Jones v. Clark et al

Filing 60

MEMORANDUM OPINION AND ORDER: Defendants' Motion for Judgment as a Matter of Law (found in Defs Trial Brief [Doc. No. 44]) is GRANTED (Written Opinion). Signed by Judge Susan Richard Nelson on 2/7/12. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Heidi Jones,

Civil No. 10-510 (SRN/JJK)
Plaintiff,

v.

MEMORANDUM OPINION
AND ORDER

David Clark and
S. Baker,
Defendants.
________________________________________________________________________
Duane A. Kennedy, Kennedy Law Office, 724 First Avenue Southwest, Suite 3, Rochester,
Minnesota 55902, and William L. French, French Law Firm, 400 South Broadway Avenue, Suite
103, Rochester, Minnesota 55904, for Plaintiff
John M. Baker and Samuel J. Clark, Greene Espel PLLP, 200 South Sixth Street, Suite 1200,
Minneapolis, Minnesota 55402, for Defendants
________________________________________________________________________
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendants’ Motion for Judgment as a Matter of Law.
For the reasons set forth herein, Defendants’ Motion is granted.
I.

BACKGROUND
On January 23-24, 2012, a jury trial was held before the undersigned judge in this matter.

In her Complaint, Plaintiff Heidi Jones alleged civil rights violations under 42 U.S.C. § 1983 and
a battery claim against Defendants David Clark and S. Baker, Olmsted County Sheriff’s
Deputies. (Compl. [Doc. No. 1].) Jones, Clark and Baker testified at trial. At the conclusion of
Plaintiff’s case, Defendants moved for judgment as a matter of law.
Plaintiff’s claims arose from events occurring in the early morning hours of February 15,
2009.

Plaintiff testified that on the preceding evening of February 14, 2009, she had been

angry at her husband for not taking her out to dinner on Valentine’s Day. (Trial Transcript at 46.)
That evening, she left their apartment in Rochester, Minnesota, and walked to a nearby bar. At
trial, Jones verified her deposition testimony, in which she stated that, at the bar, she had a strong
drink containing several shots of alcohol, near the bar’s closing time. (Id. at 47.) Jones
conceded that the drink “really affected [her],” given that she was taking a high dose of
Oxycontin as well as an anti-depressant, for which alcohol was contraindicated. (Id. at 43-44;
47; 51.) Jones conceded that at some point while she was in the bar, she was intoxicated. (Id. at
48.)

In her testimony, Jones also acknowledged that, in her experience, the use of painkillers

coupled with a state of intoxication, is harmful to her memory. (Id. at 39-40.)

Between 2:00

and 2:30 a.m., Jones recalls leaving the bar in the company of two couples whom she had just
met at the bar. She traveled with them to a house inhabited by one or more of them in the nearby
town of Byron, Minnesota. (Id. at 48.)
At some point after their arrival in Byron, a dispute arose between the parties and one of
the persons in the house phoned the police. Plaintiff, who was wearing a sweatshirt, jeans,
baseball cap, but no coat, left the house. (Id. at 49-50.) She testified that she did not want to
phone anyone for a ride in the middle of the night, but acknowledged that she had no car and no
money for a taxi. (Id. at 50-51.)
Olmsted County Deputy Sheriff R.D. Johnson, who was dispatched to the Byron
residence, wrote a report describing his response to the call from the Byron residence. A
redacted version of his report was admitted in evidence at trial and reflects that the call
concerned a complaint of a disorderly person (Redacted Johnson Supp’l Report, Defs’ Ex. 3.)
In his report, Deputy Johnson indicated that he encountered Plaintiff stumbling down the middle

2

of the road in the vicinity of the house from which the call had come. She appeared to be very
intoxicated and slurred her words. In his report, Deputy Johnson described Jones as passive
aggressive, noting that she yelled at him as she spoke, refused to cooperate and told him to “get
the fuck away from me.” (Id. at 1.) He identified her by the contents of her purse as Heidi
Jones. (Id.) Jones reported that she had been inappropriately touched by someone in the Byron
residence. Deputy Johnson summoned another officer to transport Plaintiff to the Crisis
Receiving Unit (“CRU”), or detox unit, in Rochester, Minnesota, while he returned to the Byron
residence to investigate Plaintiff’s allegations of assault.
Deputy Clark responded to Deputy Johnson’s call for assistance. Clark also wrote a
report regarding his interaction with Plaintiff on February 15, 2009, and testified at trial. A
redacted version of his supplemental report was admitted in evidence. (Redacted Clark Supp’l
Report, Defs’ Ex. 4.) Deputy Clark testified that Deputy Johnson had placed Plaintiff in the
back of Clark’s squad car without handcuffs. (Trial Transcript at 98-99.) Deputy Clark testified
that at no time was Plaintiff under arrest.1 (Id. at 99.) According to his report, Deputy Clark
found Jones to be “obviously severely intoxicated,” a conclusion he based on her bloodshot,
watery eyes, running make-up, “overwhelming odor of alcohol on her breath and on her person,”
slurred speech and threatening behavior toward the occupants at the Byron residence. (Redacted
Clark Supp’l Report at 1, Defs’ Ex. 4.) During the transport to the CRU, Clark reported that
Jones was “belligerent, crying, begging and even offer[ing] sexual favors if [Clark] would
release her.” (Id.) When the transport began, Clark activated a video recording device, which

1

Deputy Clark ultimately issued Plaintiff a disorderly conduct citation. (Trial Transcript

at 99.)
3

recorded Jones’ interaction with Deputy Clark during the drive to the CRU in Rochester.2
A DVD of that video was admitted in evidence at trial and was played to the jury. (DVD
of Transport, Defs’ Ex. 1.) The video shows Jones begging not to be taken to detox, pleading
with Deputy Clark, often hysterically, sobbing and speaking in a loud tone of voice, with slurred
speech. The video shows Jones noting that it was Valentine’s Day, and that earlier in the
evening, her husband screamed at her and hit her in front of the kids. (Id. at 03:55:59.) She
later repeats that her husband punched her on Valentine’s Day. (Id. at 03:58:13.) In court,
however, Jones testified that her husband did not hit her in front of the children on Valentines
Day - “[n]ot that day.” (Trial Transcript at 86.) Near the end of the ride, in her desperation to
avoid being taken to the CRU, Jones tells Clark that she will do whatever he wants, even
perform sexual favors, in order to avoid being taken to detox. (DVD of Transport at 04:07:39,
Defs’ Ex. 1.) In response to her offer to perform sexual favors, Deputy Clark responds, “Jesus,
just be quiet.” (Id. at 04:07:43; Clark Redacted Supp’l Report at 2, Defs’ Ex. 4.)
During the ride, Jones also states that she has had her driver’s license revoked and voices
her concern that an admission to the CRU will harm her chances of getting her license reinstated.
(DVD of Transport at 03:52:54, Defs’ Ex. 1.) Deputy Clark’s responses to Jones are short,
measured and neutral. At trial, Deputy Clark testified that he purposely allowed for short
periods of silence in his responses to Jones, so that she understood that he was not questioning
her and would perhaps calm down. (Trial Transcript at 143.) On the video, when Jones accuses

2

Deputy Clark testified that while he did not place Plaintiff under arrest, in some of his
documentation, he coded the event as an “arrest.” He explained that pursuant to the Olmsted
County Sheriff’s Office’s policy regarding retention of video recordings, doing so would
permanently save the video recording from routine deletion. (Trial Transcript at 100; 112-13.)
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Clark of not helping her, he states that he is helping her by taking her somewhere safe. (DVD of
Transport at 04:06:03.) Because Deputy Clark refuses to take her home, Jones accuses him of
“ruining her life.” (Id. at 04:07:43.) Near the conclusion of the ride, Jones threatens to commit
suicide, stating, “I’m gonna kill myself after this. I’m just gonna kill myself.” (Id. at 4:08:33.)
Testifying at trial about Jones’ general demeanor during the transport, Deputy Clark
testified,” I would best describe it as up and down. There were brief moments of calm, followed
by almost sheer panic and desperation. And it just kind of rode a roller coaster all the way up and
down, as we saw in the video.” Deputy Clark also testified that based on Plaintiff’s agitated
behavior during the transport, he requested a second squad car at the CRU to assist in escorting
Plaintiff inside. (Trial Transcript at 137.) Clark testified that he was concerned about Jones
attempting to flee because she did not wish to go to detox, was not dressed appropriately for the
weather, was not thinking rationally and thus was not equipped to care for herself. (Id. at 13031.) Clark also testified that he was concerned that because Plaintiff was not handcuffed, flight
might be a possibility, or due to her state of agitation, she might attempt to fight. (Id. at 138.)
In Jones’ trial testimony, she acknowledged that she was desperate to avoid admission to the
CRU. She also acknowledged that she threatened to kill herself and agreed that she was angry at
Deputy Clark during the ride to the CRU. (Id. at 12; 57.) Deputy Clark testified that Jones
posed a threat to herself, both because her impairment would render her unable to safely navigate
streets on foot, and because she expressly stated that she wanted to kill herself. (Id. at 131-32.)
In addition, Deputy Clark testified that he found Plaintiff’s behavior threatening to him as
well. Clark testified that at one point during the transport, Jones stated something to the effect
of, “I swear to God, when I get out . . .” followed by some unintelligible comment.

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(DVD of

Transport at 04:01:33, Defs’ Ex. 1.) Clark testified that, based on his experience in law
enforcement, he construed Jones’ comment as an implied threat. In addition, he testified that he
viewed her offer to perform sexual favors as threatening to his career, his credibility and his oath
as a law enforcement officer. (Trial Transcript at 135-36.)
When Deputy Clark and Plaintiff arrived at the CRU in Rochester, Olmsted County
Deputy Scott Baker was present, having responded to Deputy Clark’s request for assistance.
(Clark Redacted Supp’l Report at 1, Defs’ Ex. 4.) Deputy Baker wrote a report regarding the
event in question, which was admitted in evidence at trial (Baker Supp’l Report, Defs’ Ex. 5).
Deputy Baker also testified at trial. In his report, Deputy Baker noted that after Deputy Clark
and Jones arrived in the squad car, he spoke with Clark, who informed him that Jones was not
handcuffed, was combative and uncooperative. (Baker Supp’l Report at 1 Defs’ Ex. 5.) Deputy
Clark testified that he told Baker that they might have a problem getting Plaintiff from the car
into the CRU and that they needed to handcuff her. (Trial Transcript at 139; see also Clark
Redacted Supp’l Report at 2, Defs’ Ex. 4.) Officer Clark testified that regardless of whether
Jones was compliant with the officers, he believed that she needed to be handcuffed for her own
safety and for the deputies’ safety. (Trial Transcript at 141.) He explained that this was the case
because Jones was impaired, had threatened to commit suicide and because the deputies were
armed with weapons, which Plaintiff might try to reach, given her impaired state. (Id.) Deputy
Clark testified that he wanted to diffuse any possible anger that Jones might have towards him,
therefore, as he had been trained, he asked Deputy Baker to open the door of the squad car to
initiate verbal contact with Jones. (Id. at 139-40.)
While they were speaking, Jones remained in the back of the squad car. Baker testified,

6

and his report and Deputy Clark’s report reflect, that at this time, Jones began screaming in the
squad car and kicked at the window of the car. (Id. at 191; Baker Supp’l Report at 1, Defs’ Ex.
5; Clark Redacted Supp’l Report at 2, Defs’ Ex. 4.) Jones testified that she did not recall doing
so. (Trial Transcript at 59.) In his report, Baker noted that he instructed Jones to stop, opened
the rear door of the squad car and asked her to step out. (Baker Supp’l Report at 1, Defs’ Ex. 5.)
Jones refused to comply and continued to yell and cry, saying, “Don’t touch me.” (Clark
Redacted Supp’l Report at 2, Defs’ Ex. 4; Baker Supp’l Report at 1, Defs’ Ex. 5.)
In his report, Deputy Clark noted that he told Jones that he wanted to handcuff her.
(Clark Redacted Supp’l Report at 2, Defs’ Ex. 4.) Jones, however, testified that she had no
understanding that the officers wanted to handcuff her. (Trial Transcript at 69-70.) Deputy
Baker reported that he asked Jones to step out of the squad car again and that she refused to
comply. Instead, she lay in a fetal position in the back of the squad car with her knees up to her
chest and her hands clenched in front of her. (Baker Supp’l Report at 1, Defs’ Ex. 5) In her
testimony, Jones agreed that she did not intend to let the deputies pull her out of the backseat of
the squad car. (Trial Transcript at 64.)
Deputy Clark reported that Deputy Baker then ordered Jones to exit the squad car. (Clark
Redacted Supp’l Report at 2, Defs’ Ex. 4.) He testified that this was the next level of “force,” in
the Sheriff Department’s continuum of force, beginning with officer presence (in this case, the
presence of Deputy Baker), increasing to an officer’s request (to step out of the car), and an
officer’s command (to step out of the car.) (Trial Transcript at 142-43.) Deputy Baker reported
that he reached in to take hold of Jones’ wrists and Jones screamed and kicked at Deputy Baker,
with her foot making contact with his thigh. (Baker Supp’l Report at 1, Defs’ Ex. 5.) Jones

7

agreed that she stuck her foot out of the car, but testified that she did not intend to kick Deputy
Baker. (Trial Transcript at 68.) In his report, Deputy Clark noted that Deputy Baker then
backed away a short distance while Jones partially got out of the car, which Deputy Clark
interpreted as a possible precursor to flight. (Clark Redacted Supp’l Report at 3, Defs’ Ex. 4.)
Baker reported that he continued to reach in and eventually grabbed hold of Plaintiff’s left wrist,
pulling her from the vehicle. (Baker Supp’l Report at 1, Defs’ Ex. 5.) Deputy Clark reported that
after Baker pulled Jones from the squad car, she “was posturing” in a way that appeared she
might attempt to assault them. (Clark Redacted Supp’l Report at 3, Defs’ Ex. 4.) Deputy Baker
reported that after pulling her from the car, Jones tightened her muscles in such a way as to make
it difficult for Baker to place her hands together for handcuffing, and screamed that he was
assaulting her. Baker continued to order Jones to calm down and place her hands behind her
back and she refused to comply. (Baker Supp’l Report at 1, Defs’ Ex. 5.)

Deputy Clark

reported that he warned Jones that if her behavior continued, he would be forced to use his taser
on her. (Clark Redacted Supp’l Report at 3, Defs’ Ex. 4.)
In his report, Deputy Baker noted that Deputy Clark drew his taser and ordered Jones to
place her hands behind her back, or risk being tased. (Baker Supp’l Report at 1, Defs’ Ex. 5.)
Deputy Clark also reported that he drew his taser, removed the dart cartridge and warned Jones
that he was going to use the taser. (Clark Redacted Supp’l Report at 3, Defs’ Ex. 4.) Baker
reported that at the same time, Plaintiff continued to struggle with him. (Baker Supp’l Report at
1, Defs’ Ex. 5.) Both deputies reported that Deputy Clark then performed a “drive-stun” on
Plaintiff’s upper right thigh.3 (Id.; Clark Redacted Supp’l Report at 3.) Plaintiff testified,
3

As this Court observed in Imp v. Wallace, when a taser is used in drive-stun mode, as
opposed to “dart mode,” an officer presses electrical nodes against the subject’s body, without
8

however, that the taser was deployed in the chest or shoulder area. (Trial Transcript at 70.)
Deputy Clark reported that Jones was flailing her legs and, consequently, he believed while the
taser was in operation, it slid up and down her leg. (Clark Redacted Supp’l Report at 3, Defs’
Ex. 4.) At trial, Deputy Clark testified that because Jones was moving while he deployed the
taser, Jones’ body was not in direct contact with the taser for the full five seconds. (Trial
Transcript at 94.) Plaintiff screamed and fell back into the squad car. (Baker Supp’l Report at 1,
Defs’ Ex. 5; Clark Redacted Supp’l Report at 3.) Plaintiff testified that the effect of the taser
knocked her back into the car. (Trial Transcript at 14; 71.) Deputy Baker reported that he again
reached in and tried to gain control of Jones’ hands, but she continued to struggle and kick at
him, although her feet did not make actual contact with him this time. (Baker Supp’l Report at 1,
Defs’ Ex. 5.) Plaintiff testified that she could not quickly move her hand in position to be
handcuffed after the taser was deployed. (Trial Transcript at 72.)
Deputy Clark then administered a second drive-stun of the taser on Plaintiff’s right thigh.
(Baker Supp’l Report at 1, Defs’ Ex. 5.) Deputy Clark testified that the taser itself produces a
record of the instances of deployment. (Trial Transcript at 164-65.) In this case, the record was
introduced as a trial exhibit. (Taser Deployment Record, Defs’ Ex. 6.) The deployment record
reflects that the taser was deployed for two five-second periods, eighteen seconds apart, on

deployment of darts. In dart mode, a taser fires metal darts that penetrate the skin and cause
neuro-muscular interruption. 10-CV-509 (DSD/JJK), 2011 WL 4396941 at *5, n.10 (D. Minn.
Sept. 21, 2011) (citing McKenney v. Harrison, 635 F.3d 354, 364 (8th Cir. 2011) (Murphy, J.,
concurring)). Here, there is no dispute between the parties that Deputy Clark deployed the taser
in drive-stun mode. Deputy Clark testified that when a taser is used in drive-stun mode,
electricity is pushed into the subject’s body, cycling for a five-second period before
automatically switching off. (Trial Transcript at 94.)

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February 15, 2009.4 (Id. at 22.)
After the second application of the taser, Deputy Baker reported that Plaintiff then was
compliant and the two deputies were able to help Jones stand up. (Trial Transcript at 194-95.)
Plaintiff testified that the second tasing rendered her unconscious and she had no memory of
events after the taser was used for the second time until some point during which she was
escorted to the CRU, when she saw the ground passing below her. (Id. at 74.)

Deputy Clark

testified that Jones was not unconscious, but that she stood on her own feet after the second
deployment of the taser and, with the deputies’ assistance, was escorted to the back of the squad
car. (Id. at 173.) Deputy Baker reported that he and Deputy Clark then walked Jones to the back
of the squad car and positioned her face-forward on the trunk in order to handcuff her. (Baker
Supp’l Report at 1, Defs’ Ex. 5.) Deputy Baker testified that when he and Deputy Clark helped
Jones stand up from the trunk, she went limp, fell out of Deputy Baker’s grasp, and fell slowly to
the ground. (Trial Transcript at 197-98.)
Deputy Baker reported that after he and Deputy Clark laid Jones across the trunk of the
squad car, he was able to gain control of Plaintiff’s left wrist, which was behind her back.
(Baker Supp’l Report at 1, Defs’ Ex. 5.) However, he reported that her right arm was extended
on the trunk, with her face on her arm. Deputy Baker instructed Deputy Clark to control Jones’
head in order to avoid the possibility of being bitten as he reached for Jones’ right wrist. (Baker
Supp’l Report at 1, Defs’ Ex. 5.) Deputy Baker was then able to handcuff Jones. (Id.)

4

The deployment record also includes a third entry for February 15, 1009, showing a
one-second deployment, approximately twelve hours after the other two deployments on that
date. (Taser Deployment Record at 22, Defs’ Ex. 6.) Deputy Clark explained that this third
deployment was likely a test fire that he or another officer conducted at the beginning of his next
shift. (Trial Transcript at 167.)
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According to the deputies’ reports, after she was handcuffed, Jones refused to walk under
her own power, so Deputy Baker and a CRU staff member who was present placed their hands
under Jones’ underarms and carried her to the entrance to the CRU. (Baker Supp’l Report at 1,
Defs’ Ex. 5; Clark Redacted Supp’l Report at 3, Defs’ Ex. 4.) Deputy Clark testified that he
purposely stood aside in order to diffuse the situation with Jones. (Trial Transcript at 176.)
Because Jones is approximately six feet tall, Deputy Baker noted that her feet, and possibly her
legs, were dragging on the pavement when she was carried a distance of approximately 40 feet.
(Baker Supp’l Report at 1, Defs’ Ex. 5.) He testified that he did not believe Jones’ knees
dragged on the ground. (Trial Transcript at 218-219.) Likewise, Deputy Clark noted that due to
Jones’ tall height, a portion of her lower body appeared to drag along the ground as she was
carried into the CRU, but he did not believe that her knees dragged on the pavement. (Clark
Redacted Supp’l Report at 3-4, Defs’ Ex. 4.) Jones, however, testified that when she regained
consciousness during her escort into the CRU, her knees were dragging on the ground. (Trial
Transcript at 17.)
Once inside the CRU, Jones was then secured in a seclusion room. (Baker Supp’l Report
at 1, Defs’ Ex. 5.) In his report, Deputy Clark noticed that Jones had what appeared to be scars
from self-inflicted wounds on her wrists, and that he observed her making a “mooing” sound and
slapping herself on the face and head as he walked past her seclusion room. (Clark Redacted
Supp’l Report at 3, Defs’, Ex. 4.)
Deputy Clark reported that he returned to the CRU later that evening and requested that a
female staff member from the CRU take photographs of Jones’ legs. (Clark Redacted Supp’l

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Report at 3, Defs’ Ex. 4.) A total of eight photographs were taken.5 (Id.) Deputy Clark noted
that he reviewed the photographs and observed what appeared to be older bruises on Jones’ legs,
small red round marks consistent with the use of the taser, fresh abrasions on the knees and one
wrist and blackened eyes. (Id. at 4.) Jones testified that her wrists were badly bruised and cut,
her knees were scratched, bruised and swollen, her eyes were black and blue, and she had several
two-pronged burn marks on her leg. (Trial Transcript at 18-19.)
Jones acknowledged in her testimony that she had no permanent injuries as a result of
actions she attributed to Defendants. (Id. at 76.) She also testified that she did not seek
psychological or medical attention for the injuries she attributed to Defendants, nor lost wages.
(Id. at 76-78.) As to photos depicting marks on Plaintiff’s palm and wrist, Jones testified that
she did not know whether those marks were caused by her own actions or those of Defendants
because she was unconscious when she was handcuffed. (Id. at 83.) She also testified that none
of the photographs depict taser marks on her chest and shoulder, which she explained was
because the taser did not go through her sweatshirt. (Id.) As to the marks on her face, or
blackened eyes, Plaintiff testified that they were not there before she went to detox, but admitted
that she did not know how to otherwise account for them. (Id. at 84-85.) Jones acknowledged
that neither Clark nor Baker hit her. (Id. at 85.)
Plaintiff testified that she did not think the use of force was necessary. However, she did
not claim that the deputies should have pulled her wrists together with brute force as an
alternative means of getting her handcuffed and out of the squad car. (Id. at 84.) She described

5

Several of these photographs were admitted in evidence at trial (e.g., Pl’s Exs. 2, 4, 6
and Defs’ Ex. 14), along with photographs taken by Plaintiff and/or her husband approximately
two weeks later. (Pl’s Exs. 5, 7 and 8.)
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the sensation of being tased as similar to “grabbing an electric fence, but not letting go,” and
testified that it was painful. (Id. at 15; 71.)
The Olmsted County Sheriff’s Department’s use of force policy was admitted in evidence
at trial. (Olmsted County Sheriff’s Office Use of Force Policy [“Policy”], Pl’s Ex. 1.) Under the
policy, deputies are required to “[e]mploy the minimum force reasonably necessary to
accomplish a legal purpose,” and deputies “may resort to more severe methods of force to
overcome either increasing resistance or an increasingly dangerous threat to public safety.” (Id.
at 2.) Deputy Clark testified that under the Olmsted County Sheriff’s Department use of force
policy, the lowest possible use of force is first applied before applying the next level of force.
(Trial Transcript at 142; see also Policy at 2, Pl’s Ex. 1.) Also, Deputy Clark stated that reaching
into a squad car to try to grab a person’s hands puts both that person and the officer at a greater
risk for injury, due to the proximity of officers’ weapons and the possibility of a non-handcuffed
person’s access to the weapons. (Id. at 147.) Deputy Clark testified that physically
overpowering Jones would involve a higher level of force than necessary and a higher level of
force than tasing. (Id. at 159-60.)
Under the use of force policy, the use of chemical agents or sprays are considered to be at
the same level of force as the use of “stun technology and EMD devices,” such as a taser.
(Olmsted County Sheriff’s Office Use of Force Policy, Pl’s Ex. 1 at 5-6.) The policy provides:
“[c]ertain situations may require the use of stun technology devices. When chemical agents
would be ineffective or inappropriate, physical contact would lead to deputy-initiated jeopardy,
and other force measures are not authorized, stun tools and EMD devices bridge the gap.” (Id.)
Deputy Baker testified that, in his opinion, he would not have considered the use of chemical

13

spray due, explaining, “it would have been far more aggravating to the person being sprayed,
plus, the overspray would have sprayed me, and Deputy Clark also probably would have got
some in his eyes, which would have affected us also.” (Trial Transcript at 220-21.)
II.

DISCUSSION
Rule 50 of the Federal Rules of Civil Procedure provides:
If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). In analyzing a motion for judgment as a matter of law, the court must:
(1) resolve direct factual conflicts in favor of the nonmovant; (2) assume as true all facts
supporting the nonmovant which the evidence tends to prove; (3) give the nonmovant the benefit
of all reasonable inferences; and (4) deny the motion if the evidence so viewed would allow
reasonable jurors to differ as to the conclusions that could be drawn. Roberson v. AFC
Enterprises, Inc., 602 F.3d 931, 933 (8th Cir. 2010) (noting that appellate court’s standard of
review on a ruling for judgment as a matter of law is the same standard used by the district
court).
A.

Federal Civil Rights Claim

Plaintiff contends that Defendants’ use of excessive force and unreasonable seizure
violated her rights to due process and the right to be free from excessive force and seizure.
(Compl. ¶ 19 [Doc. No. 1].) Defendants argue that they are entitled to judgment as a matter of
law on grounds of qualified immunity.
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“Qualified immunity shields a government official from liability and the burdens of
litigation in a § 1983 action for damages unless the official’s conduct violated a clearly
established constitutional or statutory right of which a reasonable officer would have known.”
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Qualified immunity is “an immunity from suit rather than a mere
defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). The Supreme Court has stated that qualified immunity “protects ‘all
but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, __
U.S. __ , 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555
U.S. at 231.
1.

Excessive Force Claim

To overcome a claim of qualified immunity, a plaintiff alleging excessive use of force, as
here, must present sufficient facts to show that the officer’s conduct violated a constitutional
right and that the constitutional right was clearly established. Chambers, 641 F.3d at 904.
Courts have generally conducted a two-part inquiry, assessing whether the facts show that the
challenged conduct violated a constitutional right, and if a violation can be established based on
those facts, determining whether the constitutional right at issue was clearly established on the
date in question. See, e.g., Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir. 2004)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). When undertaking this inquiry, courts may
exercise their discretion in determining which of the two prongs should be addressed first, and
15

whether, in some circumstances, the first prong may be skipped. Pearson, 555 U.S. at 235-36
(explaining that it may be better to address the second Saucier prong of whether a right is clearly
established without first addressing whether there was a constitutional violation where “the
constitutional question is so fact-bound that the decision provides little guidance for future
cases”); McClennon v. Kipke, __ F. Supp.2d __, 10-CV-2598 (RHK/JJK), 2011 WL 5177393,
*3 (D. Minn. Oct. 31, 2011) (citing Pearson, noting that “the Court may skip Saucier’s first step
and proceed directly to whether the constitutional right at issue was clearly established when the
alleged violation occurred”).
a.

Whether the Right Was Clearly Established

In this case, the Court turns first to the second prong of the inquiry – whether the
constitutional right at issue was clearly established. In determining whether the constitutional
right was clearly established at the time of the conduct, the Court must ask whether the contours
of the applicable law were “‘sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’” al-Kidd, __ U.S. at __, 131 S. Ct. at 2083
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While “[w]e do not require a case
directly on point, . . . existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. (emphasis added). To determine whether the right in question is clearly
established, courts must identify controlling authority, or a “robust ‘consensus of persuasive
authority’ that defines the contours of the right in question with a high degree of particularity.”
See Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (citing al-Kidd, 131 S. Ct. at 2084
(internal citations omitted).
It is clearly established law that a law enforcement officer violates the Fourth
Amendment right to be free from unreasonable seizure when using excessive force to apprehend
16

or detain a person. Imp v. Wallace, 10-CV-509 (DSD/JJK), 2011 WL 4396941, *3 (D. Minn.
Sept. 21, 2011) (citing Graham v. Connor, 490 U.S. 386, 395 (1989); Cook v. City of Bella
Villa, 582 F.3d 840, 849 (8th Cir. 2009)). It is also well-established, however, that “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.” 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.” Id. at 396-97 (citing Terry v. Ohio, 392
U.S. 1, 20-22 (1968)).
However, what was not well-established,“beyond debate,” as of February 15, 2009, was
whether an excessive force claim required some minimum level of injury. Chambers, 641 F.3d
at 904 (observing that “over the course of more than fifteen years, . . . it . . . remain[ed] an open
question in this circuit whether an excessive force claim requires some minimum level of
injury.”) In McClennon, this Court addressed a plaintiff’s excessive force claims, also involving
the use of a taser, arising in 2006. __ F. Supp.2d at ___, 2011 WL 5177393 at * 3-4. In that
case, this Court observed that prior to the Eighth Circuit’s 2011 decision in Chambers, different
Eighth Circuit panels had reached different conclusions as to whether an excessive force claim
required some minimum level of injury. Id. at *3 (comparing Lambert v. City of Dumas, 187
F.3d 931, 936 (8th Cir. 1999) and Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995), with
Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005) and Crumley v. City of St. Paul, Minn.,
324 F.3d 1003, 1007 (8th Cir. 2003)).
Chambers, decided in 2011, ended the uncertainty, holding that the excessive-force
inquiry must focus on the force applied and not on the level of injury. In Chambers, the plaintiff
brought a § 1983 claim against three police officers alleging that they used excessive force
17

against him following his arrest. 641 F.3d at 902-03. Specifically, Chambers testified at his
deposition that in August 2005, one officer kicked him several times while he was restrained,
offering no resistence, that another officer repeatedly choked and kicked him during a trip to the
hospital, and that a third officer took a roundabout route to the hospital and purposely drove
erratically so as to jerk the plaintiff back and forth. Id.

A doctor evaluating Chambers at the

hospital found that Chambers had upper back pain, diagnosed a back contusion and advised him
to take Tylenol and Ultram pain medication. The doctor noted that there was no evidence of
fractures of the spine or ribs, nor did Chambers show acute distress. Id. at 902-03. While the
court found that Chambers had presented sufficient evidence, if believed, to establish a violation
of the Fourth Amendment, it nonetheless affirmed the district court’s ruling that the officers
were entitled to qualified immunity based on the state of the law at the time of the conduct at
issue:
Given the state of the law in August 2005, 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. A reasonable
officer was permitted to assume that legal conclusion when determining how to
proceed, and he is entitled to have his conduct judged according to that standard
for purposes of qualified immunity. See Dunn v. Denk, 79 F.3d 401, 403 (5th
Cir.1996) (en banc); Harper v. Harris Cnty., 21 F.3d 597, 601 (5th Cir.1994) (per
curiam).
According to the testimony given by Chambers, the officers used a degree of
force that was excessive. Under the law in August 2005, the officers ran the risk
of liability if that force caused significant injury. But the converse is also true.
The officers knew there was some chance that their actions would cause only de
minimis injury, and it was reasonable for the officers to believe that they
remained within constitutional bounds if that was the result. As it turned out, the
force did not cause more than de minimis injury. We reject in this decision a
constitutional rule that turns on the arrestee's degree of injury, but given the law
prevailing at the time of the incident, we conclude that the officers are entitled to
qualified immunity.
Id. at 908-09.
18

As this Court observed in McClennon, “a reasonable officer making an arrest before
Chambers ‘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.’” __F. Supp.2d at __,
2011 WL 5177393 at *4. “In other words, it was not clearly established pre-Chambers that an
officer violated an arrestee’s rights, no matter how much force he applied, if he caused only de
minimis injuries.” Id.
Here, Jones testified that her wrists were badly bruised and cut, her knees were scratched,
bruised and swollen, her eyes were black and blue, and she had several two-pronged burn marks
on her leg. (Trial Transcript at 18-19.)

However, Jones also acknowledged that she had no

permanent injuries as a result of Defendants’ actions. (Id. at 76.) She testified that she did not
seek psychological or medical attention for the injuries she attributes to Defendants, nor lost
wages. (Id. at 76-78.) Moreover, as to photos depicting marks on Plaintiff’s palm and wrist,
Jones testified that she did not know whether those marks were caused by her own actions or
those of Defendants because she was unconscious when she was handcuffed. (Id. at 83.) She
also testified that none of the photographs depicted taser marks on her chest and shoulder, which
she explained was because the taser did not go through her sweatshirt. (Id.) As to the marks on
her face, or blackened eyes, Plaintiff testified that they were not there before she went to detox,
but admitted that she did not know how to account for them. (Id. at 84-85.) Jones acknowledged
that neither Clark nor Baker hit her. (Id. at 85.) The Eighth Circuit has held that “relatively
minor scrapes and bruises” and “less-than-permanent aggravation of a prior [condition]”
constitute de minimis injuries. Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006).
Without minimizing Plaintiff’s injuries to her wrists, leg, knees and face, they were not
permanent or long-term injuries, nor injuries for which she even sought medical attention, but
19

were of a de minimis nature.
Although the Court does not diminish the pain and discomfort caused by the application
of the taser to Jones, this Court follows the reasoning set forth in McClennon. There, this Court,
citing precedent from the Eighth Circuit, this Court and other courts, found that absent evidence
of long-term effects, the use of a taser did not inflict serious injury:
But while a Taser delivers a “painful and frightening blow” that can render “even
the most pain tolerant individuals utterly limp,” McKenney v. Harrison, 635 F.3d
354, 362 (8th Cir. 2011), the Eighth Circuit has held that in the absence of
evidence of long-term effects, the use of a Taser does “not inflict any serious
injury.” Cook v. City of Bella Villa, 582 F.3d 840, 851 (8th Cir. 2009); accord,
e.g., Luepker v. Taylor, No. 4:09CV1657, 2010 WL 2696701, at *9 (E.D. Mo.
July 6, 2010) (“[T]he Court does not believe that the momentary pain and
suffering caused by a [T]aser ... rises above the level of a de minimis injury.”);
Chisolm v. VonDoran, No. 4:08–cv–3242, 2010 WL 625381, at *6 (D. S.C. Feb.
19, 2010); Bailey v. Cnty. of Kittson, Civ. No. 07–1939, 2009 WL 294229, at *22
(D. Minn. Feb. 5, 2009) (Montgomery, J., adopting Report & Recommendation of
Erickson, M.J.) (“[W]e conclude that the Plaintiff's excessive force claim fails as
a matter of law, because he has failed to demonstrate any actual injury—not even
a de minimis injury—which resulted from use of the [T]aser gun.”); Stanley v.
City of Baytown, Tex., No. Civ. A. H–04–2106, 2005 WL 2757370, at *6 (S.D.
Tex. Oct. 25, 2005); see also Schumacher v. Halverson, 467 F. Supp.2d 939, 951
(D. Minn.2006) (Rosenbaum, J.) (rejecting excessive-force claim predicated on
use of Taser because, inter alia, it “did not cause any permanent physical injuries,
and [plaintiff] did not require any medical or psychological treatment as a
result”); but see Orsak v. Metro. Airports Comm'n Airport Police Dept., 675 F.
Supp.2d 944, 958 (D. Minn.2009) (Tunheim, J.) (noting that certain courts have
held that “the effects of the [T]aser are more than de minimis ”). The fact that the
officers used a Taser, therefore, cannot save the day for McClennon.
McClennon, __ F. Supp.2d at __, 2011 WL 5177393 at *5.
For all of these reasons, the Court finds that Plaintiff’s injuries were of a de minimis
nature as a matter of law. See id. at *6. Even though it was clearly established as of February
15, 2009, that the Fourth Amendment guarantees the right to be free from excessive force during
a seizure of a person, the force used by Defendants did not cause more than de minimis injury. It
was not clearly established, at the time, that an officer committed a constitutional violation under
20

these circumstances. Therefore, Defendants are entitled to qualified immunity on Plaintiff’s
excessive force claim.
b.

Whether the Conduct Violated a Constitutional Right

Although the Court’s conclusion that the right at issue was not clearly established at the
time is dispositive of qualified immunity, given the developed record in this case, the Court also
concludes that Defendants did not violate Plaintiff’s constitutional rights. Without belaboring
the analysis, given the Court’s conclusion above, the Court briefly addresses Plaintiff’s claims of
excessive force, in terms of whether Defendants’ conduct constituted a constitutional violation.
As the Eighth Circuit has observed, “We analyze excessive force claims in the context of
seizures under the Fourth Amendment, applying its reasonableness standard.” Brown v. City of
Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). This reasonableness standard recognizes that
government actors often face decisions that must be made instantly, in tense situations:
With respect to a claim of excessive force, the same standard of reasonableness at
the moment applies: “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers,” Johnson v. Glick, 481 F.2d, at
1033, violates the Fourth Amendment. 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.
Graham, 490 U.S. at 396-97.
When considering an officer’s use of force, a court 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.” Id. at 396.
In terms of the “severity of the crime at issue” in this case, while Jones was not under
21

arrest on February 15, 2009, she was essentially in temporary custody, en route to a treatment
facility due to her state of public intoxication. Under Minnesota law:
[a] peace or health officer or a person working under such officer's supervision,
may take a person who is believed to be chemically dependent or is intoxicated in
public into custody and transport the person to a treatment facility. If the person is
intoxicated in public or is believed to be chemically dependent and is not in
danger of causing self-harm or harm to any person or property, the peace or
health officer may transport the person home.
Minn. Stat. § 253B.05, subd. 2.
The evidence at trial established that Deputy Johnson was the first law enforcement
officer in contact with Plaintiff on February 15, 2009. He reported that she was stumbling down
the middle of the road, slurring her words, and yelling and swearing at him. He determined that
she was very intoxicated and summoned Deputy Clark to transport Jones to the CRU. (See
Johnson Supp’l Report at 1, Defs’ Ex. 3.) Plaintiff acknowledged that she was intoxicated that
evening and was also taking a high dose of Oxycontin, along with an anti-depressant. Both she
and Deputy Clark testified that she was not wearing a coat and Jones conceded that she had no
viable means of getting from Byron, Minnesota to her home. The DVD of Jones’ transport to
the CRU depicts Jones, in an emotionally overwrought state, telling Deputy Clark that her
husband was abusive, had punched her earlier in the night, and that she wanted to kill herself.
Given that Jones was intoxicated in public and in danger of causing self-harm, under the plain
language of Minn. Stat. § 253B.05, subd. 2, law enforcement officers had the discretion to
assume temporary custody of Plaintiff to transport her to a treatment facility. Deputy Johnson
determined that she should be transported to the CRU. Under these circumstances, Jones was
lawfully transported to the CRU. The fact of her temporary custody and transfer does not
support any independent claim for unreasonable seizure, to the extent that Jones makes such a

22

claim.
Underpinning Plaintiff’s § 1983 claim are allegations of excessive force involving the
taser, the positioning and handcuffing of Plaintiff on the squad car trunk, and the escort of
Plaintiff into the CRU building. The Court addresses these specific instances for which Plaintiff
claims Defendants used excessive force, considering the nature and quality of the force used
against Jones.
a.

Tasing

“A threat to an officer’s safety can justify the use of force in cases involving relatively
minor crimes and suspects who are not actively resisting arrest or attempting to flee.” Brown,
574 F.3d at 497. In Brown, which involved a plaintiff-passenger in a traffic stop who “posed at
most a minimal threat” to the officers, was not resisting arrest, nor attempting to flee, the Eighth
Circuit was not convinced that the officer’s tasing and arrest of the plaintiff was objectively
reasonable as a matter of law. Id. at 496. The court therefore affirmed this Court’s ruling
denying summary judgment for the defendant officer, concluding that there was a genuine issue
of material fact as to whether the officer used excessive force. Id. at 498.
In contrast, however, where a person is physically resistant and non-compliant with a law
enforcement officer, a number of courts, including this Court, have found that the use of a taser
is objectively reasonable. Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (affirming
grant of summary judgment for defendant where use of a taser to effectuate plaintiff’s arrest was
reasonably proportionate to the difficult and tense circumstances facing defendant at a traffic
stop, and did not constitute excessive force; plaintiff was hostile, uncooperative and refused to
comply with defendant’s request for documentation); Russo v. City of Cincinnati, 953 F.2d
1036, 1044-45 (6th Cir. 1992) (finding that district court erred in refusing to grant summary
23

judgment to defendant officer regarding claim that use of taser constituted excessive force;
although officer may have used excessive force during initial tasing, plaintiffs failed to show that
clearly established law rendered officer’s actions unconstitutional in circumstances in which
officer confronted suspect who was armed, had made a number of threatening statements to
officers and was considered homicidal and suicidal and officer was attempting to avoid use of
lethal force); Davoe v. Rebant, No. 05-71863, 2006 WL 334297, *6 (E.D. Mich. Feb. 13, 2006)
(granting summary judgment in favor of defendants on excessive force claim in case in which
plaintiff was “hostile and uncooperative” immediately upon being approached by officers,
repeatedly ignored requests for identification, yelled at officers and refused order to enter patrol
car, at which point officers used taser); Imp, 2011 WL 4396941 at *5 (granting motion for
summary judgment in favor of defendants, finding that use of a taser on a non-cooperative,
intoxicated, resistant motorist was objectively reasonable under the Fourth Amendment).
In addition, courts have found the use of a taser objectively reasonable where a person
poses a substantial risk of harm to themselves. In McKenney v. Harrison, No. 8:09CV129, 2010
WL 560891, * 7-8 (D. Neb. Feb. 10, 2010), aff’d, 635 F.3d 354 (8th Cir. 2011), the defendant
officer, Pollreis, used a taser against Barnes, an unarmed person whom the authorities were
seeking in connection with outstanding warrants. Barnes appeared to lunge at a closed secondstory window and, in order to prevent Barnes from going through the window and to prevent the
officer from being injured if she stood between Barnes and the window, Pollreis deployed the
taser. Barnes fell through the closed window, and later died of injuries received from the fall.
Id. at *2-3. The court found that the officer’s split-second judgment to deploy the taser was
objectively reasonable under the circumstances she confronted and that a reasonable officer in
her position could have believed she was acting lawfully. Id. at *8. Accordingly, the court
24

found no Fourth Amendment excessive force violation and that the defendant officer was entitled
to qualified immunity. Id. Affirming the district court’s ruling on appeal, the Eighth Circuit
reviewed the facts, finding that the use of force was reasonable:
Despite the fatal consequences of the incident, the level of force employed also
was not unreasonable. Pollreis used only a single Taser shock. She was required
to react in a split second as Barnes sought to escape through a window only six to
eight feet away. The alternative of attempting to subdue Barnes by tackling him
posed a risk to the safety of the officer and did not ensure a successful arrest. The
officers had warned Barnes. Just before he lunged, Harrison told Barnes not to do
anything stupid, and Pollreis said “you don't want to be tased.” And although the
outcome was tragic, a reasonable officer, knowing that a Taser is designed to
incapacitate instantly, could have believed that the force would incapacitate
Barnes before he reached the window, while he was not in an “elevated position”
and likely to fall. Under these circumstances, we conclude that the force used by
Pollreis was reasonable.
McKenney, 635 F.3d at 360.
Similarly, in Imp, one factor underlying this Court’s finding that the use of taser was
objectively reasonable was that the officers’ encounter with the intoxicated driver occurred at
night, on the side of a busy two-lane highway, in which both the driver and the officers were at
risk of harm. Imp, 2011 WL 4396941 at *5.
Given the facts here, and giving Plaintiff the benefit of all reasonable inferences, Deputy
Clark’s use of the taser on Jones was objectively reasonable as a matter of law. Balancing the
“nature and quality of the intrusion on an individual’s Fourth Amendment interests against the
countervailing government interests at stake,” Graham, 490 U.S. at 396, the use of the taser in
drive-stun mode permitted Deputy Clark and Deputy Baker to gain control of Plaintiff so that
she could exit the squad car and safely enter the CRU. Given Jones’ escalating behavior during
the ride to the CRU, during which she begged not to be taken to the CRU, made a threatening
comment to Deputy Clark, offered sexual favors and ultimately threatened suicide, the need to

25

handcuff Plaintiff on arrival at the CRU was objectively reasonable. Unlike Brown, in which the
plaintiff was simply sitting in a squad car, refusing to end her cell phone call, 574 F.3d at 49495, Jones actively resisted Deputy Baker’s request, then command, that she step out of the squad
car. Not only was she physically resistive, Jones kicked Deputy Baker, making contact with his
leg at least once. She did not deny that her foot made contact with his body, although she
testified that she did not intend to kick him. Whatever her intent, the record does not indicate that
she made her intent known, and the deputies’ conduct is assessed from the objective standpoint
of a reasonable officer. Moreover, Deputy Clark warned Jones of his intent to use the taser if
she refused to cooperate with the deputies. When Jones continued to actively resist, he applied
the taser in drive-stun mode.6
After the taser was deployed, Plaintiff fell back into the squad car. The officers were still
unable to obtain control of Plaintiff. While Plaintiff contends that she had no control over her
body, the circumstances outlined above did not appreciably change – Plaintiff was not
handcuffed, her limbs were moving about, she posed a risk to herself and to the deputies, and she
was not compliant with their requests and commands. The law requires the Court to consider the
circumstances in totality, from the perspective of a reasonable police officer, faced with the need
for quick decision-making. While Plaintiff was not in custody for a violent infraction, she
continued to pose a significant danger to herself and to the officers. The deputies testified that
application of brute force to Plaintiff would likely have placed her at greater risk of injury. In
addition, Deputy Baker testified that use of chemical spray would possibly have resulted in
inadvertent application to him and Deputy Clark. Under these circumstances, where repeated
6

While Clark and Baker contend that the taser was first applied to Plaintiff’s leg and
Plaintiff testified that it was applied to her chest or shoulder, this factual dispute is immaterial to
the determination of reasonableness.
26

attempts to use lesser force were ineffective, the second application of the taser was objectively
reasonable. See Imp, 2011 WL 4396941 at *5 (“[T]he 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. . . .”)
b.

Positioning on Trunk

Defendants’ actions in positioning Plaintiff on the back of the squad car in order to
handcuff her do not rise to the level of a constitutional violation. Jones testified that she was
unconscious at this point, so she has no evidence to rebut Defendants’ testimony. The deputies
testified that Jones was positioned on the back of the squad car for purposes of handcuffing.
There is no evidence that excessive force was used in this process, other than Plaintiff’s
speculation about the source of her black eyes. The officers testified that Jones’ head was
guided downward and her arm, close to her mouth, was moved in order prevent any possible risk
of biting while she was handcuffed. There is no evidence demonstrating that the deputies’
actions were unnecessarily rough or excessive. Given the totality of the circumstances,
Defendants’ actions in stabilizing Plaintiff against the vehicle were objectively reasonable. Imp,
2011 WL 4396941 at *4 (taking Imp to the ground and later stabilizing against the vehicle were
objectively reasonable, as Imp was intoxicated and verbally and physically resistant).
c.

Escort into CRU Facility

Deputy Baker’s actions in escorting Jones into the CRU do not rise to the level of a
constitutional violation. The deputies acknowledged that some lower portion of Plaintiff’s legs
might have dragged along the ground as she was escorted for a distance of approximately forty
feet. Jones testified that she regained consciousness during this escort, recalled seeing the
ground below her and that her knees were dragging on the ground. Viewing any factual disputes
27

in Plaintiff’s favor and therefore assuming that Plaintiff’s knees were dragged along the ground,
the Court finds that Defendant Baker’s conduct was objectively reasonable. Again, Jones was at
the CRU site in order to be admitted to the facility. The record reflects that Plaintiff is over six
feet tall. With two persons carrying her on either side, it is not unlikely that some portion of
Plaintiff’s lower extremities dragged on the ground. Assuming, as Jones testified, that she was
unconscious when the escort began, the deputies somehow needed to get Jones from the squad
car into the building, presumably with no assistance from Jones herself. A CRU staff member,
not Deputy Clark, assisted Deputy Baker in escorting Jones into the CRU.
Again, balancing the nature and quality of the intrusion against the government interests,
Graham, 490 U.S. at 396, carrying Plaintiff the relatively short distance into the CRU allowed
her to be admitted. According to her testimony, she was unconscious during some portion of the
escort, so she was unable to walk into the facility under her own power. Given Plaintiff’s prior
conduct and strong opposition to entering detox, Deputy Baker had an interest in getting Plaintiff
treatment services as quickly as possible. Faced with this type of situation, the decision to carry
her, albeit with some part of her lower body dragging a short distance on the ground, was
objectively reasonable.
2.

Due Process

To the extent that Plaintiff alleges a due process violation, as noted, Minn. Stat. §
253B.05 permits temporary custody in order to effect emergency admission to a treatment
facility under precisely these circumstances. The statute clearly gives law enforcement officers
the discretion to determine whether to transport a person to a treatment facility, or to transport a
person home. To have left Plaintiff on her own in Byron, Minnesota would have placed her at
risk of exposure from the elements. Likewise, taking her home would have placed her in a
28

residence with a spouse whom she had accused of assault that very night. Given her state of
impairment and agitation, coupled with her threat of suicide, Deputy Clark reasonably followed
through with Deputy Johnson’s determination that Jones should be transported to the CRU.
Plaintiff has presented no evidence showing that Defendants acted with deliberate indifference.
Any due process claim she alleges cannot survive. Moreover, because the Court cannot discern
the violation of any clearly established right with respect to the decision to transport Jones to the
CRU, Defendants are entitled to qualified immunity. See Johnson v. Kramer, 04-CV-4097
(ADM/RLE), 2006 WL 334857, *6-7 (D. Minn. Feb. 13, 2006) (finding no due process violation
where officers transported intoxicated person to his stated residence, absent any showing of
deliberate indifference; moreover, officers were entitled to qualified immunity because they did
not violate a clearly established right).
B.

State Law Claim of Battery

“A battery is defined as an intentional unpermitted offensive contact with another.”
Johnson, 2006 WL 334857 at *3 (quoting Paradise v. City of Minneapolis, 297 N.W.2d 152, 155
(Minn. 1980)). However, as noted herein, a law enforcement officer’s right to make an arrest or
investigatory stop inherently includes the right to use some amount of physical coercion in order
to effectuate the stop or arrest. Graham, 490 U.S. at 396. Under Minnesota law, a law
enforcement officer may use reasonable force in executing his or her duties imposed by law.
Minn. Stat. § 609.06 subdiv. (1)(d). Also under Minnesota law, the unreasonableness of the
force used by an officer is an element of an action alleging assault and battery and the burden of
proving such unreasonableness is on the plaintiff. Brown v. City of Golden Valley, 534 F.
Supp.2d 984, 995 (D. Minn. 2008) (citing Johnson v. Peterson, 358 N.W.2d 484, 485 (Minn. Ct.
App. 1984)). As discussed herein, the Court has determined that the deputies’ use of force was
29

objectively reasonable.
Moreover, Defendants are entitled to official immunity for Plaintiff's state law battery
claim. “Federal law [does not supplant] the Minnesota doctrine of official immunity in state law
claims. . . . The common law of official immunity retains an independent vitality in state tort
actions.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988). In Minnesota, “[t]he
official immunity doctrine provides that ‘a public official charged by law with duties which call
for the exercise of his judgment or discretion is not personally liable to an individual for
damages unless he is guilty of a willful or malicious wrong.’” Id. (quoting Susla v. State, 247
N.W.2d 907, 912 (Minn. 1976)).
In general, law enforcement officers are discretionary officials. Johnson v. Morris, 453
N.W.2d 31, 42 (Minn. 1990). “Only when officials act outside the scope of their charged
authority can they be deemed to have waived this immunity and be held personally liable for
their negligence.” Dokman v. Cnty. of Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App. 2001),
rev. denied (Minn. Feb. 28, 2002).
Here, Defendants were acting within the scope of their charged authority to transport and
escort Plaintiff into the CRU. Deputy Clark responded to a call from a fellow officer to transport
Plaintiff, who was visibly intoxicated, to the CRU. Based on Jones’ behavior during the ride to
the CRU, Deputy Clark requested assistance. The DVD of the ride to the CRU clearly shows
that Plaintiff was emotional, upset and desperate to avoid admission to the CRU. She ultimately
threatened self-harm. Deputy Baker responded to Deputy Clark’s request for assistance and
attempted to obtain Jones’ compliance with his requests that she exit the squad car. When
Plaintiff refused to comply with Deputy Baker’s verbal request and verbal command, she then
became physically resistant. Jones kicked Deputy Baker and refused to let him handcuff her.
30

After warning Plaintiff that he would use a taser if she refused to comply, Deputy Clark
deployed his taser two times. The officers then handcuffed Plaintiff and she was escorted, via a
carry hold, by Officer Baker and a CRU employee, into the CRU. The evidence does not
suggest that Deputy Clark acted outside the scope of his charged authority when he provided
CRU transport to Plaintiff, who was visibly impaired due to intoxication, dressed without a coat
on a winter night, without transportation and with self-reports of an abusive spouse at home.
The evidence does not suggest that Defendants were acting outside the scope of their charged
authority in their efforts to get Plaintiff out of the squad car, handcuffed, and into the detox
center.
Only a showing of willful or malicious wrong prevents the application of official
immunity. In an official immunity context, “willful” and “malicious” are synonymous. Brown,
574 F.3d at 500. The Minnesota Supreme Court has defined malice as “nothing more than the
intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the
willful violation of a known right.” Id. (quoting Rico v. State, 472 N.W.2d 100, 107
(Minn.1991)). First, for the reasons previously set forth, Plaintiff has not shown that Defendants
violated a “known right,” because it was not clearly established that on February 15, 2009, that
causing de minimis injuries violated the law. See McClennon, __ F. Supp.2d at __, 2011 WL
5177393 at *8 (reaching the same conclusion, under the same reasoning, with respect to the
plaintiff’s state law negligence claim against law enforcement officers).
In addition, the evidence is clear that Deputy Clark transported Jones to the CRU in light
of her state of impairment, her inability to care for herself, her risk of exposure to the elements,
and because she reported living with an abusive spouse. At the end of the ride, Jones threatened
to kill herself. Because her state of agitation increased during transport to the CRU, Deputy
31

Clark summoned assistance. He purposely stepped aside upon arrival at the CRU site as a means
of de-escalating the situation. Deputy Baker asked, then commanded, Jones to step out of the
squad car. When she refused, Deputy Baker attempted to reach in and pull her out of the car.
She actively resisted Deputy Baker’s efforts and kicked him.
After warning Jones that he would use his taser if she refused to comply with Deputy
Baker’s command, Deputy Clark deployed his taser for five seconds. When Plaintiff continued
to resist, after an 18-second interval, Deputy Clark deployed the taser again for five seconds.
The deputies positioned Plaintiff on the back trunk of the car in order to handcuff her. They
guided her head downward in a controlled manner in order to minimize any possible injury to
themselves. Deputy Clark testified that he was concerned that Plaintiff might attempt to flee,
given her constant pleas to avoid admission to detox, her suicidal state, and the fact that both
deputies were armed with weapons that were within her reach. The deputies were also
concerned that Plaintiff might attempt to bite them during the handcuffing process. Once
Plaintiff was handcuffed, Deputy Baker and a CRU employee carried Jones for a distance of
approximately 40 feet into the CRU. While Jones contends that she was dragged in such a way
that her knees scraped the ground, given her height and the need for her admission to detox,
there is no evidence that Deputy Baker’s efforts to escort her into the building were willful or
malicious.
Plaintiff has failed to establish willful or malicious wrong on the part of Defendants. Bare
allegations “without further support [are] not sufficient to create a fact issue on the issue of
official immunity.” Frank's Livestock v. City of Wells, 431 N.W.2d 574, 578 (Minn. Ct. App.
1988). The Court finds no genuine issue of fact here – there is no evidence of a malicious or
willful wrong. Therefore, Defendants are entitled to official immunity for Plaintiff's state law
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claim.
III.

CONCLUSION
For the reasons stated herein, the Court finds that pursuant to Fed. R. Civ. P. 50(a)(1)(B),

Defendants’ Motion for Judgment as a Matter of Law (found in Defs’ Trial Brief [Doc. No. 44]
is granted. Defendants are entitled to qualified immunity on Plaintiffs’ federal civil rights claim
as well as official immunity on Plaintiff’s state law claim, which also fails as a matter of law. In
reaching this conclusion, the Court has resolved all direct factual conflicts in Plaintiff’s favor,
assumed as true all facts supporting Plaintiff that the evidence tended to prove, and given
Plaintiff the benefit of all reasonable inferences. Applying these standards, the Court finds that
the evidence, viewed in Plaintiff’s favor, would not allow reasonable jurors to differ as to the
conclusions that could be drawn. See Roberson, 602 F.3d at 933.
THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Defendants’ Motion for Judgment as a Matter of Law (found in Defs’ Trial Brief
[Doc. No. 44]) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: February 7, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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