Sorensen v. McLaughlin
Filing
25
MEMORANDUM OPINION AND ORDER denying defendant's 12 Motion for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on May 23, 2011. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN SORENSEN,
Civil No. 09-2842 (JRT/JJK)
Plaintiff,
v.
DAVID STERLING MCLAUGHLIN,
acting in his individual capacity as a
Lieutenant of the Stearns County Sheriff’s
Department,
MEMORANDUM OPINION
AND ORDER DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Defendant.
Robert Bennett, Andrew J. Noel, Jonathan A. Strauss, and Paul C. Dworak,
GASKINS, BENNETT, BIRRELL, SCHUPP, LLP, 333 South Seventh
Street, Suite 2900, Minneapolis, MN 55402, for plaintiff.
Jason M. Hiveley, Amanda Lea Stubson, and Jon K. Iverson, IVERSON
REUVERS, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438,
for defendant.
On March 13, 2009, defendant David Sterling McLaughlin, a lieutenant in the
Stearns County Sheriff‟s Department, shot plaintiff John Sorensen in the back in the
course of arresting him. Sorensen filed suit pursuant to 42 U.S.C. §§ 1983 and 1988,
alleging that McLaughlin‟s improper use of deadly force violated Sorensen‟s rights under
the Fourth Amendment. McLaughlin has moved for summary judgment, arguing that he
is entitled to qualified immunity. Because a reasonable factfinder could conclude that
McLaughlin violated Sorensen‟s clearly established right to be free of excessive force,
the Court denies the motion.
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BACKGROUND
On March 13, 2009, McLaughlin was the Commander of the Central Minnesota
Drug and Gang Task Force (“Task Force”). (Aff. of Robert Bennett, Jan. 7, 2011, Ex. 1,
Docket No. 18.) In that capacity, he supervised an operation involving a controlled buy
of methamphetamine from Holly Lynn Faulker at a McStop, a combination gas station
and McDonald‟s restaurant, in St. Cloud, Minnesota. (Id.) Task Force investigators
Jason Dahl and Laura Berg picked up a confidential informant (“CI”) who had previously
disclosed to the Task Force that Faulkner was a drug dealer. (Aff. of David Sterling
McLaughlin, Nov. 22, 2010, Ex. A at 4-6, Docket No. 15.) The CI arranged to purchase
approximately 12.5 grams of methamphetamine from Faulker in the ladies‟ restroom at
the McStop. (Dep. of Brent Joseph Fair, May 25, 2010, Ex. 2 at 4, Docket No. 16.)
Faulker and Sorensen knew each other socially, and on the day of the incident she
asked Sorensen for a ride to St. Cloud. (Dep. of John A. Sorensen, June 14, 2010, at 1416, Docket No. 16.) Faulkner told Sorensen that she was going to St. Cloud to meet a
friend who was to lend her money for a new car. (Id. at 16.) Sorensen agreed to travel
with Faulkner in his 1997 Dodge Caravan while Faulker drove. (Id. at 20-21.) Sorensen
did not know that Faulkner intended to sell drugs until they were approximately two
miles from the McStop. (Id. at 20.)
At the McStop, Task Force agents observed Faulkner and Sorensen walk toward
the McDonald‟s restaurant, where Sorensen ordered a bag of food from the counter. (Id.
at 50; Bennett Aff., Ex. 2.) Sorensen exited the restaurant carrying the bag of food,
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walked back to his minivan, and appeared to be wasting time, drawing on the dirt and
residue on the window of his car. (Fair Dep. at 54-55.) When Faulkner and the CI exited
the restaurant, McLaughlin gave the signal to arrest Faulkner and Sorensen. (Id. at 55.)
Investigator Brad Fair exited his vehicle, pointed his gun at Sorensen, and
announced that he was an officer and that both Sorensen and Faulkner were under arrest.
(Id. at 57-58.) Fair ordered the suspects to put their hands up. (Id. at 58-59.) Sorensen
complied immediately, putting his hands up at Fair‟s first command. (Sorensen Dep. at
37-38.) McLaughlin, approaching Sorensen on Fair‟s right side, ordered Sorensen to get
on the ground while Fair continued ordering him to put his hands up. (Fair Dep. at 6263.) He held his weapon in his right, dominant hand, pointing the gun at Sorensen and
then down to the “low ready” position to the side. (McLaughlin Aff., Ex. A at 21; Dep.
of David Sterling McLaughlin, May 26, 2010, at 42-43, Docket No. 16.) McLaughlin
testified that Sorensen was observably unarmed.
(McLaughlin Dep. at 42.)
The
Minnesota Bureau of Criminal Apprehension (“BCA”), which subsequently investigated
the arrest, determined that Sorensen was “[p]assive[ly] resistan[t].” (Dep. of Eric Jaeche,
May 26, 2010, at 30-31, Docket No. 18.)
McLaughlin grabbed Sorensen on the left side, and continued yelling at him to get
on the ground. (Fair Dep. Ex. 2 at 15.) According to Sorensen, he was going down to the
ground per McLaughlin‟s command when McLaughlin shot him in the back. (Sorensen
Dep. at 33.) Fair testified that, just before the gunshot, he observed or felt Sorensen
“leaning forward or getting shorter.” (Fair Dep. 72-73; Fair Dep. Ex. 2 at 15.) After
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shooting Sorensen, McLaughlin handcuffed him and conducted a thorough search,
finding no weapons. (McLaughlin Dep. at 43.)
According to McLaughlin, the shooting was accidental:
I hold [Sorensen], still refusing and he wasn‟t moving, . . . so I had to pull
him hard. . . . I get him so that he comes around, um, now he‟s to my left
and at some point, I don‟t know if he, um pushes back or-or what he‟s
doing, but he pushes back and he, and he bumps right into me at that point
. . . and my right hand comes up um, and I‟ve got my gun in my right hand.
My right hand comes up, um, along his back and I push off of him. . . and
at that point, um, somehow my gun goes off. . . . I thought I was hitting
him with the heel of my hand . . . .
(McLaughlin Aff., Ex. A at 24 (emphasis added).) At his deposition, McLaughlin further
explained that he lost his balance as Sorensen backed into him; as his right gun-holding
hand came up Sorensen‟s back in an attempt to regain his balance, his finger slipped
inside the trigger guard. (McLaughlin Dep. at 34.) According to McLaughlin, he did not
realize that he had shot Sorensen until after he and Fair handcuffed him and noticed the
hole in Sorensen‟s jacket. (McLaughlin Aff., Ex. A at 27.)
The record contains no evidence, however, that McLaughlin described the
shooting as accidental or asserted that Sorensen bumped into him until four days after
the shooting, after he had conferred with counsel. (McLaughlin Aff., Ex. A.) When he
called in to report the incident to Sheriff John L. Sanner, McLaughlin did not even
initially state that he was the shooter; Sanner did not recall McLaughlin stating that the
shooting was accidental. (Dep. of John L. Sanner, May 25, 2010, at 37-38, Docket
No. 18.) Likewise, McLaughlin did not make any statement to Fair about why or how
Sorensen was shot on the day of the incident. (Fair Dep. at 86.)
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As part of its investigation, a BCA forensic scientist examined McLaughlin‟s gun,
a Smith & Wesson Model 99 .40 caliber handgun. (McLaughlin Dep. at 30; Bennett Aff.,
Ex. 8.) He determined that the safety mechanisms of the gun were functional, the trigger
pull pressure necessary to fire the weapon on double action was 9-9.5 pounds, and that in
his testing blows to the muzzle, butt, top, bottom, back, and sides of the firearm failed to
cause it to discharge. (Bennett Aff., Ex. 8.) McLaughlin agreed that for the gun to
discharge, he would have had to have pulled the trigger himself, exerting 9-9.5 pounds of
pull pressure. (McLaughlin Dep. at 32-34.) He also agreed that he is trained to keep his
forefinger pointed straight while holding the gun if he is not intending to fire it. (Id. at
33.)1
Sorensen filed suit against McLaughlin in his individual capacity as a lieutenant of
the Stearns County Sheriff‟s Department, arguing that the shooting constituted excessive
force in violation of the Fourth Amendment. McLaughlin now moves for summary
judgment on the ground of qualified immunity.
ANALYSIS
I.
STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
1
Smith & Wesson‟s manual for the gun similarly warns against placing one‟s finger
inside the trigger guard or on the trigger without the intent to shoot. (Bennett Aff., Ex. 9.)
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return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II.
QUALIFIED IMMUNITY
“Qualified immunity protects a government official from liability in a section
1983 action unless the official‟s conduct violated a clearly established constitutional or
statutory right of which a reasonable person would have known.” Henderson v. Munn,
439 F.3d 497, 501 (8th Cir. 2006). In considering an assertion of qualified immunity, the
Court must address two questions:
(1) whether, after viewing the facts in the light most favorable to the party
asserting the injury, there was a deprivation of a constitutional or statutory
right; and, if so, (2) whether the right was clearly established at the time of
the deprivation such that a reasonable official would understand his conduct
was unlawful in the situation he confronted.
Id. at 501-02. “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). Courts may exercise discretion in determining the sequence in which it
addresses the questions. Pearson v. Callahan, 555 U.S. 223, ---, 129 S. Ct. 808, 818
(2009). The Court finds it appropriate to first consider whether, viewing the facts in the
light most favorable to Sorensen, a reasonable factfinder could determine that
McLaughlin‟s shooting deprived Sorenson of a constitutional right.
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A.
Constitutional Violation
The Fourth Amendment protects individuals from “unreasonable searches and
seizures . . . .” U.S. Const. amend. IV. Sorensen claims that McLaughlin‟s use of force
in effectuating his arrest was excessive, thus constituting an unreasonable seizure of his
person. In cases of excessive force, “[t]he dispositive question is whether the amount of
force the officer used was objectively reasonable.” Shannon v. Koehler, 616 F.3d 855,
862 (8th Cir. 2010).
McLaughlin insists, however, that because this shooting was
accidental, the Fourth Amendment is not implicated at all. See Brower v. Cnty. of Inyo,
489 U.S. 593, 596 (1989) (“[T]he Fourth Amendment addresses misuse of power, not the
accidental effects of otherwise lawful government conduct.” (internal quotation marks
and citation omitted)). McLaughlin urges the Court to assess his conduct under the much
less rigorous intent-to-harm standard applicable to substantive due process claims. See
Neal v. St. Louis Cnty. Bd. of Police Comm’rs, 217 F.3d 955, 958 (8th Cir. 2000) (“[I]n
rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm and
reflective deliberation, . . . liability [for a substantive due process claim] turn[s] on
whether force was applied in a good faith effort . . . or maliciously and sadistically for the
very purpose of causing harm.” (alteration and omission original) (internal quotation
marks omitted)).
The Court must reject McLaughlin‟s theory. While the Eighth Circuit has not
decided whether an accidental shooting implicates the Fourth Amendment, see McCoy v.
City of Monticello, 342 F.3d 842, 847 n.3 (8th Cir. 2003), the Supreme Court has
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explicitly held that “all claims that law enforcement officers have used excessive forcedeadly or not-in the course of an arrest . . . should be analyzed under the Fourth
Amendment and its „reasonableness‟ standard, rather than under a „substantive due
process‟ approach.” Graham v. Connor, 490 U.S. 386, 396 (1989) (emphasis original);
see also Nance v. Sammis, 586 F.3d 604, 609-10 (8th Cir. 2009) (affirming applicability
of Fourth Amendment to all excessive force claims). In Graham – decided after Brower,
the case defendant cites extensively – the Court did not indicate that its holding excluded
accidental shootings.
Moreover, Brower does not compel a contrary conclusion. In that case, a suspect
driving at high speeds to elude pursuing police was killed when he crashed into a police
roadblock.
489 U.S. at 594.
The plaintiff alleged that the police engaged in an
unconstitutional seizure when they “effectively concealed” the roadblock by placing it
unilluminated behind a curve and positioning a police car with its headlights on between
the suspect‟s oncoming vehicle and the truck. Id. The Ninth Circuit, analogizing the
case to one in which a suspect giving chase unexpectedly loses control of his car and
crashes, concluded that no seizure occurred. Id. at 595.
The Supreme Court, however, reversed. It agreed that the individual in the Ninth
Circuit‟s hypothetical circumstance would not have a Fourth Amendment claim:
[A] Fourth Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual‟s freedom of
movement . . . , nor even whenever there is a governmentally caused and
governmentally desired termination of an individual‟s freedom of
movement (the fleeing felon), but only when there is a governmental
termination of freedom of movement through means intentionally
applied. That is the reason there was no seizure in the hypothetical
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situation that concerned the Court of Appeals [of a chase suspect losing
control of his car and crashing absent a roadblock]. The pursuing police car
sought to stop the suspect only by the show of authority represented by
flashing lights and continuing pursuit; and though he was in fact stopped,
he was stopped by a different means – his loss of control of his vehicle and
the subsequent crash. If, instead of that, the police cruiser had pulled
alongside the fleeing car and sideswiped it, producing the crash, then the
termination of the suspect‟s freedom of movement would have been a
seizure.
Id. at 596-97 (emphasis original). In contrast, the police roadblock, the Court reasoned,
was a means of stopping the fleeing suspect intentionally applied by government actors
and thus a “seizure” regardless of whether the officers hoped the suspect would be
killed. Id. at 598 (“It may well be that respondents here preferred, and indeed earnestly
hoped, that [the suspect] would stop on his own, without striking the barrier, but we do
not think it practicable to conduct such an inquiry into subjective intent.”).
Likewise, whether or not McLaughlin actually intended to shoot Sorensen,
McLaughlin‟s use of his gun was a means intentionally applied to effectuate the arrest.
McLaughlin drew his weapon from his security holster, pointed it at Sorensen, and had it
pointed at Sorensen when he shot him in the back.
These actions are sufficiently
intentional to fall within the ambit of a Fourth Amendment seizure. As the Supreme
Court explained in Brower,
[i]n determining whether the means that terminates the freedom of
movement is the very means that the government intended we cannot draw
too fine a line, or we will be driven to saying that one is not seized who
has been stopped by the accidental discharge of a gun with which he
was meant only to be bludgeoned, or by a bullet in the heart that was
meant only for the leg. We think it enough for a seizure that a person be
stopped by the very instrumentality set in motion or put in place in order to
achieve that result.
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Id. at 598-99 (emphasis added). The Supreme Court‟s hypothetical is exactly what
happened here, according to McLaughlin’s own version of the story: he thought he
was hitting Sorensen with the heel of his hand but accidentally discharged his gun. This
passage, combined with Graham‟s subsequent clarification that all claims of excessive
force in the course of an arrest are to be analyzed under the Fourth Amendment,
forecloses McLaughlin‟s argument that the Fourth Amendment does not apply to this
shooting.2
While the Fourth Amendment‟s “objective reasonableness” standard governs
Sorensen‟s claim regardless of whether the shooting was accidental, the Court notes that
a reasonable factfinder could conclude that this shooting was not an accident, despite
McLaughlin‟s insistence that it was.
Specifically, it is undisputed that McLaughlin
physically engaged Sorensen while holding his gun, that he pointed his gun at Sorensen,
and that he placed his finger inside the trigger guard. The gun was functional and
required at least nine pounds of trigger pull pressure to fire. In Santibanes v. City of
Tomball, Tex., 654 F. Supp. 2d 593, 604 (S.D. Tex. 2009), the court was presented with
similar forensic testing revealing a properly functioning weapon, meaning that “the only
logical explanation for [the weapon‟s] discharge is that [the officer] applied force to its
2
McLaughlin relies heavily on Dodd v. City of Norwich, 827 F.2d 1 (2d Cir. 1987), in
which he asserts that the Second Circuit concluded that there can be no Fourth Amendment
violation as a matter of law where an individual is shot accidentally in the course of a struggle
with a police officer initiated by the individual. Even disregarding the fact that this case was
decided before Graham and is factually distinct, Dodd does not stand for the proposition for
which it is cited. To the contrary, the Dodd majority actually remanded the case to the district
court to determine whether the officer‟s conduct – though not negligent – was nonetheless
unreasonable under the Fourth Amendment. Id. at 4. The district court had only analyzed the
claim as a due process violation. Id. at 3.
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trigger mechanism.”
The court found that circumstance alone sufficient to deny
summary judgment to the defendants. Id. The same is true here. McLaughlin admitted
that he must have pulled the trigger to instigate the discharge.
Moreover, there is no evidence that McLaughlin described Sorensen moving back
into him, or that he characterized the shooting as accidental, until at least four days after
the incident. McLaughlin gave no contemporaneous indication that the shooting was not
purposeful. See Lyons v. City of Conway, Ark., No. 4:04CV002303, 2008 WL 2465030,
at *9 (E.D. Ark. June 16, 2008) (“Perhaps the strongest evidence that this shooting was
accidental is Hobbs‟s testimony that, as soon as the shot was fired, Defendant asked
Hobbs why he, Hobbs, had shot the Plaintiff. Hobbs had to point out to Defendant that it
was his still smoking. 45 that had fired the shot, not Hobbs‟s safely holstered weapon.
Similarly, Defendant‟s immediate apology to Plaintiff for having shot him . . . strongly
weighs against Defendant having any intention of shooting Plaintiff.” (emphasis
original)). Fair testified that Sorensen was “leaning forward or getting shorter” when he
was shot, undermining McLaughlin‟s characterization of Sorensen as disobeying his
command and backing up into him. McLaughlin highlights the fact that the firearm was
pointed up rather than at Sorensen during the physical encounter, but as Brower makes
clear, the Court must focus on whether the harm resulted from a means intentionally
applied, not whether the specific result was intended.
Viewing the facts in the light most favorable to Sorensen, there is a material
factual dispute about whether the shooting was volitional. By contrast, many of the
“accidental shooting” cases cited by McLaughlin involved uncontroverted objective
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evidence of an actual accident. See, e.g., Luna v. Ridge, 436 F. Supp. 2d 1163, 1166
(S.D. Cal. 2006) (gun was caked with sand to the extent that the slide would not come
back, investigators concluded that an outside force interfered with normal functioning of
the gun, and officer stated, “oh, shit” when he saw suspect was wounded); Clark v.
Buchko, 936 F. Supp. 212, 218, 220 (D.N.J. 1996) (parties agreed that officer‟s gun
discharged accidentally); Matthews v. City of Atlanta, 699 F. Supp. 1552, 1556 (N.D. Ga.
1988) (no evidence that officer shot suspect volitionally; noting difference between the
case at bar in one in which an “officer intended the act that ended his subject‟s freedom
of movement” regardless of officer‟s subjective intent).
Having determined that the appropriate analysis is the Fourth Amendment‟s
standard of “objective reasonableness,” the Court must assess whether a reasonable
factfinder could conclude that McLaughlin‟s use of force was objectively reasonable.
Courts assess the reasonableness of a particular use of force based on the totality of the
circumstances, including “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
McLaughlin argues that drawing his weapon and keeping it drawn were reasonable
actions in light of the fact that Sorensen was travelling with a drug dealer. Sorensen‟s
claim, however, focuses on McLaughlin‟s discharge of his gun, not the fact that he had it
drawn. Generally, in cases “where the suspect poses no immediate threat to the officer
and no threat to others, the harm resulting from failing to apprehend him does not justify
the use of deadly force to do so.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).
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The same evidence that supports a finding that McLaughlin‟s shot was intentional
likewise prevents a finding that McLaughlin‟s actions were objectively reasonable as a
matter of law.
“Where a shooting occurs, an inquiry into reasonableness requires
scrutiny of the conduct leading up to the shooting.” Johnson v. City of Milwaukee, 41
F. Supp. 2d 917, 929 (E.D. Wis. 1999). McLaughlin agreed that he is trained to keep his
index finger pointed straight while holding the gun if not intending to fire it, yet his
finger ended up inside the trigger guard where it exerted at least nine pounds of pull.
Sorensen has proffered expert testimony that, contrary to his training, McLaughlin was
not holding his firearm in the low ready position as he approached Sorensen. According
to both Fair and Sorensen, Sorensen was bending down to the ground, following
McLaughlin‟s command, when he was shot. His hands were already up in the surrender
position, clutching a bag of McDonald‟s food. The officers who testified in this case,
including McLaughlin, agreed that the circumstances of Sorensen‟s arrest did not warrant
the use of deadly force.
The Court cannot find as a matter of law that no constitutional violation occurred
in these circumstances. To conclude otherwise would allow officers to escape liability
simply by claiming that unreasonable conduct was accidental. Id. (“The word „accident‟
is not a talisman for releasing an officer from liability.”).
B.
Clearly Established Right
The second inquiry in the Court‟s qualified immunity analysis is whether
Sorensen‟s Fourth Amendment rights were clearly established at the time he was shot.
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For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in question has
previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and citations
omitted).
The right to be free from the use of deadly force, absent an immediate threat to the
officer and others, has been clearly established since at least 1985. See Garner, 471 U.S.
at 11. Indeed, in his deposition McLaughlin acknowledged the constitutional restraints
on his ability to use deadly force and agreed that the circumstances of Sorensen‟s arrest
did not warrant its use. (McLaughlin Dep. at 14-18.)
Since a reasonable factfinder could answer in the affirmative either prong of the
qualified immunity inquiry, see Nelson, 583 F.3d at 528, the Court denies McLaughlin‟s
motion for summary judgment.
This case will be placed on the Court‟s next available trial calendar
ORDER
Based on the foregoing, and the records, files, and proceedings herein, IT IS
HEREBY ORDERED that McLaughlin‟s Motion for Summary Judgment [Docket
No. 12] is DENIED.
DATED: May 23, 2011
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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