Imp v. Wallace et al
Filing
24
ORDER granting 10 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 9/21/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-509(DSD/JJK)
Michael Imp,
Plaintiff,
ORDER
v.
Chris Wallace, individually
and in their official
capacities as Olmsted County
Deputy Sheriffs and Mark
Maitland, individually and
in their official capacities
as Olmsted County Deputy Sheriffs,
Defendants.
Duane A. Kennedy, Esq., Kennedy Law Office, 724 First
Avenue S.W., Suite 3, Rochester, MN 55902 and William L.
French, Esq., French Law Firm, 400 South Broadway Avenue,
Suite 201, Rochester, MN 55904, counsel for plaintiff.
John M. Baker, Esq., Samuel J. Clark, Esq. and Greene
Espel, PLLP, 200 South Sixth Street, Suite 1200,
Minneapolis, MN 55402, counsel for defendants.
This matter is before the court upon the motion for summary
judgment by defendants Chris Wallace and Mark Maitland, deputy
sheriffs in Olmsted County, Minnesota (the Deputies).
Based on a
review of the file, record and proceedings herein, and for the
following reasons, the court grants the motion.
BACKGROUND
This
excessive-force
case
arises
plaintiff Michael Imp on May 30, 2007.
out
of
the
arrest
of
Shortly after midnight,
Wallace saw Imp’s vehicle drift across the center and side lines of
Baker Aff. Ex. A, at 19:37–21:34.1
a highway.
After Wallace
pulled the vehicle over, Imp admitted consuming three beers and
said that
he
had
previously
impaired.
See id. at 22:08–23:30.
of field sobriety tests.
been convicted
of
driving while
Wallace administered a series
Id. at 26:07–30:31.
During the third
test, Imp became agitated, and Wallace said, “Why are you getting
so mad at me?”
Id. at 30:31–30:33.
Imp said, “Because I’ve been
through this before, and I’ll pass your test.
fucking — I’ve had three fucking beers tonight.
lie to you.
“I’ll
take
I’ve had a DUI.”
the
Breathalizer.”
after.
test
right
I haven’t drank a
I’m not going to
Id. at 30:33–30:44.
now
Id. at 30:48–30:52.
...
dude,
Imp then said,
I’ll
take
the
Maitland arrived shortly
Id. at 31:08.
Wallace attempted to administer a preliminary breath test
(PBT).
sample.
Id. at 31:55–32:20.
Id.
Imp did not provide an adequate
After the second attempt Imp said, “You are just
being a dick to me,” and asked why he had been pulled over.
32:28–32:42.
Id. at
Wallace told Imp that he stopped him because Imp had
crossed the “fog line” three times and crossed the center line
once. Id. at 33:04–33:09.
Wallace checked the PBT and said, “Turn
around, and put your hands behind your back.”
1
Id. at 33:15–33:31.
Exhibit A is a MPEG file of the video and audio recording of
the incident captured from Wallace’s squad vehicle.
Citations
refer to the time stamp in the recording.
2
Imp said, “What’d the test say?”
said, “One-five.
33:35.
You’re under arrest for DUI.”2
Wallace
Id. at 33:33-
Wallace twice repeated the command to turn around before
Imp complied.
Id. at 33:29–33:40.
wanna see the test.
Can I see it?”
it off.”
Id. at 33:31–33:33.
Once handcuffed,3 Imp said, “I
C’mon, you gotta be kidding me.
Id. at 33:53–33:58.
One-five?
Wallace said, “I already shut
Id. at 33:59–34:00.
Wallace then attempted perform a patdown of Imp. When Wallace
reached for Imp’s right pocket, Imp flinched and stepped away. Id.
at 33:59–34:01.
The Deputies then quickly moved Imp to the front
of Wallace’s vehicle.
Id. at 34:01–34:04.
Wallace said, “Quit
screwing around, I’m not playing games with you anymore.”
34:06–34:09.
Id. at
Maitland told Imp, “We don’t know if you have
anything in your pockets or not, okay?” Id. at 34:11–34:13. While
Wallace removed several items from Imp’s pockets, Imp repeatedly
demanded to see the PBT.
Id. at 34:13–34:45.
The Deputies
continued to tell him that the PBT had been cleared and that the
results would be in their report.
“lean over.”
Id. at 34:46.
repeated the instruction.
Id.
Wallace then told Imp to
Imp did not comply, and the Deputies
Id. at 34:46–34:50.
Imp resisted, and
2
According to Imp, Wallace did not tell him the results of
the PBT until after he had asked him “a bunch of times.” Imp Dep.
27:3–5; 33:2–8.
3
According to Imp, Wallace did not place him in handcuffs
until Imp was “on the hood” of Wallace’s vehicle. Imp Dep. 23:6.
3
Maitland then pushed Imp’s chest and head onto the hood of the
squad vehicle.4
Id. at 34:50–34:54.
Imp continued to resist by
arching his back, and Maitland again forced him forward.
34:54–35:08.
Id. at
Imp repeated his demands to see the PBT, and said,
“You are so wrong right now.
Id. at 35:15–35:17.
Why are you doing this to me, dude?”
Wallace said, “You are under arrest for DUI.”
Id. at 35:19–35:22.
As the Deputies escorted Imp towards the passenger side of
Wallace’s vehicle, Imp shouted, “You have no fucking right to do
this to me.
Dep.
I wanna see the test.”5
31:22–23.
Over
the
next
Id. at 35:36–35:40; see Imp
three
minutes,
Imp
shouted
profanities and demanded to see the test at least nineteen times.
Baker Aff. Ex. A, at 35:40–38:36. The Deputies repeatedly told him
to stop resisting, that he was under arrest for driving while
impaired and that the result would be in the report.
Id.
Imp
braced himself against the back seat, refused to get in the
4
According to Imp, he “never struggled at any point with the
two officers.” Imp Dep. 34:21–22.
5
The Deputies and Imp move out of the field of view of the
camera, but the videotape continues to record sound. The audio
track also records the constant, loud barking of what appears to be
Wallace’s canine partner. Imp does not recall a dog being present.
See Imp Dep. 35:20–24.
4
vehicle, and “hooked the bottom part of [his] leg against the
bottom of the door [frame].”
Imp Dep. at 37:12-17.
The Deputies then took Imp “down into the nearby ditch.”
at 33:21–22.
Id.
The Deputies placed their knees on his back and
pushed him into the mud in the ditch. Id. at 33:21–24.
As a
result, Imp was “unable to get up from being thrown down in the
ditch, and both officers had to carry [him] back up to the squad
car.”
Id. at 33:25–34:2.
When the Deputies brought Imp back to the vehicle, Imp again
braced his body to prevent being placed inside.
Id. at 38:14–19.
The Deputies told Imp to get in the squad vehicle numerous times.
Baker
Aff.
Ex.
A,
at
35:40–38:36.
According
to
Imp,
“[the
Deputies] had told [him] that if [he] didn’t slide into the
vehicle, that [he] would be tased” and then “Officer Maitland
cracked off the end of it and stuck it into my chest while I was
laid down.”
Imp Dep. 39:14–22.
in drive-stun mode.
Maitland deployed the X-26 Taser
Baker Aff. Ex. C, at 15.
After the first taser deployment, the Deputies told Imp to get
in the vehicle at least twenty-seven more times and warned him at
least thirteen times that they would use the taser again if he did
not comply.
Baker Aff. Ex. A, at 38:42–41:30.
Imp did not comply
and continued loudly to demand to see his PBT results.
5
After
nearly three minutes, the Deputies used the taser a second time.6
The taser caused Imp’s legs “not [to be] braced against the car
anymore.”
Imp Dep. 47:23–48:1.
Imp slid to the ground because
“[his] muscles were locked up,” and the Deputies placed him into
the vehicle.
Id. at 48:1-5.
Thereafter, Wallace transported Imp
to jail, where his blood alcohol test registered 0.13.
Id. at
51:19.
Wallace photographed Imp’s injuries.
Kennedy Aff. Exs. F-1 to -4.
Id. at 51:1–4; see
Imp did not seek medical attention
and returned to work, where he worked lighter duty for a week.
Dep. 58:12–14; 59:1–9.
Imp
He experienced pain in his abdomen for “a
good month” after his arrest.
some of the taser contacts.
Id. at 59:13–16.
Imp has scars from
Id. at 43:1–5.
On February 23, 2010, Imp began the present action against the
Deputies in their individual and official capacities.7
Imp claims
that the Deputies used excessive force and committed battery during
his arrest by “smash[ing]” his face into the hood of the squad
vehicle “very hard and very violently;” placing him face down on
the ground in the ditch with their knees on his back and tasing him
6
According to Imp, “maybe a minute” passed between the first
and second uses of the taser, during which time he “probably didn’t
say too much.” Imp Dep. 44:5–9, 45:8–9.
7
Imp withdrew his official-capacity claims and any other
claims against the Olmsted County Sheriff’s Department. See Pl.’s
Mem. Opp’n 1 (“The Plaintiff withdraws his claims against the
Defendants’ employers.”).
6
“for thirteen seconds, resulting in 10 dual taser burns, from
500,000 volts of electricity being shot into him.”8
Opp’n 2–3.
Pl.’s Mem.
Defendants move for summary judgment.
DISCUSSION
“The court shall grant summary judgment 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
id. at 252.
See
The nonmoving party must set forth specific facts
sufficient to raise a genuine issue for trial; that is, the
nonmoving party “must do more than simply show that there is some
8
Imp misunderstands voltage. First, voltage is a measure of
electric potential per unit charge and is only meaningful in the
context of current. While “50,000 volts” may sound frightening,
any child whose hair stands on end while touching a low-current Van
de Graff generator observes that an electric potential of even
hundreds of thousands of volts does not necessarily cause shock or
injury. Moreover, voltage is not additive with each taser contact:
applying the taser ten times does not mean that Imp had “500,000
volts of electricity being shot into him.” Pl.’s Mem. Opp’n 2–3.
Lastly, even if relevant, the record and video support two taser
deployments, not ten.
7
metaphysical doubt as to the material facts.”
Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see Anderson, 477
U.S. at 249–50.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party,
and does not make credibility determinations.
U.S. at 255.
See Anderson, 477
When the record contains an unchallenged video and
audio recording of the events, the court views “the facts in the
light depicted by the videotape.”
Scott v. Harris, 550 U.S. 372,
381 (2007).
I.
Qualified Immunity
“The doctrine of qualified immunity protects [law enforcement]
officers from personal liability under § 1983 insofar as their
conduct does not violate clearly established constitutional rights
of which a reasonable person would have known.”
Baribeau v. City
of Minneapolis, 596 F.3d 465, 473 (8th Cir. 2010) (citation and
internal quotation marks omitted).
The court applies the doctrine
of qualified immunity in a manner that “gives ample room for
mistaken judgments by protecting all but the plainly incompetent or
those who knowingly violate the law.”
Walker v. City of Pine
Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant,
502 U.S. 224, 229 (1991)).
To determine whether the Deputies are entitled to qualified
immunity, the court views the facts in the light most favorable to
8
Imp and considers (1) whether the alleged facts demonstrate that
the conduct of the Deputies violated a constitutional right and
(2) whether the right claimed was clearly established at the time
of the alleged injury.
See id.
“If the answer to either question
is no,” then the Deputies are entitled to qualified immunity.
Doe
v. Flaherty, 623 F.3d 577, 583 (8th Cir. 2010); see Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009).
II.
Excessive Force
A law-enforcement officer violates the Fourth Amendment right
to
be
free
from
unreasonable
seizure
when
the
excessive force to apprehend or detain a person.
officer
uses
See Graham v.
Connor, 490 U.S. 386, 395 (1989); Cook v. City of Bella Villa, 582
F.3d 840, 849 (8th Cir. 2009).
However, “the right to make an
arrest or investigatory stop necessarily carries with it the right
to use some degree of physical coercion or threat thereof to effect
it.”
Cook, 582 F.3d at 849 (quoting Graham, 490 U.S. at 396); see
Minn. Stat. § 609.06 subdiv. 1(1)(a) (authorizing law-enforcement
officers to use reasonable force to effect arrest).
As a result,
“[n]ot every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates the Fourth Amendment.”
Cook, 582 F.3d at 849 (quoting Graham, 490 U.S. at 396).
“The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.”
9
Graham, 490 U.S.
at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).
The
“calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments –
in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular
situation.”
Id. at 396-97; see Brown v. City of Golden Valley, 574
F.3d 491, 496 (8th Cir. 2009).
Thus, the court considers “whether the amount of force used
was objectively reasonable under the particular circumstances” in
light of the information possessed at the time of the alleged
violation.
Brown,
547
F.3d
at 496
(citations
omitted); see
Rohrbough v. Hall, 586 F.3d 582, 586 (8th Cir. 2009).
evaluating
an
officer’s
use
of
force,
a
court
When
considers the
totality of the circumstances and pays “careful attention to the
facts and circumstances of [the] particular case, 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.”
A.
Graham, 490 U.S. at 396.
Stabilizing Imp on Vehicle and in Ditch
The Deputies had probable cause to arrest Imp for driving
while impaired. The video shows Imp agitated and failing to comply
with commands to blow into the PBT and to turn around to be placed
in handcuffs.
Imp then reacts and resists Wallace’s attempt to
10
perform a search incident to arrest.
As a result, stabilizing Imp
against the squad vehicle was reasonable.
continued
resistance and
refusal
to
lean
In light of Imp’s
his
torso
onto the
vehicle, forcing him onto the vehicle was reasonable.
Imp continued his verbal and physical resistance.
He refused
to get in the squad vehicle and braced himself to prevent being
placed inside.
Imp Dep. 36:15–37:17.
As a result, taking Imp to
the ground was objectively reasonable. In short, the Deputies were
dealing with an intoxicated, uncooperative and belligerent person
whose arrest
required
application of
force.
Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006).
See
Wertish
v.
Stabilizing Imp
against the vehicle and ground was objectively reasonable, and
therefore the Deputies are entitled to qualified immunity.
Moreover, in May 2007, it “was not clearly established ...
that an officer violated the rights of an arrestee by applying
force that caused only de minimis injury.”
Chambers v. Pennycook,
641 F.3d. 898, 908 (8th Cir. 2011); see id. at 904–05.
Given the
state of the law at the time, “a reasonable officer could have
believed that as long as he did not cause more than de minimis
injury to an arrestee, his actions would not run afoul of the
Fourth Amendment.”
Id.
In the present case, the record shows only
minor scrapes and bruises.9
Imp did not require or seek medical
9
The court does not address whether the reasoning of Chambers
applies to the Deputies’ use of the taser. Unlike most uses of
(continued...)
11
attention after his arrest.
Nothing in the record supports a
finding that his injuries were anything more than de minimis.
See
Wertish, 433 F.3d at 1067 (finding relatively minor scrapes and
bruises and less-than-permanent aggravation of prior injuries to be
de minimis).
Therefore, the Deputies are entitled to qualified
immunity, and summary judgment is warranted.
B.
Use of Taser
The Deputies next argue that their use of the taser in drivestun mode10 was objectively reasonable.
As with any use of force,
the court must balance the “nature and quality of the intrusion on
the
individual’s
Fourth
Amendment
interests
against
the
9
(...continued)
force, for which degree of injury is a proxy for degree of force,
a taser in drive-stun mode causes significant pain but minimal or
no injury.
10
An X-26 Taser used in drive-stun mode directly contacts the
subject without deployment of the darts. See Baker Aff. Ex. C, at
20 (expert report of Joshua Lego); McKenney v. Harrison, 635 F.3d
354, 364 (8th Cir. 2011) (Murphy, J., concurring) (citing Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (Wardlaw, J.,
concurring in denial of rehearing en banc). In dart mode, a taser
penetrates the skin and causes neuro-muscular interruption (NMI).
See Baker Aff. Ex. C, at 20; see McKenney, 635 F.3d at 364. NMI
causes the subject to lose control of his muscles, which can lead
to injuries from falling while paralyzed. See McKenney, 635 F.3d
at 364; Bryan, 630 F.3d at 824.
In contrast, drive-stun mode
causes a painful stimulus but does not lead to NMI. Baker Aff. Ex.
C, at 20; McKenney, 635 F.3d at 364.
As a result, a taser in
drive-stun mode is more than trivial force, but it is a lessintrusive — and less risk-laden — use of force than a taser in dart
mode.
12
countervailing government interests at stake.”
McKenney, 635 F.3d
at 359 (citation and internal quotation marks omitted); Cook, 582
F.3d at 849.
In the present case, use of the taser in drive-stun mode
allowed the Deputies to effect the arrest without resorting to a
greater intrusion upon Imp’s Fourth Amendment rights.
Imp’s
belligerent response turned a quick encounter into a lengthy
altercation on the side of the highway. Imp positioned his body to
prevent being placed in the vehicle.
As a result, the force
required to strong-arm Imp’s body into the squad vehicle against
his will would have necessarily risked injury to Imp and the
Deputies.
Use of the taser in drive-stun mode avoided use of brute
physical force to overcome Imp’s resistance to entering the squad
vehicle.
The Deputies are entitled to qualified immunity on this
basis alone.
Moreover, countervailing governmental interests outweigh the
Fourth Amendment intrusion of the taser. Moving Imp from the front
of the vehicle to the back seat would have taken at most a few
seconds had Imp complied.
He did not.
Instead, he created a
prolonged encounter by resisting, shouting profanities at the
Deputies and repeatedly demanding to see the results of the test.
Before
the
first
use
of
the
taser,
the
Deputies
repeatedly
commanded Imp to get in the squad vehicle to stop resisting and to
stop fighting.
After the first use of the taser, the Deputies
13
commanded Imp to get in the squad vehicle at least twenty-seven
times, and warned him that they would use the taser again at least
thirteen times.
Only after repeated commands and warnings do the
Deputies use the taser a second time.
Repeated attempts to use
lesser force during this lengthy arrest were ineffective, and use
of greater force to end the encounter was objectively reasonable.
Further, Imp’s actions placed himself and the Deputies at
risk.
Imp was intoxicated and belligerent and the encounter
occurred at night on a two-lane highway.
The video shows fifteen
cars pass during the time between the initial stop and finally
securing
Imp
in
the
squad
vehicle.
In
handcuffed, and two deputies were present.
mitigation,
Imp
was
However, his free legs
posed a risk that he might flee or kick the officers.
Indeed, he
used his legs to resist being placed in the squad vehicle.
Cf.
Cook, 582 F.3d at 849 (finding use of taser reasonable in light of
presumably intoxicated subjects, number of subjects, sarcastic
comments
and
noncompliance
with
commands);
accord
Buckley
v.
Haddock, 292 F. App’x 791, 794–95 (11th Cir. 2008) (finding use of
taser on handcuffed arrestee reasonable given arrestee’s refusal to
comply with command to move to patrol car, nightime setting,
adjacent highway and repeated directions). Balancing the interests
of the government against Imp’s Fourth Amendment rights, the court
determines that the interests of the government outweighed the
14
intrusion created by use of the taser.
As a result, the Deputies’
use of the taser was objectively reasonable and they are entitled
to qualified immunity.
III.
Therefore, summary judgment is warranted.
Battery
Imp also claims that the Deputies committed battery.
Having
determined that summary judgment is warranted on Imp’s federal
claim, the court exercises its discretion to retain supplemental
jurisdiction over the pendant state claim.
Under Minnesota law,
battery is “an intentional unpermitted offensive contact with
another.”
Paradise v. City of Minneapolis, 297 N.W.2d 152, 155
(Minn. 1980) (citations omitted).
A law-enforcement officer may
use reasonable force in effecting a lawful arrest, Minn. Stat.
609.06 subdiv. 1(1)(a), but “may not subject the person arrested to
any more restraint than is necessary for the arrest and detention,”
id. § 629.32.
Thus, to prevail on a claim of battery, Imp must
show that the Deputies used unreasonable force during the arrest.
See Paradise, 297 N.W.2d at 155.
The court has already determined
that the Deputies’ use of force was objectively reasonable, and
therefore summary judgment is also warranted on the battery claim.
15
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [Doc. No. 10] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
September 21, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
16
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