Wenzel et al v. Bourbon, Missouri, City of et al

Filing 70

MEMORANDUM: For the reasons stated above, on Count 1 the cross-motions of plaintiffs and defendant Storm for summary judgment are denied; on Counts 3, 4, and 5 the motion of defendant City of Bourbon for summary judgment is granted; and on Counts 3, 4, and 5 the motion of defendant Carl Storm for summary judgment is denied. An appropriate Order is issued herewith. Signed by Magistrate Judge David D. Noce on 4/13/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIC WENZEL, ANNIE ALLEY, and
THELMA WENZEL,
Plaintiffs,
v.
CITY OF BOURBON, MISSOURI, and
CARL STORM,
Defendants.

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No. 4:16 CV 27 DDN

MEMORANDUM
This action is before the court on the motions of (a) plaintiffs Eric Wenzel, Annie
Alley, and Thelma Wenzel for partial summary judgment against defendant Carl Storm
on Count 1 (ECF No. 35); (b) defendant City of Bourbon for summary judgment against
plaintiffs on Counts 3, 4, and 5 (ECF No. 58); and (c) defendant Carl Storm for summary
judgment against plaintiffs on Counts 1, 3, 4, and 5 (ECF No. 60). The court heard oral
argument on the motions on March 31, 2017.
Plaintiffs seek relief in five counts:
Count 1: against defendant Storm under 42 U.S.C. § 1983 for use of
unconstitutionally excessive force that resulted in the death of plaintiffs' decedent, Gary
Wenzel on March 5, 2014;
Count 2 against defendant City of Bourbon was dismissed by the court (ECF No.
17);
Count 3 against both defendants for wrongful death under the law of Missouri;
Count 4 against both defendants for assault under the law of Missouri; and
Count 5 against both defendants for battery under the law of Missouri.

The court has subject matter jurisdiction over Count 1 pursuant to 28 U.S.C. §§
1331 and 1343(3), and supplemental subject matter jurisdiction over Counts 3, 4, and 5
pursuant to 28 U.S.C. § 1367(a).

I. Legal standard for summary judgment
Summary judgment is proper “if there is no dispute of material fact and reasonable
fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton Corp., 695
F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact and
that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). The burden shifts to the non-moving party to demonstrate that disputes of
fact do exist only after the movant has made its showing. Id.
Courts must grant summary judgment when the pleadings and the proffered
evidence demonstrate that no genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp, 477
U.S. at 322. A fact is “material” if it could affect the ultimate disposition of the case, and
a factual dispute is “genuine” if there is substantial evidence to support a reasonable jury
verdict in favor of the nonmoving party. Rademacher v. HBE Corp., 645 F.3d 1005,
1010 (8th Cir. 2011).
“When the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt as to the material
facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S.
372, 381 (2007) (internal citation omitted). Stated another way, the nonmoving party
must “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
Corp., 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving
party and accord it the benefit of all reasonable inferences. Scott, 550 U.S. at 379-80.
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The nonmoving party must proffer “affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 257 (1986); Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir.
1999).

If the nonmoving party fails to proffer substantial evidence of an essential

element of a claim, summary judgment is appropriate on that claim because “a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323; St. Jude
Med., Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 595 (8th Cir. 2001).
On Count 1 the parties have filed cross-motions for summary judgment. “[T]he
filing of cross motions for summary judgment does not necessarily indicate that there is
no dispute as to a material fact, or have the effect of submitting the cause to a plenary
determination on the merits.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214
(8th Cir. 1983).

II. Evidentiary issues
When supporting or disputing statements of material fact offered to support a
motion for summary judgment, the opposing party may object that such a statement is not
supported by admissible evidence. Fed. R. Civ. P. 56(c)(2) (“A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.”); Moore v. Indehar, 514 F.3d 756, 761 (8th Cir. 2008) (ruling
hearsay evidence properly not considered on motion for summary judgment). Plaintiffs
argue that defendant Storm's statements that he had heard about decedent Gary Wenzel’s
background and attitude before the March 5, 2014, incident, are inadmissible because
they are hearsay and self-serving. (ECF No. 62 at ¶¶ 10, 11, 12, 16, 24, 25, 34).
The court disagrees with plaintiffs. The warnings defendant Storm states he had
received about Wenzel (ECF Nos. 50, 61, Ex. 1 at ¶¶ 10, 11, 12, 16, 24, 25) would be
hearsay if they were offered for the truth of the facts stated in the warning statements.
See Fed. R. Evid. 801(c). However, these statements are not hearsay when used to prove
their effect on defendant Storm. See United States v. Wright, 739 F.3d 1160, 1170 (8th
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Cir. 2014); see also Bady v. Murphy-Kjos, 628 F.3d 1000, 1002-03 (8th Cir. 2011)
(holding that information provided to an officer about a suspect is not hearsay when only
offered to show “what the officers knew, or thought they knew, at the time of the
arrest.”). Accordingly, paragraphs 10-12, 16, and 24-25 are not inadmissible hearsay
statements. 1
As to plaintiffs’ objections that these statements were self-serving, the court is not
persuaded that they are thereby inadmissible or insufficient to establish a material fact.
Plaintiffs rely on the Eighth Circuit holding that: “we cannot draw favorable inferences
from [a party’s] unsupported, self-serving affidavit stating his subjective views.” Conolly
v. Clark, 457 F.3d 872, 876 (8th Cir. 2006). However, the Conolly court was referring to
a party who was attempting to explain how he understood the terms of a contract, when
the question on summary judgment was whether there was an objective manifestation of
an intent to be bound. Id. This holding is inapplicable here, where the question is not
purely objective, but also subjective.
Federal Rule of Civil Procedure 56(c) provides that affidavits may be considered
in ruling on a motion for summary judgment, so long as they are “made on personal
knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show
affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R.
Civ. P. 56(c). Defendant Storm’s affidavit (ECF No. 50) only goes to events of which he
has personal knowledge. He sets forth facts that are admissible in evidence as nonhearsay statements related to his state of mind at the time of the event. (ECF No. 50). He
is competent to testify about his own state of mind.
The statements in question, other than at ¶ 34 previously mentioned, may be
properly considered on the motions for summary judgment.
1

The toxicology report described in ECF No. 61, Ex. 1 at ¶ 34 is irrelevant, and thus not
admissible, to support Storm's summary judgment statements about his knowledge during
the March 5, 2014, incident. See Fed. R. Evid. 402 (“Irrelevant evidence is not
admissible.”). The report’s contents are irrelevant, because it was prepared after the
incident.
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III. Undisputed facts
Unless otherwise noted, the parties do not dispute the following facts. 2 On March
5, 2014, defendant Carl Storm was employed as a police officer for the Bourbon Police
Department in Bourbon, Missouri. (ECF Nos. 36 at ¶ 6; 49 at ¶ 6; 56 at ¶ 1; 59 at Ex. 1, ¶
1). On that day, Storm was in uniform and driving a fully marked City of Bourbon Police
Department police car. (ECF Nos. 61, Ex. 1 at ¶¶ 1-3; 62 at ¶ 1). The police car Storm
was driving was equipped with an in-car video system. (ECF Nos. 61, Ex. 1 at ¶ 4; 62 at
¶ 4). The audio portion of the in-car video system only activates when it is pulled from
its charging cradle. (ECF Nos. 61, Ex. 1 at ¶ 6; 62 at ¶ 6). The video was activated and
recording during the incident in question, but there is no audio recording of the incident.
(ECF Nos. 61, Ex. 1 at ¶¶ 5, 7; 62 at ¶¶ 5, 7).
Earlier in the day, defendant Storm performed a traffic stop of Shawn Wenzel, a
relative of Gary Wenzel, resulting in the towing of Shawn’s vehicle. (ECF Nos. 36 at ¶¶
9-10; 49 at ¶¶ 9-10). Defendant Storm had just resumed patrolling the streets when he
observed Gary Wenzel drive past him in the opposite direction. (ECF Nos. 36 at ¶¶ 7-8;
49 at ¶¶ 7-8). Storm had previously been informed by another police department that
Wenzel was driving with improper tags, so he turned his vehicle around to investigate.
(ECF Nos. 36 at ¶¶ 11, 13; 49 at ¶¶ 11, 13, 48-53; 61, Ex. 1 at ¶ 15; 62 at ¶ 15). 3 The

2

The facts are taken from plaintiffs’ Statement of Uncontroverted Material Facts (ECF
No. 36) in support of their Motion for Partial Summary Judgment, defendant Storm’s
Amended Statement of Uncontroverted Material Facts (ECF No. 49) in support of his
Response to Plaintiff’s Motion for Partial Summary Judgment, plaintiff’s Response to
Defendant Carl Storm’s Additional Statement of Uncontroverted Material Facts (ECF
No. 56), defendant Bourbon’s Supplemental Statement of Uncontroverted Material Facts
(ECF No. 59) in support of its Motion for Summary Judgment, defendant Storm’s
Supplemental Statement of Uncontroverted Material Facts (ECF No. 61) in support of his
Motion for Summary Judgment, plaintiffs’ Response to defendants’ supplemental
statements of fact (ECF No. 62), and defendant Storm’s Reply to plaintiff’s response
(ECF No. 64).

3

For clarity, the court refers to defendant Storm’s supplemental statement of facts in ECF
No. 49 using subsequent, sequential numbering (e.g., Paragraph 1 of the supplemental
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moment when Storm activated his lights is disputed. (ECF Nos. 36 at ¶ 11; 49 at ¶ 11).
Shortly after Storm turned to follow Wenzel, Wenzel failed to stop at a stop sign and
sped away. (ECF Nos. 36 at ¶ 12; 49 at ¶ 12). The chase continued for ten to eleven
minutes, but the parties dispute at what points, if any, the cars were driving at “high
speeds” during this chase. (ECF No. 49 at ¶ 56; 56 at ¶ 19). A visual observation of
Storm's dashcam video recording of the pursuit clearly depicted Wenzel driving in the
opposite direction lane, of the two-lane road, on more than one occasion. 4 The parties
dispute the cause of the stop, but Wenzel’s car eventually stopped in a ditch. (ECF Nos.
36 at ¶ 14; 49 at ¶ 14).
When Wenzel’s vehicle stopped, Storm remained in his patrol car with his door
open, parked a few car lengths behind Wenzel’s vehicle. (ECF Nos. 36 at ¶ 16; 49 at ¶
16). Wenzel exited his vehicle and walked swiftly toward Storm’s patrol car. (ECF Nos.
36 at ¶ 15; 49 at ¶ 15; Pl. Ex. 3; Def. Ex. 4). The parties dispute what Storm observed at
this time. (ECF Nos. 36 at ¶¶ 17-19; 49 at ¶¶ 17-19). Plaintiffs assert that as Wenzel
approached Storm’s vehicle, Wenzel’s arms were swinging and his hands were in plain
view. (ECF Nos. 36 at ¶¶ 17-19). They assert that it was clearly visible to Storm that
Wenzel’s hands were empty, and that Wenzel did not in fact have any weapons in his
hands. (Id.). At Storm’s deposition, he testified that while he could not clearly see
Wenzel’s hands as he approached, he did not see any weapons, and Wenzel’s hands were
down at his sides with palms backward. (ECF No. 36, Ex. 2 at ¶¶ 5-14).
Storm asserts that as soon as he came to a stop, he noticed that Wenzel was
already out of his vehicle and rapidly approaching him. (ECF No. 49 at ¶ 65). Storm
asserts that he dropped the radio on the seat of his vehicle, attempted to stand up all the
way, and, drawing his weapon, gave commands to Wenzel to stop and show his hands.

facts is re-labeled Paragraph 38, to continue from the last paragraph of plaintiffs’
statement of facts, which was Paragraph 37). (ECF No. 36).
4

During the hearing on the instant motions, with counsel for all parties present but off the
record, the court viewed video recording of Storm's pursuit of Wenzel, Def. Ex. 4.
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(ECF No. 49 at ¶ 66). Wenzel continued to approach without showing his hands. (ECF
No. 49 at ¶¶ 67-70).
The parties do not dispute that as Wenzel approached, Storm, standing behind his
open vehicle door, fired three gunshots at Wenzel, who was struck in the head, chest, and
lower left abdomen. (ECF Nos. 36 at ¶¶ 20-22; 49 at 20-22). Storm believed he shot
Wenzel in the side of his head, while plaintiffs assert it was to the back of the head.
(ECF Nos. 36 at ¶¶ 24-25; 49 at ¶¶ 24-25). Wenzel died that day as a result of the
gunshot wounds. (ECF Nos. 36 at ¶ 23; 49 at ¶ 23).
At the time of the incident, it was daylight, and there were no other people present
at the location where the shooting occurred. (ECF Nos. 36 at ¶¶ 28, 37; 49 at ¶¶ 28, 37).
Storm had on his person a pistol, a baton, and a pepper spray device. (ECF Nos. 36 at ¶
29; 49 at ¶ 29). Although the pepper spray and baton were on his duty belt, Storm did not
use either of them on Wenzel before shooting him. (ECF Nos. 36 at ¶¶ 30-33; 49 at ¶¶
30-33). At this time Storm was familiar with the use of force continuum policy. (ECF
Nos. 36 at ¶ 35; 49 at ¶ 35).
Storm asserts that several sources had informed him that Wenzel was a dangerous
individual. During the earlier traffic stop of Shawn Wenzel, Shawn allegedly warned
Storm to “be careful,” because Gary Wenzel “is not going to jail.” (ECF Nos. 49 at ¶ 44;
61, Ex. 1 at ¶ 10; 62 at ¶ 10). Gary Wenzel’s brother, Ronnie, also warned Storm that
Wenzel was dangerous. (ECF Nos. 49 at ¶ 45; 61, Ex. 1 at ¶ 11; 62 at ¶ 11). Storm was
also aware of an active investigation by the Bourbon Police Department into Gary
Wenzel’s methamphetamine use and distribution. (ECF Nos. 61, Ex. 1 at ¶ 12; 62 at ¶
12). Storm had previous personal and professional interactions with Gary Wenzel, and
he was aware that Wenzel had previously assaulted another officer and had physical
altercations with other officers. (ECF Nos. 49 at ¶¶ 46-49, 60; 61, Ex. 1 at ¶ 25; 62 at ¶
25). Storm asserts that he had been previously provided information that Wenzel had
fled another police department and managed to elude them. (ECF Nos. 49 at ¶ 51; 61,
Ex. 1 at ¶ 16; 62 at ¶ 16). During the chase, Storm was informed by dispatch that Wenzel

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was aggressive and known to be violent towards law enforcement. (ECF Nos. 49 at ¶ 59;
61, Ex. 1 at ¶¶ 23-24; 62 at ¶¶ 23-24).
At all times relevant to this lawsuit, the City of Bourbon, Missouri, participated in
and continues to participate in the statutorily-created Missouri Public Entity Risk
Management Fund (“MOPERM”).

(ECF No. 59, Ex. 1 at ¶ 2).

Bourbon has not

procured any liability insurance other than its participation in MOPERM, which
participation’s Memorandum of Coverage is set out in defendant Bourbon’s Exhibit 3.
(ECF No. 59, Ex. 1 at ¶ 2, Ex. 3).
For purposes of plaintiffs’ motion, the parties agree that Gary Wenzel is survived
only by his children, plaintiffs Eric Wenzel and Annie Ally, and his mother, plaintiff
Thelma Wenzel. (ECF Nos. 36 at ¶¶ 1-5; 49 at ¶¶ 1-5).

IV. Count 1 against defendant Carl Storm
Count 1 seeks relief under 42 U.S.C. § 1983 and alleges defendant Storm used
constitutionally excessive, deadly force against decedent Gary Wenzel.

This claim

implicates Wenzel’s Fourth Amendment right to be secure against unreasonable seizures.
U.S. Const. Amend. IV; Graham v. Connor, 490 U.S. 386, 395 (1989).
In determining whether the force used to effect a seizure is “reasonable” under the
Fourth Amendment, the court must balance “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 396–97 (citations omitted).

The test for

reasonableness “requires careful attention to the facts and circumstances of each
particular case,” including “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.” Id. (citations omitted).
This analysis must be made “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id. (citations omitted). It must be
examined “from the perspective of the facts known to the officer at the time of the
incident,” Nelson v. Cty. of Wright, 162 F.3d 986, 990 (8th Cir. 1998), and allow for the
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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.”

Graham, 490 U.S. at 396-97 (citations

omitted).
The reasonableness analysis is an objective inquiry: “the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. (citations
omitted). That is, “[a]n officer's evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer's good
intentions make an objectively unreasonable use of force constitutional.” Id. (citations
omitted).
Plaintiffs argue that they are entitled to judgment of liability as a matter of law,
because Storm fatally shot Wenzel, who was unarmed. (ECF No. 37). Defendant Storm
counters that his use of force was reasonable and he is, moreover, entitled to qualified
immunity. (ECF No. 44).
Issues of fact preclude summary judgment at this time. The parties rely on the
same deposition testimony, defendant Storm’s, for contrary assertions about the facts
leading up to the shooting and Storm’s memory of what occurred, particularly in terms of
how Wenzel moved and to what extent his hands were visible to Storm at the time. A
determination of what Storm perceived and considered requires a credibility
determination that cannot be made at the summary judgment stage.

“Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (emphasis added). Summary judgment on Count 1 cannot be granted to plaintiffs.
Defendant Storm argues he is entitled to qualified immunity. “Qualified immunity
protects a government official from liability in a Section 1983 action unless the official’s
conduct violated a clearly established constitutional or statutory right of which a
reasonable person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.
2006). Qualified immunity depends upon both: (1) whether the officer’s actions violated
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a constitutional right, and (2) whether that right was clearly established in light of the
specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (8th Cir. 2001).
The Eighth Circuit takes a broad view of the “clearly established” inquiry,
allowing consideration of

“all available decisional law including decisions of state

courts, other circuits, and district courts.” Hayes v. Long, 72 F.3d 70, 73-74 (8th Cir.
1995).

The law can be clearly established by “a consensus of cases of persuasive

authority such that a reasonable officer could not have believed his actions were lawful.”
Wilson v. Layne, 526 U.S. 603, 617 (1999). The purpose of the qualified immunity
inquiry “is to acknowledge that reasonable mistakes can be made as to the legal
constraints on particular police conduct.” Saucier v. Katz, 533 U.S. 194, 205 (2001). It
is only if the officer’s mistake as to what the law requires is reasonable that the officer is
entitled to the immunity defense. Id. The “very action in question” need not have been
previously held to be unlawful; rather, its unlawfulness must be apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Cases relating to the constitutionality of the use of force are highly fact driven.
While an officer is not constitutionally required to wait until he actually sees a weapon
before employing deadly force against an individual, the visibility of the person's hands is
an important factor. See, e.g., Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001).
The Sixth Circuit found deadly force unreasonable on an armed suspect when, after shots
were reportedly fired in his home, the police entered his home unannounced, someone
yelled “I’ve got something for your ass” and closed the cylinder on a revolver, and then
the armed suspect walked toward the front door with his hands at his side. Dickerson v.
McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996). The Sixth Circuit, however, found
deadly force to be reasonable on an unarmed suspect when that suspect obscured both
hands from view and looked as if he was reaching for a weapon. Thompson, 257 F.3d at
899. The Eleventh Circuit found deadly force was reasonable when a man with a gun
was not clearly visible in his parked vehicle. Garczynski v. Bradshaw, 573 F.3d 1158,
1167-68 (11th Cir. 2009).

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In this case, the disputed issues of fact that preclude summary judgment on
plaintiffs' claim also preclude summary judgment on defendant’s qualified immunity
defense. This court acknowledges that “[i]mmunity ordinarily should be decided by the
court long before trial.” Hunter v. Bryant, 502 U.S. 224, 233 (1991). While this rule
diminishes the jury’s role in qualified immunity cases, however, it does not entirely
abolish it. Id. (noting immunity “ordinarily should be decided by the court”) (emphasis
added). In this case, disputed facts are material to whether Storm acted in an objectively
reasonable manner in view of the existing law and facts available to him.
Accordingly, both motions for summary judgment on Count 1 are denied.

V. Counts 3, 4, and 5 against defendant City of Bourbon
Defendant City of Bourbon has moved for summary judgment on Counts 3, 4, and
5 on the ground it is entitled to sovereign immunity. (ECF Nos. 58-59). Sovereign
immunity shields a municipality from liability for actions taken as part of its
governmental functions in all but four circumstances. Bennartz v. City of Columbia, 300
S.W.3d 251, 259 (Mo. Ct. App. 2009) (stating the four: (1) where a public employee
negligently operates a motor vehicle in the course of his employment; (2) where the
injury is caused by the dangerous condition of the municipality's property; (3) where the
injury is caused by the municipality performing a proprietary function, not a
governmental function; and (4) to the extent the municipality has procured insurance).
Only the insurance coverage exception applies in this case. The fourth exception waives
sovereign immunity “to the extent a municipality has procured insurance,” that is, “up to
but not beyond the policy limit and only for acts covered by the policy.” Id. (citations
omitted).
Plaintiffs have alleged that “[a]t all relevant times, . . . Bourbon had purchased and
had in effect a policy of insurance to insure itself against claims or causes of action for
damages caused by city employees engaged in government functions, including those as
described [in the complaint].” (ECF No. 1 at ¶ 15).

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This, plaintiffs have argued,

constituted a waiver of sovereign immunity under Mo. Rev. Stat. §§ 71.185 and 537.610.
(Id. at ¶ 16).
The City of Bourbon admits it participates in the Missouri Public Entity Risk
Management Fund (“MOPERM”) (ECF No. 59, Ex. 1 at ¶ 2), but states it has not
procured any other liability insurance. (ECF No. 59, Ex. 1 at ¶ 2, Ex. 3). It argues that
its liability is limited by the terms of its MOPERM insurance policy. The only Missourilaw claims Bourbon’s MOPERM policy covers are claims related to the operation of a
motor vehicle and a municipality’s dangerous condition of property. (ECF No. 59 at 1-3,
Ex. 3 at 3); Mo. Rev. Stat. §§ 537.600, 537.700, et seq.
The parties do not dispute that Bourbon’s MOPERM policy did not and does not
cover the acts at issue in this case. (ECF No. 59 at 1-3, Ex. 3 at 3). The Eighth Circuit
has held that participation in MOPERM does not waive sovereign immunity for other
claims based on Missouri law. Epps v. City of Pine Lawn, 353 F.3d 588, 595 (8th Cir.
2003).
Accordingly, the City of Bourbon is entitled to sovereign immunity on plaintiffs’
Counts 3, 4, and 5 state-law claims of wrongful death, assault, and battery.

VI. Counts 3, 4, and 5 against defendant Storm
Defendant Storm has moved for summary judgment on plaintiffs’ three state-law
claims, invoking Missouri's official immunity defense and its public duty doctrine. (ECF
Nos. 60-61).

Official immunity defense
The official immunity defense applies to both negligence and intentional torts.
DaVee v. Mathis, 812 S.W.3d 816, 827 (Mo. Ct. App. 1991) (applying official immunity
to bar an assault claim).

It is a “judicially-created doctrine” that protects public

employees from liability for discretionary, as opposed to “ministerial,” acts committed
during the course of their official duties. Southers v. City of Farmington, 263 S.W.3d
603, 610 (Mo. 2008).

“A discretionary act requires the exercise of reason in the
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adaptation of means to an end and discretion in determining how or whether an act
should be done or course pursued.” Id. A ministerial act, on the other hand, “is one of a
clerical nature which a public officer is required to perform upon a given state of facts, in
a prescribed manner, in obedience to the mandate of legal authority, without regard to his
own judgment or opinion concerning the propriety of the act to be performed.” Id.
A police officer’s investigation, pursuit of, and shooting of a suspect involves a
series of discretionary, not ministerial, acts. See, e.g., Dalia v. United States, 441 U.S.
238, 257 (1979) (holding that a police officer’s execution of a search warrant is a
discretionary act); DaVee, 812 S.W.3d at 827 (same); see also Estate of Snyder v. Julian,
789 F.3d 883, 886-87 (8th Cir. 2015). Defendant Storm has established that he was
performing discretionary acts in deciding to investigate, then pursue, then shoot Wenzel.
However, as plaintiffs argue, the official immunity defense is not available where
the officer acted with malice, in bad faith, or with conscious wrongdoing. Blue v.
Harrah's North Kansas City, LLC, 170 S.W.3d 466, 479 (Mo. Ct. App. W.D. 2005). The
Supreme Court of Missouri described malice and bad faith thus:
A defendant acts with malice when he wantonly does that which a man of
reasonable intelligence would know to be contrary to his duty and which he
intends to be prejudicial or injurious to another. An act is wanton when it is
done of wicked purpose, or when done needlessly, manifesting a reckless
indifference to the rights of others.
Bad faith, although not susceptible of concrete definition, embraces more
than bad judgment or negligence. It imports a dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through some
ulterior motive or ill will partaking of the nature of fraud. It also embraces
actual intent to mislead or deceive another.
State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986); see also Estate of
Snyder, 789 F.3d at 887. As described above, the parties' proffers of evidence, dependent
as they are on the jury's credibility determinations, preclude summary judgment on the
official immunity defense. Julian, 789 F.3d at 886-87.

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Public duty doctrine
The Missouri public duty doctrine provides that “a public employee is not civilly
liable for the breach of a duty owed to the general public, rather than a particular
individual.” Estate of Snyder, 789 F.3d 888-89 (quoting Southers, 263 S.W.3d at 611).
This doctrine relates only to negligence claims, not intentional torts, and so would only
apply to plaintiffs’ wrongful death claim.

Green v. Missouri Department of

Transportation, 151 S.W.3d 877 (Mo. Ct. App. 2004) (explaining that the public duty
doctrine is not an affirmative defense but simply defines the duty a public employee
defendant owes a plaintiff). However, the public duty doctrine is similarly inapplicable
to acts performed by a public employee “in bad faith or with malice.” Southers, 263
S.W.3d at 612.
As with the official immunity defense, it is for the jury to determine whether
Storm acted in a manner that allows the application of the public duty doctrine, or not.

VII. Conclusion
For the reasons stated above, on Count 1 the cross-motions of plaintiffs and
defendant Storm for summary judgment are denied; on Counts 3, 4, and 5 the motion of
defendant City of Bourbon for summary judgment is granted; and on Counts 3, 4, and 5
the motion of defendant Carl Storm for summary judgment is denied. An appropriate
Order is issued herewith.

/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on April 13, 2017.

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