Neal v. Ficcadenti et al

Filing 38

ORDER granting in part and denying in part 18 Motion for Summary Judgment. Plaintiff's claim against Defendant City of St. Paul is DISMISSED with prejudice. This matter is set for trial on September 25, 2017. A separate trial notice will be issued. (Written Opinion) Signed by Judge Susan Richard Nelson on 07/10/2017. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Robin Kirkland Neal,

Case No. 15-cv-2429 (SRN/FLN)

Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

Daniel Ficcadenti, in his individual
capacity as an officer of the St. Paul Police
Department, and the City of St. Paul,
Defendants.

Oliver E. Nelson III, Magna Law Firm, 2915 Wayzata Boulevard, Minneapolis,
Minnesota 55403, for Plaintiff.
Margaret E. Jacot, St. Paul City Attorney’s Office, 15 West Kellogg Boulevard, St. Paul,
Minnesota 55102, for Defendants.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter comes before the Court on Defendants’ Motion for Summary Judgment

[Doc. No. 18]. For the reasons stated herein, Defendants’ motion is granted in part and
denied in part.
II.

BACKGROUND
This lawsuit arises from an unfortunate case of mistaken identity. Late in the

evening of June 6, 2012, officers of the St. Paul Police Department (“SPPD”) received a
dispatch report that a witness had seen a man retrieve a firearm from a black, four-door

sedan parked outside of Born’s Bar on Rice Street. (See DeTomaso Aff. [Doc. No. 21], Ex.
A at 3.) The suspect was described as a black male in his forties, of heavier build, and
wearing a baseball cap and red and white shirt. (See id.) Born’s Bar is located in a rough
area of town and SPPD officers are frequently called to the area generally—and to the bar
specifically—to address criminal activity. (See Tschida Aff. [Doc. No. 22] ¶ 2.)
Upon receipt of the dispatch report, several SPPD officers proceeded to the scene,
where squad car video recorded much of the subsequent events. (See generally DeTomasso
Aff., Ex. B.; Tschida Aff., Ex. B. ; Ficcadenti Aff. [Doc. No. 24], Ex. C.) Officer (now
Sergeant) Michael DeTomaso was one of the first officers to arrive at the scene.
(DeTomaso Aff. ¶ 5.) He spotted a black, four-door sedan parked outside of Born’s Bar,
with multiple black males inside it. Officer DeTomaso exited his squad car, drew his pistol,
and ordered the driver of the sedan to exit with his hands up. (Id., Ex. B at 23:22:28.) The
driver—who was wearing a blue shirt and ball cap—complied with these instructions and
was taken into custody without incident. (Id. at 23:22:56.)
By this time, several other officers had arrived at the scene, including Defendant
Officer Daniel Ficcadenti. (Ficcadenti Aff. ¶ 5.) Shortly after the driver was placed in
custody, officers directed the two remaining passengers to exit the sedan.1 (DeTomaso Aff.,
Ex. B at 23:23:20.) Both men exited the vehicle at approximately the same time. Plaintiff
Robin Neal was seated in the front passenger seat, and emerged wearing a black shirt and
1

In addition to instructions to the “passengers in the car” to step out of the vehicle, at
least one officer can be heard yelling, “Red shirt, step out.” (DeTomaso Aff., Ex. B at
23:23:20.) As events proved that none of the occupants of the sedan was wearing a red
shirt, this suggests that at least at this point in the encounter officers were still under the
mistaken impression that their suspect was in the sedan.
2

dark shorts. (Ficcadenti Aff. ¶ 6.) The other passenger, Anthony Lee, was wearing a blue
shirt. (Id.) Neal, Lee, and the driver were all in their early fifties.
The officers yelled to the passengers to come forward one at a time, and started
directing Neal (who they generally identified as “black shirt”) to walk towards them.
(DeTomaso Aff., Ex. B. at 23:23:41.) Review of the squad car footage shows that Neal
remained standing behind the sedan for several seconds before walking around to the front
of the car. (See id. at 23:23:53-23:24:06.) Although his hands remain generally over his
head, at times he appears to drop them toward his sides. (See id.) At one point, Neal turns
completely so that his back is facing the officers, and lowers his hands. (See id. at
23:24:16.) The scene is one of some confusion—at least two officers, located in different
positions on the street, appear to be shouting instructions to Neal, the sedan is floodlit by a
bright police spotlight, squad car lights are flashing, and a police K-9 dog can be heard
barking repeatedly in the background.2 (See id.)
Eventually, Neal began to walk towards Officer Ficcadenti with his hands raised and
without any apparent resistance. (Id. at 23:24:22.) Once he arrived, instead of handcuffing
him, Officer Ficcadenti used an arm-bar takedown technique3 to throw Neal to the ground

2

Although presumably unknown to the officers at the time, later evidence showed that
Neal was also intoxicated, which may have added to his apparent confusion. (See
Ficcadenti Aff., Ex. A at 2.)
3
An arm-bar takedown is apparently a non-lethal force technique that allows an officer to
“use his own strength, speed, momentum, and leverage to bring a suspect to the ground.”
(DeTomaso Aff. ¶ 12.) The officer “holds the suspect’s arm with one hand, uses his
forearm near the elbow and then pivots, using the momentum to take the suspect to the
ground, while doing his best to control the speed of descent.” (Id.) SPPD officers are
apparently trained to use the arm-bar as a non-lethal force option when necessary “to gain
control of a suspect in a tense, uncertain and rapidly evolving, volatile situation.” (Id.)
3

and on to his stomach, where Ficcadenti then proceeded to handcuff him. (See id. at
23:24:27.) At that point, Ficcadenti noticed that Neal had suffered cuts to his forehead, and
an ambulance was called to assess his injuries.4 (See Ficcadenti Aff., Ex. C at 23:27:36.)
Shortly after Officer Ficcadenti took Neal into custody, Officer DeTomaso detained
the other passenger without incident.

(DeTomaso Aff., Ex. B at 23:24:38.)

At

approximately the same time, officers received an updated dispatch report indicating that the
suspect they were searching for had just exited Born’s Bar. (Tschida Aff., Ex. B at
23:24:20.)

Officers Michael Tschida and Jordan Walker subsequently detained the

individual and discovered a hammer in his waistband. (See Tschida Aff. ¶ 7.) No weapons
were found on any of the occupants of the sedan.
The evidence indicates that Officer Ficcadenti had been trained in use of force
techniques, and that he had knowledge of the St. Paul Police Department Manual (“SPPD
Manual”). (Nelson Aff., Ex. D (“Ficcadenti Dep.”) at 15:24-17:10.) Officer Ficcadenti
testified that the SPPD Manual provides that “physical force may not be resorted to unless
other reasonable alternatives have been exhausted or would be clearly ineffective under the
particular circumstances,” and that he had been trained to follow that principle. (Id. at 25:316.) The SPPD Manual further requires that officers only resort to physical force “when
other options have failed or are unreasonable to resort to under the circumstances. Any
physical force used by the officer must be necessary and reasonable under the
circumstances.” (Id. at 26:6-12.) Physical force is “reasonably necessary” when “no

4

Neal was later taken to Region’s Hospital where he was diagnosed with a closed head
injury, abrasions, and a sickle cell crisis. (See Nelson Aff. [Doc. No. 28], Ex. I at 4.)
4

reasonably effective alternative appears to exist and the amount of force used is reasonable
to effect the lawful purpose intended.” (Nelson Aff., Ex. G (“SPPD Manual”) § 246.01.)
At his deposition, Officer Ficcadenti testified that he never attempted to use other,
non-physical options to arrest Neal, such as ordering Neal to turn around so that he could be
handcuffed, or having him get on his knees with his hands behind his head. (See Ficcadenti
Aff. at 45:13-23; 46:11-16.) Officer Ficcadenti testified, however, that his arrest of Neal
was in compliance with the policies set forth in the SPPD Manual, because his actions were
not intended to cause Neal injury, and did not in fact cause significant injury. (See id. at
49:10-18.) Likewise, Officer DeTomaso testified that Ficcadenti’s use of an arm-bar was
necessary because of the fluidity of the situation confronting the officers, the need to
quickly restrain an individual who may have been armed, and because of the need to
remove a distraction that was preventing focus on the remaining, un-detained passenger.
(DeTomaso Aff. ¶¶ 11, 12.)
On May 7, 2015, Neal filed suit against Officer Ficcadenti in his individual capacity,
pursuant to 42 U.S.C. § 1983. He alleges that Officer Ficcadenti violated the Fourth
Amendment’s prohibition against excessive force when he used the arm-bar takedown
technique on June 6, 2012. (See Compl. [Doc. No. 1] ¶¶ 24-30.) Neal also brings a claim
under Monell v. New York City Dep’t of Social Servs., 438 U.S. 658 (1979) against the City
of St. Paul, alleging that the City should be held liable for Officer Ficcadenti’s conduct
because the City allegedly has failed to train its officers on the appropriate use of force.
(See Compl. ¶¶ 31-36.) Defendants subsequently moved for summary judgment as to both
claims on December 30, 2016.
5

III.

DISCUSSION
A.

Standard of Review

Summary judgment is appropriate 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). A fact is “material” only if it may affect the outcome of the lawsuit.
TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016). Likewise, an
issue of material fact is “genuine” only if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The moving party bears the burden of establishing a lack of genuine issue of
fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the Court must view the
evidence and any reasonable inferences in the light most favorable to the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where a
video recording accurately captures the events forming the basis of the complaint, however,
the Court need not adopt the nonmoving party’s version of events if clearly contradicted by
the video evidence. See Boude v. City of Raymore, 855 F.3d 930, 933 (8th Cir. 2017)
(citing Scott v. Harris, 550 U.S. 372, 380 (2007)). Where the record as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial
and summary judgment is appropriate. See Grant v. City of Blytheville, 841 F.3d 767, 770
(8th Cir. 2016).
B.

Excessive Force

Neal argues that Officer Ficcadenti’s actions on the night of June 6, 2012 constituted
excessive force in violation of the Fourth Amendment prohibition against unreasonable
6

seizures. See U.S. Const. amend. IV; see also Lollie v. Johnson, 159 F. Supp. 3d 945, 958
(D. Minn. 2016) (noting that “[e]xcessive force claims brought pursuant to 42 U.S.C. §
1983 are analyzed as seizures under the Fourth Amendment”) (citing Henderson v. Munn,
439 F.3d 497, 502 (8th Cir. 2006)). The use of force is excessive under the Fourth
Amendment if it is not “objectively reasonable under the particular circumstances.”
Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).

In analyzing the

“circumstances” at play in any given case, courts consider such factors as “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham v. Connor, 490 U.S. 386, 396 (1989).
The reasonableness of an officer’s use of force is assessed “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Thus,
force that later seems excessive may not be unconstitutionally so when examined in the light
of an officer’s need to make a “split second judgment” in a “tense, uncertain, and rapidly
evolving” situation. Id. at 396-97. Considerations of perspective and the fluidity of the
encounter are lessened, however, when the facts suggest that rapid decisions are unneeded.
See Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009). Ultimately, the
court is tasked with balancing the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at stake. See
Bernini v. City of St. Paul, 665 F.3d 997, 1006 (8th Cir. 2012).
Here, Defendants raise several arguments for why Officer Ficcadenti’s takedown of
Neal was objectively reasonable as a matter of law. First among these is that the nature of
7

the suspected crime justified a more physically coercive manner of effecting Neal’s arrest.
(See Defs.’ Mem. in Supp. of Mot. for Summ. J. [Doc. No. 20] (“Defs.’ Mem.”) at 9.)
Defendants note that officers had been called to the scene expressly because a witness had
seen a man exit a bar with a history of criminal activity and retrieve a firearm. (See id.)
“Presumably, the witness who reported the incident was concerned that the man with the
gun intended to commit a violent act against another person.”

(Id.)

Accordingly,

Defendants argue that Officer Ficcadenti was naturally concerned with preventing a deadly
assault—whether against a civilian or a responding officer. (Id.)
It is manifestly correct that police officers responding to the scene thought it likely
that they might encounter a man with a gun and unknown intentions, and Neal does not
dispute this point. Likewise, it does not appear to be contested that officers originally held a
good faith belief that one of the occupants of the black sedan in which Neal was seated
might be their suspect.5 But it does not follow that these facts alone necessarily rendered
Officer Ficcadenti’s actions several minutes later objectively reasonable. As this court has
observed in the past, “officers called to respond to a serious felony are not thereby entitled
to ignore relevant information that emerges once they arrive on the scene.” Stockton v.
Auren, No. 07-cv-556 (JRT/FLN), 2008 WL 1994992, at *4 (D. Minn. May 5, 2008); see
also Ngo v. Storlie, 495 F.3d 597, 603 (8th Cir. 2007) (finding that even though officer was
responding to a severe crime involving the shooting of a fellow officer, officer’s
observations after arriving on the scene should have diminished the perceived threat posed
by the plaintiff). Here, officers knew that they were looking for a black man in his forties,
5

See, e.g., supra note 1.
8

wearing a red and white shirt and a baseball cap. But as each occupant of the black sedan
stepped out of the car, it would have become immediately apparent that none of them
closely matched that description. Indeed, Officer Ficcadenti identified Neal as “black shirt”
when yelling instructions, making it clear that he recognized and appreciated that Neal was
not dressed in a fashion similar to the reported suspect. (See Ficcadenti Aff. ¶ 6.) While
these discrepancies do not render Officer Ficcadenti’s actions necessarily unreasonable,
they do raise a question as to whether a reasonable officer would have begun to see that it
was increasingly unlikely that any of the occupants of the sedan was the suspect. Cf.
Stockton, 2008 WL 1994992, at *4 (observing that a reasonable officer responding to scene
of suspected burglary might have quickly realized that the plaintiff—who was elderly, frail,
wearing bed slippers, and apparently disoriented—was unlikely to have committed the
crime).
Similarly, the actions of Officer Ficcadenti’s fellow officers that night raise doubts as
to whether his actions were truly those of a reasonable officer. Given that none of the
occupants of the sedan was clearly identifiable as the suspect, it is just as likely that the
driver and the second passenger possessed the gun as it is that Neal had it. Yet, neither of
the officers who arrested these individuals felt compelled to resort to violence in making the
arrests. Considering this fact, a jury could find that a reasonable officer would not have
concluded that the suspected crime alone rendered physical coercion necessary in making
an arrest of Neal.
Defendants’ second, related argument is that a reasonable officer in Officer
Ficcadenti’s shoes would have perceived Neal as posing a potentially immediate threat to
9

his or her safety, as well as the safety of others in the vicinity. (See Defs.’ Mem. at 11.)
Defendants note, for instance, that Born’s Bar is located in a rough part of town, and is the
frequent site of criminal activity and violence. (See Ficcadenti Aff., Ex. A at 3.) At the
time of the encounter, it was unclear if Neal had a weapon, and Defendants contend that he
refused or failed to comply with their instructions for some time. But as the Court has
already noted, the fact that Neal did not match the description of the suspect, combined with
the fact that he generally kept his hands up and was not resisting at all, tends to belie any
conclusion that he was immediately threatening. At the very least, when the facts are
viewed in the light most favorable to Neal, Neal’s actions and appearance “might
reasonably be seen to mitigate the perceived threat to the officers.” Stockton, 2008 WL
1994992, at *4.
Finally, Defendants argue that Neal’s own actions rendered force reasonable, and
perhaps even necessary. (See Defs.’ Mem. at 11-12.) By their account, officers at the
scene—including Officer Ficcadenti—tried repeatedly to get Neal to “submit willingly to a
search and restraint.” (Id. at 11.) To that effect, officers gave Neal multiple directives “for
more than a minute” to come to them with his hands up. (Id.) They contend that these
directives were clearly and unmistakably directed at Neal (for instance, by prefacing them
with the identifier “black shirt”), and that the commands themselves were equally clear and
unmistakable in their meaning. (Id.) Despite these clear and reasonable orders, Defendants
suggest that Neal acted erratically—wandering around the car, pacing to and fro, sometimes
dropping his hands to his sides, and at one point turning his back to the officers. (Id.)
While Defendants stop short of characterizing Neal’s actions as active resistance, they do
10

suggest that he was, essentially, engaged in passive resistance. Cf. Wertish v. Krueger, 433
F.3d 1062, 1066-67 (8th Cir. 2006) (“When a suspect is passively resistant, somewhat more
force may reasonably be required.”).

Given these circumstances, they argue that a

reasonable officer would have found it necessary or desirable to actively and quickly
restrain Neal. (See Defs.’ Mem. at 12.)
Taking the facts in the light most favorable to Neal, however, and drawing
reasonable inferences in his favor, a very different reading of events can be constructed. At
his deposition, Neal testified that the scene confronting him when he stepped out of the
sedan was fairly chaotic—several officers were pointing pistols at him, police sirens and
lights were going off, and at least one dog was barking. (See, e.g., Nelson Aff., Ex. C
(“Neal Dep.”) at 35:10-13.) When officers told him to put his hands up, he complied. (Id.
at 40:6-7.) Although Neal testified that he was trying to be “compliant and agreeable” and
was just “trying to . . . get taken into custody [so as to] let [the police officers] do their
work,” his attempts at compliance were complicated by the fact that more than one officer
was shouting directions at him, making it hard for him to know what to do. (Id. at 37:23-25;
41:1-5.) Although Neal admits that at times he dropped his hands to his sides temporarily,
he states that this may have been because he thought a police officer was going to come and
take him into custody at that point. (See id. at 40:15-18.) To the extent that he may have
been reticent about closely approaching Officer Ficcadenti, he states that it was because the
K-9 dog next to Officer Ficcadenti put him in fear of being bitten. (See id. at 39:9-11.)
All in all, a jury could conclude from this rendering of events—which is not
contradicted by the squad car video—that Neal was acting earnestly (albeit a bit slowly) in
11

trying to comply with the commands he received. Indeed, Defendants make no allegations
that Neal was acting threateningly, or that he was resisting arrest, and Officer Ficcadenti
agreed at his deposition that Neal ultimately complied with all orders that he was given.
(See Ficcadenti Dep. at 39:1-15.) In such a situation, the Eighth Circuit has recognized that
it would not be reasonable for an officer to use “more than de minimis force” against the
plaintiff. See Shannon v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010). Given the violent
manner in which Officer Ficcadenti took Neal to the ground, and the injuries he suffered, a
jury could certainly conclude that more than de minimis force was deployed. At the very
least, a jury could find that a reasonable officer would have attempted—in compliance with
the requirements of the SPPD Manual—to use a less aggressive technique in effecting
Neal’s arrest before resorting to an arm-bar takedown. (See SPPD Manual § 246.01.)
Taken on the whole, therefore, the Court concludes that a jury viewing the facts in
the light most favorable to Neal could conclude that Officer Ficcadenti’s use of an arm-bar
takedown was not reasonable in light of events as they evolved, the apparent threat posed by
Neal, and Neal’s actions in responding to officer commands. Cf. Stockton, 2008 WL
1994992, at *5. Accordingly, the Court finds that genuine issues of material fact exist
regarding whether the use of force in this case was excessive under all the circumstances,
and that summary judgment as to this issue is improper.
C.

Qualified Immunity

Defendants next argue that, even if summary judgment is not warranted directly on
Neal’s excessive force claim, Officer Ficcadenti is nonetheless entitled to qualified
immunity from suit. The doctrine of qualified immunity serves to protect government
12

officials “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Its purpose is, in part, to allow
“officers to make reasonable errors so that they do not always ‘err on the side of caution.’”
Habiger v. City of Fargo, 80 F.3d 289, 295-96 (8th Cir. 1996) (quoting Hunter v. Bryant,
502 U.S. 224, 229 (8th Cir. 1991)). In determining if qualified immunity is applicable, the
court must perform a two-part analysis, asking: (1) whether the facts show the violation of a
constitutional or statutory right; and (2) whether that right was clearly established at the time
of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the Court
has already found that sufficient facts exist to allow Neal’s Fourth Amendment excessive
force claim to proceed, the inquiry collapses at this stage into a consideration of whether the
relevant constitutional right was clearly established on June 6, 2012.
The Eighth Circuit has repeatedly made clear that “[t]he right to be free from
excessive force in the context of an arrest is clearly established under the Fourth
Amendment’s prohibition against unreasonable searches and seizures.” Brown, 574 F.3d at
499 (citing Graham, 490 U.S. at 396). The Supreme Court has been equally clear, however,
that merely reciting the “general proposition” against excessive force “is not enough.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004). Rather, the “right the official is alleged to
have violated must have been ‘clearly established’ in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id. (citation omitted). “This is
not to say that an official action is protected by qualified immunity unless the very action in
13

question has previously been held unlawful, but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citations omitted).
Taking the facts in the light most favorable to Neal, the Court finds here that “the
contours of the right at issue were sufficiently clear that a reasonable official standing in
Officer [Ficcadenti’s] shoes would have understood that the amount of force he used was
excessive.” Shannon, 616 F.3d at 864. In particular, the Court observes that the Eighth
Circuit had made unmistakably plain by 2012 that the “use of force against a suspect who
was not threatening and not resisting may be unlawful.” Id. In Shannon, for instance, that
court found that it was not reasonable for an officer to aggressively take the plaintiff to the
ground simply because the plaintiff was using profanity toward the officer and may have
poked him once in the chest with a finger. See id. at 858, 865. While the court observed
that the plaintiff’s actions may have been “disrespectful, even churlish,” that alone did not
justify force when he was not otherwise resisting arrest or acting in a threatening manner.
Id. at 864-65; see also Bauer v. Norris, 713 F.2d 408, 412 (8th Cir. 1983) (“Force can only
be used to overcome physical resistance or threatened force . . . .”) (citation omitted);
Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981) (“There is no occasion for the use of
any force against a prisoner who quietly submits.”).
In addition, this Court has considered facts similar to those presented in this case in
the past and found that the use of force was not warranted. In particular, in Stockton v.
Auren, Judge Tunheim concluded that officers responding to a reported burglary were not
justified in using force to take the plaintiff to the ground. Although the Court recognized
14

the severity of the crime, the fact that officers could not be sure that the plaintiff was
unarmed, and the fact that the plaintiff did not respond to instructions, it found that a
reasonable officer would likely not have felt that force was necessary given that the plaintiff
made no threatening or aggressive moves, was elderly, and did not attempt to escape. See
2008 WL 1994992, at *2, *4-6.) In such circumstances, the Court concluded that it was
clearly established that an arm-bar takedown was not a justifiable technique for officers to
employ. See id. at *7-8; see also Hagen v. Palmer, No. 02-cv-4318 (RHK/AJB), 2003 WL
22136067, at *3 (denying qualified immunity where the facts suggested defendant had
misused an otherwise valid policing technique).
In light of these constitutional guideposts, and taking the evidence in the light most
favorable to Neal, the Court is convinced that the right Officer Ficcadenti allegedly violated
was clearly established on June 6, 2012. The Court further concludes that a reasonable
officer would have known that an arm-bar takedown was excessive based on the same
evidence. Accordingly, Officer Ficcadenti is not entitled to qualified immunity at this time.
D.

The Monell Claim

In addition to his claim against Officer Ficcadenti, Neal brings a § 1983 claim
directly against the City of St. Paul, alleging that it should be held liable for Officer
Ficcadenti’s conduct based on a failure to adequately train its officers on the appropriate use
of force.

The Supreme Court has determined that, in certain circumstances, a local

government may be liable under § 1983 if the governmental body itself “subjects” a person
to a deprivation of rights or “causes” a person “to be subjected” to such a deprivation. See
Monell, 436 U.S. at 692. However, local governments may only be held responsible for
15

their own illegal acts. See Connick v. Thompson, 563 U.S. 51, 60 (2011). “They are not
vicariously liable under § 1983 for their employees’ actions.” Id. (citations omitted).
Plaintiffs seeking to impose liability on a local government under § 1983 must prove
that “action pursuant to official municipal policy” caused their injuries. Monell, 436 U.S. at
691. In certain circumstances, a decision not to train employees about their legal duty to
avoid violating citizens’ rights may rise to the level of an official municipal policy.
Connick, 563 U.S. at 61. However, “[a] municipality’s culpability for a deprivation of
rights is at is most tenuous where a claim turns on a failure to train,” id., and liability will
attach “only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378,
388 (1988). This stringent standard requires proof that a policymaker disregarded a “known
or obvious consequence of his action.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 410 (1997). Thus, for the municipality to be liable, policymakers must have been
on actual or constructive notice that a particular omission in their training program caused
city employees to violate citizens’ constitutional rights. Connick, 563 U.S. at 61. To prove
notice, a plaintiff must generally provide evidence that policymakers were aware of a
“pattern of similar constitutional violations by untrained employees.”

Id. at 62.

Importantly, except in a narrow range of circumstances, reliance on a single incident is
insufficient to prove notice. Id. at 62-63.
Here, Neal has failed to meet his burden of proving that on June 6, 2012,
policymakers of the City of St. Paul were on notice of a pattern of constitutional violations
such as he alleges were committed by Officer Ficcadenti. In support of their summary
16

judgment motion, Defendants have submitted uncontroverted evidence that the SPPD has a
policy governing use of force, that it trains its officers on that policy, and that Officer
Ficcadenti completed that training.

(See generally Ficcadenti Aff., Ex. B.; see also

DeTomaso Aff. ¶¶ 3, 12; Jacot Aff. [Doc. No. 23], Ex. A at 15-18, 25-27.) Neal has not
challenged the facial validity of that policy, nor has he pointed to a pattern of violations that
would have put City policymakers on notice that their training program was inadequate.
Instead, Neal argues that a pattern of violations can be implied from Officer
DeTomaso’s testimony that Officer Ficcadenti made the right call when deciding to use the
arm-bar technique on Neal. (See generally DeTomaso Aff.; Second DeTomaso Aff. [Doc.
No. 31].) In Neal’s view, the fact that both Officers Ficcadenti and DeTomaso apparently
believed that it was proper to use arguably excessive force on the night of June 6, 2012
shows that the City of St. Paul was not properly training its officers on the use of force. But
the subjective views of two officers—neither of whom qualifies as a “policymaker”—
emanating from a single incident cannot suffice to demonstrate the sort of notice required
for a failure to train claim. See Connick, 563 U.S. at 62-63. Because Neal has thus failed to
present sufficient evidence from which a jury could find that the City of St. Paul violated his
rights under § 1983, his claim against the city must be dismissed.
IV.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED that:
1.

Defendants’ Motion for Summary Judgment [Doc. No. 18] is GRANTED in
part and DENIED in part;
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2.

Plaintiff’s claim against Defendant City of St. Paul [Doc. No. 1] is
DISMISSED with prejudice; and

3.

This matter is set for trial on September 25, 2017. A separate trial notice will
be issued.

Dated: July 10, 2017

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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