Roberts v. City of Omaha et al

Filing 82

MEMORANDUM AND ORDER - IT IS ORDERED: The defendants' motion to amend their motion for summary judgment to assert the defense of qualified immunity, Filing No. 71 , is granted. The defendants' motion in limine, Filing No. 59 , is over ruled at this time, without prejudice to its reassertion via timely objection to the admissibility of such evidence at trial. The defendants' motion for summary judgment, Filing No. 32 , is granted in part and denied in part, consistent with this opinion.Ordered by Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID ROBERTS,
Plaintiff,

8:11CV129

vs.
CITY OF OMAHA, a Political Subdivision of the
State of Nebraska; OMAHA POLICE
DEPARTMENT, an Agency of the City; JOSH
MARTINEC, his in individual and official
capacity; PHILLIP RICKER, in his individual and
official capacity; ERICH JONES, in his
individual and official capacity; and JUSTIN
RADERS, in his individual and official capacity;

MEMORANDUM AND ORDER

Defendants.
This matter is before the court on a motion for summary judgment filed by
defendants City of Omaha (“the City”), Joshua Martinec, Phillip Ricker, Erich Jones and
Justin Raders (“the individual defendants” or “the officers”), Filing No. 32; the
defendants’ motion in limine, Filing No. 59; and the defendants’ motion to amend their
motion for summary judgment to assert the defense of qualified immunity, Filing No. 71.
This is an action for deprivation of constitutional rights under the Civil Rights Act,
42 U.S.C. § 1983, and for disability discrimination under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a). In his
§ 1983 claim, the plaintiff alleges that the defendant officers used excessive force
during a confrontation in which he was shot and wounded.1 The plaintiff’s ADA and
Rehabilitation Act claims against the individual officers for disability discrimination are

1

In particular, the parties agree to the following controverted issues: whether the individual
defendants, together or separately, violated the Fourth and Fourteenth Amendments by (1) seizing the
plaintiff without probable cause to believe he either had committed or was about to commit a crime, (2)
using unreasonable force when they attempted to handcuff him; and (3) using unreasonable force in
shooting him six times. See Filing No. 80, Order on Final Pretrial Conference at 2. The plaintiff’s claim
against the City based on the policies and practices that resulted in the use of excessive force (Count II)
has been bifurcated from the § 1983 claims against the individual officers and stayed. See Filing No. 28,
Order.

based on allegations that they (1) mistook symptoms of schizophrenia for criminal
behavior and (2) failed to follow established policy and procedure for handing mentally
unstable people. See Filing No. 80, Order on Pretrial Conference (“Pretrial Order”) at 23.

The plaintiff’s disability discrimination claims against the City are based on the

allegation that it failed to provide properly trained officers or failed to train officers to
properly respond to calls involving mentally ill persons. See Filing No. 80, Order on
Final Pretrial Conference at 3-4.
In their motion for summary judgment, the defendants contend that undisputed
evidence shows that the officers’ use of force was reasonable as a matter of law.
Further, they argue that the plaintiff’s ADA and Rehabilitation Act claims are subject to
dismissal because undisputed evidence shows that the officers’ use of force was not
due to the plaintiff’s disability but to the plaintiff's objectively verifiable violent
misconduct.
I. Defendants’ Motion for Leave to Amend
A threshold issue is the defendants’ motion for leave to amend their motion for
summary judgment to include the defense of qualified immunity. Defendants argue that
the briefing on the pending motions shows that consideration of the qualified immunity
defense, which defendants raised in their answer, is appropriate. They also contend
that no further briefing is necessary.

The plaintiff opposes the motion, arguing the

motion is untimely and will unduly prolong the case.
The court finds that the parties’ earlier submissions cited qualified immunity
cases and obliquely referred to the doctrine of qualified immunity. The parties have
had, or should have had, enough notice of the issue to adequately respond.
2

Accordingly, the court will grant leave to add the defense and will treat the issue as
having been raised.
II. Defendants’ Motion in Limine
The defendants’ motion in limine also relates to the motion for summary
judgment in that the defendants seek to exclude certain portions of the expert opinions
of Michael Lyman, which the plaintiff has submitted in opposition to the defendants’
motion for summary judgment. Filing No. 59, Motion in Limine; Filing No. 49, Index of
Evid., Attachment 3, Ex. 26, Report of Michael Lyman, Ph.D. Defendants further seek
exclusion of “all other testimony, comment, or argument by any person about (a) the
propriety or impropriety of the police officers’ conduct or actions prior to the seizure of
David Roberts or (b) any alternative measures or tactics that the officers should have
followed.” Filing No. 69, Motion to Amend Motion in Limine. The defendants argue only
that the expert opinions are not relevant, they do not challenge the expert’s
qualifications. The plaintiff opposes the motion, contending that the expert testimony is
relevant to (1) whether the plaintiff was unreasonably seized by law enforcement
officers before he was shot; (2) the totality of the circumstances, and (3) the plaintiff’s
failure to act claims and ADA claims.2 Filing No. 65, Brief at 2.
Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions cannot be evaluated accurately or sufficiently by the trial

2

It appears that the plaintiff’s failure-to-act claims have been abandoned. No such claim is
included in the Pretrial Order. See Filing No. 80.
3

judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to
defer ruling until during trial, when the trial judge can better estimate the impact of the
evidence on the jury. Id. To the extent that a party challenges the probative value of
the evidence, an attack upon the probative sufficiency of evidence relates not to
admissibility, but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. The defendants’ concerns may warrant a cautionary or
limiting instruction, but the court cannot determine the ambit of such an instruction at
this time. The court will admit the evidence at issue only on a showing that it is relevant
to the issues in the case, and only to the extent that the relevance of the evidence
outweighs its potential to cause prejudice or confusion under Fed. R. Evid. 403. The
court finds the motion can be adequately resolved at trial, either in a hearing
immediately prior to commencement of the trial, as an objection with a sidebar, or with a
review of the evidence outside the presence of the jury. Accordingly, the court finds that
the motion in limine should be overruled at this time, without prejudice to its reassertion
via timely objection to the admissibility of such evidence at trial.
III. Defendants’ Motion for Summary Judgment
A. Facts
In the Pretrial Order, the parties agree to the following uncontroverted facts. See
4

Filing No. 80, Order on Final Pretrial Conference at 1-2. David Roberts is a resident of
Omaha, Douglas County, Nebraska.

The City of Omaha is a political subdivision,

organized and existing by virtue of the laws of the State of Nebraska. At all times
material to this action the City of Omaha operated the Omaha Police Department. The
Omaha Police Department is a public entity within the terms of the Disability Act and
Rehabilitation Act. At all times material to this action Josh Martinec, Phillip Ricker, Erich
Jones, and Justin Raders were sworn law enforcement officers employed by the Omaha
Police Department. At all material times, the actions of the officers were taken under
color of state law and the City of Omaha was receiving federal funds.
On January 11, 2010, David Roberts, was residing with his parents and siblings
at 7625 Springfield Drive, Omaha, Nebraska. He had been diagnosed with
schizophrenia. At approximately 5:13 a.m., David Roberts’ mother, Wanda Roberts,
called 911 and requested police come to the house. Officers Joshua Martinec and
Phillip Ricker were dispatched to the house and told by the 911 dispatcher that there
was a disturbance involving a schizophrenic individual who had attempted to assault a
sibling with a knife or screwdriver.
Officers arrived outside the home at 5:18 a.m. Officers Raders and Jones later
arrived at the Roberts house to assist those officers.

Upon arrival at the Roberts’

house, Martinec and Ricker spoke with David Roberts’ parents.

While the officers

waited, David’s mother attempted to get David to come out of the basement to talk to
the police.

He refused.

Officer Martinec then spoke to David from upstairs in an

attempt to get him to come out of the basement.

David Roberts refused to come

upstairs. The officers then went into the basement. At 5:24 a.m. a rescue squad was
5

summoned to take David Roberts to the hospital where he received medical treatment
for bullet wounds. David Roberts has no recollection of the shooting.
The evidence submitted in connection with the motion for summary judgment,
viewed in the light most favorable to the plaintiff, establishes the following. See Filing
No. 34, Defendants’ Brief, Statement of Undisputed Facts at 2-6; Filing No. 37,
Plaintiff’s Brief, Statement of Undisputed Facts at 1-15; Filing No. 54, defendants’ reply
brief at 9-13. After the plaintiff indicated he wouldn’t come upstairs, the officers went
downstairs. Officer Martinec had drawn his firearm and Officers Ricker, Jones, and
Raders had drawn their Tasers. The officers made contact with the plaintiff who was in
a curtained-off room in the basement. Initially the plaintiff was lying on his bed.
The officers told the plaintiff to show his hands and raise them. The plaintiff got
up on his knees on the bed and put his hands up. The plaintiff was calm and coherent.
Officer Martinec testified he told the plaintiff twice to lie down on the floor and the
plaintiff did not do so. The officers’ testimony indicates that the instruction to lie down
was not clear with respect to where the plaintiff was asked to move. The space was
extremely cramped and all of the officers were in close quarters with the plaintiff. The
plaintiff was given only seconds to comply with the officers’ commands. Officer Ricker
grabbed the plaintiff’s left arm and Officer Martinec observed a knife. Officer Raders
testified he saw something silver in the plaintiff’s hand. Officer Martinec fired six times
at the plaintiff from a distance of four feet. Officer Ricker was holding the plaintiff, chest
to chest, and Officer Martinec testified he feared he might shoot his partner. None of
the other officers fired their weapons. Officer Martinec testified that the plaintiff was

6

shot in both arms, both legs, the abdomen and the side of the chest.3 The plaintiff’s
mother and brother stated in affidavits that they heard shots fired in two groups of two or
three. The plaintiff was shot six times. Afterward, Officers Martinec and Ricker placed
plaintiff in handcuffs.

Officer Martinec called for a rescue squad and plaintiff was

transported to the hospital.
It is also undisputed that the Omaha Police Department has voluntary crisis team
intervention training for officers specifically dealing with mentally ill persons. The crisis
intervention team training is 40-hour certification training for officers on how to deal with
people who are mentally ill and in crisis. There is no specific mandate or criteria within
the Omaha Police Department as to when a crisis-intervention-team-trained officer
should be called to a scene. Officer Ricker testified that he vaguely remembered police
academy training on handling mentally unstable persons. Officer Martinec stated that
he had no recollection at all of the academy training. Officer Martinec also stated that it
would be fair to say that the plaintiff’s schizophrenia did not change the way he would
have handled the call.
B. Law
Qualified immunity shields a government official from liability and the burdens of
litigation unless his conduct violates “clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982). An official is entitled to qualified immunity
unless (1) the evidence, viewed in the light most favorable to the plaintiff, establishes a
3

The plaintiff argues that he was shot in the back. Both parties have submitted hospital
photographs of the plaintiff in support of and opposition to that contention. Without some explanatory
evidence or testimony, the court is not able to discern exactly what the photographs portray.
7

violation of a constitutional or statutory right, and (2) the right was clearly established at
the time of the violation. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). To
overcome a defendant’s assertion of qualified immunity, a plaintiff must produce
sufficient evidence to create a genuine issue of fact as to whether the defendant
violated a clearly established right. Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir.
2012). “[A]t the summary judgment stage, the nonmoving party is given the benefit of
all reasonable inferences.”

White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008).

When qualified immunity is raised at the summary judgment stage, the proper course is
to view the facts and draw reasonable inferences in the light most favorable to the
plaintiff—which “usually means adopting . . . the plaintiff’s version of the facts”—and
then to assess the constitutionality of the challenged conduct. Scott v. Harris, 550 U.S.
372, 377-78 (2007). However, when the nonmoving party’s version of events is so
utterly discredited by the record that no reasonable jury could believe it, the court should
not rely on “such visible fiction.” Id. at 381-82 (2007) (finding that the district court
should have viewed the facts in the light depicted by a videotape of the event at issue).
“‘Claims of excessive force are evaluated under the reasonableness standard of
the Fourth Amendment.’” Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011) (quoting
McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011)). “‘Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.’” Id. (quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th
Cir. 2009). Under the Fourth Amendment, law enforcement officers may use only such
force as is objectively reasonable under the circumstances. Graham v. Connor, 490
8

U.S. 386, 397 (1989).

The court must “determine whether a use of force was

reasonable by balancing ‘the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at
stake.’” Johnson v. Carroll, 658 F.3d at 825 (quoting McKenney, 635 F.3d at 359).
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In reviewing whether use of
force is reasonable, the court must pay “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. (noting that “[n]ot
every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.”)

“In circumstances that are ‘tense,

uncertain, and rapidly evolving,’ whether the use of force was reasonable must embody
an allowance for the fact that police officers are often forced to make split-second
judgments about the amount of force that is necessary in a particular situation.
Johnson, 658 F.3d at 826 (quoting Graham, 490 U.S. at 396–97). The court examines
whether the officer’s actions were objectively reasonable in light of the facts and
circumstances confronting him, without regard to his subjective intent or motivation.
Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th Cir. 2012).

The court considers the

totality of the circumstances, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officer or others, and whether the
suspect is actively fleeing or resisting arrest. Graham at 396.
9

“The degree of injury suffered in an excessive-force case ‘is certainly relevant
insofar as it tends to show the amount and type of force used.’” Johnson v. Carroll, 658
F.3d at 826 (quoting Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011)). “The
use of deadly force is not constitutionally unreasonable if an officer has ‘probable cause
to believe that the suspect poses a threat of serious physical harm, either to the officer
or others.’” Estate of Morgan, 686 F.3d at 497 (quoting Nance v. Sammis, 586 F.3d
604, 610 (8th Cir. 2009)) (affirming grant of summary judgment to officer who fatally
shot a suspect in a domestic disturbance after the suspect, despite repeated
commands, failed to drop a knife and moved toward the officer); see also Loch v. City of
Litchfield, 689 F.3d 961, 967 (8th Cir. 2012) (finding it objectively reasonable to shoot
an intoxicated man reported to be armed with a firearm who turned and moved toward
the officer despite the officer’s repeated orders to get on the ground). However, it is
unreasonable to use deadly force when the officer “could not reasonably have believed
that [the suspect] . . . posed any threat.” Tennessee v. Garner, 471 U.S. 1, 21 (1985)
(involving a “young, slight, and unarmed” burglary suspect shot in the back of the head
while he was running away on foot). Also, before employing deadly force, an officer
should give “some warning” when it is “feasible” to do so.” Id. at 11–12 (also stating
“notwithstanding probable cause to seize a suspect, an officer may not always do so by
killing him”).

The Eighth Circuit Court of Appeals “has declined to second-guess

whether alternative actions by police officers ‘might conceivably have been available.’”
Estate of Morgan, 686 F.3d at 497 (quoting Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir.
1993)). Since 1985, it has been established by the Supreme Court that the use of
deadly force against a fleeing suspect who does not pose a significant threat of death or
10

serious physical injury to the officer or others is not permitted. Moore v. Indehar, 514
F.3d 756, 763 (8th Cir. 2008) (citing Garner, 471 U.S. at 11).
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. A plaintiff under Title II of the ADA must show
that he is a qualified individual with a disability denied participation in, or the benefits of,
the services, programs, or activities of a public entity because of his disability. Gorman
v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998).

To prevail on a claim under the

Rehabilitation Act, a plaintiff must demonstrate that: (1) he is a qualified individual with a
disability; (2) he was denied the benefits of a program or activity of a public entity; (3)
the entity receives federal funds; and (3) he was discriminated against based on his
disability. 29 U.S.C.A. § 794(a)(1). Because Title II of the ADA and the Rehabilitation
Act are nearly identical, cases interpreting either the ADA or the Rehabilitation Act are
applicable and interchangeable.

Gorman, 152 F.3d at 912 (noting that the

Rehabilitation Act has a federal funding requirement, whereas the Rehabilitation Act
does not).
A “qualified individual with a disability” is broadly defined as any person who
“meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2);
see Gorman, 152 F.3d at 912. The term “public entity” is defined as “any department,
agency, special purpose district, or other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1); see Gorman, 152 F.3d at 912. “A local police
11

department falls ‘squarely within the statutory definition of “public entity.”’” Id. (quoting
Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). Further, “[c]overed
programs or services do not need to be voluntary, for ‘the words [of the statute] do not
connote voluntariness.’” Gorman, 152 F.3d at 912 (quoting Yeskey, 524 U.S. at 211)
(holding that transportation of arrestees is a covered service).

Federal regulations

“indicate that ‘benefit’ includes ‘provision of services, financial aid, or disposition (i.e.,
handling, decision, sentencing, confinement, or other prescription of conduct).’”
Gorman, 152 F.3d at 913 (quoting 28 C.F.R. § 42.540). Also, “‘[t]he general regulatory
obligation to modify policies, practices, or procedures requires law enforcement to make
changes in policies that result in discriminatory arrests or abuse of individuals with
disabilities.’” Id. (quoting 28 C.F.R. Part 35, App. A, Subpart B).
In the context of arrests, courts have recognized two types of Title II claims: (1)
wrongful arrest, where police arrest a suspect based on his disability, not for any
criminal activity; and (2) reasonable accommodation, where police properly arrest a
suspect but fail to reasonably accommodate his disability during the investigation or
arrest, causing him to suffer greater injury or indignity than other arrestees. See Gohier
v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999); see also Gorman, 152 F.3d at 91213 (holding that a paraplegic arrestee could make out a reasonable accommodation
claim under the ADA after being injured in a police van not equipped with wheelchair
restraints); but see Thao v. City of St. Paul, 481 F. 3d 565. 569 (8th Cir. 2007) (holding
at the summary judgment stage, without deciding the adequacy of training or whether a
municipality can be liable under the ADA for failure to train, that the plaintiff had not
shown that “police would have responded differently had they [accommodated the
12

plaintiff] under the ADA.”).

A reasonable police response to assault with a deadly

weapon is not a violation of Title II. Sanders v. City of Minneapolis, 474 F.3d 523 (8th
Cir. 2007) (determining that the facts and circumstances of the case did not support an
ADA/Rehabilitation Act claim); see also Waller ex rel. Estate of Hunt v. Danville, 556
F.3d 171, 175 (4th Cir. 2009) (holding in a hostage situation that exigency is one
circumstance that bears materially on the inquiry into reasonableness under the ADA).
IV. Discussion
A. Section 1983
Viewing the evidence and drawing all reasonable inferences in the light most
favorable to the plaintiff, the court cannot as a matter of law find that the officers’ use of
force was objectively reasonable. There are factual disputes with respect to whether
the officers reasonably believed the plaintiff committed a crime, whether he was a threat
to the officers, himself, or others, and whether he was actively resisting arrest. The
plaintiff disputes the officers’ timeline of events and disputes that it was necessary at
first to handcuff or “secure” him in order to ensure the safety of people in the home.
The court agrees that the timeline of events is subject to dispute and should be
determined by the jury.

However, when the record is examined in the light most

favorable to the plaintiff, there is no evidence from which a reasonable jury could
conclude that the plaintiff was secure and was not a threat to officers or anyone else in
the home when they found him in the basement. The police were called specifically
because the plaintiff represented a threat to his family. Proper police practice requires
securing a suspect in handcuffs before being taken into custody. This practice is for the
safety of the officers and the suspect. To the extent the plaintiff relies on the theory that
13

the officers attempts to secure the plaintiff or take him into custody were improper, that
claim is dismissed.4 Whether the officers used excessive force in securing the plaintiff
is a separate issue and one that should be resolved by a jury.
There is no dispute that three Tasers and a gun were brandished at the plaintiff.
Further, there is no dispute that the plaintiff was calm and coherent when approached
by the officers. The officers admit that the plaintiff was compliant with their direction to
kneel on the bed and put his hands up. There is also evidence from which a jury could
find that the officers’ subsequent instruction to the plaintiff to “lie down” was confusing
and that the plaintiff’s failure to follow that command was the result of confusion or
misunderstanding rather than defiance. There is also some evidence suggesting that
Officer Martinec continued to fire shots at the plaintiff after he was subdued and no
longer posed a threat.
Although the officers testified to the presence of a knife, from the record the court
cannot discern the level of threat posed by the knife described or how it was
brandished, if at all. The plaintiff has no recollection of the events and cannot provide
countervailing testimony. Nevertheless, circumstantial evidence—the short time frame,
the plaintiff’s apparently calm mental state, the presence of four officers (three with
Tasers) in close proximity, the lack of any serious assault that precipitated the incident,
the extent of the plaintiff’s injuries, the fact that the plaintiff was being held by an officer,
and the evidence of a pause in shots—suggests that a rational juror could find that the

4

Specifically, this finding refers to the claim involving “[w]hether the individual Defendants,
together or separately, deprived Plaintiff of rights secured to him by the Fourth and Fourteenth
Amendments to the United States Constitution by seizing Plaintiff without probable cause to believe he
either had committed a crime or he was a danger to himself or others.” See Filing No. 80, Pretrial Order
at 2.
14

use of deadly force against this plaintiff may have been unreasonable. Determination of
the issues will require assessments of credibility.

Under the totality of the

circumstances, a rational fact-finder could discredit the police officers’ story and could
conclude that the officers’ actions were unreasonable in light of the nature of the threat.
Whether the officers had an objectively reasonable belief that they faced a significant
risk of death or serious physical injury in these circumstances is a question of fact for
the jury.
B. ADA and Rehabilitation Act
Summary judgment dismissing the plaintiff’s ADA and Rehabilitation Act claims is
similarly not warranted because there are enough facts in the record to demonstrate
that the plaintiff was/is a qualified individual with a disability; that he was denied the
benefits of police protection and emergency response services; and he was denied
those services because of his disability. There is evidence from which a jury could infer
that the officers’ initial seizure of the plaintiff was due to his disability and not for any
criminal activity. Further, there is evidence from which a jury could find that the officers
failed to reasonably accommodate the plaintiff’s disability during the encounter.
Whether and to what extent plaintiff’s actions amounted to violent misconduct is
similarly a question of fact for the jury. There are also issues of fact with respect to the
adequacy of the City’s training. Accordingly, the court finds that genuine issues of
material fact preclude entry of summary judgment in this case.
IT IS ORDERED:
1.

The defendants’ motion to amend their motion for summary judgment to

assert the defense of qualified immunity, Filing No. 71, is granted.
15

2. The defendants’ motion in limine, Filing No. 59, is overruled at this time,
without prejudice to its reassertion via timely objection to the admissibility of such
evidence at trial.
3. The defendants’ motion for summary judgment, Filing No. 32, is granted in
part and denied in part, consistent with this opinion.
Dated this 10th day of October, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the
District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the
services or products they provide on their Web sites. Likewise, the court has no agreements with any of
these third parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
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