Moore et al v. Ferguson Police Department et al

Filing 93

MEMORANDUM AND ORDER re: 62 MOTION for Summary Judgment filed by Defendant James Knowles, III, Defendant Michael White, Defendant William Ballard, Defendant Keith Kallstrom, Defendant David Conway, Defendant Mark J. Byrne, Defendant Ferguson, Missouri, City of, Defendant Kim Tihen, Defendant Brian Kaminski, Defendant Tim Larson, Defendant Ferguson Police Department, Defendant Matthew Bebe, Defendant Dwayne T. James, Defendant Thomas Jackson. IT IS HEREBY ORDERED that d efendants' motion for summary judgment (#62) is DENIED in part and GRANTED in part. IT IS FURTHER ORDERED that summary judgment is GRANTED to defendants on plaintiffs' failure to train claim. Signed by District Judge Stephen N. Limbaugh, Jr on 10/4/16. (CSG)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TINA MOORE, individually and as
)
Personal Representative of the ESTATE OF )
JASON MOORE, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
CITY OF FERGUSON, MISSOURI, et al., )
)
Defendants.
)

No. 4:14-cv-1443 SNLJ
No. 4:14-cv-1447 SNLJ
CONSOLIDATED

MEMORANDUM and ORDER
Plaintiffs’ decedent, Jason Moore, died during an altercation with police in
Ferguson, Missouri. Plaintiffs are decedent’s relatives; they have filed this lawsuit
against the City of Ferguson, Officer Brian Kaminski in his official and individual
capacities, and Thomas Jackson in his official capacity as Chief of Police for the
Ferguson Police Department.1 Defendants have filed a motion for summary judgment
(#62). The matter has been fully briefed and is now ripe for disposition.
I.

Background
The following facts are undisputed unless otherwise indicated.2 Jason Moore was

a 31-year-old man weighing approximately 135 pounds when he encountered police in
1

Numerous other defendants have been dismissed from the case.

2

Plaintiffs dispute many of defendants’ factual statements, suggesting that because
defendant Kaminski is the only living witness to the event described in the complaint, the Court
should discredit his testimony and make “reasonable inferences” in favor of plaintiffs. In the
absence of citations to evidence refuting the evidence submitted with defendant’s statement of
facts, however, the Court must consider those facts admitted.

1

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the early morning of September 17, 2011. Mr. Moore was near his Ferguson, Missouri
home when he took his clothes off and ran naked down the street yelling “God is good,”
“glory to God,” and “I am Jesus.” Several 911 calls were made by individuals nearby,
and Ferguson Police Department officers were dispatched.
Defendant Officer Kaminski was first on the scene. As Kaminski arrived in the
area, he was flagged by a woman in a vehicle who advised Kaminski that the naked
individual was nearby at the intersection of Airport Road and Henquin. Officer Kaminski
proceeded to that area and saw Mr. Moore, naked, walking from behind a building and
standing near the curb of Airport Road. There was light traffic on the roadway, and it
was just becoming daylight.
Officer Kaminski walked toward Mr. Moore and ordered him to come to
Kaminski, away from the street. Then he ordered Mr. Moore to stop and get on the
ground. Instead, Mr. Moore began running at Kaminski, swinging his fists aggressively
in a pinwheel motion.3 Kaminski stepped backwards, but Mr. Moore continued to
advance aggressively, so the officer unholstered his Taser and gave a third command to
stop or else Moore would be Tased. Mr. Moore continued to aggressively move toward
Officer Kaminski, so Kaminski deployed the Taser. The Taser shot two metal darts or
probes at Mr. Moore and, although Kaminski could not see exactly where the darts
3

Plaintiffs dispute that Moore swung his fists “in a pinwheel motion” and cite to a Use of
Force Memorandum that they state does not mention the “pinwheel motion.” Kaminski denies
authoring the Use of Force (“UOF”) Memorandum (rather, another officer drafted it with
information provided by Kaminski). Moreover, the UOF Memorandum does state that Moore
“started running towards me swinging his fist in an aggressive manner.” (#80 at Ferg1882.) The
UOF Memorandum is therefore not inconsistent with other written descriptions of Moore’s
behavior prior to being Tased.

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landed, they attached at Moore’s right chest and his leg. Kaminski had been aiming at
the right side of Mr. Moore’s body, near his hip. The Taser darts delivered a 50,000-volt
shock that lasting five seconds. Mr. Moore fell forward onto the ground. Kaminski
commanded Mr. Moore to stay on the ground, but Moore attempted to rise up. Kaminski
applied another Taser cycle.
Non-party Officer White arrived just after Kaminski applied the second Taser
cycle. He heard Kaminski giving orders to Moore to stay down, and he saw Moore trying
to get back up. Although plaintiffs dispute just how far up Mr. Moore managed to move
before being Tased again, plaintiffs appear to agree Moore raised himself up at least 6
inches. Moore was also yelling something indecipherable. Kaminski recalls Tasing Mr.
Moore a third time, at which time White was able to handcuff Mr. Moore.
The Taser device data is somewhat helpful. The Taser’s data shows that the
trigger was activated four times during the relevant period. The activation times and the
duration of the Tases are as follows:
6:53:17
6:53:22
6:53:28
6:53:34

6 second duration
5 second duration
5 second duration
5 second duration

The Taser’s data download, however, advises that activation times are recorded at the
time that the firing cycle ended, and that the activation durations recorded in the
activation log are rounded up to the next second after 0.010 seconds. Thus, the activation
log shows that the second cycle might have started up to 0.89 seconds after the first Taser

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cycle, and up to 1.99 seconds passed between each of the second and third and third and
fourth Taser cycles.
After Mr. Moore was handcuffed, Emergency Medical Services (“EMS”) was
called to respond to the location. Officer White attempted to speak to Mr. Moore but
noticed Moore was unresponsive and not breathing. Officer White rolled Mr. Moore
onto his back and removed the handcuffs to begin chest compressions. At that point,
Officer White was able to see that the Taser probes had attached at Mr. Moore’s chest
and leg. EMS was advised that Mr. Moore had stopped breathing and to expedite their
arrival. The officers continued administering chest compressions until EMS arrived. Mr.
Moore was transported to a hospital, where he was pronounced dead. Although the
Assistance Medical Examiner, Kamal Sabharwal, M.D., ruled the manner of death as
“natural” and the immediate cause of death as being “Agitated Delirium secondary to
Psychosis,” plaintiffs dispute that characterization. Plaintiffs’ expert Philip Cuculich,
M.D., testified that the third and fourth applications of the Taser more likely than not
caused or contributed to Mr. Moore’s death. The Ferguson Police Department’s
subsequent investigation made no determination as to whether or not Officer Kaminski’s
use of force violated the FPD’s written policies and procedures and no one was
disciplined.
Mr. Moore’s family members filed lawsuits that were consolidated into this
matter. The plaintiffs filed a consolidated complaint asserting three counts. After
dismissing some parties, the following counts remain:
Count I: Violation of Mr. Moore’s Fourth and Fourteenth
Amendment rights by using excessive force under 42 U.S.C. § 1983 against
Officer Kaminski
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Count II: Municipal liability for the violation of Mr. Moore’s Fourth
and Fourteenth Amendment rights under 42 U.S.C. § 1983 against the City
of Ferguson and Chief Thomas Jackson
Count III: Wrongful death against Officer Kaminski
Defendants have moved for summary judgment as to all three counts.
II.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to judgment
as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
F.2d 207, 210 (8th Cir. 1976).

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III.

Discussion
A.

Count I --- Excessive Force against Officer Kaminski

Plaintiffs maintain that defendant Kaminski used excessive force in attempting to
“seize” Mr. Moore, thereby violating his Fourth Amendment rights. To establish a
violation of Fourth Amendment rights under 42 U.S.C. § 1983, plaintiff must show that a
seizure occurred and that it was unreasonable. Brower v. County of Inyo, 489 U.S. 593,
599 (1989). The Fourth Amendment to the United States Constitution prohibits the use
of excessive force during the seizure of a free citizen. Graham v. Connor, 490 U.S. 386,
388 (1989); Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). The test for determining
whether excessive force was used is whether the amount of force used was reasonable
under the circumstances. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.
2009). The Court evaluates the reasonableness of an officer’s use of force from the
perspective of a reasonable officer on the scene, rather than with the benefit of hindsight.
Id. “This calculus allows for the fact that police officers are often forced to make splitsecond decisions—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation.” Id. (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). “A threat to an officer’s safety can justify
the use of force in cases involving relatively minor crimes.” Id.
Here, Mr. Moore posed an immediate threat to Officer Kaminski as he rushed
toward him with his closed fists pinwheeling. Mr. Moore ignored commands to get on
the ground. Despite plaintiffs’ argument that Kaminski outweighed Moore and that
Moore had no weapons, Mr. Moore’s behavior --- running around naked yelling “Glory
to God” and “I am Jesus” in the street --- suggested psychological disturbance whether
organically caused or drug-induced. It appears that the first Taser cycle was reasonable
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under the circumstances. Officer Kaminski did not see where the Taser probes attached
to Mr. Moore, but he did see Mr. Moore attempt to get up after falling to the ground. Just
how far up Mr. Moore progressed is disputed. Some evidence says he was sitting on his
knees, but the plaintiffs maintain he was on his back, raised up only about six inches.
Kaminski fired the Taser again, at which time Officer White arrived. Officer White
observed Officer Kaminski yelling loudly for Mr. Moore to stay on the ground, and he
heard Mr. Moore yelling as well. Officer White corroborates that Mr. Moore again
attempted to sit up. Kaminski fired the Taser again, and at that time White was able to
place Mr. Moore in handcuffs. Shortly thereafter, White realized Mr. Moore was not
breathing and began chest compressions.
Officer Kaminski’s version of the events --- which is in part corroborated by
Officer White’s testimony --- makes the use of force sound reasonable, but the data from
the Taser itself tells a somewhat different story and must be considered. The Taser data
shows that Kaminski fired the Taser four times, not the three times that Kaminski
remembers. Kaminski testified he has no reason to dispute the Taser data. Further, the
Taser data shows that approximately 0.89 second --- less than one second --- passed
between the end of the first Taser cycle and the start of the second. Then, less than two
seconds passed between the second and third and third and fourth cycles.
A question of fact exists regarding whether the Tasings were reasonable under the
circumstances. One to two seconds may be a long time in the context of neutralizing a
threat to an officer, and the Court understands that “split-second decisions” would apply
here, in a circumstance that was indeed “tense, uncertain, and rapidly evolving.” Brown,
574 F.3d at 496. But it is a question for a jury whether or not one to two seconds
constitutes a reasonable amount of time to allow someone to recover from the electrical
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shock of a 50,000 volt, five-second-long Tasing cycle, give a command to stay on the
ground, and observe whether or not the individual complies or resists commands. Many
factors are at play here: the reliability and meaning of the Taser data, how upright Mr.
Moore was able to get himself in between Tasings, and the general threat Mr. Moore
could have posed to Officer Kaminski as an unarmed person who never became
completely vertical before being serially Tased, just to name a few. Resolving disputes in
favor of the plaintiffs here requires that the Court deny summary judgment to defendant
Officer Kaminski.
As for defendant Kaminski’s qualified immunity defense, the Court denies
summary judgment on that ground as well. “Qualified immunity is a defense available to
government officials if they have not violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Amrine v.
Brooks, 522 F.3d 823, 831 (8th Cir. 2008) (quoting Young v. Selk, 508 F.3d 868, 871 (8th
Cir. 2007)). It “allows officers to make reasonable errors so that they do not always err
on the side of caution” for fear of being sued. Habiger v. City of Fargo, 80 F.3d 289, 295
(8th Cir. 1996) (internal quotation omitted); see Davis v. Scherer, 468 U.S. 183, 196
(1984). “This defense provides ‘ample room for mistaken judgments’ by protecting ‘all
but the plainly incompetent or those who knowingly violate the law.” Amrine, 522 F.3d
at 831 (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).
Qualified immunity determinations are based on a two-part inquiry. First, the court
determines whether the alleged facts, viewed in the light most favorable to the injured
party, demonstrate that the official’s conduct violated a constitutional right. Amrine, 522
F.3d at 831. Second, if the answer to that inquiry is yes, the court asks whether the
constitutional right was clearly established at the time so that a reasonable officer would
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have understood that his conduct violated that right. Amrine, 522 F.3d at 831. The law
was established that “non-violent, non-fleeing subjects have a clearly established right to
be free from the use of tasers.” De Boise v. Taser Intern., Inc., 760 F.3d 892, 987 (8th
Cir. 2014) (citing Brown, 574 F.3d at 499-500, a 2009 case). De Boise explored whether
officers who Tased an arrestee under similar circumstances to those here were entitled to
qualified immunity in an excessive force case where the arrestee continued to struggle
and ignore commands. The De Boise court determined that because the arrestee there
continued to resist, and the state of the law at the time would not have placed an officer
on notice that he must limit the use of his Taser in certain circumstances even in the face
of a resisting arrestee, that the officer was entitled to qualified immunity. Id. The result
is not the same here. If Mr. Moore was not violent, resisting, or fleeing in between
Tasings, then he had a “clearly established right to be free from the use of tasers.” Id.
Whether Mr. Moore was resisting at all in the intervals between Tasings is an issue for
the jury to determine. See, e.g., Van Raden v. Larsen, No. 13-2283 (DWF/LIB), 2015
WL 853592, at *7 (D. Minn. Feb. 26, 2015) (addressing qualified immunity and the
reasonable use of a taser).
B.

Count II --- Municipal Liability

Plaintiffs’ claims in Count II include
 that Mr. Moore’s constitutional rights were violated as a result of policies
and customs of the City of Ferguson; and
 that defendants City of Ferguson and Chief Thomas Jackson failed to train
defendant officer Kaminski and failed to supervise and investigate in a
manner which deprived Mr. Moore of his Fourth Amendment
Constitutional rights.
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A “municipality may be held liable for the unconstitutional acts of its officials or
employees when those acts implement or execute an unconstitutional municipal policy or
custom.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A “policy” is a
“deliberate choice of a guiding principle or procedure made by the municipal official who
has final authority regarding such matters.” Id. A “custom” is an unofficial practice
characterized by a “continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity’s employees.” Id. Plaintiffs allege that
circumstances here suggest a custom of excessive force being used by Ferguson police.
In order to prove a municipal custom exists, the plaintiff must demonstrate:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of
that misconduct; and
(3) The plaintiff[’s] injury by acts pursuant to the governmental entity’s
custom, i.e., [proof] that the custom was the moving force behind the
constitutional violation.
Mettler, 165 F.3d at 1204 (internal citations omitted). Defendants argue that plaintiffs
have no evidence to support any of the three factors.
Plaintiff allege that there is an unofficial custom by Ferguson Police Department4
(“FPD”) officers to use excessive force.
Most of plaintiffs’ evidence in support of their claim regarding FPD’s unofficial
custom is derived from a report published by the United States Department of Justice
(“DOJ”) on March 4, 2015 (the “Report”). The Report contains the results of an
4

Because the FPD is a part of the City of Ferguson, the FPD is not a separate defendant
in this matter.

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investigation initiated under the pattern-or-practice provision of the Violent Crime
Control and Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control
and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”), and Title VI of the
Civil Rights Act of 1962, 42 U.S.C. § 200d (“Title VI”). Plaintiffs contend that the DOJ
Report’s findings are admissible evidence, despite defendants’ hearsay objection, because
the factual findings of a legally authorized investigation are admissible pursuant to
Federal Rule of Evidence 803(8). Defendants suggest that the Report’s summaries are
unreliable and that they do not provide the detailed evidence required to meet the
plaintiffs’ burden regarding the existence of municipal custom. The Report is
undoubtedly within the hearsay exception set out by Federal Rule of Evidence
803(8)(A)(iii). Defendants are free to challenge the reliability and accuracy of the
Report’s summaries. But for the purposes of summary judgment, and as explained
below, the evidence relied upon by the plaintiffs is properly before this Court.
1.

Evidence of Pattern of Unconstitutional Misconduct

Plaintiffs’ main evidence in support of the existence of a “continuing, widespread,
persistent pattern of unconstitutional conduct” by FPD officers is contained in the DOJ
Report. The Report concluded that the FPD engages in a pattern of excessive force in
violation of the Fourth Amendment and that, specifically, the FPD’s use of “electronic
control weapons” (“ECWs”) such as Tasers is “unreasonable.” Furthermore, the Report
observed that the “[o]verwhelming majority of force --- almost 90% --- is used against
African Americans” and that the FPD demonstrated a “pattern of insufficient sensitivity
to, and training about, the limitations of those with mental health conditions or
intellectual disabilities.”

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Plaintiffs cite to at least five incidents of excessive force that occurred before
Jason Moore was Tased. Those incidents occurred between August 2010 and August
2011 and involved ECWs or Tasers. At least four of the five involved African-American
men. Although defendants dispute the details of these incidents, five instances of
excessive force --- involving Tasers --- predating the events of this matter over the course
of just one year constitutes more than isolated incidents. See Ware v. Jackson County,
Mo., 150 F.3d 873, 881-82 (8th Cir. 1998).
Moreover, although the Report noted that the FPD had a procedure for
documenting and reviewing use of force by officers, the DOJ determined that the
“requirements are not adhered to in practice.” The DOJ further stated that it “learned of
many uses of force that were never officially reported or investigated from reviewing
emails between FPD supervisors.”5
Similarly, the DOJ Report observed that Ferguson supervisory personnel have a
custom of failing to “review critical evidence even when it is readily available.” In
keeping with the FPD’s failure to adhere to its own policies related to use of force
review, plaintiff further points out that the FPD’s investigation of this matter was limited
--- in fact, no one at the FPD initiated the “data download” for the Taser used on Mr.
Moore until four years after the incident, after this lawsuit was well underway. This
evidence is perhaps more germane to the second factor, however, to which the Court
turns next.

5

The plaintiff requested the “emails between FPD supervisors” that had been provided to
the DOJ, but the emails had not been produced as of the date of plaintiffs’ response
memorandum.

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2.

Evidence of deliberate indifference to or tacit authorization of
such conduct by Ferguson’s policymaking officials after notice to
the officials of that misconduct

Having set forth evidence of a pattern of the use of excessive force by Ferguson
officers, plaintiffs must next set forth evidence supporting that the City of Ferguson and
Chief Jackson were deliberately indifferent to or tacitly authorized police officers’ use of
excessive force. Again, the DOJ Report supports plaintiffs’ claims. The Report
concludes that Ferguson police officers do not minimize their use of force but rather
“respond with impatience, frustration, and disproportionate force” and that “FPD’s weak
oversight of officer use of force…facilitates this abuse.” Although official FPD policy
“prohibits use of force unless reasonable alternatives have been exhausted or would
clearly be ineffective,” the DOJ found that “FPD officers routinely engage in the
unreasonable use of ECWs, and supervisors routinely approve their conduct.”
Specifically, “[s]upervisors seem to believe that any level of resistance justifies any level
of force” and those supervisors “almost never actually investigate force incidents.” In
fact, “though contrary to policy, supervisors almost never interview non-police witnesses,
such as the arrestee or any independent witnesses” and, critically, “[t]hey do not review
critical evidence even when it is available.”
As Chief of Police at the time of the incident in question here, defendant Chief
Jackson was the individual designated by the Mayor and City Council to “have general
supervision and control of the police department, including the enforcement of discipline
among the members thereof and the instruction of the members in their duties.” City of
Ferguson Code of Ordinances, § 33-18. Chief Jackson testified that he had never
disciplined an officer for using excessive force. Although the fact that Chief Jackson had
never disciplined an officer for using excessive force is not at all dispositive, it is some
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evidence that supports plaintiffs’ claims, particularly in light of the DOJ Report’s
findings.
Plaintiffs have adequately shown that evidence exists to support their contention
that the defendant Chief Jackson and City of Ferguson have been deliberately indifferent
to or tacitly authorized the FPD’s custom of using excessive force. The DOJ found that
the custom and practice of use of excessive force was the direct result of the failure to
properly supervise and discipline officers by investigating and enforcing the FPD’s own
use of force policies.
3.

The custom of excessive force was the moving force behind
Jason Moore’s death

Finally, plaintiffs must prove that Ferguson’s deliberate indifference to or tacit
authorization of officers’ use of excessive force was the “moving force” behind Jason
Moore’s death. The Eighth Circuit has held that, “where it becomes clear that an
employee or group of employees needs close and continuing supervision and the
municipality fails to provide such supervision, the inevitable result is a continuation of
the misconduct.” Ware, 150 F.3d at 885 (internal quotation to Harris v. City of
Pagedale, 821 F.3d 499, 508 (8th Cir. 1987) omitted). Plaintiffs’ evidence supports
exactly that: as stated in the Report, there is evidence that Ferguson did not enforce its
own policies regarding the appropriate use of ECWs during interactions with the public.
There is also evidence from which a jury may find that Jason Moore was excessively
Tased. The evidence is therefore sufficient to show that Ferguson’s failure to address the
persistent use of excessive force by police officers was the “moving force” behind the
violation of Moore’s constitutional rights.

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4.

Failure to Train Claim

As for plaintiffs’ claim that defendants failed to properly train FPD officers,
defendants argue they cannot be liable because training is the responsibility of the State
of Missouri, not the City. See Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160
(8th Cir. 2014). Indeed, state law requires that all officers be trained not by
municipalities, but by the Missouri Department of Public Safety. Id. Although the DOJ
found that the FPD officers were insufficiently trained on tactics that would minimize
force when dealing with individuals in mental health crisis, that training is the
responsibility of the state. See id. In any event, Kaminski did receive training from the
Taser manufacturer and in fact is a Taser instructor himself; further, he testified that he
was trained to know that an unarmed citizen should never be Tased unless he poses a
serious threat of injury or death to themselves or others. Plaintiffs’ complaints regarding
training are thus primarily that Kaminski received the training but did not apply the
training. The claim that Ferguson officers received insufficient training is therefore
untenable, and summary judgment will be granted as to failure to train.
Defendants’ motion for summary judgment on Count II is therefore granted with
respect to the failure to train claim but denied with respect to the rest of Count II.
C.

Count III --- Wrongful Death against Defendant Kaminski

Defendant Kaminski contends that the wrongful death count against him should be
disposed of because, he says, official immunity applies. This Court addressed
defendant’s official immunity argument with respect to Count III as part of its
memorandum addressing defendants’ Motion to Dismiss. The Court denied the motion
to dismiss as to Count III because Missouri law is clear that official immunity does not

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apply to discretionary acts that were performed “in bad faith or with malice.” Teasley v.
Forler, 548 F. Supp. 2d 694, 710 (E.D. Mo. 2008).
It remains true that defendant Kaminski’s actions are classified as discretionary as
opposed to “ministerial acts,” which are of a clerical nature. Id. However, defendant
argues that no evidence supports that Kaminski acted with malice or bad faith because he
did not use force until Mr. Moore charged him aggressively and then failed to comply
with orders to stay on the ground. “[M]alice is defined to include ‘reckless indifference
to the rights of others.’” Estate of Snyder v. Julian, 789 F.3d 883, 887 (8th Cir. 2015)
(quoting State ex. rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446–47 (Mo. banc 1986)). In
Snyder, a parole officer argued that he had official immunity for the discretionary act of
shooting a parolee in the back while attempting to apprehend him. Id. The parolee died
from his injuries. The defendant parole officer testified that he believed the decedent was
going to attack him and that he fired the gun as the parolee was turning. The Eighth
Circuit affirmed that the evidence was sufficient to support a finding that the officer acted
with reckless indifference to the decedent’s rights --- the decedent was unarmed, was
running away, and posed no threat to the officer when the officer fired. Id.
Here, though it is a close call, the evidence could support a finding that because
Mr. Moore was unarmed and on the ground and so little time passed between Tasings,
defendant Kaminski acted with reckless indifference to Mr. Moore’s rights. Official
immunity is therefore denied to defendant Kaminski.

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Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment
(#62) is DENIED in part and GRANTED in part.
IT IS FURTHER ORDERED that summary judgment is GRANTED to
defendants on plaintiffs’ failure to train claim.

Dated this 4th day of October, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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