
contends that Stirmell conspired with Brown and Warnisher to interfere
with the Plaintiff’s civil rights, in violation of 42 U.S.C. § 1983.
Defendant Steve Stirmell alleges he is entitled to summary judgment
as to the claims asserted against him.1 The Plaintiff contends factual
disputes preclude the entry of summary judgment.
II. DISCUSSION
Officer Stirmell advances multiple reasons for the entry of summary
judgment. First, Stirmell alleges the degree of force utilized by Officers
Warnisher and Brown was not excessive. Next, he contends that Plaintiff
has not proffered any evidence that would allow a jury to conclude that
Stirmell had a realistic opportunity to intervene to stop any alleged
excessive force. Additionally, Stirmell asserts the Plaintiff has failed to
present any evidence in support of his civil conspiracy claim. Finally,
Stirmell claims he is entitled to summary judgment on the Plaintiff’s false
arrest claims because he was not involved in the decision to arrest the
Defendants Michael Brown and Chance Warnisher have separately
moved for summary judgment.
1

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Plaintiff. Officers Warnisher and Brown made that decision.
A. Legal standard
Summary judgment is appropriate if the motion is properly supported
and “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The
Court construes all inferences in favor of the non-movant. See Siliven v.

Indiana Dept. of Child Services, 635 F.3d 921, 925 (7th Cir. 2011). To
create a genuine factual dispute, however, any such inference must be based
on something more than “speculation or conjecture.” See Harper v. C.R.

England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (citation omitted).
Because summary judgment “is the put up or shut up moment in a lawsuit,”
a “hunch” about the opposing party’s motives is not enough to withstand
a properly supported motion. See Springer v. Durflinger, 518 F.3d 479,
484 (7th Cir. 2008). Ultimately, there must be enough evidence in favor
of the non-movant to permit a jury to return a verdict in its favor. See id.
B. Excessive force claim against Stirmell
A police officer is not liable for another officer’s use of excessive force

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unless that officer had a realistic opportunity to intervene and stop the first
officer’s actions. See Miller v. Gonzalez, 761 F.3d 822, 826 (7th Cir.
2014). “A realistic opportunity means a chance to warn the officer using
excessive force to stop.” Id. (internal quotation marks omitted).
The Court concludes that even assuming the other officers employed
excessive force, Officer Stirmell did not have a reasonable opportunity to
warn them to stop. The two actions relied on by the Plaintiff in asserting
excessive force are the single straight kick utilized by Officer Warnisher to
the Plaintiff’s midsection and, “one to one and a half seconds later,” the
shove or tackle by Officer Brown causing the Plaintiff to fall to the ground.
Even assuming Stirmell witnessed the occurrence, the Court concludes that
he could not have prevented the use of excessive force. Warnisher did not
provide any sort of verbal warning that he would employ a straight kick to
deter the Plaintiff. Accordingly, Stirmell could not have prevented the
occurrence. Moreover, Stirmell could not have prevented Brown’s shove or
tackle of the Plaintiff less than two seconds later. The Plaintiff testified
that this occurred “within the snap of a finger.” At the time, Stirmell was

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attempting to subdue Greg Dawson.
The Plaintiff contends there are a number of discrepancies in the
witness testimony and no undisputed facts as to what occurred in the
driveway. However, it is undisputed that the acts which make up the
Plaintiff’s excessive force claim occurred in quick succession after the
Plaintiff approached officers trying to subdue an individual who was
resisting arrest. The Court concludes that no jury could find an officer who
was preoccupied with apprehending another individual could be liable for
failure to intervene under these circumstances. See O’Neill v. Krzeminski,
839 F.2d 9, 11-12 (2d Cir. 1988) (concluding that non-intervening officer
did not have realistic opportunity to prevent three punches in quick
succession to plaintiff); see also Lanigan v. Village of East Hazel Crest, Ill.,
110 F.3d 467, 477-78 (7th Cir. 1997) (concluding that non-intervening
officer did not have realistic opportunity to prevent one violent poke and
push administered by the other officer).
Officer Stirmell did not have sufficient time to prevent the use of the
alleged excessive force by other officers who were present at the scene.

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Even when viewing the facts in the light most favorable to the Plaintiff,
therefore, the Court concludes that Stirmell did not have a realistic
opportunity to intervene and prevent the use of excessive force as alleged
by the Plaintiff. To the extent that Plaintiff’s claim is premised on a failure
to intervene to prevent excessive force, Stirmell is entitled to summary
judgment.
C. Failure to intervene to prevent false arrest
The Plaintiff also asserts a claim under § 1983 against Officer Stirmell
for failure to intervene to prevent the Plaintiff’s false arrest. As with
excessive force, an officer has a duty to intervene to prevent a false arrest
if the officer is informed of the facts that establish a constitutional violation
and is able to prevent it. See Morfin v. City of Chicago, 349 F.3d 989,
1001 (7th Cir. 2003).
Officer Stirmell testified that he had no role in arresting the Plaintiff.
He stated the decision was made by Officer Brown. Officer Brown testified
that Officer Warnisher took the Plaintiff into custody.

Brown and

Warnisher made the decision to arrest the Plaintiff after a brief discussion.

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There was no testimony that Stirmell had any role in the decision.
None of the evidence cited by the Plaintiff supports the assertion that
Stirmell was involved in the Plaintiff’s arrest. The only competent evidence
establishes that Stirmell had no role in the decision. At this stage, the
Plaintiff cannot rely on speculation and must come forth with specific
supporting material in order to defeat a summary judgment motion. See

Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008).
Additionally, as the Court noted in discussing the excessive force
claim, Officer Stirmell was attempting to subdue Greg Dawson at the same
time the other officers were engaged with the Plaintiff. Because Stirmell did
not witness the entire encounter between the Plaintiff and the other
officers, he could not know whether the Plaintiff had violated any laws and
was subject to arrest. Therefore, Stirmell could not have been informed of
facts that establish that Plaintiff was falsely arrested.
For all of these reasons, the Court concludes that Stirmell is entitled
to summary judgment as to the failure to prevent false arrest claims directed
against him.

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D. Conspiracy claims
In Count VI, the Plaintiff alleges that Officer Stirmell conspired with
Brown and Warnisher to use excessive force and subject him to a false
arrest. A civil conspiracy involves an agreement or understanding among
more than one person that the individuals will violate another person’s
constitutional rights. See Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir.
2007). The existence of a conspiracy can be inferred from circumstantial
evidence. See Richardson v. City of Indianapolis, 658 F.2d 494, 500 (7th
Cir. 1981). However, a conspiracy cannot be established by evidence that
is speculative. See Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003).
(1)
In support of the conspiracy, the Plaintiff notes it is undisputed that
prior to the incident in question, Stirmell referred to the Plaintiff as a
“fucking dick.” Stirmell testified that in a prior incident, he was conducting
a traffic stop in the parking lot of Country Market, the Plaintiff’s business.
The Plaintiff came outside and told Stirmell to turn his lights off.2 The
Initially, Stirmell stated that Plaintiff told him to “turn your fucking
lights off.” In his deposition, however, Stirmell testified that he did not believe
2

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Plaintiff asserts the Court should reasonably infer that the only reason
Stirmell made the statements was to prejudice the other law enforcement
officers against the Plaintiff.
Officer Brown testified he was probably still in the yard when Stirmell
referred to the Plaintiff as a “fucking dick.” Stirmell was in the driveway
when he made that statement. Although the front yard is not very big,
Brown testified he did not hear Stirmell’s description of the Plaintiff.
However, the Plaintiff contends the Court should reasonably infer that
Brown overheard Stirmell’s disparaging reference to him.
The digital recording device in Officer Stirmell’s car captured a
conversation which occurred after the Plaintiff’s arrest. At one point,
Stirmell said: “Well, he [the Plaintiff] tried to come up on my back as I was
fucking hooking [handcuffing] his kid and city took him [the Plaintiff]
down.” Subsequently, Springfield Police Officer Rhett Spangle can be
heard saying, “Did you hear dad [the Plaintiff], ‘oh fuck, I’m having a heart
attack,’” followed by laughter from the other officers who were present.

the Plaintiff used an expletive when he told the officer to turn his lights off.

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Soon thereafter, Warnisher can be heard saying, “I already kicked Dad once
and struck him in the chest before you got there” followed by another
officer saying, “I saw him go flying,” with laughter then heard among the
officers. Subsequently, Stirmell can be heard saying, “Now you see why I
said dad’s a fucking asshole.” A few minutes later, Warnisher can be heard
saying, “He [the Plaintiff] got kicked right in the chest” followed by
Stirmell responding, “That was fucking hilarious.” Soon thereafter, a voice
can be heard saying, “You’re such a bad ass, pushing a 70-year old man
around,” to which Brown responded, “Hell yeah, I will.”
Based on the foregoing, the Plaintiff contends the recorded comments
by the Defendants evince their animus towards him and a disregard for his
right to be free from the use of excessive force and false arrest. Moreover,
a jury could find this constitutes evidence that Officer Stirmell condoned
Warnisher’s alleged unnecessary act of kicking the Plaintiff in the chest
and, further, approved of Brown’s actions.
The Plaintiff further asserts the information included in the
Defendants’ police reports is also illustrative of their animus towards the

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Plaintiff. Stirmell described the Plaintiff as irate when he was (falsely) told
that his son was wanted for dangerous drugs. Warnisher also described the
Plaintiff as “rude and irate” upon finding out his truck would be towed.
Brown observed that, while talking to Stirmell at their front door, the
Plaintiff and his wife became very upset with the officer and the Plaintiff
stated he did not believe anything Stirmell told him. Neither Brown nor
Warnisher noted in their police reports that Stirmell had falsely told the
Plaintiff that Greg Dawson was wanted on a warrant for a drug offense,
even though the Plaintiff claims the false information may have caused his
rudeness or disbelief.
The Plaintiff also alleges that in their reports, the officers emphasize
the Plaintiff’s insistence that they were not towing his truck. He contends
that although Officer Brown states in his report that the details were
explained to him, there is no record evidence that the Plaintiff was ever
given a reason. Accordingly, the Plaintiff alleges that the officers included
in their reports information which portrayed him in a negative light while
omitting anything that was favorable to the Plaintiff or facts which might

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portray the officers negatively.
The Plaintiff further contends that the information in Officer
Warnisher’s police report regarding the circumstances following his kick to
the Plaintiff is inconsistent with Warnisher’s deposition testimony. In their
police reports, moreover, the Defendants attempted to minimize Brown’s
acting “like a bad ass, pushing some old man around.” Warnisher wrote
that Brown simply pushed the Plaintiff away. Brown stated that after he
pushed the Plaintiff away, the Plaintiff tripped and lost his balance.
The record establishes that because of a previous encounter in the
Country Market parking lot, Officer Stirmell apparently does not personally
like the Plaintiff. Stirmell referred to the Plaintiff as a “fucking dick,” a
“fucking asshole” and laughed about the events of the night. There is also
little question that the officers included in their police reports only
information that supported their version of events and omitted anything
that might be construed as favorable to the Plaintiff.
Even assuming there is a factual dispute regarding whether excessive
force was used, however, there simply is no evidence of an agreement or

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understanding between Officer Stirmell and the others to use excessive force
against the Plaintiff. The force used against the Plaintiff was in reaction to
events that night which would have been virtually impossible to foresee.
The officers were at the Plaintiff’s home only because that is where the
Plaintiff’s son stopped his vehicle and fled. There is no evidence that, upon
arriving at the Plaintiff’s address the officers, while searching for Greg
Dawson, conspired or agreed to use excessive force against the Plaintiff. By
all accounts, it was a rapidly evolving situation and there would have been
little time to come to such an agreement. In assessing reasonableness,
courts must recognize that police officers often make split-second decisions
when confronted with a scenario like this one. See Graham v. Connor, 490
U.S. 386, 396-97 (1989). “An officer’s evil intentions will not make a
Fourth Amendment violation out of an objectively reasonable use of force;
nor will an officer’s good intentions make an objectively unreasonable use
of force constitutional.” Id. at 397.
The record suggests that force was used because the Plaintiff
approached officers trying to subdue an individual who was resisting arrest.

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There is no indication a particular degree of force was used by Warnisher
and Brown because of Stirmell’s personal views of the Plaintiff.
Accordingly, Stirmell is entitled to summary judgment on the Plaintiff’s
conspiracy to use excessive force claim.
(2)
The Court also concludes that Officer Stirmell is entitled to summary
judgment on the conspiracy to falsely arrest claim because there is no
evidence he had any role in arresting the Plaintiff.3 Moreover, even if
Stirmell informed the other officers of his previous encounter with the
Plaintiff, the Court concludes that Stirmell’s apparent disdain for the
Plaintiff did not influence those officers to falsely arrest the Plaintiff.
The conspiracy claim as to Stirmell is based on speculation as to
Officer Stirmell’s motives following a previous encounter with him.
Although it is apparent that Stirmell bears some degree of animus toward
Additionally, it is worth noting that Officer Stirmell could have
reasonably believed there was probable cause to arrest the Plaintiff for
obstructing a police officer when Stirmell was attempting to subdue Greg
Dawson. The Plaintiff testified he was within three to four feet of the struggle
when he approached the officer. Therefore, Stirmell could have reasonably
believed the Plaintiff was attempting to interfere with the officers.
3

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the Plaintiff due to that occurrence, the Plaintiff needs more than
speculation to withstand summary judgment on his claim that Stirmell
conspired with other officers to falsely arrest him. See Williams, 342 F.3d
at 785.
Accordingly, the Court concludes that Defendant Stirmell is entitled
to summary judgment on the claims directed at him.
Ergo, the Motion of Defendant Steve Stirmell for Summary Judgment
[d/e 50] is ALLOWED.
Count V is Dismissed. The claims in Count VI relating to Defendant
Stirmell are Dismissed.
The Clerk will terminate Defendant Stirmell as a party.
ENTER: February 25, 2015
FOR THE COURT:

s/Richard Mills
Richard Mills
United States District Judge

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