Ehlers v. City of Rapid City et al

Filing 63

ORDER granting in part and denying in part 39 Motion for Summary Judgment; granting in part and denying in part 43 Motion for Summary Judgment; adopting in part and rejecting in part 59 Report and Recommendation; overruling in part and sustaining in part 60 Objection to Report and Recommendation; overruling 61 Objection to Report and Recommendation. Signed by Chief Judge Jeffrey L. Viken on 3/8/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CR. 12-5093-JLV

RANDALL EHLERS,
Plaintiff,

ORDER

vs.
CITY OF RAPID CITY, a municipal
corporation, its agents, subsidiaries
and employees; SCOTT DIRKES,
JIM HANSEN, ROBERT RYBAK,
individually and in their official
capacity; JOHN DOE 1-10,
Defendants.
INTRODUCTION
Pending before the court are the defendants’ motions for summary
judgment.

(Dockets 39 & 43).

The court referred the motions to Magistrate

Judge Daneta Wollmann for resolution.

(Docket 58).

On September 4, 2015,

Magistrate Judge Wollmann filed a report recommending the court grant the
motions for summary judgment of defendants City of Rapid City and Rybak and
grant in part and deny in part the remaining defendants’ motion for summary
judgment.

(Docket 59).

timely filed objections.

Plaintiff and defendants Scott Dirkes and Jim Hansen
(Dockets 60 & 61).

The court reviews de novo those portions of the report and
recommendation which are the subject of objections.

Thompson v. Nix, 897

F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1).

The court may then

“accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”
A.

28 U.S.C. § 636(b)(1).

MAGISTRATE JUDGE’S FINDINGS OF FACT
Defendants Dirkes and Hansen (“defendants”) object to a number of the

magistrate judge’s findings of fact.

(Docket 61).

Because those objections are

not separately delineated in defendants’ objections, the court summarizes their
objections as follows:
1.

Before the takedown, other officers and bystanders
were calmly standing around. Id. at p. 20.

2.

That it is unclear whether Officer Hansen or Officer
Dirkes made the decision to arrest Mr. Ehlers. Id. at
p. 28.

Each of these objections will be separately addressed.

To the extent the

remainder of the magistrate judge’s statement of facts is unchallenged, those
facts are adopted by the court.
For summary judgment analysis, the facts and inferences from those facts
must be viewed in the light most favorable to Mr. Ehlers, the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
To put defendants’ objections in context, the court must first set the background
for the timeframe and substance of each objection.
On December 21, 2010, Mr. Ehlers, his wife, three adult children and
friends were in Rapid City, South Dakota, to attend a Rush hockey game at the
Rushmore Plaza Civic Center.

(Docket 59 at p. 2).
2

While Mrs. Ehlers and their

son, Derrik, were at a table in the hospitality area the table was somehow jostled
and beer spilled on Mrs. Ehlers.

Id.

Despite her efforts to explain the

situation, Civic Center staff asked Mrs. Ehlers to leave and she was escorted out
of the building by the staff.

Id. at pp. 2-3.

Because they were displeased with the manner in which their mother was
treated, her children began to yell profanities at the Civic Center staff.
p. 3.

These adults were instructed to leave the premises.

Id.

Id. at

While it is

unclear as to how these adults “engaged” the Civic Center staff, there is no
question that they did “engage” the staff and security guards of the Civic Center.
Id.
Rapid City Police Officer Sergeant Chris Hall was the first officer to arrive
and intervene.

Id.

Two of the Ehlers children rushed toward him and he

physically pushed them away.
screaming at him.

Id.

Id.

Officer Hall testified they were yelling and

Tyler Kaitfors, one of the Ehlers’ children who was

involved with Officer Hall, testified he was merely asking for the officer’s name
and badge number because Tyler was upset with the manner in which the
situation was being handled.
Id.

Id.

Desirae Ehlers twice pushed Officer Hall.

Derrik Ehlers, a third family member, got into a confrontation with a

bystander which required Officer Hall to break up that situation.
Officer Hall radioed for assistance.

Id.

Id.

Rapid City Police Officer Jim

Hansen arrived on scene and Officer Hall directed him to arrest Derrik.
p. 4.

Id. at

The dash camera video of one of the patrol cars shows Derrik appearing
3

calm and compliant.

Id.

Officer Hansen placed Tyler under arrest.

A third

Rapid City Police Officer, Matt McCroden, arrived and placed Desirae in
handcuffs.1
While these events were unfolding, Mr. Ehlers was watching the hockey
game inside the Civic Center.

Id.

Mr. Ehlers was advised of the confrontation

involving his family and when he got to the exterior doors of the Civic Center he
observed Derrik in handcuffs.

Id.

A dash camera video shows Mr. Ehlers, carrying a ladies’ purse,
approaching Officer Hansen in a slow and curious manner.
was to ask questions relating to the arrest of his son.

Id.

Id.

His purpose

Mr. Ehlers appeared

to be a confused parent seeking to find out why his son was under arrest.
Officer Hansen told Mr. Ehlers to step back to the curb.

Id.

Id. at p. 5.

Officer Hansen is seen on video pointing toward the Civic Center and in the
direction from which Mr. Ehlers came.
Officer Hansen.
Id.

Id.

Id.

Mr. Ehlers appears to step closer to

Mr. Ehlers continues to ask questions regarding his son.

Officer Hansen again points toward the Civic Center.

Id.

Because Mr.

Ehlers can no longer be seen on the video, it is assumed that he stepped to the
curb near the officer.

Id.

Officer Hansen stated he was going to count to three

and Mr. Ehlers had better be on the “far sidewalk.”

Id.

By stipulation of the parties the court entered an order dismissing all
claims against Officer McCroden. (Docket 38). Because Officer McCroden is
not a defendant, his conduct in placing Desirae into handcuffs is not relevant to
the court’s analysis.
1

4

Mr. Ehlers did not appear agitated or intoxicated and initiated contact with
Officer Hansen in a non-threatening manner.

Id.

Mr. Ehlers complied with the

officer’s request and can be seen putting his hands in the air briefly and walking
toward the far sidewalk.

Id.

The dash camera video from Officer McCroden’s patrol car shows Officer
Hansen with Derrik standing on the passenger side of Officer Hansen’s patrol
car.

Because the camera is picking up audio from Officer McCroden’s

encounter with Desirae some twenty feet away, there is no audio of Officer
Hansen’s conversation with Mr. Ehlers.

(Exhibit 19 at 21:00:39 to 21:00:43).

At this point it appears as though Officer Hansen is gesturing in the direction of
the Civic Center and Mr. Ehlers is off-screen to the right.
21:00:50.

Id. at 21:00:44 to

At this juncture, the woman who had accompanied Mr. Ehlers to the

area where Officer Hansen and Derrik were standing, turned and calmly walked
in the direction of the Civic Center.

Id. at 21:00:50-54.

Officer Hansen can be

seen gesturing and speaking to someone on the driver’s side of Officer
McCroden’s patrol car.

Id. at 21:01:05-06.

At this point, Mr. Ehlers walks

toward the Civic Center and gestures “o.k.” or “whatever” raising his arms into
the air.

Id. at 21:01:06-09.

From the perspective of Officer Dirkes’ patrol car camera, Mr. Ehlers can
be seen walking toward the Civic Center.
Dirkes’ microphone was on at this time.

(Exhibit 20 at 21:00:25-26).

Officer

(Docket 52-10 at p. 2 (62:18-19)).

Officer Dirkes testified that as he pulled up in his patrol car, “Officer Hansen
5

indicated a gentleman, pointed at him, and said he needed to be arrested. . . .
Take him to jail.

Arrest him.

Something along those lines.

the specific wording. . . . he needed to go to jail.
upon getting out of the car. . . . To arrest him.”

I don’t remember

Those were my instructions
(Docket 46-8 at p. 11 (53:8-19)).

Officer Dirkes testified that as Mr. Ehlers walked past him from the area of
Officer Hansen’s patrol car that Mr. Ehlers said “[f]uck you, I’m not going to jail.”
(Docket 52-10 at p. 2 (62:11-17)).

While Officer Dirkes’ open microphone picked

up other dialogue throughout the encounter, neither Officer Hansen’s
instructions nor Mr. Ehlers’ statements are on the recording. See Exhibit 20 at
21:00:25-30.

Mr. Ehlers denies having made any statement or that Officer

Hansen instructed Officer Dirkes to make an arrest.

(Docket 59 at p. 5).

For

summary judgment purposes the court must conclude these statements were
not made by either Officer Hansen or Mr. Ehlers.

Matsushita Elec. Indus. Co.,

475 U.S. at 587-88.
From Officer Dirkes’ car camera video, as he is walking toward Mr. Ehlers,
the officer can be heard speaking twice in the direction of Mr. Ehlers “put your
hands behind your back.”

(Exhibit 20 at 21:00:26-27).

As Mr. Ehlers

continued walking toward the Civic Center, Officer Dirkes grabbed him by the
neck and shoulder in the execution of a spin takedown.

Id. at 21:00:27-30.

Once on the ground, Mr. Ehlers is on his back with his arms in the air.
Id. at 21:00:32.

Officer Dirkes physically turned Mr. Ehlers over and he ended

up on his hands and knees holding a pair of glasses in his right hand.
6

Id. at

21:00:32-34.

Officer Dirkes is observed pushing down on Mr. Ehlers’ head,

shouting “put your hands behind your back.”

Id. at 21:00:34-35.

Another

officer appears to Mr. Ehlers’ left, puts his right knee on Mr. Ehlers’ left shoulder,
grabs his left arm and puts Mr. Ehlers face down on the ground.
21:00:35-37.

This officer then walked away.

Id. at 21:00:47-49.

Id. at
Officer

Ganser appears, grabs Mr. Ehlers’ right leg and pulls it out from underneath
him.

Id. at 21:00:44.

Officer Ganser places Mr. Ehlers’ right leg across the

back of his left leg, lifts and presses the left leg toward Mr. Ehlers’ back, and
presses him into the ground.

Id. at 21:00:45-50.

At this point South Dakota

Highway Patrol Trooper Rybak approaches Mr. Ehlers’ left side, grabs his left
arm from underneath his body and pulls the left arm up high into a fixed arm bar
position.2 Id. at 21:00:53-21:01:00.
Officer Dirkes readied his taser to “drive stun” and placed the prongs
against the bare skin of Mr. Ehlers’ lower back.
can be heard yelling “let him have it.”

Id.

(Docket 59 at p. 6).

Someone

Because the safety switch was on,

when Officer Dirkes attempted to engage his taser it did not fire.

Id.

Officer

Hansen felt Mr. Ehlers was not resisting and instructed Officer Dirkes not to use
the taser on Mr. Ehlers.

Id.

Mr. Ehlers claims he was then shocked by the

“An arm bar . . . is a lockout of the arm to where it cannot move or flex.”
(Docket 52-11 at p. 2 (36:9-10).
2

7

taser.3 Id.

The taser can be heard being activated by Officer Dirkes.

(Exhibit

20 at 21:00:58-21:00:00).
Mr. Ehlers was handcuffed and arrested for resisting arrest4 and
obstructing a police officer.5 (Docket 59 at p. 6).
an injury to his shoulders and left knee.
a torn rotator cuff, weakness and pain.
to improve.
1.

Id.

Mr. Ehlers alleges he suffered

The left shoulder injuries include

Id. at p. 7.

These injuries are not likely

Id.
BEFORE THE TAKEDOWN, OTHER OFFICERS AND
BYSTANDERS WERE CALMLY STANDING AROUND

In the analysis section of the report, Magistrate Judge Wollmann
concluded “Mr. Ehlers did not present any signs of violence or threat of violence
and did not create any danger of physical injury.

Before the takedown, other

Officer Dirkes claims to have moved his taser just in time so as to not
shock Mr. Ehlers. Because the court must view the evidence in the light most
favorable to Mr. Ehlers, the officer’s assertion is not relevant to the analysis.
Matsushita Elec. Indus. Co., 475 U.S. at 587-88.
3

SDCL § 22-11-4 provides: “Any person who intentionally prevents or
attempts to prevent a law enforcement officer, acting under color of authority,
from effecting an arrest of the actor or another, by: (1) Using or threatening to use
physical force or violence against the law enforcement officer or any other
person; or (2) Using any other means which creates a substantial risk of causing
physical injury to the law enforcement officer or any other person; is guilty of
resisting arrest. Resisting arrest is a Class 1 misdemeanor.”
4

SDCL § 22-11-6 provides “Except as provided in §§ 22-11-4 . . . any
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 . . . acting under color of authority . . . is guilty of obstructing
a law enforcement officer . . . . Obstructing a law enforcement officer . . . is a
Class 1 misdemeanor.”
5

8

officers and bystanders were calmly standing around.

That is not an

environment that suggests Mr. Ehlers was threatening or creating a risk of
physical injury.”

Id. at p. 21.

Defendants object to the magistrate judge’s

observation and conclusion that “[b]efore the takedown, other officers and
bystanders were calmly standing around.”

(Docket 61 at p. 20).

Defendants

argue this statement “is simply a misstatement of any of the record . . . including
the dash camera videos.”

Id.

Based on two separate dash camera videos the

defendants assert “[n]ot a single officer can be seen ‘calmly standing around.’ ”
Id. at pp. 20-21.
The court reviewed the relevant portions of the dash camera videos from
the patrol cars of Officer McCroden and Officer Dirkes.
21:02 and Exhibit 20 at 21:00:21 to 21:03).
accurate statement of what was occurring.

(Exhibits 19 at 21:00 to

The court finds the report is an
There was at least one woman who

walked calmly in front of Mr. Ehlers toward the Civic Center and two uniformed
patrol officers who seemed to be milling around with no real purpose.
these individuals can be described as “calmly standing around.”
p. 20).

Each of

(Docket 61 at

It is true that Officer Hansen can be seen placing Derrik in an officer’s

patrol car and Officer McCroden was dealing with Desirae on the ground
approximately twenty feet in front of Officer Dirkes’ patrol car.

This activity

does not affect the court’s assessment of the other individuals’ calm behavior.
Defendant’s objection is overruled.

9

2.

THAT IT IS UNCLEAR WHETHER OFFICER HANSEN OR
OFFICER DIRKES MADE THE DECISION TO ARREST
MR. EHLERS

Defendants object to the magistrate judge’s finding it was unclear which
officer “made the probable cause analysis and decision to arrest Mr. Ehlers.”
(Docket 61 at p. 28) (referencing Docket 59 at p. 18).

Defendants argue “the

testimony related to the probable cause decision is undisputed. . . . Both Officer
Dirkes and Officer Hansen agree that Officer Hansen made the decision to arrest
Ehlers.”

Id.

Viewing the evidence “in the light most favorable to Mr. Ehlers,” Magistrate
Judge Wollmann concluded “Officer Dirkes was not ordered to arrest Mr.
Ehlers.”

(Docket 59 at p. 17).

The magistrate judge also found that “Mr.

Ehlers denied that Officer Hansen ordered Officer Dirkes” to arrest him.
p. 18.

Id. at

Finally, the magistrate judge noted that “[w]hen Officer Dirkes arrived on

scene, he immediately began walking toward Mr. Ehlers commanding him to put
his hands behind his back.”

Id.

None of these findings by the magistrate judge

were objected to by the defendants.

In accord with 28 U.S.C. § 636(b)(1), these

factual statements developed by the magistrate judge are adopted for summary
judgment analysis purposes.
As described above, Officer Dirkes testified that as he pulled up in his
patrol car, Officer Hansen directed him to arrest Mr. Ehlers using specific words
to that effect.

(Docket 46-8 at p. 11 (53:8-19)).

Defendants have not directed

the court to any video camera or officer microphone recording which supports
10

Officer Dirkes’ testimony.
(Docket 59 at p. 5).

Mr. Ehlers denies any such statements were made.

On the status of this record, it is not clear that Officer

Hansen directed Officer Dirkes to arrest Mr. Ehlers.
Co., 475 U.S. at 587-88.

Matsushita Elec. Indus.

For summary judgment purposes, it is clear that

based on the observations he made, Officer Dirkes had no independent grounds
to arrest Mr. Ehlers.

Id.

Defendant’s objection is overruled.
B.

MAGISTRATE JUDGE’S CONCLUSIONS OF LAW
Plaintiff’s objections to the magistrate judge’s conclusions of law are:
1.

The magistrate judge erred as a matter of law in
concluding that Trooper Rybak’s use of force was
reasonable. (Docket 60 at p. 2); and

2.

The magistrate judge erred as a matter of law in
concluding plaintiff is not entitled to pursue a claim for
punitive damages. Id. at p. 4.

Defendants’ objections to the magistrate judge’s conclusions of law are:
1.

The magistrate judge erred as a matter of law in
concluding that Officer Hansen did not have probable
cause to arrest Mr. Ehlers. (Docket 61 at pp. 19 & 25);
and

2.

The magistrate judge erred as a matter of law in
concluding that Officer Dirkes did not have probable
cause to arrest Mr. Ehlers. Id. at pp. 28-29.

Each objection will be addressed separately.

11

C.

PLAINTIFF’S OBJECTIONS
1.

THE MAGISTRATE JUDGE ERRED AS A MATTER OF
LAW IN CONCLUDING THAT TROOPER RYBAK’S USE
OF FORCE WAS REASONABLE

Plaintiff argues the undisputed “evidence shows that Trooper Rybak pulled
out the Plaintiff’s left arm [from underneath him], locked his elbow, and shoved
his arm forward before placing it behind the Plaintiff’s right arm.”

(Docket 60 at

p. 2) (referencing Trooper Rybak’s car video, Exhibit 18, and Officer Dirkes’ car
video, Exhibit 20).

Plaintiff asserts that even Trooper Rybak acknowledges the

force he employed was unreasonable.
Docket 52-11 at p. 2 (36:20-24)).

Id. (citing Trooper Rybak’s deposition,

Plaintiff contends that even if “Trooper Rybak

did mistakenly believe that the Plaintiff was resisting arrest, the control
maneuver utilized . . . was nonetheless unreasonable because such a maneuver
is not appropriate.”

(Docket 60 at p. 3).

The magistrate judge concluded that “[f[rom Trooper Rybak’s point of view,
considering the totality of the circumstances at the time, upon his arrival on
scene Mr. Ehlers was on the ground with his left arm under his body.

Trooper

Rybak mistakenly, but reasonably believed that Mr. Ehlers was resisting the
officer’s efforts to secure his left arm.

Therefore, as a matter of law, Trooper

Rybak’s actions were not objectively unreasonable.”

(Docket 59 at p. 14).

The

magistrate judge relied on Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012) and
Janis v. Biesheuvel, 428 F.3d 795 (8th Cir. 2005) to arrive at this conclusion.
Id.
12

Carpenter instructs that “[t]he reasonableness of a use of force depends on
the particular facts and circumstances, 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.’ ”

Carpenter, 686 F.3d at 649 (citing Graham v. Connor, 490

U.S. 386, 396 (1989)).

“Law enforcement officers may use physical force to

subdue an arrestee when he fails to comply with orders to lie still during
handcuffing.”

Id.

The court in Carpenter concluded that an officer who

reasonably perceives an individual’s conduct as resisting arrest may “respond[]
with an amount of force that was reasonable to effect the arrest.”

Id. at 650

(referencing McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir. 2011) (“We must
judge the reasonableness of the force ‘from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight,’ and we must make
‘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.’ ”
(citing Graham, 490 U.S. at 396-97).
Plaintiff argues the facts presented in his case are different from those
presented in Janis.

(Docket 60 at p. 3).

In Janis, the court found removing an

elderly man suspected of driving while intoxicated from a vehicle which had been
the subject of a 30-minute chase and shoving him face first into the concrete
highway was reasonable.

“At the time they pulled Richards from the car . . .
13

officers did not know that [the driver’s] actions were the result of a diabetic
seizure, not intoxication.

Further, the officers did not know what level of risk

[he] posed (i.e., whether he possessed a weapon).”

Janis, 428 F.3d at 800.

“In

light of the officers’ knowledge at the time of the events, the evidence does not
prove that the officers’ actions constituted excessive force.”

Id.

Mr. Ehlers claims he “was already lying in a prone position and attempting
to comply with officer commands.”

(Docket 60 at p. 3).

“Unlike the driver in

Janis,” Mr. Ehlers claims he “did not exhibit any dangerous behavior and
complied with law enforcement to the best of his ability.”

Id. at p. 4.

Trooper Rybak’s car camera shows that as he approached the location
where an individual can be seen lying face down with two officers on his back,
one of those officers was shouting “put your hands behind your back.”
20 at 21:00:34-35).

(Exhibit

Trooper Rybak could see that Mr. Ehler’s left arm was not

exposed and was underneath his body.

It was reasonable for Trooper Rybak to

grab Ehler’s left arm, pull it from beneath his body and prepare the arm for
handcuffing.

Carpenter, 686 F.3d at 650; Janis, 428 F.3d at 800.

It was neither necessary nor a reasonable use of force for Trooper Rybak to
place Mr. Ehlers’ left arm in a locked position and push it forward toward his
head prior to swinging the arm toward the small of his back for handcuffing.
Trooper Rybak admitted as much when he testified it would not be appropriate
for purposes of handcuffing a suspect to have the suspect’s arm “locked up”
behind him, and then have that arm “push[ed] forward [toward the suspect’s
14

head] before bringing it back down to engage the handcuffs.”
p. 2 (36:20-24)).

(Docket 52-11 at

Trooper Rybak’s conduct and his own admission are

“sufficient for a jury to find that the officer[’s] actions were unreasonable.”
Janis, 428 F.3d at 800.
Plaintiff’s objection to the report and recommendation is sustained.
Trooper Rybak is not entitled to qualified immunity against Mr. Ehlers’ excessive
force claim.

The report is rejected to the extent it recommends dismissal of Mr.

Ehlers’ claim against Trooper Rybak.
2.

THE MAGISTRATE JUDGE ERRED AS A MATTER OF
LAW IN CONCLUDING PLAINTIFF IS NOT ENTITLED TO
PURSUE A CLAIM FOR PUNITIVE DAMAGES

Plaintiff’s challenge to the report and recommendation on this basis is
deferred until the court determines whether the defendants’ challenges warrant
rejection of the report and recommendation and dismissal of plaintiff’s claims
against defendants Dirkes and Hansen.
D.

DEFENDANTS’ OBJECTIONS
Defendants’ objections use broad categories of law to challenge the report

and recommendation without making particularized objections to the
conclusions of law.

The court summarizes defendants’ objections as follows:

1.

Whether there is a clearly established constitutional
right that an arrestee may not be taken down when his
actions can be interpreted as resistance. (Docket 61 at
p. 9);

2.

Whether Officer Dirkes’ use of a taser violated a clearly
established right. Id. at pp. 14-15;
15

3.

Whether Officer Hansen had arguable probable cause to
arrest Mr. Ehlers. Id. at pp. 21, 25 & 27; and

4.

Whether Officer Hansen and Officer Dirkes are entitled to
qualified immunity. Id. at p. 18.

Each of the defendants’ objections will be separately addressed.
1.

WHETHER THERE IS A CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHT THAT AN ARRESTEE MAY
NOT BE TAKEN DOWN WHEN HIS ACTIONS CAN BE
INTERPRETED AS RESISTANCE

Defendants claim the magistrate judge erred as a matter of law because
“[t]here is no ‘clearly established’ constitutional right that an arrestee may not be
taken down when their actions are interpreted as resistance.”

Id. at p. 9.

The

defendants claim this error occurred because the magistrate judge failed to
include Carpenter, 686 F.3d 644, in the analysis of Officer Dirkes’ actions.

Id.

The defendants assertion that Carpenter should have been considered by
the magistrate judge and results in judgment in defendants’ favor is misplaced.
The magistrate judge found that Mr. Ehlers “was exhibiting no criminal activity.
. . . wasn’t told he was under arrest, or that he would be arrested.
attempting to evade arrest by flight.”

(Docket 59 at p. 12).

He wasn’t

“The other officers’

demeanor and the lack of apparent concern about Mr. Ehlers indicates that he
wasn’t a threat to the safety of other officers.”

Id.

Carpenter involves a

scenario significantly different from the situation confronting Officer Dirkes.

In

Carpenter, the individual had threatened to use a baseball bat on a paramedic

16

and from the officers’ perspective may have been heading back into his home to
obtain a firearm.

Carpenter, 686 F.3d at 649.

The magistrate judge equated Mr. Ehlers’ conduct to be closely akin to the
conduct of the plaintiff in Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014).
(Docket 59 at pp. 11-12).

“Peterson was a non-fleeing, non-resisting,

non-violent misdemeanant.”

Peterson, 754 F.3d at 600.

“The Supreme Court

has explained 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.’ . . . An officer’s use of force will violate the Fourth Amendment if it is
not ‘objectively reasonable.’ ”

Id. (citing Graham, 490 U.S. at 396-397).

Although not cited by the magistrate judge or acknowledged by the parties,
Small v. McCrystal, 708 F.3d 997 (8th Cir. 2013), is also factually similar to Mr.
Ehlers’ conduct.

Mr. Small “did not pose an immediate threat to the safety of

the officers or others. . . . was walking away from them . . . He was not in flight or
resisting arrest.
1005.

McCrystal had not advised him he was under arrest.”

Id. at

“It was unreasonable for McCrystal to use more than de minimis force

against Small by running and tackling him from behind without warning.”

Id.

(referencing Shannon v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010); Bauer v.
Norris, 713 F.2d 408, 412-13 (8th Cir. 1983) (establishing that no use of force
was reasonable where the plaintiffs were charged with disorderly conduct, there
was no evidence that any crime had been committed, and no evidence that the

17

plaintiffs physically resisted or threatened the officer—even though the plaintiffs
were “argumentative, vituperative, and threatened legal action”).
Mr. Ehlers posed no immediate threat to the officers’ safety and he was not
a flight risk.

The magistrate judge correctly applied the law and concluded that

a jury question exists as to whether Officer Dirkes’ conduct was unreasonable
under the circumstances.

(Docket 59 at pp. 11-12).

Defendants’ objection is

overruled.
2.

WHETHER OFFICER DIRKES’ USE OF A TASER
VIOLATED A CLEARLY ESTABLISHED RIGHT

The defendants argue the magistrate judge erred because the use of a
taser when an individual is resisting arrest “is not a violation of a clearly
established right.”

(Docket 61 at pp. 14-15).

Defendants cite Hollingsworth v.

City of St. Ann, 800 F.3d 985, 990 (8th Cir. 2015) (citing LaCross v. City of
Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013)), as support for their argument.
Id. at 14.

The court in Hollingsworth was evaluating the status of the law in

2009 and when the United States Court of Appeals for the Eighth Circuit
concluded that the state of the law was unresolved as to whether the use of a
taser causing a “de minimis injury could sustain an excessive force claim under
the Fourth Amendment . . . .”

Hollingsworth, 800 F.3d at 991.

What is missing from defendants’ argument is an acknowledgement that
at the time Officer Dirkes’ applied the taser, Mr. Ehlers was no longer resisting
arrest and any use of a taser would be unreasonable.
18

“When a suspect actively

resists arrest, the police may use a taser (or a knee strike) to subdue him; but
when a suspect does not resist, or has stopped resisting, they cannot.”

Rudlaff

v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015).
Further, it is unclear whether Mr. Ehlers’ left knee injury and rotator cuff
strain occurred from being aggressively thrown to the ground by Officer Dirkes or
whether Officer Rybak’s use of an arm-bar maneuver caused the injury to Mr.
Ehlers’ shoulder.

Viewing the evidence in the light most favorable to Mr. Ehlers

as the non-moving party, the court cannot conclude as a matter of law that Mr.
Ehlers’ injuries were de minimus so as to grant Officer Dirkes dismissal based on
qualified immunity.

Peterson, 754 F.3d at 598.

Defendants’ objection is overruled.
3.

WHETHER OFFICER HANSEN HAD ARGUABLE
PROBABLE CAUSE TO ARREST MR. EHLERS

Mr. Ehlers was arrested for obstructing a police officer and resisting
arrest.

(Docket 61 at p. 21).

Defendants argue the magistrate judge

misapplied the law in concluding Officer Hansen had no “arguable probable
cause” to arrest Mr. Ehlers for either one of these offenses.

Id. at pp. 21 & 27.

The defendants submit that the magistrate judge “concluded that it was
reasonable to believe Ehlers was resisting based upon his conduct at the scene.”
Id. at p. 27 (citing Docket 59 at p. 14).
The magistrate judge’s statement is taken out of context.

What the report

states is that “Trooper Rybak mistakenly, but reasonably believed that Mr.
19

Ehlers was resisting the officer’s efforts to secure his left arm.”
14).

(Docket 59 at p.

This is a far cry from a finding that Officer Hansen reasonably believed he

had arguable probable cause to arrest Mr. Ehlers for resisting arrest.

“Actual

resistance” to the process of being arrested “is not the actionable element of
resisting arrest . . . . Rather, it requires the threat of force or violence [an
expression or indication to inflict pain, injury . . . or punishment on an officer].”
State v. Sullivan, 673 N.W.2d 288, 291 (S.D. 2003).

The individual’s actions

must “be tantamount to a threat of force or violence” against the officer.

Id.

(emphasis in original).
The magistrate judge concluded that “Mr. Ehlers delayed approximately
20 seconds before moving to the far sidewalk.”

(Docket 59 at p. 20).

The report

concluded “[o]n Mr. Ehlers’ facts, it was not objectively reasonable for Officer
Hansen to believe that Mr. Ehlers intended to hinder Officer Hanson in the
performance of his duties.”

Id. at pp. 20-21.

The defendants claim that for the offense of obstruction of a police officer
“[t]here is no duration requirement in SDCL § 22-11-6.

Nor is there a

requirement that an arrestee stand directly in the path of the officer.”
61 at p. 24).

(Docket

Defendants do not cite the court to any cases which support

defendants’ argument with facts similar to those presented in this case.
The magistrate judge considered cases analogous to the facts presented
here.

(Docket 59 at p. 20) (referencing State v. Wiedman, 321 N.W.2d 539 (S.D.

1982) and State v. Hodges, 631 N.W.2d 206 (S.D. 2001)).
20

In Wiedman, “there

was a head-to-head confrontation with appellant standing directly in the path of
the officer and refusing to move.

When Officer Morrison gave appellant a direct

order to move and go home, appellant had no further right to be there and his
refusal to move was a physical interference with the officer’s attempt to disperse
this drunken, unruly mob and preserve the peace.”
541-42 (S.D. 1982).

Wiedeman, 321 N.W.2d at

See also Hodges, 631 N.W.2d at 211 (the individual fled the

site of a traffic stop, ran into a bathroom and refused to come out).
Contrary to the defendants’ assertions, Mr. Ehlers did not confront Officer
Hansen, did not interfere with the arrest of Derrik and did not refuse to return to
the curb.

There is no reasonable interpretation of this undisputed evidence

which constituted “arguable probable cause” to arrest Mr. Ehlers for obstruction.
Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005).
Defendants’ objection is overruled.
4.

WHETHER OFFICER HANSEN AND OFFICER DIRKES
ARE ENTITLED TO QUALIFIED IMMUNITY

The defendants argue that “Magistrate Wollmann has not found, even
assuming the facts in a light most favorable to Ehlers, that the conduct of
Officers Dirkes or Hansen was ‘plainly incompetent,’ a ‘knowing violation of the
law,’ or conduct which is ‘intentional or reckless, thereby shocking the
conscience.’

Without such a finding, summary judgment is appropriate for

each of the Defendants, notwithstanding whether or not the Court believes their
conduct was questionable or negligent.”
21

(Docket 61 at p. 18).

“Qualified immunity protects governmental officials from liability for civil
damages when they are performing discretionary functions and their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”

Brockinton v. City of Sherwood, Ark.,

503 F.3d 667, 671 (8th Cir. 2007) (referencing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

“This immunity ‘provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.’ ”
(citing Malley v. Briggs, 475 U.S. 335, 341(1986)).

Id. at 671-72

“Because the qualified

immunity privilege extends to a police officer who is wrong, so long as he is
reasonable, the governing standard for a Fourth Amendment unlawful arrest
claim ‘is not probable cause in fact but arguable probable cause . . . that is,
whether the officer should have known that the arrest violated plaintiff's clearly
established right.”

Walker, 414 F.3d at 992 (citing Habiger v. City of Fargo, 80

F.3d 289, 295 (8th Cir.1996)).
“Reasonableness” is the measure of an officer’s conduct under a Fourth
Amendment qualified immunity analysis.

Reasonableness is judged by

“whether the officer should have known that the arrest violated plaintiff’s clearly
established right.”

Id.

Because “no reasonable police officer could believe that

he had arguable probable cause to arrest such an on-looker in this situation, for
obstruction . . . [,]” denial of defendants’ motion for qualified immunity protection
is proper.

Id. at 993 (referencing Saucier v. Katz, 533 U.S. 194, 202 (2001)).

The court is not required to find the officers “plainly incompetent” or “intentional
22

or reckless, thereby shocking the conscience” as suggested by the defendants.
(Docket 61 at p. 18).
Defendants’ objection is overruled.
E.

PLAINTIFF’S OBJECTION REGARDING PUNITIVE DAMAGES
2.

THE MAGISTRATE JUDGE ERRED AS A MATTER OF
LAW IN CONCLUDING PLAINTIFF IS NOT ENTITLED
TO PURSUE A CLAIM FOR PUNITIVE DAMAGES

The magistrate judge recommends dismissal of Mr. Ehlers’ claim for
punitive damages (1) because Trooper Rybak is no longer a defendant; and (2)
because “[e]ven in the light most favorable to Mr. Ehlers, there are no facts to
support that Officer Dirkes or Officer Hansen’s conduct was motivated by evil
motive or intent.”

(Docket 59 at p. 31). Mr. Ehlers claims the magistrate judge

erred by concluding the officers’ conduct did not warrant permitting plaintiff’s
claim for punitive damages to proceed to trial.

(Docket 60 at p. 4).

He asserts

that while the magistrate judge may have properly evaluated “evil motive or
intent,” the magistrate judge failed to consider whether the “conduct of the
officers amounted to reckless indifference.”

Id.

In support of his argument,

plaintiff references Walters v. Grossheim, 990 F.2d 381, 385 (8th Cir. 1993)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983) (punitive damages are available
“when the defendant’s conduct . . . involves reckless or callous indifference to the
federally protected rights of others.”) (emphasis removed).
The report and recommendation is now inconsistent with the court’s order
because of the finding that Trooper Rybak is not entitled to qualified immunity
23

on Mr. Ehlers’ excessive force claim.

Additionally, the report and

recommendation fails to consider plaintiff’s claim for punitive damages based on
reckless indifference to his federally protected rights by Officers Hansen and
Dirkes.

Plaintiff’s complaint specifically seeks punitive damages alleging “the

Defendants acted with reckless disregard to the Plaintiff’s constitutional rights.”
(Docket 1 at ¶ 29). Plaintiff briefed the issue of punitive damages on the basis of
reckless indifference as part of his resistance to the defendants’ motion for
summary judgment.

(Docket 49 at pp. 14-15).

“Punitive damages may be assessed in a § 1983 case when a ‘defendant’s
conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others.’ ”
Swipies v. Kofka, 419 F.3d 709, 717-18 (8th Cir. 2005) (citing Smith, 461 U.S. at
56).

“[T]o prove reckless indifference, requires evidence that the defendant

acted ‘in the face of a perceived risk that [his or her] actions [would] violate
federal law.’ ”

Id. at 718 (citing Kolstad v. American Dental Association, 527

U.S. 526, 536 (1999)).

“Reckless indifference,” when considered in light of a

§ 1983 claim equates “to a ‘subjective consciousness’ of a risk of injury or
illegality and a ‘criminal indifference to civil obligations.’ ”

Kolstad, 527 U.S. at

536 (citing Smith, 461 U.S. at 37 & 41).
The officers “motive[s] [are] . . . question[s] of fact.”
Borders, 764 F.3d 966, 974 (8th Cir. 2014).
is sustained.

Lee ex rel. Lee v.

For this reason, plaintiff’s objection

The report is rejected to the extent it recommends dismissal of Mr.
24

Ehler’s punitive damages claim against Officer Dirkes, Officer Hansen and
Trooper Rybak.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s objections (Docket 60) to the report and
recommendation are overruled in part and sustained in part consistent with this
order.
IT IS FURTHER ORDERED that defendants’ objections (Dockets 61) to the
report and recommendation are overruled.
IT IS FURTHER ORDERED that the report and recommendation
(Docket 59) is adopted in part and rejected in part consistent with this order.
IT IS FURTHER ORDERED that defendant Trooper Rybak’s motion for
summary judgment (Docket 39) is granted in part and denied in part.
IT IS FURTHER ORDERED that the motion for summary judgment of
defendants City of Rapid City, Officer Dirkes and Officer Hansen (Docket 43) is
granted in part and denied in part.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to all
claims against the City of Rapid City is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to claims
against Officer Dirkes, Officer Hansen and Trooper Rybak in their official
capacity is dismissed with prejudice.

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IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to the
§ 1983 unlawful or malicious prosecution claims against Officer Dirkes, Officer
Hansen and Trooper Rybak is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to the
state law claims of false imprisonment, abuse of process and intentional
infliction of emotional distress against Officer Dirkes, Officer Hansen and
Trooper Rybak is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s complaint asserting liability
against Officer Dirkes, Officer Hansen and Trooper Rybak as joint tortfeasors is
dismissed with prejudice.
IT IS FURTHER ORDERED that Officer Dirkes’ motion for summary
judgment on the basis of qualified immunity as to plaintiff’s § 1983 excessive
force claim is denied.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to the
§ 1983 excessive force claim against Officer Hansen is dismissed with prejudice.
IT IS FURTHER ORDERED that Trooper Rybak’s motion for summary
judgment on the basis of qualified immunity as to plaintiff’s § 1983 excessive
force claim is denied.
IT IS FURTHER ORDERED that Officer Dirkes’ motion for summary
judgment on the basis of qualified immunity as to plaintiff’s § 1983 unlawful
arrest claim is denied.

26

IT IS FURTHER ORDERED that Officer Hansen’s motion for summary
judgment on the basis of qualified immunity as to plaintiff’s § 1983 unlawful
arrest claim is denied.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to the
§ 1983 unlawful arrest claim against Trooper Rybak is dismissed with prejudice.
IT IS FURTHER ORDERED that Officer Dirkes’ motion for summary
judgment as to plaintiff’s state law claims of assault and battery is denied.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to the
state law claims of assault and battery against Officer Hansen is dismissed with
prejudice.
IT IS FURTHER ORDERED that Trooper Rybak’s motion for summary
judgment as to plaintiff’s state law claims of assault and battery is denied.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment as to plaintiff’s complaint seeking punitive damages is denied.
Dated March 8, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

27