Whitworth, et al., v. Bolinger et al
ORDERED that the motion for summary judgment filed by Defendant Bolinger - Doc. # 52 is GRANTED on all counts. Signed on 11/21/2011 by District Judge Nanette K. Laughrey. (Baldwin, Joella)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
P.M., a minor, by his mother and next
Friend, BRITTANY WHITWORTH
BRITTANY WHITWORTH and
Case No. 2:10-CV-04208-NKL
LANCE BOLINGER, et al.,
Pending before the Court is Defendant Lance Bolinger’s motion for summary
judgment [Doc. # 52] on Plaintiff Brittany Whitworth’s claims under section 1983 and
Missouri state law, all arising from the Columbia Police Department’s execution of a search
warrant on the Whitworth residence. For the reasons stated below, the Court grants summary
judgment in favor of Bolinger on all of Whitworth’s claims.
Jonathan Whitworth lived with his wife, Brittany Whitworth, and her seven year-old
son, P.M., at a residence where the Columbia Police Department executed a search warrant
In considering Bolinger’s motion, the Court has drawn all reasonable inferences in
favor of Whitworth, the non-movant.
on February 11, 2010. At the time the Whitworths owned a pit bull terrier named Nala
weighing fifty to sixty pounds, and a dog named Bruno that was either a boxer-American
bulldog mix or a Corgi mix. Defendant officers Cavener, Fox, Quintana, Schlude, Hendrick,
Horrell, Clements, and Dodd were all members of or supporting officers for the SWAT team
executing a search warrant on the Whitworth residence. Jeffry Rukstad is a narcotics
detective with the Columbia Police Department who surveyed the Whitworth residence and
videotaped the execution of the search warrant. The complaint also names the City of
Columbia as a Defendant, as well as Officer Kyle Lucas and Officer Michael Parsons whose
role in the litigation is not explained in the amended complaint or the briefing.
Jonathan Whitworth has past drug convictions, including a guilty plea to a charge of
conspiracy to distribute cocaine in 2003 that resulted in a 15-month jail sentence. Detective
Hall obtained a search warrant for the Whitworth residence after being told by citizens that
Mr. Whitworth had been selling large quantities of marijuana since 2006, possessed one
pound of high-grade marijuana in his residence, and was attempting to obtain cocaine, and
after Hall conducted a trash pull at the Whitworth residence that produced paper clips testing
positive for THC–a chemical found in marijuana. Sergeant Schlude prepared the tactical
entry plan for executing the search warrant. Schlude considered it a high-risk operation
because search warrants for narcotics are generally high-risk and because Mr. Whitworth in
particular had a history of physically resisting arrests for narcotics. Schlude chose to proceed
by dynamic entry–with the purpose of getting a team into a residence as quickly as possible
so the suspect does not have time to find a weapon and confront the SWAT team.
When the SWAT team opened the front door of the Whitworth residence to execute
the search warrant, they saw either one or two dogs that were either standing at the threshold
or running toward it. Sergeant Schlude said something to the effect of “Oh shit, a pit bull.”
[Doc. # 53 at 15]. Sergeant Schlude then said “Go.” Officer Cavener took a step forward
and fired a shot at the pit bull, who was still standing at the threshold of the doorway after
1.09 seconds. Cavener testified that in his experience dogs usually retreated into the
residence during an entry on a search warrant. After Cavener fired, the pit bull retreated into
the residence. The officers heard a series of barks after entering.
The Whitworths allege in their amended complaint that the SWAT officers then
“chased and pursued” one of the dogs into the kitchen, but they have not presented any facts
supporting that characterization. [Doc. # 47 at 2]. Officer Fox entered the kitchen for the
purpose of securing the residence [Doc. # 53 at 17; Doc. # 56 at 8], and when he did, there
were already three other officers in there, as well as the pit bull, which was bleeding and
running around the kitchen. Fox shot the pit bull because he recognized it to be a pit bull and
because it was running at his legs and not stopping. Two other officers fired at the pit bull
around the same time. One of these officers was Quintana, who stated in his report that he
fired one round at the pit bull because he believed the dog was going to attack him. Officer
Quintana had noticed the pit bull with its ears pinned back and postured in an aggressive
manner, although he did not testify that it growled, barked, or approached him. [Doc. # 53
at 18; Doc. # 56 at 9]. Quintana was in close proximity with the pit bull at this point. Officer
Horrell observed that right before the officers shot the pit bull, the pit bull had run into a
sliding glass door and had gotten up and began to scamper. Horrell later examined the other
dog, Bruno, and observed blood on his leg.
When the first SWAT officer encountered Mr. Whitworth, the officer ordered Mr.
Whitworth to get on the ground and put his hands behind his back. Mr. Whitworth got on
the ground but put his hands behind is head. Officers told Mr. Whitworth a second time to
put his hands behind his back. As Mr. Whitworth went to move his hands behind his back,
Officer Hendrick’s foot made a single contact with Mr. Whitworth’s face and shoulder for
the purpose of getting Mr. Whitworth to put his arms behind his back. [Doc. # 53 at 20; Doc.
# 56 at 10]. The parties dispute whether this contact can correctly be characterized as a kick,
but the Court views it as one for purposes of this motion. This kick caused Mr. Whitworth
pain, but resulted in no bruising, broken bones, or broken skin, and Mr. Whitworth never
received medical attention as a result. Mr. Whitworth was cursing during this altercation,
in a manner that Schlude took for aggression. [Doc. # 53 at 19; Doc. # 56 at 10].
After seeing SWAT officers in her house, Mrs. Whitworth joined P.M. in the bedroom
and shut the door. A SWAT officer entered the room, and lowered his gun when he saw Mrs.
Whitworth and P.M. [Doc. # 53 at 11; Doc. # 56 at 5]. The officer, in a direct manner that
did not constitute yelling, informed Mrs. Whitworth that she would need to leave the
bedroom and come to the front of the house. Id. An officer, with gun pointed at Mrs.
Whitworth and P.M., told them to step past Mr. Whitworth and sit a few feet from the door.
The Whitworths allege in their amended complaint that officers shouted and yelled at Mrs.
Whitworth and P.M. [Doc. # 47 at 17], but never direct the Court to any evidence of this fact
other than their claim that Mr. Whitworth heard yelling when he was on the ground. [Doc.
# 56 at 13]. Mrs. Whitworth asked if herself and P.M. could move positions to avoid the
sight of their deceased dog, and officers brought them outside and into the back of a police
car. Mrs. Whitworth had asked for a blanket and shoes before leaving the house, and Officer
Dodd complied with this request. Officer Clements entered the police car and whispered to
Mrs. Whitworth that one dog was dead and the other had been shot in the leg. Mrs.
Whitworth asked for the police car to be moved forward so her and P.M. could not see Nala’s
body brought out of the house, and Clements complied.
Mrs. Whitworth and P.M. were in the police car for two hours. P.M. was sobbing
while in the police car. Mrs. Whitworth asked if her mother-in-law could come pick up P.M.,
but Clements refused. Police Officers instructed Mrs. Whitworth to leave the car at four
different times, and supervised her each time she left. The first time, Detective Rukstad
asked Mrs. Whitworth if she had any questions, and she asked Rukstad to tell P.M. that Nala
was alive and being taken to be a police dog, with which Rukstad complied. The second
time, Mrs. Whitworth went to her garage to get a mop. This was her longest absence from
the police car, at seven to ten minutes. The third time, animal control arrived and informed
Mrs. Whitworth that they had removed Nala’s body and would be taking Bruno for medical
attention. The fourth time, Mrs. Whitworth went to the master bedroom to wrap Bruno, who
was bleeding in its paw, in a blanket for herself and animal control to carry out of the house.
Clements never spoke to P.M. while Mrs. Whitworth was out of the police car. An officer
then approached the police car to inform Mrs. Whitworth that they had completed the search
and the officer escorted Mrs. Whitworth and P.M. back into the house.
Bolinger argues that the SWAT officers are entitled to summary judgment on all of
the Whitworths’ constitutional claims, on grounds of qualified immunity. Police officers are
entitled to qualified immunity unless a plaintiff can show that the officer violated a clearly
established constitutional right. Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir. 2009).
“Once the facts are established, a court should always be able to determine as a matter of law
whether or not an officer is eligible for qualified immunity....” Id. at 586 (internal quotations
Unreasonable Seizure of Mrs. Whitworth and P.M.
Mrs. Whitworth and P.M. allege that the police officer Defendants unreasonably
seized and detained them by ordering them around, once at gunpoint, and keeping them in
a police car for around two hours. Courts analyze such claims by determining whether each
officer’s actions were objectively reasonable from the perspective of a reasonable officer on
the scene. Graham v. Connor, 490 U.S. 386, 396 (1989).
The Whitworths concede that because they were residents at a house lawfully
searched under a search warrant, the officer Defendants had initial authority to seize them
under the Supreme Court’s decision in Michigan v. Summers, 452 U.S. 692 (1981). But the
Whitworths appear to argue that the facts of their case are less compelling than those in
Summers, and that it was thus unreasonable for the SWAT officers to detain Mrs. Whitworth
and P.M. for two hours. Specifically, the Whitworths argue that–unlike the plaintiffs in
Summers–Mrs. Whitworth and P.M. presented no flight risk, obviously did not own any of
the little contraband found, were obviously cooperative and non-threatening, and did not
threaten the orderly completion of the search. The Whitworths also argue that although the
Supreme Court in Muehler allowed the detention, in handcuffs, of a resident for two to three
hours while police searched a home, that case involved a search for weapons and wanted
gang members, and cannot justify a two-hour search under the facts of the present case. See
Muehler v. Mena, 544 U.S. 93, 100 (2005).
These arguments are persuasive, if at all, only when viewed in hindsight. The Court
must view the officers’ decisions from the viewpoint of a reasonable officer on the scene
with knowledge that Mr. Whitworth had a history of resisting arrest. Such a police officer
could reasonably detain Mrs. Whitworth and P.M for almost two hours for several reasons,
including: (1) ensuring their safety from any altercation with Mr. Whitworth; (2) ensuring
they were not able to participate in any plan set in place by Mr. Whitworth to frustrate the
execution of the search warrant; (3) ensuring that the wounded dog still on the premises did
not attack officers in an attempt to defend the Whitworths; (4) facilitating the search,
including opening locked doors to minimize the use of force within the house; (5) assisting
with removing the Whitworths’ dogs–one alive and one deceased–from the Whitworth
residence while allowing Mrs. Whitworth to accompany P.M. when possible and while
keeping P.M. away from seeing the dogs. The Whitworths have brought forth no evidence
suggesting that they were detained for longer than necessary to complete the search while
maintaining these safety objectives. Further, Muehler is more hurtful than helpful to the
Whitworths’ case. In both Muehler and this case, officers had reason to believe the suspects
were dangerous, but the Muehler court upheld both a longer detention and a greater intrusion
(handcuffs). Muehler, 544 U.S. at 95.
The Whitworths also argue that the amount of force the police officers used in seizing
them renders the seizure unreasonable. Specifically, the Whitworths claim that police
officers yelled at Mrs. Whitworth and P.M., with guns drawn, detained them in a police car
for two hours; refused the Whitworths’ request to relocate to Mrs. Whitworth’s father-inlaw’s house during the search; and refused to speak to P.M. while leaving him alone in a car
for periods of up to ten minutes. To support this argument, the Whitworths rely on a case
denying qualified immunity on an excessive-force claim against officers who, guns drawn,
tackled a mother in front of her children, Doran v. Condon, 5 F. Supp. 2d 1067, 1071 (D.
Neb. 1998), aff’d, 187 F.3d 641 (Table) (8th Cir. 1999), and a case where the court found a
reasonable juror could conclude that police officers pointing guns at children while serving
a search warrant violated the Fourth Amendment. Lucas v. City of Boston, 2009 WL
1844288 (D. Mass. 2009).
Bolinger distinguishes Doran because that case involved physical contact with the
plaintiff and because there police had already arrested the suspect elsewhere and knew he
would not be at his home when they executed the search warrant. Doran, 5 F. Supp. 2d at
1069-70. The Court agrees Doran is distinguishable from the present case, where officers
knew Mr. Whitworth could be home and had a history of resisting arrest.
The Court also finds Lucas distinguishable from the present case. There, the court
examined a claim for excessive force and found that pointing a gun at children was part of
a series of actions that, “especially when taken together” could constitute a Fourth
Amendment violation. Lucas, 2009 WL 1844288 at *19. Further, Lucas involved much
more unreasonable behavior, such as “at least two officers” approaching a nine-year old girl
in her night clothes, pointing a gun “at her head” and yelling at her to “get the fuck down,”
as well as officers pointing a gun two and a half feet from a twelve-year-old boy’s face while
asking him questions. Id.
The Whitworths have not alleged behavior approaching this level of aggression. The
Court agrees that ideally officers would execute search warrants without pointing a gun at
women and children not suspected of committing a crime.
On the other hand, where
officers are aware that a dangerous suspect and two large dogs are on the property, a
reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals
to move swiftly through a potentially dangerous situation. This is especially true, where
shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr.
Whitworth–who was lying on the floor–and the danger of resistance by any of the
Whitworths was arguably at its highest. In this context, the behavior alleged by the
Whitworths did not violate a clearly established constitutional right. The SWAT officers are
thus entitled to qualified immunity on this claim.
Excessive use of Force
Mr. Whitworth claims that Officer Hendrick used excessive force in kicking
Whitworth in the head and neck, violating his Fourth Amendment right against unreasonable
seizure. The Court analyzes this claim under the standard of objective reasonableness.
Graham v. Connor, 490 U.S. 386, 399 (1989). “The determination whether the force used
to effect a seizure was reasonable ultimately requires a case-specific balancing of the nature
and quality of the intrusion on the individual's Fourth Amendment interests against the
countervailing governmental interests at stake.” Chambers v. Pennycook, 641 F.3d 898, 906
(8th Cir. 2011). “Not every push or shove, even if it may later seem unnecessary in the
peace of a Judge’s chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396
(internal quotes omitted). Bolinger argues that this claim is also barred by official immunity.
It is uncontested that Officer Hendrick’s foot made a single contact with Whitworth,
and that this occurred when Whitworth had his hands on the back of his head, rather than
behind his back as ordered. It is also uncontested that Hendrick made contact for the purpose
of getting Mr. Whitworth to put his hands behind his back. [Doc. # 53 at 20; Doc. # 56 at
10]. It is also uncontested that Whitworth suffered no injury from this contact except pain.
Although the parties dispute whether this contact amounted to a kick, the dispute is
immaterial in light of these facts and Hendrick’s awareness that Whitworth had a history of
resisting arrest. “The calculus of reasonableness must embody allowance for 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.” Graham, 490 U.S. at 396-97. Thus, even if Hendrick indeed kicked
Whitworth, a single kick to force swift compliance with an order, and to deter hesitation in
compliance with future orders from a dangerous suspect, would be objectively reasonable
in this context.
The cases cited by Whitworth do not undermine this conclusion. Whitworth cites
Johnson v. District of Columbia for the proposition that an officer’s kicking of a suspect can
support an excessive-force claim. 528 F.3d 969, 978 (D.C. Cir. 2008). But that case
involved multiple kicks to the groin and rested in part on the court’s conclusion that the
kicking served no public benefit. Id. at 975. The Court finds this distinguishable from the
present case, which involved a single kick to the face and shoulder that served the benefit of
forcing compliance with police orders that were designed for the safety of everyone present.
Whitworth argues that he was not an immediate threat at the time of the contact, and
that he was not actively resisting arrest, and that this weighs against the reasonableness of
Hendrick’s actions. See Graham, 490 U.S. at 396. But Whitworth oversimplifies the
situation. The officers on the scene ordered Whitworth to put his hands behind his back, and
Whitworth instead placed his hands behind his head. Whitworth has not argued that this
order stemmed from something other than a concern for safety. When Whitworth failed to
comply with that order, he undermined the ordering officer’s attempt to maximize safety, and
Hendrick could reasonably perceive this as a signal that Whitworth was preparing to actively
resist or to fail to comply with future orders designed to protect the safety of individuals at
Although Whitworth has argued that there could be other explanations for his
hesitation to comply with the police order besides an intent to resist arrest–such as
misunderstanding the order or not hearing the order–Whitworth provides no authority to
show how Whitworth’s subjective motivations are relevant, and the Court finds them
irrelevant to the question of what a reasonable officer would have done in Hendrick’s place.
For purposes of this motion, the Court assumes that Hendrick’s use of force was
greater than a de minimis one and that Whitworth sustained actual injury. Even so,
Whitworth’s injury is a minor one, and Hendrick’s single, minor use of force was reasonable
in light of the government’s purpose in ensuring compliance with police orders.
Deprivation of Property Interest
The Whitworths claim that the SWAT officers, by shooting the Whitworths’ dogs and
creating bullet holes in the Whitworths’ house, unreasonably seized that property in violation
of the Fourth Amendment. Courts analyze claims of unreasonable seizure resulting from
meaningful interference with one’s property under the objective reasonableness standard.
Graham, 490 U.S. at 398.
The Whitworths rely for their claim on Andrews, which adopted the approach of other
circuit courts holding that “an officer commits an unreasonable, warrantless seizure of
property, in violation of the constitution, when he shoots and kills an individual's family pet
when that pet presented no danger and when non-lethal methods of capture would have been
successful.” Andrews v. City of West Branch, 454 F.3d 914, 918 (8th Cir. 2006). But that
case involved an officer who–while investigating a call about a stray dog–shot and killed,
without provocation, a family dog in an enclosed yard that was standing within feet of its
owner. Id. at 916. But the present case, even viewing facts in the light most favorable to the
Whitworths, involves a large dog standing its ground in the doorway that a SWAT team is
about to enter, or running around a kitchen toward police officers. Even if the Whitworths’
dogs were not acting aggressively, the Whitworths have not produced evidence that either
of their dogs “presented no danger and [that] non-lethal methods of capture would have been
successful.” Id. Rather, these dogs, simply by standing their ground or running excitedly
in the path through which the officers needed to quickly pass to secure the scene, stood to
frustrate the officers’ important objective of securing and searching the house, and presented
a risk of attack to passing officers that was great enough to justify a reasonable officer in
incapacitating the dogs. The bullet holes in the Whitworths’ property are incidental to
officers firing at the Whitworths’ dogs, so they require no separate analysis for
The Court concludes on these facts that the officers’ actions were
objectively reasonable in this context.
Further, even if the officer Defendants did violate the Whitworths’ rights in shooting
their dogs, the Whitworths have not shown that this was a clearly established right. The
requirement that the right violated be clearly established “operates to protect officers from
the sometimes hazy border between excessive and acceptable force, and to ensure that before
they are subjected to suit, officers are on notice their conduct is unlawful.” Samuelson v.
City of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006) (internal quotes omitted). Federal courts
have spoken little about how dogs fit into the analysis of unreasonable seizure under the
Fourth Amendment, as evidenced by the scant applicable precedent cited by the parties.
Dogs easily qualify as property that can be unreasonably seized by the state, but they also
contain a latent threat to human safety that has rarely been weighed under the Fourth
Amendment’s objective-reasonableness standard. Although some dogs are friendly, others
are bred and trained to kill, and dogs of either sort can be unpredictable both in their actions
and in the signals they send. This unpredictability can increase if a dog is wounded or its
owners are being subdued. The reasonable officer would consider all of this when forced
into close proximity with a strange dog by the exigencies of executing a search warrant on
a dangerous suspect. The Whitworths cite a Missouri statute outlining the legality of a
civilian killing a dog in self defense, but that would not put a police officer on notice of the
constitutional boundaries of subduing a large dog in a quickly changing situation such as this
one. Because any constitutional right violated by the officer Defendants in shooting the
Whitworths’ dog was not clearly established, the officer Defendants are entitled to qualified
immunity on this claim.
Monnell Claim and Failure to Train
The Whitworths also claim that the city of Columbia violated their constitutional
rights by maintaining customs and polices exhibiting deliberate indifference to its citizens’
rights and by failing to properly train and supervise the Defendants who are its employees.
The Eighth Circuit “has consistently recognized a general rule that, in order for municipal
liability to attach, individual liability first must be found on an underlying substantive claim.”
Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007). Because the Court finds
no individual liability on the part of the officer Defendants, the Court must also grant
summary judgment in favor of the City of Columbia.
Claims Under Missouri State Law
Bolinger claims that the SWAT officers are entitled to summary judgment on the
Whitworths’ state-law claims, on grounds of official immunity. Official immunity bars tort
claims for injuries caused by a public employee’s discretionary acts. Kanagawa v. State, 685
S.W.2d 831, 835 (Mo. banc 1985) (overruled on other grounds by Alexander v. State, 756
S.W.2d 539 (Mo. banc 1988)). Discretionary acts are those that require “the exercise of
reason in the adoption of means to an end and discretion in determining how or whether an
act should be done or course pursued.” Id. at 836. Official immunity does not apply to
ministerial acts, that is, acts of a “clerical nature which a public officer is required to perform
upon given facts....” Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc 2008).
Courts determine whether a public employee’s act is discretionary or ministerial by
examining the nature of their duties, the extent to which the act involves policymaking or the
exercise of professional expertise or judgment, and the likely consequences of granting or
withholding immunity. Kanagawa, 685 S.W.2d at 836.
A discretionary act is not protected by official immunity if the act is “willfully wrong
or done with malice or corruption.” Southers v. City of Farmington, 263 S.W.3d 603, 610
(Mo. banc 2008). Such an act is done with malice if the public employee “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.” Blue v. Harrah’s North Kansas City,
170 S.W.3d 466, 480 (Mo. App. 2005) (internal quotes omitted).
Intentional Infliction of Emotional Distress
The Whitworths first claim that the SWAT officers intentionally inflicted emotional
distress on them by pointing guns and shouting at Mrs. Whitworth and P.M. while directing
them around the scene, by shooting the Whitworths’ dogs in the presence of the Whitworths,
and by leaving P.M. in a squad car for up to ten minutes at a time with an officer who did not
converse with P.M.
The Whitworths argue that these actions are not entitled to qualified immunity
because the actions were either willfully wrong or done with malice or corruption. The
Whitworths are correct that because their claim of intentional infliction of emotional distress
against a police officer implies malice and bad faith, official immunity does not extend to
these claims. See Coates v. Powell, 650 F. Supp. 2d 932, 943 (W.D. Mo. 2009), aff’d, 639
F.3d 471 (8th Cir. 2011), cert. denied, — S. Ct. —, 2011 WL 3472671 (2011).
But Bolinger is still entitled to summary judgment on the merits of this claim for
intentional infliction of emotional distress. Such claims in Missouri require plaintiffs to
show that the conduct was intended only to cause emotional distress to the plaintiffs. Gibson
v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997). Even assuming the police officers
engaging in the challenged conduct intended to cause emotional distress to the Whitworths,
each action also had a legitimate purpose consistent with the officers’ duties of searching the
premises while maximizing safety. The officers’ pointing their guns and shouting carried the
legitimate purpose of swiftly moving Mrs. Whitworth and P.M. through a potentially
dangerous situation. The Whitworths have conceded that Hendrick’s kicking Mr. Whitworth
carried the legitimate purpose of bringing him into compliance with a police order [Doc. #
53 at 20; Doc. # 56 at 10], and this served the legitimate purpose of protecting the safety of
those at the scene and deterring future noncompliance by Mr. Whitworth. Finally, leaving
P.M. in the car with an officer was necessary to allow Mrs. Whitworth to facilitate the search
without exposing P.M. to a crime scene. As Bolinger points out, Officer Clements’ decision
not to speak to P.M. during periods while his mother was away carried the legitimate
objective of not speaking to the child outside the presence of his mother–perhaps in an
attempt to avoid the appearance of coercive questioning or simply to avoid interfering with
Mrs. Whitworth’s depictions to P.M. of what was going on around them. Under these
circumstances, no reasonable juror could conclude that the officers’ only intent was to injure
Mrs. Whitworth or P.M. Thus, the police-officer Defendants are entitled to summary
judgment on the merits of this claim.
The Whitworths next claim that the SWAT officers falsely imprisoned them by
detaining Mrs. Whitworth and P.M. in a squad car for around two hours while officers
searched the Whitworth residence for contraband. The Whitworths argue that this decision
was a ministerial one because “Defendants have made clear that in their view that [sic] the
Supreme Court mandates the detention of persons found in the location of a search warrant.”
[Doc. # 56 at 28]. Assuming this is true, it is irrelevant because the Whitworths concede that
the SWAT officers had the authority to detain the Whitworths initially, and only challenge
the method and duration of their detention. [Doc. # 56 at 15]. Bolinger correctly argues that
decisions about the method and duration of the detention were discretionary ones because
they were the “adoption of means to an end.” Kanagawa, 685 S.W.2d at 836. The Court
finds that the decisions surrounding police detention of the Whitworths were discretionary
and that official immunity applies.
The Whitworths also argue that summary judgment is improper, even if the decision
was discretionary, because the SWAT officers imprisoned them with malice. The Court
rejects this argument for the same reasons it found their seizure reasonable under the Fourth
Amendment. No reasonable juror could conclude that these officers acted consistent with
their duties, by both securing the Whitworths for the safety of all at the scene and by keeping
them close to the scene to facilitate the search while it was conducted.
Assault and Battery
The Whitworths argue that Officer Hendrick’s actions in kicking Mr. Whitworth in
the shoulder and face constituted an assault and battery. The Whitworths argue that official
immunity does not apply to this action because it did not further the officers’ lawful
objectives and was thus done with malice. As discussed above, however, the Whitworths
have conceded that the kick was intended to get Mr. Whitworth to comply with the order to
put his hands behind his back [Doc. # 53 at 20; Doc. # 56 at 10], and this carried the lawful
objective of ensuring the safety of those present and discouraging future noncompliance with
police orders. Thus, official immunity applies to bar this claim.
Accordingly, it is hereby ORDERED that the motion for summary judgment filed by
Defendant Bolinger [Doc. # 52] is GRANTED on all counts.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 21, 2011
Jefferson City, Missouri
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