Kellum v. Evans et al
Filing
27
ORDER granting 13 Motion for Summary Judgment. (Written Opinion) Signed by Judge Joan N. Ericksen on August 6, 2013. (CBC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Steven Dion Kellum,
Plaintiff,
v.
Civil No. 11-2135 (JNE/TNL)
ORDER
Danielle Bree Evans, Daniel Steven Anderson,
and Richard Ross Taylor, acting in their
individual capacities as officers of the Minneapolis
Police Department, and City of Minneapolis
Defendants.
Plaintiff Steven Kellum (“Kellum”) brought suit against Defendants Officer Danielle
Bree Evans (“Evans”), Officer Daniel Steven Anderson (“Anderson”) and Officer Richard Ross
Taylor (“Taylor”), alleging excessive force claims under 42 U.S.C. § 1983 and state-law claims
of battery. Kellum also brought claims against the City of Minneapolis (“City”) pursuant to
Monell v. Department of Social Services, 436 U.S. 658 (1978) and City of Canton v. Harris, 489
U.S. 378 (1989). Defendants have moved for summary judgment on all claims. 1
I.
BACKGROUND 2
At approximately 5:11 p.m. on December 4, 2009, the Minneapolis Police Department
(“MPD”) received a report that a black 2007 BMW with license plate UYT671 had been stolen.
1
Kellum concedes the Monell claim against the City. See Pl.’s Mem. Opp. 1 (ECF No.
23). Because he also presents no evidence and makes no argument regarding his failure-to-train
claim against the City, this claim is deemed waived. See Satcher v. Univ. of Ark. at Pine Bluff
Bd. of Trustees, 558 F.3d 731, 756 (8th Cir. 2009) (“[F]ailure to oppose a basis for summary
judgment constitutes waiver of that argument.”). Kellum also fails to address the battery claim,
and he makes no argument and presents no evidence of malice to defeat Defendants’ claims of
official immunity. The battery claim, too, is therefore deemed waived. Even if not waived, the
battery claim would fail for the same reasons as the excessive force claims, discussed below.
2
The facts described below are undisputed or are those that a reasonable fact-finder could
find when viewing the record in the light most favorable to Kellum.
1
The BMW was equipped with a GPS tracking device, which enabled the MPD officers to locate
the vehicle. Officers Anderson and Evans, in squad car 412, and Officers Taylor and Gretchen
Bloss (“Bloss”), in squad car 430, were dispatched to respond to the stolen vehicle incident.
While the officers were en route, MPD dispatch reported that the suspect driving the stolen
BMW had physically assaulted a restaurant employee earlier in the evening. MPD dispatch
subsequently reported that the BMW was traveling southbound on Cedar Lake Road. Officers
Evans and Anderson were traveling northbound on Cedar Lake Road, with Officers Taylor and
Bloss following close behind them.
While traveling northbound, Officer Anderson observed a vehicle traveling southbound
with BMW-style headlights. The BMW pulled over to the curb along the west side of the street
and came to a stop behind a parked Nissan. Officer Evans stopped squad 412 in a north-facing
position roughly parallel with the parked BMW and activated the squad’s emergency lights.
Officers Taylor and Bloss arrived a few seconds later and parked behind Evans and Anderson.
Anderson confirmed that the license plate number of the stopped vehicle matched that of the
stolen BMW. He exited squad 412 from the passenger’s side, drew his handgun, and
commanded the driver of the BMW to get out of the vehicle and show his hands. Officer Evans
exited squad 412 from the driver’s side so that she was between her squad car and the BMW.
She drew her weapon and ordered the driver to put up his hands. Officer Taylor exited squad
430 from the passenger’s side and drew his weapon, commanding the driver to show his hands.
Officer Bloss also exited squad 430, from the driver’s side, so that she was standing between the
stopped squad car and the parked Nissan.
Below is a Court-generated diagram, not drawn to scale, that generally depicts the
location of the parties at the time of the incident:
2
Kellum, who was driving the BMW, did not comply with any of the officers’ commands
or acknowledge their presence in any way. Instead, he gripped the steering wheel and stared
straight ahead. He then began driving, pulling away from the curb and navigating the BMW
toward the narrow space between the parked Nissan and squad 430. The officers yelled, “stop
the car,” but Kellum did not obey their commands. Kellum, driving approximately five or ten
miles per hour, collided with the squad car and the Nissan. The collision did not stop his vehicle,
and Kellum continued to push past the parked cars. Officer Bloss, who was standing near the
driver’s side door of squad 430 and between the squad car and the Nissan, was in the direct path
of the moving BMW.
Officers Anderson and Taylor both saw that the BMW was moving toward Bloss’s
position and believed that Bloss was in danger. Officer Taylor saw the BMW’s headlights
shining on Bloss. Officer Evans heard another officer yell, “he’s going to hit her!” and then saw
3
Bloss in the path of the BMW. By this time, Officers Anderson and Taylor had moved toward
the front of squad 430. Officers Anderson, Taylor and Evans fired their weapons at Kellum,
each firing two or three times in rapid succession. Officers Anderson and Taylor testified that
they fired their weapons because they believed the BMW was going to hit Officer Bloss. Officer
Evans testified that at the time she discharged her firearm, she believed that the BMW had, in
fact, hit Bloss, and she believed Kellum was going to kill another officer with the BMW. Bloss
reported that the BMW came within five feet of her position before she began moving out of its
path. Because she was between the parked Nissan and squad 430, she could not simply turn and
run, but instead retreated around the front of the Nissan to a position on the grass along the west
side of the road. She, too, had been afraid that the BMW was going to run her over.
Kellum continued to drive the BMW through the space between the Nissan and squad
430. He then accelerated, jumped a curb and crashed into a large tree. Officers Anderson and
Taylor approached the driver’s side door of the BMW and observed that Kellum appeared to be
unconscious. Kellum was handcuffed and brought to the hospital, where he received medical
treatment and underwent surgeries for gunshot wounds to his forearm and head. 3
II.
DISCUSSION
Summary judgment is proper “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). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite “to
particular parts of materials in the record,” show “that the materials cited do not establish the
absence or presence of a genuine dispute,” or show “that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). “The court need
3
A blood test performed at the hospital revealed that Kellum had a blood alcohol level of
0.199 g/dL.
4
consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ.
P. 56(c)(3). In determining whether summary judgment is appropriate, a court must look at the
record and any inferences to be drawn from it in the light most favorable to the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party must
substantiate his allegations by “sufficient probative evidence [that] would permit a finding in
[his] favor on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d
822, 825 (8th Cir. 2007) (internal quotation marks omitted).
Kellum asserts § 1983 claims against Officers Evans, Anderson and Taylor in their
individual capacities. Section 1983 of Title 42 of the United States Code provides in relevant
part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law.
42 U.S.C. § 1983. Because § 1983 is “not itself a source of substantive rights,” a court
addressing a claim pursuant to § 1983 must “identify the specific constitutional right allegedly
infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). Kellum alleges that the officers’ use of
deadly force in discharging their firearms violated his constitutional right to be free from
excessive force. Defendants contend that they are entitled to qualified immunity and that the
force they used was objectively reasonable.
“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 official would have known.”
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011) (citing Harlow v. Fitzgerald, 457
5
U.S. 800, 818 (1982)). “To defeat a claim of qualified immunity, a plaintiff alleging excessive
use of force must present sufficient facts to show that the officer’s conduct violated a
constitutional right, and he must also establish that the constitutional right was clearly
established.” Id. Under the Fourth Amendment objective reasonableness standard, the
appropriate inquiry is whether the “officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). “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. “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. “Circumstances
such as the severity of the crime, whether the suspect posed a threat to the safety of the officers
or others, and whether the suspect was resisting arrest are all relevant to the reasonableness of
the officer’s conduct.” Henderson v. Munn, 439 F.3d 497, 502 (8th Cir. 2006) (citations
omitted).
At the time the officers stopped Kellum, he was suspected of having stolen a vehicle and
physically assaulting a restaurant employee. When the officers fired their weapons, Kellum had
already crashed the BMW into one of the squad cars and continued driving the BMW toward a
nearby officer. These crimes, when taken together, were severe. Kellum also admits that he was
actively resisting arrest, characterizing his actions as “a feeble attempt to flee the scene.” Pl.’s
Mem. Opp. 3 (ECF No. 23). It is undisputed that Kellum did not acknowledge the officers and
did not respond to any of their requests to exit the vehicle, put his hands in the air, or stop the
vehicle after he had pulled away from the curb toward squad 430 and Officer Bloss.
6
The only factor Kellum disputes is whether or not he posed a threat to the safety of the
officers or others. He asserts that Defendants’ belief that he posed a threat was unreasonable.
But it is undisputed that Kellum ignored the officers’ commands to stop and exit the vehicle; that
he accelerated the vehicle to approximately five or ten miles per hour; that he steered the vehicle
in the direction of squad 430; that he crashed into the squad car and the parked Nissan; that he
accelerated with enough force to push past the parked cars into which he had crashed; that he
continued driving in Officer Bloss’s direction; and that immediately before discharging their
firearms, Defendants observed Officer Bloss in the path of the moving BMW. 4
Kellum emphasizes that this was not a “high-speed chase,” but rather he was driving only
five or ten miles per hour when he pulled away from the curb and collided with the squad car.
Compared with vehicle speeds that police officers sometimes encounter, the Kellum-driven
vehicle was, indeed, a “slow-moving tortoise.” But this “tortoise” was a heavy two-ton vehicle
capable, presumably, of rapid acceleration and headed for—not away from—a uniformed officer.
The Court must therefore respectfully disagree that the vehicle’s speed shows that it posed no
threat to Officer Bloss. See United States v. Yates, 304 F.3d 818, 823 (8th Cir. 2002) (“A car or
truck may be used as a deadly or dangerous weapon.”). There is nothing in the record to suggest
that Kellum would not have further accelerated if given the opportunity to do so or that the
officers should have expected Kellum to continue fleeing at a speed of only five miles per hour.
The officers were not required to wait until after Kellum had achieved a faster speed before
determining that his actions posed a danger to Officer Bloss. Further, Kellum acknowledges that
4
Kellum notes that because at least some of the officers saw his hands on the steering
wheel, they must have known he was unarmed. But the mere placement of his hands did not
provide any indication as to whether he possessed a weapon. Further, the vehicle itself, as
Kellum used it, constituted a deadly weapon. See United States v. Dawn, 685 F.3d 790, 795 (8th
Cir. 2012) (stating that “a vehicle can constitute a ‘deadly weapon’”).
7
he continued to drive after colliding with the squad car and the Nissan. He therefore applied
sufficient force to push past these two impediments and proceed in Bloss’s direction through the
narrow space between the parked vehicles. Moreover, there is no evidence that a BMW
traveling at only five or ten miles per hour is incapable of causing great bodily harm to a person
in its path. 5
Kellum next points to the fact that Officers Taylor, Anderson and Evans had sufficient
time to move into a different position after he began pulling away from the curb. He contends
that this fact undermines their belief that Officer Bloss was in danger, because the officers should
have known that she, too, would have time to dodge the oncoming vehicle. The other officers,
however, were not standing in the direct path of the moving vehicle, and they were not
sandwiched between two parked cars. There is nothing to suggest that the officers should have
known that Officer Bloss—who was in a significantly different position than the others—would
have time to retreat from the path of the oncoming BMW. Even if the officers should have
believed Officer Bloss would have time to move, there is no evidence to suggest that they should
have believed she would have time to move to a position of safety. Even Bloss stated that the
BMW came within five feet of her position before she began moving out of its way.
Kellum next argues that Officer Evans could not have reasonably believed that he posed a
threat to Officer Bloss because at the time Evans discharged her firearm, she believed that
Kellum already had hit Bloss with the car. Kellum asserts that if Evans thought he already hit
5
The Court notes that, according to a National Highway Traffic Safety Administration
report, one study showed that at impacts of only twenty miles per hour, 5% of the struck
pedestrians died and another 65% were injured. See U.S. Dep’t of Transportation, Nat’l
Highway Traffic Safety Admin., Literature Review on Vehicle Travel Speeds and Pedestrian
Injuries (1999), available at http://www.nhtsa.gov/people/injury/research/pub/HS809012.html.
Another study revealed that at speeds of less than twenty miles per hour, approximately one-third
of struck pedestrians suffered incapacitating or fatal injuries. Id.
8
Bloss, then she could not believe that he continued to pose a threat to Bloss or the other officers.
But there is no evidence that Evans believed or should have believed that once Officer Bloss was
hit, Kellum no longer posed a threat. A suspect who hits an officer with his vehicle can continue
to threaten the life of that same officer, as well as the other officers on the scene. Kellum also
appears to suggest that Evans fired her weapon as a means of levying judgment on him for
supposedly hitting Bloss, but there is no evidence in the record to support this suggestion. The
fact that Evans believed Kellum already had injured or killed an officer makes her belief that he
posed a threat more reasonable, not less.
Finally, Kellum contends that even if the officers were each justified in firing one round
at him, they were not justified in firing subsequent shots because, without searching for Bloss
between shots, they did not know if Bloss was still in danger. All of the shots were fired within a
matter of seconds. Kellum offers no legal authority to support the proposition that once the
officers determined that Kellum posed a threat and deadly force was necessary to protect another
officer, they were required to pause and reevaluate the situation in the moments between each
shot, especially with no indication that the first shot abated the threat. Before any of the officers
discharged their weapons, Bloss was in the direct path of the oncoming BMW, each of the
officers observed Bloss in that position, and they each believed that Bloss’s life was in danger.
There is no evidence that anything transpired between the time that the officers took their first
and second shots that should have provided them with notice that Bloss was no longer in danger.
Given the last known location of Bloss, the direction in which the BMW was moving, and the
rapid sequence of events, there is nothing to contradict the officers’ belief that Bloss remained in
9
danger or to suggest that their belief was unreasonable. 6
Kellum contends that the reasonableness of the officers’ beliefs is a jury question and the
officers can argue at trial that they are entitled to qualified immunity. But there are no disputed
material facts that bear on the immunity analysis. It is undisputed that Kellum was driving a
stolen vehicle; the officers were aware that the driver was suspected of having assaulted a
restaurant employee; Kellum ignored the officers’ commands; he pulled away from the curb and
collided with a squad car; he continued to drive toward Officer Bloss; and each of the three
defendant officers saw Bloss standing in the path of the car driven by Kellum. Even if the
officers were mistaken in their belief that Bloss—hemmed in by cars on either side and in the
direct path of the oncoming BMW—was in danger, “[t]he qualified immunity standard ‘gives
ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who
knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224, 227 (1991).
“Qualified immunity is ‘immunity from suit rather than a mere defense to liability.’”
Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013) (quoting Hunter, 502 U.S. at 227).
“Immunity ordinarily should be decided by the court long before trial.” Hunter, 502 U.S. at 228.
“[W]hether summary judgment on grounds of qualified immunity is appropriate from a particular
set of facts is a question of law.” Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.
6
Kellum offers the affidavit of expert W. Ken Katsaris, who ultimately concluded that
“[t]he shooting of Steven Kellum appears to be about his fleeing from the stop, not because he
was a reasonable threat of Officer Gretchen Bloss.” Fundingsland Aff. Ex. 20, at 10. There is
no factual basis to support this conclusion and Katsaris fails to consider the incident from the
perspective of the three defendant officers. For example, he states that Officer Bloss did not
perceive the BMW as a threat. It is not Officer Bloss’s perception that is at issue in this case.
Further, this conclusion is squarely contradicted by the statement upon which Katsaris relied, in
which Officer Bloss stated, “I was afraid the car was going to run me over and I observed the car
coming forward.” Id. Ex. 29. Kellum highlights Katsaris’s conclusion that the officers’ use of
force was unreasonable. This, however, is a matter of law for the Court to decide. See Peterson
v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995). Katsaris’s report does not create a genuine
dispute of material fact regarding the objective reasonableness of the Defendants’ use of force.
10
2000) (internal quotation marks omitted). Summary judgment is inappropriate only if Kellum
demonstrates that “a genuine dispute exists concerning predicate facts material to the qualified
immunity issue.” Id.
[O]nce the predicate facts have been established, for the purposes of qualified
immunity there is no such thing as a “genuine issue of fact” as to whether an
officer “should have known” that his conduct violated constitutional rights. The
conduct was either “reasonabl[e] under settled law in the circumstances” or it was
not, and this is a determination of law that should be made at “the earliest possible
stage in litigation.” . . . [W]hether an officer “acted reasonably under settled law
in the circumstances” is a question of law, and not itself a predicate fact.
“Predicate facts” include only the relevant circumstances and the acts of the
parties themselves, and not the conclusions of others about the reasonableness of
those actions. When there is no dispute among the parties as to the relevant facts,
as is the case here . . . , a court should always be able to determine as a matter of
law whether or not an officer is eligible for qualified immunity—that is, whether
or not the officer acted reasonably under settled law given the particular set of
facts.
Id. (citations omitted). Here, all the predicate facts have been established and are undisputed. In
the qualified immunity context, whether the officers acted reasonably under the circumstances is
a question of law for the Court, not the jury, to decide. The Court concludes that they did.
“Where the officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent
escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). “[I]f . . . there is
probable cause to believe that [the suspect] has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may be used if necessary to prevent
escape, and if, where feasible, some warning has been given.” Id. at 11-12. Each defendant here
had probable cause to believe that Kellum either inflicted or threatened to inflict serious physical
harm; their use of force was not constitutionally unreasonable. 7 “Given the quickly evolving
7
The fact that Kellum purposely drove the BMW directly into an officer’s vehicle may
alone have been sufficient to provide the officers with probable cause to believe Kellum posed
11
scenario, the officers’ actions in shooting [Kellum] in an attempt to stop him from injuring the
officer[] in his path was objectively reasonable and did not violate [Kellum’s] Fourth
Amendment right to be free from unreasonable seizures.” Sanders v. City of Minneapolis, Minn.,
474 F.3d 523, 526 (8th Cir. 2007); see also Molina-Gomes v. Welinski, 676 F.3d 1149, 1152-53
(8th Cir. 2012) (stating that the “reckless driving” by the plaintiff “in his attempt to escape was a
danger to the arresting police officers and to any drivers on the roadway,” and that the officer’s
“use of force under these quickly evolving dangerous actions by [the plaintiff] was ‘objectively
reasonable under the circumstances as [the officer] perceived them’” (citation omitted)).
Officers Evans, Anderson and Taylor are entitled to qualified immunity.
III.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants’ Motion for Summary Judgment [Docket No. 13] is GRANTED.
2. Summary judgment is granted in favor of Defendants on all claims.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 6, 2013
s/Joan N. Ericksen______________
JOAN N. ERICKSEN
United States District Judge
an imminent threat of serious physical harm to himself and to others. See Hernandez v. Jarman,
340 F.3d 617 (8th Cir. 2003) (finding the officer’s use of deadly force objectively reasonable
because he had probable cause to believe that the suspect “posed an imminent threat of serious
physical harm to himself and to others as evidenced by [the suspect] driving head-on” into an
officer’s vehicle). But Kellum did not simply collide with a squad car—he continued to push
past the squad car directly toward where another officer was standing.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?