McAllister v. Boyd et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant Eddie Boyd for summary judgment [Doc. #41] is granted. IT IS FURTHER ORDERED that the motion of defendant Robert Dean for summary judgment [Doc. #45] is granted. Signed by District Judge Carol E. Jackson on 8/5/2015. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT DEAN and EDDIE BOYD,
No. 4:13-CV-2492 (CEJ)
MEMORANDUM AND ORDER
This matter is before the court on the separate motions of defendants Robert
Dean and Eddie Boyd for summary judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff,
who proceeds pro se, has filed responses in opposition and the issues are fully
Plaintiff Eugene McAllister was a passenger in a vehicle involved in a high
speed chase. He alleges that when the chase ended, defendant Eddie Boyd, a
Ferguson City police officer, struck him several times. He also alleges that
defendant Robert Dean, a St. Louis County K-9 officer, allowed his dog to bite him
several times. He brings this action pursuant to 42 U.S.C. § 1983, claiming that
defendants’ actions violated his civil rights.
In the afternoon of January 26, 2011, plaintiff, then 16 years old, was a
passenger in a stolen Dodge Stratus driven by Brandon Foster; also in the car were
Randy Thomas, Ellis King and Darrel Davis. Foster began speeding in an effort to
catch up with another car that appeared to be trying to get away. Pl. Dep. at 96
[Doc. #55]. Defendant Boyd pulled in behind the Stratus and signaled to the driver
to pull over. Aff. Eddie Boyd ¶3 [Doc. #42-3]; Aff. Joseph Percich ¶4 [Doc.#47-29].
Rather than comply, Foster sped off, triggering a high-speed chase across multiple
jurisdictions. Pl. Dep. at 99-101; 107-17; Percich Aff. ¶9. Police cars from the
Missouri State Highway Patrol, St. Louis County, and six municipalities joined the
pursuit, including St. Louis County police officer Joseph Percich and his partner
Derek Jackson. Percich Aff. ¶10; Aff. Robert Dean ¶11 [Doc. #47-34]. In the
opening minutes of the chase, Foster sped along surface streets, ignored stop signs
and traffic signals, and at one point drove across a municipal park. Pl. Dep. 108-10.
Police dispatchers notified the pursuing officers that the Stratus had been
reported stolen and that multiple shots had been fired from the car. Percich Aff.
¶¶7, 12, 17. Percich states that Foster intentionally struck police vehicles with the
Stratus and injured an officer from the Dellwood Police Department. Id. ¶9; see
also Dean Aff. ¶15 (Stratus rammed Ferguson police department vehicle). Plaintiff
denies that the Stratus struck any police vehicles.
Despite law enforcement efforts to stop the Stratus, Foster managed to steer
it onto Interstate 270, traveling in the wrong direction. Id. at 108-09, Percich Aff.
¶11. He swerved in and out of oncoming traffic at speeds in excess of 100 miles per
hour. Pl. Dep. at 110. When officers deployed tire deflation devices ahead of the
Stratus, Foster abruptly turned around and raced back up the highway. Id. at 11213; Percich Aff. ¶¶15-16. He then exited onto Interstate 170, with Percich and
Jackson’s vehicle about twenty feet behind him on the ramp. According to Percich,
plaintiff and Ellis King leaned out the rear windows of the Stratus armed with guns.
Id. ¶¶19-20, 23. Plaintiff shot at the pursuing police car at least once. Id. ¶24.
When the 11-minute chase ended, a revolver and semi-automatic gun were found
in the car. Id. ¶31.
Because of mechanical failure the Stratus eventually came to a halt on
Interstate 70. Id. ¶29. Several officers rushed the car, Pl. Dep. at 117, and began
instructing the occupants to put their hands up, exit the car, and get on the ground.
Percich Aff. ¶33. Officer Percich states that no one complied, id., while plaintiff
states that everyone in the car raised their hands to indicate surrender. Pl. Decl. ¶
7 [Doc. #52]. A Ferguson officer moved forward to remove Foster from the driver’s
seat. Percich was close behind and had his gun trained on plaintiff. Percich Aff. ¶34.
Percich looked into the car and saw a handgun between plaintiff’s legs, within easy
reach of his left hand. Percich Aff. ¶¶35-36. He yelled “gun, gun, gun” so that every
police officer knew that plaintiff had a gun. Id. ¶37. Plaintiff denies that he ever
touched the gun.
Defendant Dean and a police dog were positioned behind the Stratus. Pl.
Dep. at 165. Plaintiff was aware of the dog’s presence.1 Am. Comp. at 3 [Doc.
#15]. Dean deployed the dog to remove plaintiff from the car. Id. ¶29. Because
the dog was unable to get a “full bite” on plaintiff’s thigh, it “apprehended” his arm
and pulled him out of the car. Id. The dog released plaintiff when directed to do so
by Dean. Id. ¶30. Plaintiff states that after the dog released its grip on his arm, it
snapped and bit his finger. Pl. Dep. at 54. The canine apprehension took
approximately six seconds.2 Id. ¶31.
Plaintiff heard the dog barking before it was deployed. Pl. Dep. at 163. The dog apparently
bit a police officer standing between Dean and the passenger door and plaintiff heard the
officer shouting. Pl. Dep. at 49-50.
Plaintiff contends that there is a factual dispute with respect to whether the apprehension
lasted six seconds. The evidence he cites in support — photographs of his injuries — does
Plaintiff was taken to DePaul Hospital where his bite wounds were cleaned.
Pl. Dep. at 59-60; 176. He was declared fit for confinement and released with a
prescription for Ibuprofen. Id. at 175. He was then taken to the juvenile detention
center. Id. About a week later, he had x-rays and learned that his little finger was
Plaintiff was convicted following a jury trial of two counts of assaulting a
police officer for shooting at Officers Percich and Jackson, two counts of armed
criminal action, and one count of unlawful use of a weapon for firing the gun from a
motor vehicle. Pl. Dep. at 178-79; State v. McAllister, 399 S.W.3d 518 (Mo. Ct.
App. 2013). He is presently serving a twenty-year term of imprisonment.
Additional facts will be provided as necessary to address plaintiff’s claims.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” In ruling on a motion for summary judgment the court is required to
view the facts in the light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be drawn from the underlying
facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a genuine issue of material
fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Once the moving party has met its burden, the nonnot convey any information regarding how long it took for the dog to extract him from the
car. Furthermore, to the extent that there is a genuine factual dispute, it is not material.
moving party may not rest on the allegations of his pleadings but must set forth
specific facts, by affidavit or other evidence, showing that a genuine issue of
material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791
(8th Cir. 2006) (quoting Fed.R.Civ.P. 56(e)). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff asserts that factual disputes preclude summary judgment on his
excessive force claims. Most significantly, he asserts that he did not fire a gun at
any time during the chase. However, he was convicted of two counts of felony
assault of a law enforcement officer for shooting at Officers Percich and Jackson “on
westbound 1-270 near the ramp to southbound Highway 170.” Judgment, Verdict,
Indictment [Doc. #47-12]. Section 1983 plaintiffs may be precluded from relitigating in federal court issues decided against them in state criminal proceedings.
Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1006 (8th Cir. 2003) (citing Allen
v. McCurry, 449 U.S. 90, 103 (1980)). “[O]nce a court has decided an issue of fact
or law necessary to its judgment, that decision may preclude re-litigation of the
issue in a suit on a different cause of action involving a party to the first case.” Id.
(citation omitted; alteration in original). “This court gives a state court judgment
the same preclusive effect it would be given under the law of the state in which it
was rendered.” Id. (citing 28 U.S.C. § 1738).
In Missouri, issue preclusion will apply when: (1) the issue decided in the
prior proceeding was identical to the issue presented in the current action; (2) the
prior judgment resulted in a judgment on the merits; (3) the party against whom
issue preclusion is asserted was a party or in privity with the party in the prior
proceeding; and (4) the party had a full and fair opportunity to litigate the issues in
the prior proceeding. Woods v. Mehlville Chrysler-Plymouth, 198 S.W.3d 165, 168
(Mo. Ct. App. 2006) (citing Sexton v. Jenkins & Associates, Inc., 152 S.W.3d 270,
273 (Mo. 2004)). These requirements are satisfied here and thus plaintiff cannot
create a factual dispute in this case by asserting that he did not commit the acts for
which he was convicted. See Jones v. City of St. Louis, 92 F. Supp. 2d 949, 952
(E.D. Mo. 2000) (in addressing summary judgment motion in § 1983 case brought
by plaintiffs convicted of assault of law enforcement officers, court may not revisit
factual issue of whether shots were fired at police officers).
Thus, it has been
established that plaintiff shot at officers Percich and Jackson.
Plaintiff identifies a number of other “disputed” facts. [Doc. #52]. Some of
his disputes are directed to the order in which events occurred—e.g., when
commands were given, when the dog was released into the car, and who was
standing where at that time. There was undoubtedly a great deal of urgent activity
directed to gaining control over the Stratus and the five occupants. Under these
circumstances, it would be surprising if there were not different recollections of the
Nevertheless, none of the disputes plaintiff relies on is material to the
issues before the court. Other disputed facts will be addressed where relevant in
the discussion below.
Plaintiff claims that defendants Dean and Boyd used excessive force in
arresting him. “The right to be free from excessive force is a clearly established
right under the Fourth Amendment’s prohibition against unreasonable seizures of
the person.” Copeland v. Locke, 613 F.3d 875, 881 (8th Cir. 2010) (citation
omitted). “Fourth Amendment jurisprudence has long recognized [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.” Crumley v.
City of St. Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)) (alteration in original). Therefore, “[n]ot every
push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Id. (internal quotation and citation
Whether an officer’s use of force is “excessive” is a question of whether the
force used was “objectively reasonable under the particular circumstances.”
reasonableness of a particular seizure under the Fourth Amendment “requires a
careful balancing of the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at
stake.” Graham, 490 U.S. at 396. In completing this balancing, courts “evaluate
the totality of the circumstances, including the severity of the crime, the danger the
suspect poses to the officer or others, and whether the suspect is actively resisting
arrest or attempting to flee.” Id. (citation omitted). The Supreme Court has recently
identified the following additional considerations in determining the reasonableness
of force used: “the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473
(2015) (addressing excessive force under Fourteenth Amendment).
Courts should not allow “the 20/20 vision of hindsight” to cloud “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.” Schoettle v. Jefferson Cnty., --- F. 3d ---, 2015
WL 3621446, at *3 (8th Cir. June 11, 2015) (quoting Graham, 490 U.S. at 396-97).
“In other words, to comport with the Fourth Amendment, the force must have been
objectively reasonable in light of the facts and circumstances confronting the
officers at the time it was used.” Id. Courts should not consider the officers’
subjective motivations when determining whether their use of force was reasonable
under the Fourth Amendment. Id.
Plaintiff asserts that he sat in the Stratus with his hands raised. Defendant
Boyd opened the rear passenger door and commanded him to get out, but he could
not comply because Boyd blocked the doorway. Pl. Dep. at 167. According to
plaintiff, Boyd punched him repeatedly, even as plaintiff tried to surrender. Pl. Dep.
at 51-52. Plaintiff testified that Boyd hit him about six times on the forehead, head,
and below his left armpit. Id. Boyd did not hit him in the nose, mouth or eyes. Id.
at 61-62. Plaintiff also claims that after the dog dragged him out of the car, Boyd
and an unidentified officer hit him another eight times and engaged in a “tug of
war” with him, pulling him in one direction while the dog pulled him in another
direction. Pl. Dep. at 47, 52-54. After the dog released plaintiff, Boyd hit him twice
more in the back of the head. Id. at 55. He blacked out briefly from the blows. Id.
at 56; 62; but see id. at 63-64 (“Q: You’re not sure if you were unconscious, you
just don’t remember it; right? A: Right.”). He had no cuts from the blows and could
not say whether he had any bruises. Id. at 65; 61-62. He did not require any
medical care for injuries related to Boyd’s conduct. Plaintiff testified that Boyd
drove him to the Ferguson police station after he received medical care.3 Id. at 98.
Boyd had the right to use some degree of physical coercion against plaintiff
to effect an arrest. Henderson v. Munn, 439 F.3d 497, 502 (8th Cir. 2006)
(emphasis in original). In determining whether the force he used was reasonable,
the court considers the totality of the circumstances, including “the severity of the
crime, the danger the suspect poses to the officer or others, and whether the
suspect is actively resisting arrest or attempting to flee.” Graham, 490 U.S. at 396.
The circumstances here weigh in favor of Boyd: In the moments after the Stratus
came to a halt, the officers faced a carful of suspects who had engaged in
extremely dangerous behavior in order to evade arrest. Boyd confronted a suspect
who had a firearm that he had already shown a willingness to use against police
officers. Boyd also knew that another passenger had a weapon that he had fired at
police officers. The five suspects and two handguns were in a confined space
Boyd claims that plaintiff has him confused with another officer and denies that he had any
physical contact with plaintiff at any time during this incident or that he transported plaintiff
to the Ferguson police station. Boyd Interrogatory Resp. ¶4 [Doc. #42-2]; Eddie Boyd Aff.
¶4 [Doc. #42-3]. For the purposes of summary judgment, however, he argues that even if
he used force against plaintiff as alleged, his conduct did not violate the Fourth Amendment
because such force was objectively reasonable under the circumstances.
affording limited room for officers to maneuver. Officers needed to move quickly to
separate the suspects from one another, the vehicle, and the weapons.
A de minimis use of force is insufficient to support a claim, and the court may
consider the degree of injury sustained “insofar as it tends to show the amount and
type of force used.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011); cf.
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (degree of injury is factor to
be considered in excessive force claim brought under Fourteenth Amendment). The
undisputed facts establish that plaintiff was treated for bite wounds and declared fit
for confinement. Plaintiff did not sustain any cuts and cannot identify any bruises
caused by Boyd. He was not diagnosed with concussion. A week after the incident,
it was determined that he had a broken finger — an injury that he attributes to a
dog bite, not to Boyd’s conduct. Furthermore, plaintiff does not allege that he has
any ongoing symptoms or medical conditions as a consequence of being struck by
Boyd. Thus, any injuries that plaintiff sustained as a result of his encounter with
Boyd were minor and support a conclusion that the force used was minor. Grider v.
Bowling, 785 F.3d 1248, 1252 (8th Cir. 2015) (use of force not excessive where
plaintiff alleged no injuries occurred from officer’s actions); see also Wertish v.
Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) (relatively minor scrapes and bruises
and less-than-permanent aggravation of a prior shoulder condition were de minimis
injuries that support the conclusion that officer did not use excessive force).
Plaintiff argues that he has not been provided with the necessary medical records to
establish that he sustained more serious injuries. However, he does not allege that
he sustained serious or ongoing injury, and thus he cannot plausibly claim that
medical records would establish that he sustained an injury that would indicate a
more than de minimis use of force.
Plaintiff argues that it was unreasonable for defendants to use any force
because he had indicated his surrender by raising his hands. “It is well established
that a police officer may not continue to use force against a suspect who is subdued
and complying with the officer’s orders.” Johnson v. Scott, 576 F.3d 658, 660 (7th
Cir. 2009) (citations omitted). “But that principle depends critically on the fact that
the suspect is indeed subdued.” Id. Here, defendants had no way of knowing how
plaintiff was going to behave and they were not required to take his apparent
surrender at face value, especially with a gun in easy reach. Id.
For the reasons set forth above, the court finds that Boyd’s alleged conduct
did not constitute excessive force in violation of the Fourth Amendment.
The court next considers Boyd’s claim of qualified immunity. 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). For a
right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right.” Id. at 908 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
courts must ask whether the law at the time of the events in question gave the
officers “fair warning” that their conduct was unconstitutional. Id.
In Chambers, the Eighth Circuit wrote that “it is logically possible to prove an
excessive use of force that caused only a minor injury,” and that the degree of
injury sustained by a plaintiff “should not be dispositive” of whether the police used
Chambers, 641 F.3d at 906.
Thus, in Chambers the court
“recognized for the first time . . .that police conduct that causes only de minimus
injury could constitute excessive force.” Meehan v. Thompson, 763 F.3d 936, 946
(8th Cir. 2014).
However, before the Chambers decision in June 2011, it was “an
open question in this circuit whether an excessive force claim requires some
minimum level of injury.” Id. (citation omitted). On January 26, 2011, when this
incident occurred, “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.” LaCross v. City of Duluth, 713 F.3d 1155, 1158
(8th Cir. 2013) (citation omitted).
Although it is not possible to define what
constitutes a de minimis injury with any precision, see Davis v. White, No. 14-1722,
2015 WL 4528367, at *2 (8th Cir. July 28, 2015) (listing cases), the court has not
located any case in which possible bruising exceeded the level of a de minimis
Given the state of the law at the time of the incident at issue here, it was not
clearly established Boyd’s alleged conduct was unconstitutional. Therefore, Boyd is
entitled to qualified immunity.
Plaintiff asserts that defendant Dean used excessive force when he deployed
a police dog to extract him from the Stratus. Review of excessive force claims
involving police dogs is governed by the general standard established in Graham v.
Kuha v. City of Minnetonka, 365 F.3d 590, 598 (8th Cir. 2003) abrogated
by Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385 (8th Cir. 2007). Again,
the court considers the totality of the circumstances, including the severity of the
crime, the danger the suspect poses to the officer or others, and whether the
suspect is actively resisting arrest or attempting to flee. For all of the reasons
stated above, these factors weigh heavily in favor of defendant Dean.
According to defendant Dean, once he heard Officer Percich’s announcement
that plaintiff had a weapon, he decided to extract plaintiff from the Stratus and get
him away from the gun. He relied on the dog to remove plaintiff from the Stratus
because he did not want to risk plaintiff shooting him or the other officers. Dean
opened the rear door and ordered the dog to apprehend plaintiff. He states that as
plaintiff was pulled from the car, he saw the gun on plaintiff’s seat. He also states
the dog released plaintiff when commanded to do so. Dean Aff. ¶¶27-30.
Plaintiff argues that there is a material factual dispute with respect to
whether Percich announced that plaintiff had a gun. In light of the uncontestable
evidence that plaintiff had fired a weapon a very few minutes earlier, Dean could
reasonably assume that plaintiff still had possession of the gun and presented a
threat to officer safety. Thus, whether Percich made an announcement or not is
immaterial. Plaintiff also argues that it was unreasonable for defendant Dean to use
a police dog to extract him from the car when he had his hands up and had
surrendered. Assuming without deciding that plaintiff indeed raised his hands when
directed to do so, in light of the events leading up to plaintiff’s capture and as
discussed above, defendant Dean was not required to accept his apparent
surrender. Plaintiff also contends that Dean unreasonably used a police dog to
extract him when other officers were already in the car trying to get control of him.
However, Dean stated that he decided to minimize the risk to human life by relying
on the dog. This was not an unreasonable decision.
When the dog failed in its first attempt to grip plaintiff by the leg, it bit down
on plaintiff’s arm and then pulled him from the car. Plaintiff states that once he was
out of the car the dog also bit his finger and broke it. In opposition to summary
judgment, plaintiff for the first time alleges that defendant Dean directed the dog to
inflict the bite on the finger. Opp. at 3 [Doc. #52]. This assertion is inconsistent
with his deposition testimony that the dog lost its grip and snapped at him. Pl. Dep.
at 54. Plaintiff cannot alter his deposition testimony to manufacture a factual
dispute. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.
1995) (parties to summary judgment motion cannot create “sham issues of fact” to
defeat summary judgment); Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289
(8th Cir. 1988) (same).
Defendant Dean announced that he was with the Canine Unit and “gave a
series of clear audible commands” to plaintiff to “exit the car slowly and show his
hands or the police dog would be released to apprehend him.” Percich Aff. ¶39.
Plaintiff asserts that he did not hear defendant Dean make any warnings. “There
exists no per se rule that deployment of a police canine is unreasonable unless
preceded by a warning." Grady v. Becker, 907 F. Supp. 2d 975, 980 (D. Minn.
2012) (quoting Kuha v. City of Minnetonka, 365 F.3d 598, 599 (8th Cir. 2013)
abrogated on other grounds by Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th
Cir. 2007)) (en banc) (“[T]here may be exceptional cases where [a canine] warning
is not feasible.”). “That said, the general rule is that absent a threat to his safety, a
police officer must warn a suspect before releasing a dog upon him.” Id. (emphasis
in original). Here, the evidence establishes that there was a threat to officer safety,
as plaintiff had a gun within easy reach. Even if a warning was required, plaintiff
testified that he knew the dog was present because he heard it barking and thus he
had sufficient warning. See Mortensbak v. Butler, --- F. Supp. 3d ---, 2015 WL
787679, at *12 n.13 (D.S.D. Feb. 24, 2015) (dog’s “constant barking” gave plaintiff
“reasonable warning that noncompliance could result in the deployment of a police
circumstances presented here was not unreasonable and defendant Dean is entitled
to summary judgment.
For the above reasons,
IT IS HEREBY ORDERED that the motion of defendant Eddie Boyd for
summary judgment [Doc. #41] is granted.
IT IS FURTHER ORDERED that the motion of defendant Robert Dean for
summary judgment [Doc. #45] is granted.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 5th day of August, 2015.
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