Schaffer et al v. Beringer et al
Filing
58
ORDER granting 36 Motion for Summary Judgment; denying 32 Motion for Partial Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 9/22/15. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JILL S. N. SCHAFFER, and CALLISSA
A. SCHAFFER,
Plaintiffs,
vs.
4:14-CV-04138-KES
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
BRYAN BERINGER, in his individual
capacity;
JACY NELSEN, in her individual
capacity;
JESSICA WADE, in her individual
capacity;
MARK FOLEY, in his individual
capacity; and
MATT BETZEN, individually and in his
official capacity;
Defendants.
Jill and Callissa Schaffer, plaintiffs, initiated this suit pursuant to
42 U.S.C. § 1983 alleging that defendants, members of the Vermillion, South
Dakota, Police Department, violated their constitutional rights. Docket 1.
Pending are cross-motions for summary judgment. Plaintiffs move for partial
summary judgment on Counts I, II, IV, and V of their complaint. Docket 32.
Defendants jointly move for summary judgment on all of plaintiffs’ claims.
Docket 36. For the following reasons, the court grants defendants’ motion for
summary judgment and denies plaintiffs’ motion for partial summary
judgment.
BACKGROUND
The undisputed facts are:
On May 30, 2014, Callissa was driving a vehicle with two passengers,
one of whom was the vehicle’s owner. Officer Foley stopped the vehicle for
improperly lit taillights. After approaching the vehicle, Foley recognized Lee
Sappingfield as the owner of the vehicle (at the time seated in the back seat)
from a stop that occurred the night before for the same taillight infraction.
Foley asked Callissa for her driver’s license. Callissa responded that she did
not have it with her, but stated that she did have a valid South Dakota driver’s
license. Additionally, Callissa provided her date of birth indicating that she was
eighteen-years-old at the time.
Foley detected a strong odor of alcohol emanating from within the
vehicle. He returned to his patrol car where he checked Callissa’s driving
status records. Foley informed dispatch about the odor of alcohol and
requested assistance from other officers. Foley was asked via radio if the driver
of the vehicle had been drinking, and he responded that he was unable to tell.
Officers Delgado and Beringer arrived on the scene a few minutes later.1
Foley returned to the stopped vehicle and asked Callissa to step outside
and accompany him to the vehicle’s rear. He told Callissa that he could smell
alcohol and asked if she had been drinking. She replied that she had not. Foley
asked if Callissa would submit to a breath test, which she refused. Foley asked
again if Callissa had been drinking, which she again denied. Callissa asked if
1
Officer Delgado is not a party to this litigation.
2
she could call her mother, Jill, and Foley responded that it would not be
necessary. Callissa nonetheless called Jill, and Jill arrived on the scene shortly
after.
Prior to Jill’s arrival, Officer Beringer spoke with the front-seat
passenger, later identified as Marilyn Wingo. Wingo admitted to consuming
alcohol that evening and that she was seventeen-years-old. The officers
subsequently determined that Sappingfield had also consumed alcohol,
although he was of legal age.
Upon Jill’s arrival, she exited her vehicle, shouted that the officers did
not have probable cause, and stated that she was a lawyer. She informed the
officers that she was Callissa’s attorney. The officers responded that the stop
was permissible, and told Jill to step aside. Jill asked the officers to explain the
situation. Jill also asked several times for the officers to explain specifically
what about Callissa suggested that she used alcohol. The officers explained
that both passengers admitted to consuming alcohol, that the car smelled of
alcohol, and that they had not yet determined if Callissa had consumed
alcohol. Jill responded that the vehicle did not smell like alcohol and again
stated that the officers did not have probable cause.
After several minutes, Sergeant Nelsen and Officer Wade arrived on the
scene. Nelsen spoke with Jill. A similar conversation about probable cause, the
vehicle stop, and Callissa took place. Nelsen informed Jill that she needed to let
the officers do their job or she would be arrested.
Callissa was asked again if she would submit to a breath test. She asked
3
about her other options, and was told that she could be detained and taken to
the police department while the officers sought a search warrant. Callissa was
told that she would not be taken to jail, but would be held in an interview
room. Additionally, the officers explained that she would be placed in
handcuffs while she was transported. Callissa refused to submit to the breath
test. She was placed in handcuffs and frisked by Wade before being placed in a
patrol car. Callissa was then transported to the Vermillion police station.
Wingo, who had also refused to submit to the breath test, was placed in
another patrol car and transported to the police station as well.
At the police station, Callissa was placed in a room with Wingo and Wade
while Foley sought a search warrant. Jill arrived at the police station and asked
to see Callissa. While Wingo was in the interview room, Jill was not permitted
to be present. While Foley attempted to obtain the search warrant, Callissa was
asked if she would submit to a breath test and she refused. Wingo
subsequently agreed to take the breath test, which revealed her blood alcohol
content to be 0.21 percent. Wingo was eventually released, and Jill was
permitted to enter at that time. After the search warrant was issued, Callissa
agreed to take the breath test. The test indicated that her blood alcohol level
was 0.00 percent.
LEGAL STANDARD
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet this
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burden by presenting evidence that there is no dispute of material fact or by
showing that the nonmoving party has not presented evidence to support an
element of its case on which it bears the ultimate burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, “[t]he
nonmoving party may not ‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910
(8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995)).
Summary judgment is precluded if there is a factual dispute that could
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). For purposes of a summary judgment motion, the court views the
facts and the inferences drawn from such facts “in the light most favorable to
the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986).
DISCUSSION
I.
Officers Foley, Beringer, Wade, and Nelsen
Counts 1 through 12 of plaintiffs’ complaint are brought against
defendants Foley, Beringer, Wade, and Nelsen in their individual capacities.
Foley, Beringer, Wade, and Nelsen contend that they are entitled to qualified
immunity on each of plaintiffs’ claims against them. Section 1983 provides a
cause of action against any “person who, under the color of any statute,
ordinance, regulation, custom, or usage, of any state” causes the deprivation of
5
a right protected by federal law or the United States Constitution. 42 U.S.C.
§ 1983.2 The doctrine of qualified immunity, however, generally shields
“ ‘government officials performing discretionary functions . . . from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’ ” Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014)
(alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Because qualified immunity provides immunity from suit and not merely
a defense to liability, “it is important that the question of qualified immunity be
resolved as early as possible in the proceedings.” Solomon v. Petray, 699 F.3d
1034, 1038 (8th Cir. 2012) (citations omitted). To overcome a qualified
immunity defense at the summary judgment stage, a plaintiff must show: “(1)
the facts, viewed in the light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2) the right was clearly
established at the time of the deprivation.” Howard v. Kansas City Police Dep’t,
570 F.3d 984, 988 (8th Cir. 2009). The court may analyze these two factors in
either order. Hutson v. Walker, 688 F.3d 477, 483 (8th Cir. 2012) (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)). But “[t]o deny the officers
qualified immunity, [the court] must resolve both questions in [the plaintiff’s]
Defendants do not dispute that they were operating under color of state
law during the events that gave rise to each of plaintiffs’ claims.
2
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favor.” Hawkins v. Gage Cty., Neb., 759 F.3d 951, 956 (8th Cir. 2014).
A.
Count 1
Plaintiffs assert that Beringer, Nelsen, and Foley deprived Callissa of her
Fourth Amendment right to be free from unreasonable seizures when Callissa
was placed in handcuffs without probable cause.3 In pertinent part, the Fourth
Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” U.S. Const. amend. IV. The Supreme Court
has long recognized a distinction between Fourth Amendment seizures and
formal arrests:
It is quite plain that the Fourth Amendment governs “seizures” of
the person which do not eventuate in a trip to the station house
and prosecution for crime—“arrests” in traditional terminology. It
must be recognized that whenever a police officer accosts an
individual and restrains his freedom to walk away, he has ‘seized’
that person.
Terry v. Ohio, 392 U.S. 1, 16 (1968). Thus, a seizure is said to occur when “an
officer restrains the liberty of an individual through physical force or show of
authority.” McCoy v. City of Monticello, 342 F.3d 842, 847 (8th Cir. 2003). For
purposes of § 1983, a seizure must comport with the Fourth Amendment’s
general standard of reasonableness. Id.
An arrest, by contrast, is a more intrusive seizure that is permissible if
Although plaintiffs’ complaint states that Wade is a defendant to Count
1 (Docket 1 at 2), plaintiffs state in their briefs that Wade is no longer
considered a defendant on this count. Docket 33 at 9 (“Officer Wade does not
exhibit any decision making authority and is not a defendant to [Counts I, II,
IV, or V]. (Officer Wade is a defendant for Count III frisk claim).”).
3
7
an officer has probable cause. United States v. Pratt, 355 F.3d 1119, 1122 (8th
Cir. 2004). “Probable cause exists ‘when the totality of the circumstances at the
time of the arrest are sufficient to lead a reasonable person to believe that the
defendant has committed or is committing an offense.’ ” Peterson v. Kopp, 754
F.3d 594, 598 (8th Cir. 2014) (quoting Ulrich v. Pope Cty., 715 F.3d 1054, 1059
(8th Cir. 2013)). The Eighth Circuit has explained, however, that an officer is
entitled to qualified immunity even if the officer had only “arguable probable
cause” to make an arrest. Id. (citing Bernini v. City of St. Paul, 665 F.3d 997,
1003 (8th Cir. 2012)). “ ‘Arguable probable cause exists even where an officer
mistakenly arrests a suspect believing it is based in probable cause if the
mistake is objectively reasonable.’ ” Id. (quoting Ulrich, 715 F.3d at 1059)).
The parties dispute whether Callissa was arrested or merely seized. As
the Eighth Circuit has observed, “[t]he standard for determining when policecitizen contact constitutes an arrest . . . is unclear.” Pratt, 355 F.3d at 1122.
Because a determination that the officers had probable cause or even arguable
probable cause to arrest Callissa would end the present inquiry, the court will
assume Callissa was arrested when she was placed in handcuffs. See id. at
1122-23 (“However, if an officer has probable cause, any inquiry into other
acceptable justifications for the seizure is largely superfluous . . . when police
act upon probable cause to arrest, the term ‘seizure’ is synonymous with the
term ‘arrest’ under the Fourth Amendment.”).
The legal drinking age in South Dakota is 21. In general, state law
prohibits anyone from operating a motor vehicle if their blood alcohol content is
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0.08 percent or higher. SDCL 32-23-1. For drivers under 21, however, it is
unlawful for them to drive, operate, or be in control of a vehicle with a blood
alcohol content of 0.02 percent or higher. SDCL 32-23-21. Thus, the legal
blood alcohol content level for drivers under 21 is significantly lower than the
permissible level for adults over the age of 21.
Plaintiffs acknowledge the vehicle stop itself was permissible and further
acknowledge that Foley’s detection of the odor of alcohol in the vehicle gave
him at least some reason to suspect that Callissa may have consumed alcohol.
Docket 33 at 3. Plaintiffs likewise take no issue with Foley’s decision to order
Callissa out of the vehicle nor his obligation to determine which of the vehicle’s
occupants may have consumed alcohol. Id. at 3-4. Additionally, there is no
dispute that when Foley radioed dispatch about the vehicle stop, he stated that
he had not yet determined whether the driver (Callissa) had consumed alcohol.
Both Foley and Beringer have attested to the fact that they personally
observed Callissa’s eyes being watery and that her face was flushed during the
stop. Docket 40 at ¶ 21 (affidavit of Mark Foley); Docket 42 at ¶ 11 (affidavit of
Bryan Beringer). Plaintiffs contend that those affidavits should not be
considered by the court, however, because they were created several months
after the stop and are simply “not competent factual citations.” Docket 55 at 1.
Rather, according to plaintiffs, the only competent evidence is a series of
dashboard camera recordings taken during the incident and several narrative
reports the officers filled out afterwards. First, and contrary to plaintiffs’
assertion, Rule 56 of the Federal Rules of Civil Procedure specifically
9
contemplates that affidavits may be used to support a party’s position on
summary judgment if “made on personal knowledge, set out in facts that would
be admissible in evidence, and show that the affiant . . . is competent to testify
on the matters stated.” Fed. R. Civ. P. 56(c)(1), (4); see also Gannon Int’l, Ltd. v.
Blocker, 684 F.3d 785, 793 (8th Cir. 2012). Plaintiffs have not identified any
substantive defect with these affidavits that would render them improper for
consideration under Rule 56. Second, regarding the narrative reports, plaintiffs
ask the court to make a negative inference. Specifically, because Foley’s
narrative report does not include a similar statement about Callissa’s
appearance,4 the court should conclude either that Foley never made such an
observation or that his affidavit is otherwise incredible. But this is not a case,
for example, where a party asserts self-contradictory positions in different
sworn statements and the jury must be tasked with resolving the
discrepancies. See United States v. Real Prop. Located at 3234 Wash. Ave., 480
F.3d 841, 845-46 (8th Cir. 2007). At most, Foley’s affidavit contains additional
factual information that his narrative report does not. The affidavit is not
inconsistent with his narrative report, and neither document purports to stand
absolutely to the exclusion of the other. Even drawing all reasonable inferences
from the evidence in plaintiffs’ favor, they have offered only speculation that the
Beringer’s narrative report does include his observation. Docket 42-1 at
2. Plaintiffs contend that Beringer admitted this part of his report was a
misstatement by citing to testimony taken during Jill’s criminal trial for
obstruction. Beringer was asked if he would “admit that there are errors in [his]
report,” to which Beringer responded, “Yes.” Docket 57-11 at 20. This
admission is too general to support plaintiffs’ assertion that the specific
reference to Callissa’s appearance was a misstatement.
4
10
observation in Foley’s affidavit is in any way genuinely disputed. See Gannon,
684 F.3d at 792 (rejecting the argument that a party’s otherwise
uncontradicted statement was “self-serving” and therefore should preclude
entry of summary judgment); Albury v. U.S. Postal Serv., 530 F.2d 852, 855-56
(9th Cir. 1976) (rejecting the argument that summary judgment should not be
entered based only on a mere suspicion that a party may have acted
improperly). As the Eighth Circuit observed, “Rule 56 would be nullified by the
prevailing party’s use of one affidavit and the bald objection by the opposing
party to the affiant’s credibility.” Lundeen v. Cordner, 354 F.2d 401, 409 (8th
Cir. 1966). Consequently, Foley and Beringer’s assertion that they observed
Callissa’s eyes as watery and her face being flushed is not genuinely disputed.
By the time Callissa was placed in handcuffs, the following additional
facts became known: first, that Callissa was under the age of 21; second, that
as a driver under the age of 21, Callissa was subject to the reduced blood
alcohol limitation on operating a vehicle in South Dakota; and third, that both
passengers in the vehicle admitted to consuming alcohol, one of whom was also
a minor. These facts, coupled with Foley and Beringer’s observations about
Callissa’s appearance, Foley’s detection of the odor of alcohol in the vehicle
where Callissa had been present, and the fact that the officers were unable to
determine if Callissa had consumed alcohol because she refused to submit to a
breath test, provided them with at least arguable probable cause to arrest
Callissa for violating South Dakota’s prohibitions against underage
consumption of alcohol and impaired operation of a vehicle.
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Plaintiffs attempt to resist this conclusion by arguing that the officers did
not have probable cause sufficiently particularized to Callissa to support an
arrest. They rely on Ybarra v. Illinois, 444 U.S. 85, 90-92 (1979), where the
Court held that probable cause to search a barkeeper and the premises of a
tavern did not supply police officers with probable cause to search the tavern’s
patrons who happened to be present when the search was conducted. The
Court stated that “a search or seizure of a person must be supported by
probable cause particularized with respect to that person. This requirement
cannot be undercut or avoided by simply pointing to the fact that
coincidentally there exists probable cause to search or seize another[.]” Id. at
91. But plaintiffs’ reliance on Ybarra is misplaced. This case is more similar to
Maryland v. Pringle, 540 U.S. 366, 372 (2003), a case involving the arrest of
three men who were riding together in an automobile who each denied
ownership of cocaine that had been discovered by the police. The Court
rejected the defendant’s reliance on Ybarra, explaining:
This case is quite different from Ybarra. Pringle and his two
companions were in a relatively small automobile, not a public
tavern. In Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297,
143 L.Ed.2d 408 (1999), we noted that “a car passenger—unlike
the unwitting tavern patron in Ybarra—will often be engaged in a
common enterprise with the driver, and have the same interest in
concealing the fruits or the evidence of their wrongdoing.” Id., at
304–305, 119 S.Ct. 1297. Here we think it was reasonable for the
officer to infer a common enterprise among the three men.
Id. at 372. Thus, given the fact that Foley had smelled alcohol in the vehicle,
that the officers determined that the two other persons in the vehicle had
consumed alcohol, and were unable to determine whether Callissa had done
12
the same, it was reasonable for the officers to infer that everyone in the vehicle
may have consumed alcohol.
Plaintiffs, however, suggest an alternative explanation that in their
estimation is equally reasonable: that the officers should have concluded
Callissa was acting as a designated driver. Plaintiffs note, for example, that
although the officers had smelled alcohol in the vehicle, not one of them stated
that they had been able to smell alcohol on Callissa or had observed her
driving erratically. But probable cause requires “only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”
United States v. Payne, 119 F.3d 637, 642 (8th Cir. 1997) (quoting Illinois v.
Gates, 462 U.S. 213, 243-44 n.13 (1983)). In analyzing claims involving
qualified immunity, “the court should ask whether the agents acted reasonably
under settled law in the circumstances, not whether another reasonable, or
more reasonable, interpretation of the events can be constructed . . . after the
fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991). Based on the totality of the
circumstances here, the court concludes that Foley, Beringer, and Nelsen did
not deprive Callissa of her right to be free from unreasonable seizures when
she was arrested. Thus, they are entitled to qualified immunity on Count 1.
B.
Count 2
Plaintiffs contend that Foley, Beringer, and Nelsen deprived Callissa of
her Fourth Amendment right to be free from unreasonable seizures because
13
the officers used excessive force when they placed Callissa in handcuffs.5 In
general, “[t]he right to be free from excessive force is a clearly established right
under the Fourth Amendment's prohibition against unreasonable seizures of
the person.” Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998) (citations
omitted). But “. . . 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.”
Graham v. Connor, 490 U.S. 386, 396 (1989). Thus, “ ‘not every push or shove,
even if it may later seem unnecessary’ . . . violates the Fourth Amendment.” Id.
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
To determine whether the force used by an officer violates the Fourth
Amendment, the court must determine if the use of force was objectively
reasonable under the circumstances of the case. Kopp, 754 F.3d at 600. Some
factors include “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.” Graham, 490
U.S. at 396. Another factor to consider is the result of the force, such as
whether the plaintiff has suffered any injury. Crumley v. City of St. Paul, Minn.,
324 F.3d 1003, 1007 (8th Cir. 2003). While the degree of injury is not generally
dispositive, when a plaintiff alleges excessive force based on the use of
Although plaintiffs’ complaint states that Wade is a defendant to Count
2 (Docket 1 at 3), plaintiffs state in their briefs that Wade is no longer
considered a defendant on this count. Docket 33 at 9 (“Officer Wade does not
exhibit any decision making authority and is not a defendant to [Counts I, II,
IV, or V]. (Officer Wade is a defendant for Count III frisk claim).”).
5
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handcuffs the plaintiff must also demonstrate something beyond experiencing
minor injury or discomfort. Chambers v. Pennycook, 641 F.3d 898, 907 (8th
Cir. 2011) (explaining that “[h]andcuffing inevitably involves some use of force,
and it almost inevitably will result in some irritation, minor injury or
discomfort where the handcuffs are applied.”) (internal quotations omitted).
Here, the officers contend that Callissa was handcuffed pursuant to
police department policy which dictates that all arrested persons be placed in
handcuffs. Plaintiffs respond that their qualified immunity defense must fail
because “[t]he officers [sic] decision was based on a policy – not an
individualized determination.” Docket 45 at 18. But plaintiffs make no
allegation or present any evidence that the officers used an extraordinary
amount of force applying the handcuffs, nor have plaintiffs alleged that Callissa
suffered any injury as a result of being placed in the handcuffs. Without such a
showing, plaintiffs’ excessive force claim must fail. Chambers, 641 F.3d at 907;
see also Stepnes v. Ritschsel, 663 F.3d 952, 961 (8th Cir. 2011) (“Stepnes has
produced no evidence that he suffered anything beyond minor injuries due to
the handcuffing and thus cannot demonstrate a Fourth Amendment
violation.”). Consequently, Foley, Beringer, and Nelsen are entitled to qualified
immunity on Count 2.
C.
Count 3
Plaintiffs argue that Foley, Beringer, Wade, and Nelsen deprived Callissa
of her Fourth Amendment right to be free from unreasonable searches when
she was subjected to a pat-down or frisk before being placed in the patrol car.
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In general, a warrantless search of the person is unreasonable unless it falls
within one of the recognized exceptions to the warrant requirement. United
States v. Chartier, 772 F.3d 539, 545 (8th Cir. 2014) (quoting Missouri v.
McNeely, 133 S. Ct. 1552, 1558 (2013). One of those exceptions is a search
incident to lawful arrest. Id. (citing Arizona v. Gant, 556 U.S. 332, 338 (2009)).
“Such a search may include a search of the arrestee's person to remove
weapons and seize evidence to prevent its concealment or destruction.” Id.
(citation omitted). Whether the search of Callissa’s person falls within this
exception depends on whether the officers had at least arguable probable cause
to arrest her. Meehan v. Thompson, 763 F.3d 936, 946 (8th Cir. 2014) (finding
an arrest based on arguable probable cause entitled an officer to conduct a
search incident to arrest of the suspect’s person). The court has already
determined that the officers had at least arguable probable cause to arrest
Callissa. Thus, the officers were entitled to conduct a search of Callissa’s
person incident to her arrest.
Plaintiffs contend, however, that the search was unreasonable because
the officers had no reason to believe that Callissa posed a danger to them and
that the clothing she wore–a bathing suit, a t-shirt, and shorts–rendered her
ability to conceal any weapons or evidence on her person impossible. A similar
argument was rejected by the Eighth Circuit in Meehan:
Meehan argues that Thompson's frisk violated her Fourth
Amendment rights because he did not reasonably suspect that she
was armed and dangerous. See Terry, 392 U.S. at 27, 88 S.Ct.
1868. Meehan has confused a Terry frisk with a search incident to
an arrest. A Terry analysis would be appropriate if Thompson had
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no lawful basis to arrest Meehan; in that scenario, Thompson
would have to provide some additional justification for searching
her. But as discussed above, Meehan's intoxication gave Thompson
at least arguable probable cause to arrest Meehan for her own
safety, and “a search incident to [an] arrest requires no additional
justification.” United States v. Robinson, 414 U.S. 218, 235, 94
S.Ct. 467, 38 L.Ed.2d 427 (1973).
Id. (emphasis added). Thus, because the officers had at least arguable probable
cause to arrest Callissa, their decision to perform the search incident to that
arrest needed no additional justification. Moreover, the duration of the search–
which took place in front of Foley’s dash camera–was short, was performed by
a female officer, and involved no more than a brief pat-down of Callissa’s
clothing and person. Consequently, the court concludes Foley, Beringer, Wade,
and Nelsen are entitled to qualified immunity on Count 3.
D.
Count 4
Plaintiffs claim that Foley, Beringer, and Nelsen deprived Callissa of her
Fourth Amendment right to be free from unreasonable seizures when Callissa
was brought to and held in an interview room at the police station while Foley
sought a search warrant.6 Police may, once they have probable cause to believe
in an individual is involved in criminal activity, detain that individual in order
to apply for a search warrant. United States v. Nevils, 897 F.2d 300, 308-09
(8th Cir. 1990) (concluding a detention of an hour and half was justified). As
with an arrest, officers are entitled to qualified immunity when an individual is
Although plaintiffs’ complaint states that Wade is a defendant to Count
4 (Docket 1 at 4), plaintiffs state in their briefs that Wade is no longer
considered a defendant on this count. Docket 33 at 9 (“Officer Wade does not
exhibit any decision making authority and is not a defendant to [Counts I, II,
IV, or V]. (Officer Wade is a defendant for Count III frisk claim).”).
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detained if the officers have arguable probable cause to do so. Ransom v.
Grisafe, 790 F.3d 804, 813 (8th Cir. 2015).
Plaintiffs’ argument on this issue is coextensive with their argument on
Count 1, that is, they argue that the officers unlawfully arrested Callissa.
Because the court has already determined the officers had at least arguable
probable cause to arrest Callissa, their decision to hold Callissa at the police
station for approximately two hours while Foley sought a search warrant was
justified. Therefore, Officers Foley, Beringer, and Nelsen are entitled to qualified
immunity on Count 4.
E.
Count 5
Plaintiffs assert that Officers Beringer, Nelsen, and Foley deprived
Callissa of her Fourth Amendment right to be free from unreasonable searches
because the officers compelled Callissa to submit to a breath test by procuring
a defective search warrant.7 Although plaintiffs allege that Beringer, Nelsen,
and Foley each bear responsibility for this wrong, there are no facts that
suggest anyone other than Foley was involved in preparing the affidavit at issue
here. Thus, any deficiencies that occurred during the warrant procurement
process are attributable to Foley alone.
In Franks v. Delaware, 438 U.S. 154, 168-70 (1978), the Supreme Court
held that a facially valid affidavit supporting a search warrant may be
Although plaintiffs’ complaint states that Wade is a defendant to Count
5 (Docket 1 at 4), plaintiffs state in their briefs that Wade is no longer
considered a defendant on this count. Docket 33 at 9 (“Officer Wade does not
exhibit any decision making authority and is not a defendant to [Counts I, II,
IV, or V]. (Officer Wade is a defendant for Count III frisk claim).”).
7
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challenged on the basis that it contained deliberately or recklessly false
statements to demonstrate probable cause. A warrant that is based upon such
an affidavit violates the Fourth Amendment, and “[a]n official who causes such
a deprivation is subject to § 1983 liability.” Bagby v. Brondhaver, 98 F.3d 1096,
1098 (8th Cir. 1996).
Foley’s affidavit recited an overview of the events that occurred during
the traffic stop and requested a search warrant to collect a sample of Callissa’s
breath. Docket 40-1. Foley noted that he detected a strong odor of alcohol
coming from within the vehicle, that the two passengers admitted to consuming
alcohol, and that the minor driver (Callissa) refused to submit to a breath test.
He also explained that an unopened bottle of alcohol was eventually found
under the front passenger seat. Foley stated that the officers decided to bring
Callissa to the police station while a search warrant was sought, and that the
minor passenger had agreed to submit to a breath test which revealed her
blood alcohol content was 0.21. Foley also noted that he observed Callissa’s
eyes were watery and her face was flushed during the stop. Based on Foley’s
training and experience, he attested that he believed Callissa had been
consuming an alcoholic beverage. Magistrate Judge Bosse found Foley’s
affidavit sufficient and issued a search warrant. Docket 40-2.
As with Count 1, plaintiffs attack Foley’s inclusion in his search warrant
affidavit of his observation that Callissa’s eyes were watery and her face was
flushed. Plaintiffs argue that Foley’s inclusion of these facts was improper
because Foley’s narrative report did not contain a similar statement, while only
19
Beringer’s narrative report did. As with Foley’s affidavit before this court,
Foley’s search warrant affidavit is not contradicted by his narrative report. And
“[m]ere allegations of deliberate or reckless falsehoods are insufficient.” United
States v. Kattaria, 553 F.3d 1171, 1177 (8th Cir. 2009); see also United States
v. McIntyre, 646 F.3d 1107, 1114 (8th Cir. 2011) (“A showing of deliberate or
reckless falsehood is not lightly met.”) (citation omitted).
Next, plaintiffs contend that Foley’s affidavit omitted certain facts. A
Franks violation based on omitted facts may be shown when “(1) the police
omitted facts with the intent to make, or in reckless disregard of whether they
thereby made, the affidavit misleading, and (2) the affidavit, if supplemented by
the omitted information would not have been sufficient to support a finding of
probable cause.” Hawkins v. Gage Cty., Neb., 759 F.3d 951, 959 (8th Cir. 2014)
(quotation omitted). Aside from a bald allegation that Foley “purposefully
ignored evidence,” plaintiffs present no showing that Foley acted with the
intent to make his affidavit misleading. In order to show Foley acted in
“reckless disregard,” plaintiffs must also “show that the omitted material would
be clearly critical to the finding of probable cause.” Id. (quotation omitted)
(emphasis in original). And probable cause requires “only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”
Payne, 119 F.3d at 642 (quoting Gates, 462 U.S. at 243-44 n.13).
First, plaintiffs contend Foley should have included the fact that none of
the officers on the scene positively detected alcohol on Callissa’s person.
Plaintiffs argue that their inability to do so should have negated any suspicion
20
they may have had concerning whether Callissa consumed alcohol. Second,
plaintiffs assert that while Foley’s affidavit stated that the bottle of alcohol was
found under the front passenger’s seat, he did not sufficiently highlight the
probability that the bottle may have belonged to the front-seat passenger or the
owner. Finally, plaintiffs fault Foley for not including information that may
have suggested Callissa was a designated driver, such as her competent driving
and positive demeanor.
None of these facts, however, would be clearly critical to the finding of
probable cause. Each of plaintiffs’ objections is undermined by the fact that the
officers detected the odor of alcohol inside the vehicle Callissa was driving and,
most critically, were unable to determine whether or not she had consumed
alcohol. While two of the passengers admitted to consuming alcohol, and an
unopened bottle of alcohol was found under the passenger seat, those facts
would not assuage the equally if not more serious possibility that the driver of
the vehicle may have been impaired as well. Although the officers had been
unable to pinpoint the odor of alcohol on Callissa’s person, that does not, as
plaintiffs suggest, simply negate their suspicions. And while Foley’s affidavit
did not include every piece of information he may have known about Callissa,
“[a] law enforcement official is not required to include everything he knows
about a subject in his affidavit, whether it is material to a finding of probable
cause or not.” Technical Ordnance, Inc. v. United States, 244 F.3d 641, 649 (8th
Cir. 2011). The same is true regarding alleged omissions of exculpatory
information. See Evans v. Chambers, 703 F.3d 636, 651 (4th Cir. 2012)
21
(“Affiants are not required to include every piece of exculpatory information in
affidavits.”). Plaintiffs cannot show that any of these omissions could be
deemed reckless. Consequently, Foley is entitled to qualified immunity on
Count 5.
F.
Count 6
Plaintiffs argue that Foley, Beringer, Wade, and Nelsen deprived Callissa
of her Sixth Amendment right to the presence of counsel during the traffic stop
and while she was held in the interview room at the police department. In
relevant part, the Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. In general, the Sixth Amendment right to
counsel is said to attach “when the State initiates an adversary judicial
proceeding ‘by way of formal charge, preliminary hearing, indictment,
information, or arraignment.’ ” Beck v. Bowersox, 362 F.3d 1095, 1101 (8th
Cir. 2004) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). “ ‘The Sixth
Amendment guarantees the accused, at least after the initiation of formal
charges, the right to rely on counsel as a ‘medium’ between him and the State.”
Id. (quoting Maine v. Moulton, 474 U.S. 159, 176 (1985)). But if the right to
counsel has not attached, “the defendant has no right to the . . . assistance of
counsel.” United States v. Edelmann, 458 F.3d 791, 804 (8th Cir. 2006) (citing
Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994)).
As discussed in relation to Counts 1 and 4, the officers had at least
arguable probable cause to arrest Callissa and detain her while Foley sought a
22
search warrant. Although Callissa had been placed under arrest at the scene of
the stop, the right to counsel did not attach at that time. Beck, 362 F.3d at
1102 (“But the Supreme Court has declined to hold that the right [to counsel]
attaches at the time of an arrest.”) (citations omitted). Similarly, the right to
counsel did not attach by virtue of the fact that Foley sought a search warrant
while Callissa was held at the station. Van Kahl v. United States, 242 F.3d 783,
789 (8th Cir. 2001). No formal charges were filed against Callissa. Likewise, the
government did not instigate a preliminary hearing, file an indictment or
information, and Callissa was not arraigned. “The right to counsel ‘becomes
applicable only when the government’s role shifts from investigation to
accusation.’ ” Edelmann, 458 F.3d at 804 (quoting Moran v. Burbine, 475 U.S.
412, 430 (1986)). Because the government’s role never shifted to one of
accusation, Callissa’s Sixth Amendment right to counsel never attached.
Consequently, the officers did not deprive Callissa of her right to counsel.
Perhaps recognizing this shortcoming, plaintiffs attempt to retool their
argument as one involving an alleged violation of Callissa’s rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Plaintiffs raise this assertion for the
first time in their response to defendants’ motion for summary judgment. See
Docket 46 at 11. They assert their complaint contains a typographical error. Id.
(“Count VI and VII contain the error in that – the constitutional violation is the
5th Amendment[.]”). But this abrupt pivot in theory changes entirely the
substance of their claim. Moreover, plaintiffs never sought permission from the
court to amend their pleadings, and they will not be allowed to do so now.
23
Therefore, Foley, Beringer, Wade, and Nelsen are entitled to qualified immunity
on Count 6.
G.
Count 7
Plaintiffs style count 7 as a Sixth Amendment retaliation claim.
Specifically, Jill asserts that she enjoyed a Sixth Amendment right as Callissa’s
attorney to be present and to represent Callissa, and that Foley, Beringer,
Wade, and Nelsen deprived Jill of that right by ordering her to step away or be
arrested. By its own terms, the Sixth Amendment applies only to “the accused.”
Moreover, it follows that the officers could not have deprived Jill of any
derivative right as Callissa’s counsel to be present (assuming the right exists at
all) at a time when Callissa’s own Sixth Amendment right to counsel had not
attached.
Plaintiffs do not substantiate their argument or explain how this asserted
right was clearly established at any point in their briefs. Rather, as with Count
6, they attempt to revamp their allegation as one involving a deprivation under
Miranda in spite of never seeking permission from the court to amend their
pleadings. As with Count 6, plaintiffs will not be permitted to do so.
Consequently, Foley, Beringer, Wade, and Nelsen are entitled to qualified
immunity on Count 7.
H.
Count 8
Plaintiffs’ count 8 is similar to their claim under count 7 with the
exception that it is now titled as a Fourth Amendment retaliation claim.
Specifically, plaintiffs argue that when Jill was ordered to step aside or be
24
arrested for her involvement at the vehicle stop, Foley, Beringer, Wade, and
Nelsen retaliated against Jill in violation of her Fourth Amendment rights. The
Eighth Circuit has recognized that an officer’s threat to arrest an individual is a
Fourth Amendment seizure. Vickroy v. City of Springfield, Mo., 706 F.2d 853,
854 (8th Cir. 1983). Such a seizure must be reasonable. Id. As explained more
fully below, the officers had at least arguable probable cause to arrest Jill for
obstruction. Thus, the officers’ threat to arrest Jill was justified. Pratt, 355 F.3d
at 1122. (“However, if an officer has [arguable] probable cause, any inquiry into
other acceptable justifications for the seizure is largely superfluous.”).
Consequently, Foley, Beringer, Wade, and Nelsen are entitled to qualified
immunity on Count 8.
I.
Counts 9-12
Plaintiffs assert variously titled but interrelated allegations that Officers
Foley, Beringer, Wade, and Nelsen violated Jill’s First Amendment rights.
Although brought under different clauses of the First Amendment,8 plaintiffs
are substantively bringing a First Amendment retaliation claim. That is,
plaintiffs assert that Foley, Beringer, Wade, and Nelsen retaliated against Jill in
violation of her First Amendment rights when they ordered her to step aside or
be arrested during the traffic stop.
Before addressing this issue, a brief background is warranted. Although
Plaintiffs title these claims as a freedom of speech claim (Count 9), a
claim that the officers retaliated against Jill for exercising her freedom of
speech (Count 10), a petition-the-government clause claim (Count 11), and a
claim that the officers retaliated against Jill for exercising her right to petition
the government (Count 12).
8
25
Jill was threatened with being arrested for obstructing the officers’
investigation during the traffic stop on May 30, 2014, she was not arrested
either at the scene or at a later time that evening. Rather, Jill was indicted on
July 2, 2014, for violating SDCL 22-11-6, South Dakota’s criminal statute
prohibiting the obstruction of a law enforcement officer. See Docket 39-3. That
law provides in relevant part that:
[A]ny person who, by using or threatening to use violence, force, or
physical interference or obstacle, intentionally obstructs, impairs,
or hinders the enforcement of the criminal laws or the preservation
of the peace by a law enforcement officer or jailer acting under
color of authority . . . is guilty of obstructing a law enforcement
officer . . . . Obstructing a law enforcement officer . . . is a Class 1
misdemeanor.
SDCL 22-11-6. The complaint in this case was filed on September 4, 2014.
Docket 1. Jill was not arraigned on her state law charge until October 14,
2014, and she did not proceed to trial until January 26, 2015. Docket 39-3.
The jury returned a guilty verdict, and Jill was convicted of the obstruction
charge. According to plaintiffs, Jill did not appeal her conviction.
This history is necessary to address ancillary issues related to plaintiffs’
claims. First, for each of Counts 9-12, plaintiffs’ complaint specifically
challenged the conduct of the officers during the traffic stop. Yet, in their brief,
plaintiffs spend considerable effort attacking the validity of Jill’s state court
conviction. See Docket 46 at 1 (“[Jill] Schaffer’s conviction in State v. Schaffer –
Crim 14-179 – contravened constitutional guarantees of free speech and due
process.”). The propriety of Jill’s state court conviction is not before this court.
Second, in spite of framing each of Counts 9-12 in terms of a violation of Jill’s
26
First Amendment rights at the traffic stop, plaintiffs also devote several pages
of their brief accusing the officers of later falsifying information that was put
before the grand jury which ultimately indicted Jill. See id. at 4 (arguing
officers Beringer, Wade, and Nelsen “wrote misrepresented [and] untrue facts of
physical interference and delay in their Narrative Reports” and that “[t]hese
Narrative Reports were submitted to the Grand Jury for indictment of Attorney
Schaffer.”). Whether these officers falsified information that was presented to a
grand jury in order to secure an indictment against Jill is not before this court.
What is before this court, however, is whether the officers threatened to arrest
Jill in violation of her First Amendment rights at the time of the traffic stop.
“[T]he law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to retaliatory
actions . . . for speaking out[.]” Hartman v. Moore, 547 U.S. 250, 256 (2006).
Plaintiffs must show that: “(1) [Jill] engaged in a protected activity, (2) the
government official took adverse action against [her] that would chill a person
of ordinary firmness from continuing in the activity, and (3) the adverse action
was motivated at least in part by the exercise of the protected activity.” Revels
v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (citing Naucke v. City of Park
Hills, 284 F.3d 923, 927-28 (8th Cir. 2002)). The Supreme Court has explained,
however, that there is no “general right to be free from retaliation for one’s
speech[.]” Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012). This is so because
the right allegedly violated must be “ ‘particularized’ . . . so that the ‘contours’
of the right are clear to a reasonable official[.]”). Id. (internal citations omitted).
27
For plaintiffs, that right is to remain free from being seized in retaliation for
one’s speech. An officer’s threat of arrest is a Fourth Amendment seizure.
Vickroy, 706 F.2d at 854. As such, the seizure must be reasonable. Id. The
officers here are entitled to qualified immunity on plaintiffs’ First Amendment
claims, however, if they had even arguable probable cause to arrest Jill when
she was seized. McCabe v. Parker, 608 F.3d 1068, 1078-89 (8th Cir. 2010)
(concluding plaintiffs’ First Amendment claims were mooted because members
of the secret service had arguable probable cause for plaintiffs’ arrest); Kopp,
754 F.3d at 602 (finding the officer was entitled to qualified immunity on
plaintiff’s First Amendment retaliatory arrest claim because the officer had
arguable probable cause to effectuate the arrest); Galarnyk v. Fraser, 687 F.3d
1070, 1076 (8th Cir. 2012) (noting the lack of probable cause is a necessary
element of every First Amendment retaliatory arrest claim). The officers
contend that they had at least arguable probable cause to arrest Jill for
obstructing a law enforcement officer in violation of SDCL 22-11-6.
Here, approximately two minutes elapsed between the time that Callissa
met with Foley at the rear of the stopped vehicle and the time when Jill arrived
on the scene. Jill immediately proclaimed that she was a lawyer and, in spite of
the fact that she did not witness the stop, shouted that the officers did not
have probable cause to stop the vehicle. Jill stood between Callissa and the
officers and again stated that they did not have probable cause.9 When Jill was
Responding to defendants’ statement of undisputed facts, plaintiffs
dispute that Jill stood between Callissa and the officers. Compare Docket 38 at
9
28
told to step aside and speak with Foley away from the road, she refused to
move unless the officers explained what the officers were doing. Plaintiffs
acknowledge that “Jill Schaffer asked the officers eight or more times” to
explain specifically what about Callissa suggested that she had consumed
alcohol. Docket 35 at ¶ 41. Beringer attempted to explain several times that the
vehicle smelled like alcohol and that both passengers in the vehicle admitted to
consuming alcohol. Jill walked to the stopped vehicle and informed the officers
that she could not smell alcohol in the vehicle. This scene largely repeated itself
when Nelsen arrived on the scene. Prior to Nelsen’s arrival, however, Beringer
warned Jill that if she continued to interrupt the officers, Beringer would
discuss with Nelsen the possibility of charging Jill with obstruction. When
Nelsen arrived, she told Jill that her options were to either step aside and let
the officers do their jobs or she could be arrested. Eventually Jill did step
aside. Based on the totality of these circumstances, which include not only
Jill’s spoken statements but her actions and physical presence at the scene of
an ongoing investigation, the officers had at least arguable probable cause to
believe Jill unlawfully obstructed their investigation. See, e.g., Walker v.
Peterson, No. CIV. 12-4078-KES, 2013 WL 6173779 at *3 (D.S.D Nov. 20,
2013) (finding at least arguable probable cause to support an arrest based on
plaintiff’s forceful grabbing of a driver’s license from officer’s hands and
shutting an apartment door to prevent officers from issuing a citation); State v.
¶ 35 with Docket 55 at 10 (responding to ¶ 35). Yet, the dashboard camera
videos clearly show Jill standing between Callissa and Officers Foley and
Beringer shortly after she arrived.
29
Sullivan, 673 N.W.2d 288, 293 (S.D. 2003) (noting the defendant had
obstructed the officers by preventing them from speaking with her son during
an investigation); State v. Dale, 379 N.W.2d 811, 815 (S.D. 1985) (explaining
that SDCL 22-11-6 “does not require that there be a technical or physical
assault upon the officers, nor that violent or physical resistance be exerted to
constitute the offense.”); State v. Wiedeman, 321 N.W.2d 539, 541-42 (S.D.
1982) (finding that by standing in the path of an officer and refusing to move
after being ordered to disperse from the scene that the defendant violated
SDCL 22-11-6). The conclusion that the officers had at least arguable probable
cause to arrest Jill for obstruction is only buttressed by the fact that Jill was
subsequently tried and convicted by a jury for that very offense. Because the
officers had at least arguable probable cause to arrest Jill for obstruction, their
mere threat to do so at the time of the traffic stop was reasonable. Thus, Foley,
Beringer, Wade, and Nelsen are entitled to qualified immunity on counts 9-12.
II.
Police Chief Matt Betzen
A.
Count 13
1.
Official capacity
Plaintiffs assert that Betzen is liable in his official capacity as chief of the
Vermillion police department for failing to adequately train, monitor, and
discipline his subordinate officers. A claim against a public official in his
official capacity is in reality a claim against the entity for which the public
official acts as an agent. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). In
order to maintain plaintiffs’ claim against Betzer in his official capacity, they
30
must demonstrate that the municipality itself caused the constitutional
violation at issue. Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010). Under a
“failure to train” theory, a municipality may be liable where (1) the
municipality’s training practices were inadequate; (2) the municipality was
deliberately indifferent to the rights of others in adopting those training
practices, such that the failure to train reflects a deliberate or conscious choice
by the municipality; and (3) an alleged deficiency in the training procedures
actually caused the plaintiff’s injury. Id. (internal citations omitted).
The animating substance of plaintiffs’ “failure to train” claim arises from
the conduct of Foley, Beringer, Wade, and Nelsen during the police stop. But,
as discussed with counts 1-12 of plaintiffs’ complaint, neither Callissa nor Jill
were deprived of a right protected by federal law or the United States
Constitution by those officers. Without an underlying constitutional wrong,
there can be no municipal liability. See City of Canton, Ohio v. Harris, 489 U.S.
378, 385 (1989) (explaining the Court’s first inquiry in a § 1983 claim against a
municipality is whether there is a causal link between a municipal policy or
custom and the constitutional violation); Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 691 (1978) (explaining that § 1983 liability may
only be imposed upon a municipality for underlying constitutional violations
that are attributable to official municipal policy). Because there is no
constitutional wrong that can be imputed to the municipality in the first
instance, Betzen is entitled to summary judgment on plaintiffs’ official capacity
claim.
31
2.
Individual capacity
In addition to their official capacity claim, plaintiffs assert that Betzen is
liable in his individual capacity as chief of the Vermillion police department for
failing to train, monitor, and discipline his subordinate officers. The Eighth
Circuit has explained that a supervising official may be held liable for an
inferior officer’s constitutional violation only “if [the supervisor] directly
participated in the constitutional violation, or if his failure to train or supervise
the offending actor caused the deprivation.” Parrish, 594 F.3d at 1001 (citation
omitted). As explained with plaintiffs’ official capacity claim, plaintiffs have not
suffered an underlying constitutional violation. Without such a violation,
Betzen cannot be liable in his individual capacity. See id.; see also Myers v.
Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (“But a supervisor may not be
held liable under section 1983 unless the supervised official committed an
underlying violation of a constitutional right.”). Thus, Betzen is entitled to
summary judgment on plaintiffs’ individual capacity claim as well.
CONCLUSION
Defendants are entitled to summary judgment on each of plaintiffs’
claims. Specifically, Officers Foley, Beringer, Wade, and Nelsen are entitled to
qualified immunity on counts 1-12 of plaintiffs’ complaint. Police Chief Betzen
is entitled to summary judgment on count 13 of plaintiffs’ complaint because
there is no underlying constitutional violation for which he can be held liable in
his official or individual capacity. Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Docket 36) is
32
granted.
IT IS FURTHER ORDERED that plaintiffs’ motion for partial summary
judgment (Docket 32) is denied.
Dated September 22, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
33
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