Grams v. Chaska Police Department et al
Filing
27
ORDER granting in part and denying in part 17 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 08/04/14. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mark Allen Grams,
Plaintiff,
Civ. No. 13-1550 (RHK/SER)
MEMORANDUM OPINION
AND ORDER
v.
Mike Duzan, et al.,
Defendants.
Andrew M. Irlbeck, St. Paul, Minnesota, Paul Applebaum, Applebaum Law Firm, St.
Paul, Minnesota, for Plaintiff.
Nathan Midolo, Jason M. Hiveley, Iverson Reuvers LLC, Bloomington, Minnesota, for
Defendants.
INTRODUCTION
This case arises out of Plaintiff Mark Allen Grams’s arrest in Chaska, Minnesota,
in the early morning hours of July 15, 2009. Grams alleges he was arrested without
probable cause and that the arresting officers used excessive force while taking him into
custody, in violation of the Fourth Amendment to the United States Constitution. 1
Presently before the court is Defendants’ Motion for Summary Judgment (Doc. No. 17).
For the reasons that follow, the Motion will be granted in part and denied in part.
1
Although the Amended Complaint alleges the officers’ conduct violated the Fourth and
Fourteenth Amendments, this is two different ways of stating the same claim, as the Fourth
Amendment is made applicable to state actors through the Fourteenth Amendment, see, e.g.,
Mapp v. Ohio, 367 U.S. 643, 655 (1961); Grams does not contend otherwise in his brief.
BACKGROUND
Viewed in the light most favorable to Grams, the record reveals the following
facts. At approximately 12:30 a.m. on July 15, 2009, two individuals in a tow truck
arrived at Grams’s residence in Chaska, Minnesota, to repossess his 2006 Nissan Sentra.
(Grams Dep. at 22-24.) They began pushing the car out of the driveway to attach it to the
truck when Grams’s neighbor Greg Anderson saw what was happening and called
Grams. (Id.) Grams came outside and approached one of the repossessors, later
identified as Christopher Tolk. (Id. at 24) Grams informed Tolk he had filed for
bankruptcy and the car was subject to a stay of repossession. (Id. at 24-25.) Anderson,
meanwhile, yelled at the driver of the tow truck, claiming he was trespassing. (Id. at 3031.) Grams requested the presence of law enforcement, and the truck driver called
police. (Id. at 26.)
Grams then unlocked the Sentra, and Tolk sat in the driver’s seat while Grams
began collecting his belongings from the vehicle. (Id. at 26-28.) At some point,
Anderson’s wife parked a van on the street to block the tow truck from leaving. (Id. at
26; Duzan Dep. at 13.) This also prevented Defendants Mike Duzan and Lee McClure,
Chaska police officers, from driving up to Grams’s residence; instead, when they arrived
they were forced to park away from the residence and walk to the scene. (Duzan Dep. at
16.) McClure approached the van and instructed Mrs. Anderson to move it out of the
way, while Duzan approached the car and spoke to Grams, who was still in the process of
gathering his belongings. (McClure Dep. at 13; Duzan Dep. at 19.)
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Grams explained the situation to Duzan, including the bankruptcy stay, but Duzan
told him the car would still be repossessed and that he should finish gathering his things.
(Grams Dep. at 34.) Grams then rolled up his belongings in a piece of carpet from the
Sentra’s trunk and began carrying them to a pickup truck parked in his driveway. (Id. at
42-43.) As he passed the open driver’s side door of the Sentra, he bumped the door. 2 He
then continued walking while Duzan ordered him to stop. (Duzan Dep. at 21-22; Grams
Dep. at 47.) Grams nevertheless continued to the pickup, taking six to eight additional
steps, and reached over the side to drop the carpet into the truck’s bed. (Duzan Dep. at
21; Grams Dep. at 47.)
The parties dispute the events that followed, but according to Grams, Duzan
approached him from behind while his (Grams’s) arms were over the pickup’s side,
wrapped his arm around Grams’s neck, and placed him in a “choke hold” that cut off his
breathing. (Grams Dep. at 47-48, 52.) While choking Grams, Duzan allegedly said,
“When I tell you to stop, it means stop. Now you are under arrest,” at which point Grams
lost consciousness. (Id. at 52-53.) When he “came to,” Duzan was still applying the
choke hold and a second officer was holding his legs, meaning he was entirely off the
ground. (Id. at 53-56). Grams was brought to the ground with Duzan maintaining the
choke hold, the second officer holding his legs, and a third officer holding his feet. (Id. at
59-60.) Grams’s wife then came outside and began questioning the officers. (Id.) After
2
The parties dispute the nature of the contact with the door. Grams claims he unintentionally
bumped the door with the carpet (Grams Dep. at 43-45), while Duzan claims Grams “punched”
the door with his hand (Duzan Dep. at 20-22).
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she mentioned the premises’ security cameras, 3 Duzan released his hold. (Id.; R. Grams
Aff. ¶ 7.) The officers handcuffed Grams and walked him to McClure’s squad car; he
reported being in pain and requested medical attention several times. (Grams Dep. at 6265.) 4
After being released from custody the following day, 5 Grams visited the
emergency room for “injuries to his right face, neck, chest wall, [and] flank.” (Irlbeck
Aff. Ex. 7, at 1.) He now asserts the choke hold caused a vertebra in his neck to shift and
contact a nerve, causing ongoing neck pain and frequent, severe headaches that he
believes are permanent. (Id. Ex. 8; Grams Dep. 74-79.)
Grams commenced this action in June 2013, alleging that Duzan and McClure
arrested him without probable cause and employed excessive force during the arrest, both
in violation of the Fourth Amendment. The Amended Complaint also alleges claims for
assault and battery against these Defendants and that Defendant City of Chaska (“the
3
Although the residence had security cameras, they were not recording at the time of the
incident.
4
Defendants’ account of the arrest differs substantially. They assert Duzan repeatedly ordered
an agitated Grams to stop, but he ignored these commands and continued walking toward the
pickup. (Duzan Dep. at 20-21.) The officers then approached Grams from behind and grabbed
for his arm to prevent him from possibly reaching for a concealed weapon. (McClure Dep. at
15-17.) Grams spun around, pulling his arms away from the officers. (Id. at 17-18.) The
officers grabbed for his arms again, continually informing him that he was under arrest, but
Grams “dropp[ed] his center of gravity” and grabbed Duzan’s leg. (Id. at 18.) The officers pried
him from Duzan’s leg and brought him to his back, handcuffing one arm. (Duzan Dep. at 26.)
Grams then allowed the officers to roll him on to his stomach, and he willingly put his arms
behind his back to be handcuffed. (Id. at 27-28.)
5
Grams was charged with disorderly conduct and obstructing legal process but was eventually
acquitted of these charges. (Midolo Aff. Ex. 1 at 5-6.)
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City”) is vicariously liable for these torts. Defendants now seek summary judgment on
all of Grams’s claims. The Motion has been fully briefed and is ripe for disposition.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557
U.S. 557, 586 (2009). The moving party bears the burden of showing the material facts
in the case are undisputed. Whisenhunt v. Sw. Bell Tel., 573 F. 3d 565, 568 (8th Cir.
2009). The nonmoving party may not rest on mere allegations or denials, but must show
through the presentation of admissible evidence that specific facts exist creating a
genuine issue of material fact for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood v. SatCom
Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
ANALYSIS
I.
The federal claims
A.
Qualified immunity generally
The officers argue they are entitled to qualified immunity on Grams’s federal
claims. 6 “Qualified immunity shields government officials from liability . . . unless the
official’s conduct violates a clearly established constitutional . . . right of which a
6
The Court notes the officers have been sued in both their official and individual capacities. But
official-capacity claims against government officials are the functional equivalent of claims
against the municipal entity in question (known as a Monell claim), see, e.g., Rogers v. City of
Little Rock, Ark., 152 F.3d 790, 800 (8th Cir. 1998), and Grams has acknowledged having no
Monell claim against the City here. (See Mem. in Opp’n at 1.) Accordingly, the Court will
dismiss Grams’s official-capacity claims, and the analysis that follows concerns only his claims
against the officers in their individual capacities.
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reasonable person would have known.” LaCross v. City of Duluth, 713 F.3d 1155, 1157
(8th Cir. 2013). “Officers are not liable for bad guesses in gray areas; they are liable for
transgressing bright lines.” Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012)
(citation omitted). Determining whether the officers are entitled to qualified immunity
requires the Court to answer two questions: Do the facts alleged, viewed in the light
most favorable to Grams, show the challenged conduct violated a constitutional right?
Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011) (citing Pearson v. Callahan, 555 U.S.
223, 232 (2009)). If so, was that right clearly established on the date in question? Id.
B.
Unlawful arrest
The Court begins its analysis with Grams’s unlawful-arrest claim. It is undisputed
that on July 15, 2009, it was clearly established that “a warrantless arrest without
probable cause violate[d] an individual’s constitutional rights under the Fourth . . .
Amendment[].” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (citation
omitted). However, qualified immunity applies to police officers who make mistakes in
arrests, as long as those mistakes are reasonable. Id. As a result, the standard for an
unlawful-arrest claim “is not probable cause in fact but arguable probable cause . . . that
is, whether the officer should have known that the arrest violated [Grams]’s clearly
established right[s].” Id. (emphasis added) (citation omitted). To determine whether
“arguable probable cause” for an arrest existed, “the question is whether a reasonable
officer could have believed [the arrest] to be lawful, in light of . . . the information the
[arresting] officer[] possessed.” Robinson v. City of Minneapolis, 957 F. Supp. 2d 1094,
1101 (D. Minn. 2013) (Kyle, J.) (internal quotation marks and citation omitted).
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Here, it is undisputed Grams struck the car door with the carpet, causing a noise to
which Duzan responded by giving a lawful command to stop, which Grams did not
follow. In Minnesota, a person is guilty of a misdemeanor if he intentionally “obstructs,
resists, or interferes with a peace officer while the officer is engaged in the performance
of official duties.” Minn. Stat. § 609.50, subd. 1(2). In the Court’s view, a reasonable
police officer on the scene could have believed Grams obstructed or resisted when he
failed to follow a lawful order to stop, and accordingly, a reasonably competent officer
could have concluded there was probable cause to arrest him. Hence, the officers are
entitled to qualified immunity on the unlawful-arrest claim.
C.
Excessive Force
1.
De minimis injury
There is no dispute that on the date of Grams’s arrest it was clearly established
police officers could not use excessive force against an arrestee. See, e.g., Graham v.
Connor, 490 U.S. 386, 396-97 (1989). However, the officers argue the law at that time
was unclear whether it violated an arrestee’s rights to apply force causing only de
minimis injury.
“[O]ver the course of more than fifteen years . . . it remain[ed] an open question in
this circuit whether an excessive-force claim required some minimum level of injury.”
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). Chambers resolved this
issue, holding the excessive-force inquiry must focus on the force applied and not on the
level of injury sustained. Id. at 906. Plaintiffs, therefore, are no longer required to show
more than a de minimis injury to establish excessive force. Id. at 907. However, the law
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on this issue was not clearly established until Chambers. Robinson, 957 F. Supp. 2d at
1098-99. As Grams was arrested in 2009, more than a year before Chambers, he must
show more than a de minimis injury in order to defeat qualified immunity. Id. The
officers argue he has not done so, but the Court agrees only in part.
Grams has supplied some evidence 7 suggesting Duzan’s choke hold caused,
among other things, a permanent spinal injury causing him frequent, debilitating
headaches, as well as permanent soft-tissue damage to his neck. Such injuries are more
than de minimis. See Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003)
(evidence of long-term injury resulting from handcuffing would be more than de
minimis); Keten v. Mosey, Civ. No. 11-1520, 2013 WL 870378, at *5 (D. Minn. Mar. 8,
2013) (Frank, J.) (“bruising to [Plaintiff’s] neck and back, lasting pain in his neck, back
and head, and a decreased range of motion in the lumbar region of his spine” more than
de minimis). Accordingly, Duzan is not entitled to qualified immunity on de minimis
injury grounds.
The Court reaches a different conclusion with respect to McClure, however. 8
While Grams makes clear Duzan applied the choke hold, the most that can be said for
McClure is that he held down Grams’s legs or feet during the handcuffing process.
7
(See Irlbeck Aff. Exs. 6-9; Pl. Resp. Def. Int. at 5-6; Grams Dep. at 76-78.)
8
The Court must separately analyze each officer’s conduct to determine if a Fourth Amendment
violation occurred. Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir.
2010) (“Liability for damages for a federal constitutional tort is personal, so each defendant’s
conduct must be independently assessed.”) (citation omitted).
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Nothing in the record suggests these actions caused any injury, let alone an injury more
than de minimis. Hence, McClure is entitled to qualified immunity. 9
2.
Reasonable under the circumstances
Although Duzan cannot escape liability based on de minimis injury, he also argues
he is entitled to qualified immunity because he employed a reasonable amount of force
while effecting Grams’s arrest and, hence, did not violate his clearly established
constitutional rights. In determining whether a use of force is “reasonable” under the
Fourth Amendment, the Court must consider the “totality of the circumstances,”
balancing the “nature and quality of the intrusion on [Grams’s] Fourth Amendment
interests against the countervailing government interests at stake.” Copeland v. Locke,
613 F.3d 875, 881 (8th Cir. 2010) (citations omitted). The 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,” and allow for the fact that police officers must make split-second
decisions in often tense situations. Graham, 490 U.S. at 396-97. The inquiry is
objective, “without regard to [the officer’s] underlying intent or motivation.” Id. at 397.
Here, the parties dispute the events immediately prior to Grams’s arrest, the
demeanor of the individuals involved, whether Grams resisted, and the degree and kind
of force used to detain him. Under Grams’s version of events, however, he bumped the
9
In his Amended Complaint, Grams alleged McClure violated the Fourth Amendment by
holding him down during the handcuffing. In his brief, however, he attempts to alter the nature
of his claim, asserting McClure is liable for failing to intervene in Duzan’s actions. (Mem. in
Opp’n at 18-19.) Yet, a party may not re-cast his claims in his memorandum responding to a
dispositive motion. See, e.g., Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th
Cir. 1989); Rau v. Roberts, Civ. No. 08-2451, 2010 WL 396223, at *8 (D. Minn. Jan. 27, 2010)
(Kyle, J.), aff’d, 640 F.3d 324 (8th Cir. 2011).
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car door and then, after a single order to stop, took 6 to 8 steps to set down a heavy
bundle of items. There is no evidence he was violent or that Duzan believed he was
armed. There is no evidence he struggled with or physically resisted the officers. Under
these facts, a reasonable jury could conclude that choking him to unconsciousness
without warning was an unreasonable use of force. See Brown v. City of Golden Valley,
574 F.3d 491, 498 (8th Cir. 2009) (use of Taser on nonviolent, suspected misdemeanant
who was not fleeing or resisting and posed little threat to officer safety was excessive).
Accordingly, Duzan is not entitled to qualified immunity.
II.
Assault and Battery
Grams next asserts claims against Duzan and McClure for assault and battery
under Minnesota law 10 and argues the City is vicariously liable for these torts.
Defendants contend they are entitled to official immunity on these claims. “Official
immunity shields a public official from liability if he is charged by law with duties which
call for the exercise of his judgment or discretion and, in performing those duties, he has
not committed a willful or malicious wrong.” Grady v. Becker, 907 F. Supp. 2d 975, 985
(D. Minn. 2012) (Kyle, J.) (citation omitted) (internal quotation marks omitted). 11 “In the
10
Assault requires proof of “threaten[ed] bodily harm to another with the present ability to
effectuate that threat,” Hixon v. City of Golden Valley, Civ. No. 06–1548, 2007 WL 1655831, at
*10 (D. Minn. June 7, 2007) (Kyle, J.) (citation omitted), while battery requires “an intentional
and unpermitted contact by defendant on the person of the plaintiff,” Johnson v. Peterson, 358
N.W.2d 484, 485 (Minn. Ct. App. 1984). Though these are two different claims, the parties do
not distinguish them in their Motion papers. Accordingly, the Court follows their lead and
analyzes them together.
11
Official immunity generally applies only to discretionary acts, but it is undisputed the amount
of force used to effect an arrest is a discretionary decision. See also McClennon v. Kipke, 821 F.
Supp. 2d 1101, 1111 (D. Minn. 2011) (Kyle, J.).
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context of official immunity, ‘willful’ and ‘malicious’ are synonymous, as ‘malice’
means 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 Brown, 574 F.3d at 500–01) (internal quotation marks omitted). If the officers
are entitled to official immunity, the City is equally entitled to “vicarious official
immunity.” See Smith v. City of Minneapolis, 754 F.3d 541, 549 (8th Cir. 2014).
As already noted, there is a fact dispute regarding whether Duzan used excessive
force during the arrest. Accepting Grams’s account of the arrest as true, a reasonable jury
could find Duzan intentionally violated his clearly established right to be free from
excessive force, and hence Duzan is not entitled to official immunity. For this same
reason, the City is not entitled to vicarious official immunity. See Wiederholt v. City of
Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998).
As discussed above, however, a reasonable jury could not conclude McClure used
excessive force. The right to make an arrest “necessarily carries with it the right to use
some degree of physical coercion . . . to effect it,” Graham, 490 U.S. at 396, and here
Grams alleges only that McClure held his legs or feet during the handcuffing process and
points to no resultant injury. In the absence of any evidence McClure “intentional[ly]
[committed] a wrongful act,” Brown, 574 F.3d at 501, he is entitled to official immunity,
and the City is entitled to vicarious official immunity.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 17) is
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GRANTED IN PART and DENIED IN PART. The Motion is GRANTED with
respect to (1) all of Grams’s claims against McClure, (2) the claims against Duzan in his
official capacity, (3) the unlawful-arrest claim against Duzan in his individual capacity,
and (4) the assault and battery claims against the City, to the extent they arise out of
McClure’s conduct, and these claims are DISMISSED WITH PREJUDICE. The
Motion is DENIED with respect to Grams’s excessive-force claim against Duzan in his
individual capacity, the assault and battery claims against Duzan, and the assault and
battery claims against the City arising out of Duzan’s conduct.
Dated: August 4, 2014
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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