Cardall et al v. Thompson et al
Filing
88
MEMORANDUM DECISION granting in part and denying in part 42 Motion for Summary Judgment. Signed by Judge Clark Waddoups on 01/11/2012. (asp)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
ANNA SCHMIDT CARDALL et al.,
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
Case No. 2:10-cv-305 CW
KENNETH THOMPSON et al.,
Judge Clark Waddoups
Defendants.
Defendants have filed a Motion for Summary Judgment, asking that the court rule in their
favor on all Plaintiffs’ claims. After a careful review of the record, and for the reasons explained
below, summary judgment is GRANTED in part and DENIED in part.
Plaintiffs’ Complaint lists seven causes of action. The First Cause of Action alleges that
Defendant Kenneth Thompson (“Thompson”) deprived both Brian and Anna Cardall of their
constitutional rights. The Second Cause of Action brings the same claims against Defendant
Lynn Excell (“Excell”). The Third Cause of Action maintains that Hurricane City and Chief
Excell are liable for any unconstitutionality in Brian Cardall’s tasing or Anna Cardall’s detention
because they were done in accordance with the city’s policies and training. These first three
claims are brought by Anna Cardall for herself and on behalf of her deceased husband. The
Fourth Cause of Action, brought by Anna Cardall on behalf of Brian Cardall, states Thompson,
Excell, and Hurricane City all violated the Utah State Constitution. The Fifth Cause of Action,
against Thompson and Excell, states that they are liable to Anna Cardall for intentional infliction
of emotional distress. The Sixth Cause of Action is a claim of wrongful death against Thompson
for tasing Brian Cardall, and the Seventh Cause of Action is a claim of wrongful death against
both Thompson and Excell for failing to provide medical assistance to Brian after the incident.
These final two claims are brought on behalf of all Plaintiffs.1
For the reasons given below, the First, Second, and Third Causes of Action are partially
dismissed, insofar as they pertain to Anna’s detention. Plaintiffs’ Seventh Cause of Action is
also dismissed. As to the remainder of the claims, however, summary judgment is precluded by
disputed issues of material fact.
FACTS
On June 9, 2009, Plaintiff Anna Cardall, together with her husband Brian Cardall and
their two year old daughter Ava Cardall, was driving through Washington County.2 Brian had
been diagnosed with bipolar disorder,3 and when he began acting strangely Anna pulled over to
1
The plaintiffs in this case are Anna Cardall, Brian’s wife; Ava and Bella Cardall, Brian’s
children; and Duane and Margaret Cardall, Brian’s parents.
2
As all Plaintiffs and the decedent share the same last name, they will be referred to throughout
this opinion by their first names. No disrespect is so intended.
3
Plaintiffs object to references to Brian’s “bipolar” diagnosis in Defendants’ briefs, arguing that
such references are made without foundation and are not relevant. See Memo in Supp. of Mot. to
Strike at 9, Dkt. No. 60 (July 14, 2011). Plaintiffs are correct that the medical records
Defendants relied on to support their allegation that Brian was diagnosed with bipolar disorder
are inadmissible hearsay. See Field v. Trigg County Hosp., Inc., 386 F.3d 729 (6th Cir. 2004)
(“[T]he hearsay exception set forth in Fed. R. Evid. 803(4) applies only to statements made by
the one actually seeking or receiving medical treatment.); Bombard v. Fort Wayne Newspapers,
92 F.3d 560 (7th Cir. 1996) (“Rule 803(4) does not purport to except, nor can it reasonably be
interpreted as excepting, statements by the person providing the medical attention to the
patient.”); Bulthuis v. Rexall Corp., 789 F.2d 1315 (9th Cir. 1985) (“Rule 803(4) applies only to
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the side of the road to give him some medication from the trunk. Brian took the medication, but
refused to get back in the car and began taking off his clothes. Eventually, Anna called 911.
The 911 operator sent a dispatch out to law enforcement. Officer Thompson and Chief of
Police Excell, both of the Hurricane City Police Department, responded to the call. En route,
they were told by dispatch that the situation was “psychiatric.” Transcript of Ken Thompson
Recorder (“Thompson Recorder”) at 13, Exhibit 26 to Memorandum in Opposition to Summary
Judgment, Dkt. No. 64 (July 14, 2011) (“Memo in Opp. to SJ”). They were further informed that
“[t]he male is trying to get back in the vehicle and the female does not want him back in the
vehicle because there’s a two-year-old. Advising he’s out of control, talking about meeting with
the president” and that “he keeps running cross the road, thinking that he’s directing traffic.” Id.
at 13–14.
Officer Thompson and Chief Excell arrived on the scene at approximately the same time.
Thompson was in a semi-marked police car and was wearing a uniform, while Excell was in an
unmarked car and was wearing a polo shirt with a small police insignia. Neither officer had a
statements made by the patient to the doctor, not the reverse.”). However, Defendants also relied
on deposition testimony from Anna Cardall to support their allegation that Brian was diagnosed
as bipolar. See Memo in Supp. of Mot. for Summ. J. at 6, Dkt. No. 43 (June 13, 2011). While
Anna is not qualified as an expert to testify that Brian did in fact have bipolar disorder, she can
testify that she believed that he had such a disorder or a similar disorder, and that she gave him
medication for such.
The court makes reference to Brian’s bipolar disorder in order to give context to the
relevant facts that follow. The court makes no finding of fact that Brian was, in fact, bipolar. If
the parties believe this fact is relevant to the claims at issue in this case, they will need to support
the allegation that Brian Cardall had bipolar disorder with additional admissible evidence.
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dash cam, but Thompson was wearing an audio recording device. Both Thompson and Excell
weighed approximately 200 pounds at the time, Defendants’ Answers to Plaintiffs’ First Set of
Written Discovery at 4, Exhibit 34 to Memo in Opp. to SJ, while Thompson estimated Brian
Cardall weighed 150 pounds, Deposition of Raleigh Morris at 44–45, Exhibit 12 to Memo in
Opp. to SJ.
When the officers arrived, Brian was completely naked and standing in the turnout where
Anna had parked. After initially telling Brian to “come here,” Thompson told Brian to get down
on the ground thirteen times. Id. at 16–17. Excell also repeatedly told Brian to get down. Id.
Brian kept turning from Thompson to Excell to Anna. According to Thompson, “[Brian] would
go down on his knees and then he would get back up and then down on his knees and then back
up. He did that several times. And then walking back and forth between all of us.” Interview
with Kenneth Thompson at 13, Exhibit EE to Notice of Filing Additional Exhibits in Support of
Defendants’ Motion for Summary Judgment, Dkt. No. 51 (June 13, 2011) (“Additional
Exhibits”). From Brian’s comments it appears that Brian believed that Thompson intended to
harm Excell, and Brian begged him not to shoot. Transcript of Taped Proceedings at 5, Exhibit
D to Reply to Response to Motion for Summary Judgement, Dkt. No. 74 (Aug. 22, 2011)
(“Reply to SJ”) (although the transcript misidentifies the speaker as a police officer, both parties
agree that it was Brian Cardall who stated “This is a standoff. Don’t shoot him” and “Standoff.
Don’t shoot him, guys.”).
What happened next is subject to conflicting eyewitness accounts. Anna testifies that
Brian turned towards Thompson as though he were about to say something, and Thompson tased
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him. Deposition of Anna Cardall at 104–05, Exhibit 6 to Memo in Opp. to SJ. A passing driver
stated that Brian took “one small step” towards Thompson prior to the tasing. Deposition of
Lorry Stratton at 18, Exhibit O to Memorandum in Support of Motion for Summary Judgment,
Dkt. No. 43 (June 13, 2011) (“Memo in Supp. of SJ”) . Officer Thompson and Chief Excell,
however, have stated that Brian “charged” at Thompson, closing the distance between them very
quickly, and that Thompson was forced to deploy the taser in self-defense.4 See Interview of
Officer Ken Thompson at 14, Exhibit B to Reply to SJ; Interview of Chief Lynn Excell at 18,
Exhibit A to Reply to SJ. In any event, it is uncontroverted that Brian was tased approximately
42 seconds after Officer Thompson’s first command to Brian, Defendants’ Answer at 8, Dkt. No.
10 (May 7, 2010), and that Brian was not given a warning about the taser prior to its deployment,
Deposition of Kenneth Bailey Thompson at 48, Exhibit E to Memo in Supp. of SJ; Thompson
Recorder.
According to its internal log, the taser was deployed for the full five second cycle. Some
of the witnesses report that Brian began to immediately get up, but another states that he
remained prone. Compare Deposition of Kenneth Bailey Thompson at 52, Exhibit E to Memo in
Supp. Of SJ (“[H]e was getting up. He was still a threat.”) and Deposition of Lynn Excell at 59,
Exhibit 9 to Memo in Opp. to SJ (“Brian got up at least on one knee or both knees starting to
4
Because virtually all of the evidence, including the vehicles and the confetti-like tags dispersed
by the taser upon firing, was moved before the investigative team arrived, there is no physical
evidence indicating how far Brian was from Thompson when he was tased. A bloodstain on the
gravel indicated, however, that Brian was twenty feet from the edge of the road when he fell to
the ground. Redfearn Site Sketch and Measurements, Exhibit 33 to Memo in Opp. to SJ.
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stand back up”) with Deposition of Lorry Stratton at 10, Exhibit 17 to Memo in Opp. to SJ
(“[O]nce he went down he didn’t move. He was laying there.”). Two seconds after the end of
the first tasing, Thompson deployed the taser for another five second cycle. Excell then
handcuffed Brian, which took several seconds. Immediately after the handcuffing, one of the
officers radioed the paramedics, who had arrived at the scene during the time of the first tasing
and were parked in the same turnout where the tasing occurred. Before the paramedics reached
Brian, a third officer who had just arrived noticed that Brian was not breathing and did not have a
pulse. The paramedics worked on Brian at the scene and then transported him to a nearby
hospital, where he was pronounced dead.5
Almost immediately following the tasing, Anna called Duane Cardall, Brian’s father, to
inform him of the incident. While Officer Thompson stood nearby, Nate Brooksby, an officer
from the Washington County Sheriff’s Office, told Anna to hang up her phone. Officer
Brooksby then, while in the presence of both Thompson and Excell, instructed Deputy Judy of
Washington County to escort Anna to the county sheriff’s office for an interview. Thompson and
Excell said nothing, and Judy asked Anna if she would mind coming down to the police station
with him. Anna complied, following Officer Judy in her own vehicle. Once she arrived, she was
kept waiting with her toddler for nearly an hour, was not allowed to have visitors, and was not
informed that her husband had died until after the interviews had concluded.
5
This statement of facts includes those facts that were known to the defendants prior to and at
the moment Brian was tased. Defendants have offered additional facts that were not known to
the defendants until later. The court has sustained Plaintiffs’ objection to those facts and
disregarded them in this analysis.
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LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is
“genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve
the issue either way.” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). A
fact is “material” if it is “essential to the proper disposition of the claim.” Id. The court views
the evidence in the light most favorable to the non-moving party, as “evidence of the non-movant
is to be believed and all justifiable inferences are to be drawn in the [non-movant’s favor].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
ANALYSIS
I.
§ 1983 AND QUALIFIED IMMUNITY
Defendants have argued that the First and Second Causes of Action should be dismissed
on grounds of qualified immunity, insofar as they assert a cause of action under § 1983 for the
use of excessive force against Brian Cardall. Qualified immunity insulates government officials
from personal civil liability as long as “their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). After the defendant contends that qualified immunity applies, the
plaintiff must prove that the defendant violated his rights, as protected by clearly established law.
V-1 Oil Co. v. Wyoming, 902 F.2d 1482 (10th Cir. 1990). Although the burden shifts to the
plaintiff, the court must continue to view the facts in the light most favorable to the non-moving
party. Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010).
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In order avoid having her claims barred by qualified immunity, Anna must show that
Thompson and Excell’s activity was unconstitutional and that this unconstitutionality was clearly
established at the time it occurred. As explained below, if the facts are viewed in the light most
favorable to Anna, the officers’ actions violated the Fourth Amendment. Furthermore, as of June
2009, it was clearly established that this use of excessive force was unconstitutional.
A.
Excessive Force
When police officers are sued for using excessive force, the constitutionality of their
conduct under the Fourth Amendment is evaluated under the Graham analysis.6 Under this
analysis, the inquiry is whether the officers’ actions were objectively reasonable as judged from
the perspective of a reasonable officer on the scene, recognizing that officers are often forced to
make split-second decisions and should not be held to the exacting scrutiny of hindsight.
Graham v. Connor, 490 U.S. 386, 396–97 (1989). Only that information which was known to
the officers at the time is examined in making this determination. See Weigel v. Broad, 544 F.3d
1143, 1152 (10th Cir. 2008).
Under Graham, the court should assess the “nature and quality of the intrusion on the
individual’s Fourth Amendment interests” and the “countervailing governmental interests at
stake.” Id. at 396. This is an inquiry which involves consideration of the specific facts,
including “the severity of the crime at issue, whether the suspect poses an immediate threat to the
6
As Defendants have conceded that Brian Cardall was “seized” at the time of the tasing, there is
no need for the court to analyze Thompson and Excell’s behavior under the Fourteenth
Amendment in addition to the Fourth Amendment Graham analysis.
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safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. The Tenth Circuit has also stated that “a detainee’s mental health must be
taken into account when considering the officers’ use of force . . . under Graham.” Giannetti v.
City of Stillwater, 216 Fed. Appx. 756, 764 (10th Cir. 2007).
In evaluating the “nature and quality of the intrusion on the individual’s Fourth
Amendment interests” caused by a tasing, the number and length of electric shocks given to the
subject is generally relevant. Within the Tenth Circuit, however, any use of a taser constitutes a
severe intrusion on the interests protected by the Fourth Amendment. Cavanaugh v. Woods
Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (internal quotations and citations omitted)
(“Officer Davis’s weapon of choice was a Taser—a weapon that sends up to 50,000 volts of
electricity through a person’s body, causing temporary paralysis and excruciating pain. Although
Tasers may not constitute deadly force, their use unquestionably seizes the victim in an abrupt
and violent manner. Accordingly, the nature and quality of the intrusion into the interests of Ms.
Cavanaugh protected by the Fourth Amendment was quite severe.”).7 In Brian’s case, he was not
only tased, but tased twice, each time for the full cycle permitted by the device. The injuries
allegedly caused by the tasing, which included cardiac arrest, were clearly severe. The tasing was
7
The court recognizes that neither the district court nor the Tenth Circuit had decided
Cavanaugh until after Brian Cardall’s death, and so the case did not put Defendants on notice
that such use of force is unconstitutional. Nevertheless, Cavanaugh illustrates how the Graham
factors apply to tasings in this jurisdiction, and it is therefore helpful for the first part of the
qualified immunity analysis, in which the court must determine whether Brian Cardall’s
constitutional rights were potentially violated during the incident.
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a significant intrusion upon his Fourth Amendment interests and is only permissible if justified
by the countervailing government interests.
When weighing the government’s interests in a tasing, courts primarily look to the factors
listed in Graham: the severity of the crime being committed, the threat posed by the suspect to
himself, officers, or other individuals, and whether the subject is actively resisting arrest. Within
the Tenth Circuit, the subject’s mental health is relevant. Giannetti, 216 Fed. Appx. at 764.
Case law on tasings from the Tenth Circuit also stresses the importance of whether a warning
was given before the use of the taser. Casey v. City of Federal Heights, 509 F.3d 1278, 1285
(10th Cir. 2007) (“The absence of any warning—or of facts making clear that no warning was
necessary—makes the circumstances of this case especially troubling”); Cavanaugh v. Woods
Cross City, 1:08-cv-32, 2009 WL 4981591, at *4 (D. Utah Dec. 14, 2009) (stating “the presence
of an adequate warning and opportunity to comply voluntarily is crucial” before deploying a
taser). This opinion will evaluate each of these factors in turn.
The first Graham factor is the severity of the crime being committed by an individual
before the tasing. Defendants have listed three crimes which they believe Brian was committing
or had committed: Endangerment (a class A misdemeanor), Disorderly Conduct for recklessly
obstructing vehicular traffic (a class C misdemeanor or infraction, depending on the
circumstances), and Interference with an Arresting Officer (a class B misdemeanor). Each of
these are relatively minor offenses and Brian was not endangering drivers or obstructing traffic at
the time he was tased, twenty feet from the side of the road. Although he only partially obeyed
commands to “get on the ground,” Brian was confused, apparently believing that Thompson
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intended to hurt Excell, and he was never told he was under arrest. An individual can only be
found guilty of interfering with an arresting officer if they know or should have known that a
police officer was “seeking to effect a lawful arrest or detention of that person.” Thus, not only
are the crimes which Defendants have identified far from “severe,” but Brian’s behavior at the
time of the tasing was not clearly illegal.
The second, and “most important,” of the Graham factors is the threat posed by the
subject. Mattos v. Agarno, 661 F.3d 433, 441 (9th Cir. 2011). In this case, this is heavily
dependent on disputed facts. If Brian suddenly charged at Officer Thompson in a violent
manner, then he may have posed a threat to the police and there would be considerable
justification for the tasing. If, on the other hand, Brian simply turned towards Thompson, or was
taking a few steps in various directions as he had been since the officers arrived on the scene,
then he was not a threat. Brian was a considerable distance from the road, and did not verbally
threaten the police, himself, or his family. He was naked and clearly unarmed, and outnumbered
by the officers on the scene, who significantly outweighed him and were about to be joined by
additional backup. If the facts are viewed in the light most favorable to Anna’s claim, then Brian
did not pose a threat.
Finally, Graham requires consideration of whether the subject was actively resisting
arrest. Brian was obviously confused and was not told that he was under arrest. He started to get
down on one knee several times in response to the officers’ commands. Thompson did not
identify himself as a police officer until seconds before using the taser, and Excell never
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informed Brian that he was a member of law enforcement. Furthermore, there is no evidence to
show that Brian, naked and on foot, was a flight risk.
Brian’s mental health also weighed against the use of a taser. The officers knew that they
were responding to a psychiatric situation, and Brian’s behavior once they arrived on the scene
confirmed that he was not in an ordinary mental state. In addition to the Tenth Circuit’s
comments about mental health and excessive force in Giannetti, 216 Fed. Appx. at 764, other
court decisions have stressed that an officer should hesitate to deploy a taser when the subject is
incoherent and he does not appear to understand the officers’ commands. See Bryan v.
MacPherson, 630 F.3d 805, 812 (9th Cir. 2010); Estate of Mathis, 2009 WL 1033771 (D. Colo.
2009). This principle is premised on recognition that “[t]he problems posed by an unarmed,
emotionally distraught individual who is creating a disturbance are ordinarily different from
those involved in law enforcement efforts to subdue an armed and dangerous criminal. . . . In the
former instance, increasing the use of force may exacerbate the situation.” Deorle v. Rutherford,
272 F.3d 1272, 1283 (9th Cir. 2001).
Finally, Brian was not warned that he would be tased, either the first or second time. He
was repeatedly told to get on the ground and, after he was tased the first time, to stay down.
However, he was not warned that Officer Thompson had a taser and was intending, at any point,
to deploy it. If Brian was tased for simple noncompliance, as Anna’s version of the facts
suggests, it would have been reasonable for Thompson to warn Brian about the taser before
deploying it. The officers did not attempt to engage Brian in conversation and deployed the taser
less than a minute after arriving on the scene.
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The only undisputed fact that weighs in favor of Thompson’s decision was that Brian
was erratic and agitated, making his behavior somewhat more unpredictable than that of a typical
citizen. However, unless he were charging towards Officer Thompson, which is a disputed issue
of material fact, the government’s interests did not outweigh the violent intrusion on Brian’s
Fourth Amendment rights effectuated through the tasing.
B.
Clearly Established
Even if the decision to tase Brian was unconstitutional, summary judgment on the basis
of qualified immunity is still appropriate if the unconstitutionality of the tasing was not “clearly
established” at the time of the events, on June 9, 2009. In order for a principle to be clearly
established, it must be set forth by the Tenth Circuit or Supreme Court, or the weight of authority
from other cases must support it. Casey, 509 F.3d at 1284 (quoting Medina v. City & Cnty of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001). “Graham’s general proposition is not enough to turn all uses of excessive force
into violations of clearly established law [because] the fact that it is clear that any unreasonable
use of force is unconstitutional does not mean that it is always clear which uses of force are
unreasonable.” Casey, 509 F.3d at 1284 (internal quotations, citations, and alterations omitted)
(emphasis in the original).
Particularly in the excessive force context, however, qualified immunity analysis is not
merely “a scavenger hunt for prior cases with precisely the same facts.” Casey, 509 F.3d at 1284
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(internal citation omitted). “The more obviously egregious the conduct . . . , the less specificity is
required from prior case law to clearly establish the violation. Thus, when an officer’s violation
of the Fourth Amendment is particularly clear from Graham itself, we do not require a second
decision with greater specificity to clearly establish the law.” Id. at 1284. As explained above, if
disputed facts are taken in Anna’s favor, the Graham factors almost universally weighed against
taser deployment and the tasing was without lawful justification. Heeding the Tenth Circuit’s
recent warning that generalized principles should not be excessively relied upon to support a
qualified immunity analysis, however, this court will undertake a more fact-specific inquiry. See
Kerns v. Bader, --- F.3d ----, No. 09-2273, 2011 WL 6367728 at *16–7 (10th Cir. Dec. 20,
2011).
The court did not identify a Tenth Circuit case, or case from any jurisdiction, involving
the tasing of a mentally ill individual who was confused and reluctant to obey officers’
commands to get down on the ground. The Tenth Circuit, however, has held that “it was clearly
established on December 8, 2006 that [an officer] could not use his Taser on a nonviolent
misdemeanant who did not pose a threat and was not resisting or evading arrest without first
giving a warning.” Cavanaugh, 625 F.3d at 667. It is true that, unlike the plaintiff in
Cavanaugh, Brian Cardall was given an opportunity to comply with police demands before being
tased. Taking the facts in favor of Anna, however, Brian was a nonthreatening misdemeanant
who was not resisting arrest and had no warning he might be tased.
Authority from other jurisdictions concords. The Eighth Circuit, citing Casey, has held
“it is clearly established [as of October 2005] that force is least justified against nonviolent
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misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security
of the officers or the public.” Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)
(denying qualified immunity to officers who tased a woman after she repeatedly disobeyed their
instructions to get off the phone with a 911 operator). In the Sixth Circuit, judges determined
that by 2006 it was clearly established that officers, during a fight which had broken out at a
wedding, could not tase an individual for refusing their commands to hang up his phone and get
out of his truck. Kijowski v. City of Niles, 372 Fed.Appx. 595, 601 (6th Cir. 2010).
Brian was tased although he was not guilty of any serious crime or attempting to flee. If
all factual disputes are resolved in favor of Anna, Brian was not a threat to the officers who
impatiently tased him when, in his confusion, he was slow to comply with their demands. Tenth
Circuit case law, as well as authority from other jurisdictions, explicitly holds that tasings under
similar circumstances violated clearly established Fourth Amendment law.
Defendants’ argument that they did not use excessive force or violate clearly established
law rests upon their version of the facts. If the facts are taken in the light most favorable to the
non-moving party, excessive force was used in violation of clearly established law. As a result,
the court will not grant summary judgment on the basis of qualified immunity.
II.
§ 1983 AND MUNICIPAL LIABILITY
Plaintiffs’ Third Cause of Action asserts that Hurricane City, and Chief Excell as a
policy-making employee, are liable because the tasing was a municipal deprivation of Brian’s
constitutional rights. The Supreme Court has held that a municipality cannot be held vicariously
liable for its employees’ actions in a § 1983 suit, and that liability only attaches when the
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municipality itself caused the constitutional violation. Monell v. Social Servs. of New York, 436
U.S. 658, 691 (1978). A municipality can cause unconstitutional behavior by failing to
adequately train employees, or by adopting unconstitutional policies, whether written or
informal.
The plaintiff must additionally show that the unconstitutional policy or training was the
result of “deliberate indifference” to constitutional rights. City of Canton v. Harris, 489 U.S.
378, 391 (1989). This requires an “obvious” risk that a constitutional violation might occur
because of the deficient policies or training. Id. at 390. Under this standard, municipalities
cannot be held liable under § 1983 for negligent use of unconstitutional policies. Instead, the use
must be reckless, knowing, or deliberate. Dodds v. Richardson, 614 F.3d 1185, 1196 n.4 (10th
Cir. 2010). Thus, in the absence of a “pattern of unconstitutional behavior,” a municipality may
not be found deliberately indifferent unless the “violation of federal rights [was] a highly
predictable or plainly obvious consequence of a municipality’s action or inaction.” Barney v.
Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998).
Anna has argued that Hurricane City failed to adequately train its officers on excessive
force, taser use, and mental health issues. She cannot point to a single constitutional violation,
other than those alleged in this case, which may have arisen from Hurricane City’s training
deficiencies. At the same time, however, those deficiencies were arguably obvious. The
evidence suggests that Hurricane City provided absolutely no training to its law enforcement on
mental health issues. This is particularly troubling in light of the Tenth Circuit’s recognition that
mental health is an important factor to evaluate when determining the appropriate use of force.
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Anna also argues that Hurricane City’s established policy on taser use was
unconstitutional both because it left too much discretion to officers and also because it
authorized unconstitutional tasings. Case law from this court states that a policy “in which
officers were trained to use only their own subjective judgment when firing a taser” would be
unconstitutional. Cavanaugh v. Woods Cross City, 1:08-cv-32, 2009 WL 4981591 at *5 (D.
Utah Dec. 14, 2009). Although deposition testimony by Hurricane City officers mentions that
officers were instructed to rely on their “discretion” in determining when to deploy their tasers, it
is clear that the exercise of this discretion was dependent on the situation and the subject’s
actions. Deposition of Ken Thompson at 72–73, Exhibit 18 to Memo in Opp. to SJ; Deposition
of Shane Copland at 65, Exhibit 8 to Memo in Opp. to SJ. Such a policy, which recognizes that
a broad array of factors affect what level of force is appropriate in a given situation, is not
unconstitutional.
There is evidence, however, to support Plaintiffs’ argument that the policy was
unconstitutional because it authorized unconstitutional use of force. Deposition testimony states
that Hurricane City policy allowed the use of a taser when an individual was simply not
responding to an officer’s verbal commands. Deposition of Shane Copland at 62, Exhibit 8 to
Memo in Opp. to SJ. If this assertion is true, the policy may have been deliberately indifferent to
the Graham standard. Furthermore, Defendants have stated that the tasing of Brian was fully in
compliance with city policy. See, e.g., Deposition of Lynn Excell at 14, Exhibit G to Memo in
Supp. of SJ. If the facts are taken in favor of Anna, this means that the policy authorized the
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almost immediate and repeated tasing of a nonthreatening and confused individual, which would
be plainly unconstitutional.
Furthermore, even in the absence of an unconstitutional written or established policy, a
municipality may be held liable for actions of a policy maker.
[T]he [Supreme] Court added that “where action is directed by those who
establish governmental policy, the municipality is equally responsible whether
that action is to be taken only once or to be taken repeatedly.” Accordingly, a
municipality is responsible for both actions taken by subordinate employees in
conformance with preexisting official policies or customs and actions taken by
final policymakers, whose conduct can be no less described as the “official
policy” of a municipality. This must include even actions by final policymakers
taken in defiance of a policy or custom that they themselves adopted.
Simmons v. Uintah Health Care, 506 F.3d 1281 (10th Cir. 2007) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986)) (internal quotations omitted) (emphasis in the original).
Excell, as Chief of Police, was responsible for Hurricane’s police policies. Therefore, to the
extent that he authorized the tasings by Thompson, the city may be held liable for his decision.
Hurricane City must remain a party to the case. Viewing the evidence in a light most
favorable to Anna, the city’s policy on tasing and trainings on mental health and tasers may have
been constitutionally inadequate. Furthermore, if Excell, the final policymaker for the Hurricane
police, allowed or encouraged the use of excessive force, the city can be held responsible for that
action.
III.
FAILURE TO INTERVENE IN ANNA CARDALL’S DETENTION
In the Tenth Circuit, law enforcement officials have a clearly established “affirmative
duty to intervene to protect the constitutional rights of citizens from infringement by other law
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enforcement officers in their presence.” As that court explained, “An officer who fails to
intercede is liable for the preventable harm caused by the actions of the other officers where that
officer observes or has reason to know . . . that a citizen has been unjustifiably arrested [or] any
constitutional violation has been committed by a law enforcement official.” Hall v. Burke, 12
Fed. Appx. 856, 861 (10th Cir. 2001). Relying on this precedent, Anna argues that Officer
Thompson and Chief Excell should have prevented her from being taken to the police station for
questioning, because this violated her Fourth Amendment rights.
Defendants respond that when Anna went to the Sheriff’s Office she did so willingly, and
thus her initial detention was not unlawful. Consensual encounters with police officers do not
implicate the Fourth Amendment, and it is “[o]nly when the officer, by means of physical force
or show of authority, has in some way restrained the liberty of a citizen [that] a ‘seizure’” occurs.
Florida v. Bostick, 501 U.S. 429, 434 (1991). If the encounter was consensual, then Thompson
and Excell did not have reason to believe that Anna’s Fourth Amendment rights were violated
and cannot be held liable for failing to intervene.
The standard for determining whether an encounter with a police officer is consensual is
not whether a person preferred to speak with the officer, but whether he or she had “an objective
reason to believe that he or she [was] not free to end the conversation with the officer and
proceed on his or her way.” United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). In
other words, “[a] consensual encounter is the voluntary cooperation of a private citizen in
response to non-coercive questioning by a law enforcement officer.” United States v. West, 219
F.3d 1171, 1176 (10th Cir. 2000). An officer need not affirmatively inform the individual that
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she has a right to leave the scene in order for the encounter to be consensual. Id. at 1176–77.
Furthermore, although “most citizens will respond to a police request, the fact that people do so
. . . hardly eliminates the consensual nature of the response.” I.N.S. v. Delgado, 466 U.S. 210,
216 (1984).
Officer Judy testified that he understood Officer Brooksby’s request to escort Anna
Cardall to the sheriff station as an order. Deposition of Elwyn Judy at 16, Exhibit OO to
Additional Exhibits. However, Officer Judy did not command Anna to accompany him. Instead,
after some conversation with Anna about her daughter and husband, he said “The game plan for
right now is we’re going to get us off of the highway. It’s a little safer. If you don’t mind, I’m
going—do you mind following me? We’re going to head back to the Sheriff’s Office and we’ll
get you guys rest and get a drink and kind of unwind a little bit. And they’ll keep you posted on
his situation.” Transcript of Dash Cam Audio of Officer BJ Judy at 13–14, Exhibit F to Reply to
SJ. Anna gave no indication that she was unwilling to comply with his request. Before leaving
the scene, Officer Judy again asked “[D]o you mind following me down there and then
we’ll—like I said, we’ll get you off of the highway and then we’ll keep you posted . . . . All
right?” Id. at 14. Anna responded “Okay.” Id. She then followed Officer Judy, in her own
vehicle, to the Sheriff’s Office.
Throughout the conversation, Officer Judy’s choice of words conveyed the message that
Anna’s compliance with his request was not required, and he explicitly offered her the
opportunity to decline his request. Anna does not suggest that Judy was verbally or physically
coercive. Indeed, there is no evidence of any reason Anna would have felt she must accompany
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him other than the ordinary sense of duty most citizens have to comply with the requests of
uniformed police officers.
At some point, Anna may have been held without her consent. She was confined for an
extended period of time with her young daughter and was not allowed to leave the room, even
when she asked to do so, or visit with a family member who came to the office to see her. This
did not occur in the presence or with the knowledge of any of the defendants, however, and they
cannot be held liable for failure to intervene at this point. Accordingly, Defendants are entitled to
summary judgment on Plaintiffs’ claims that Officer Thompson, Chief Excell, or Hurricane City
interfered with Anna Cardall’s constitutional rights.8
IV.
STATE CONSTITUTIONAL CLAIMS
Plaintiffs’ Fourth Cause of Action states that Defendant’s conduct violated Article I, §§ 1,
7, 9, and 14 of the Utah Constitution. These provisions establish a right to life and liberty,
prohibit unreasonable seizures, and provide that those being arrested have a right to be free from
unnecessary rigor.9
Defendants have moved for summary judgment on Anna’s claims under the Utah
Constitution, stating that money damages are only an appropriate remedy for state constitutional
violations when the plaintiff suffered a ‘flagrant’ violation of his constitutional rights. The test
8
These claims, along with the claims that Brian Cardall’s tasing was an unconstitutional use of
excessive force, are found in Plaintiffs’ First Cause of Action, with respect to Thompson, Second
Cause of Action, with respect to Excell, and Third Cause of Action, with respect to Hurricane
City.
9
Defendants have not argued that the state constitutional claims are precluded by the federal
constitutional claims, and so at this point, the court will not consider the extent to which, if any,
the claims may overlap.
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measuring the flagrance of a state constitutional violation is the same test which determines
qualified immunity under § 1983. Jensen v. Cunningham, 250 P.3d 465, 482 (Utah 2011). If
facts are taken in the light most favorable to the Plaintiffs, then the tasing flagrantly violated
Brian Cardall’s rights under the Utah Constitution, just as the use of force violated his clearly
established rights under the United States Constitution.
V.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In the Complaint, Anna Cardall brings a claim for intentional infliction of emotional
distress (IIED) against Defendants Thompson and Excell for causing the death of her husband
while she watched.10 In Utah, plaintiffs who bring a claim for infliction of emotional distress
must show that the defendant acted “(a) with the purpose of inflicting emotional distress, or, (b)
where any reasonable person would have known that such would result; and his actions are of
such a nature as to be considered outrageous and intolerable in that they offend against the
generally accepted standards of decency and morality.” Samms v. Eccles, 358 P.2d 344, 347
(Utah 1961). Not all injuries, torts, or illegal actions, even those which are intentional or
malicious, constitute outrageous acts. Franco v. The Church of Jesus Christ of Latter-day Saints,
21 P.3d 198, 207 (Utah 2001). “Generally, the case of intentional infliction of emotional distress
is one in which the recitation of the facts to an average member of the community would arouse
10
Under current Utah law, a person, such as Anna, may recover on grounds of intentional
infliction of emotional distress for actions directed toward another person, such as Brian,
particularly if that person was present at the time of the outrageous conduct. See Hatch v. Davis,
102 P.3d 774, 786–87 (Utah 2004).
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his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Walter v. Stewart, 67
P.3d 1042, 1048 (Utah App. 2003) (internal quotations, citations, and alterations omitted).
Again, the validity of this claim rests upon a disputed issue of material fact. If Thompson
and Excell, less than a minute after arriving on the scene, decided to tase a naked, harmless, and
confused Brian Cardall as he peacefully stood with his hands raised, then their behavior was not
only unconstitutional, but also potentially outrageous. Though killing Brian was clearly not
Officer Thompson’s objective, deploying a taser without cause recklessly creates the risk of
emotional distress. Case law from other jurisdictions which use the same “extreme and
outrageous” standard supports this conclusion. See Ciampi v. City of Palo Alto, 790 F.Supp.2d
1077 (N.D. Cal. 2011) (denying summary judgment for IIED claim arising from an unprivileged
tasing); Garcia v. City of Imperial, No. 08cv2357, 2010 WL 3834020 (S.D. Cal. Sept. 28, 2010)
(same); Russ v. Causey, 732 F. Supp. 2d 589, 607–08 (E.D.N.C. 2010) (denying defendants’
motion for summary judgment on an IIED claim brought by individuals who saw their family
member lawfully tased during a funeral); Campos v. City of Merced, 709 F. Supp. 2d 944 (E.D.
Cal. 2010) (stating that if a tasing may have constituted excessive use of force, it follows that the
question of whether it was intentional infliction of emotional distress should also go to the jury).
Anna must also show that Defendants’ actions proximately caused her severe emotional
distress. Prince v. Bear River Mut. Ins. Co., 56 P.3d 524, 535 (Utah 2002). Defendants have
pointed out that Anna was calm at some points after she saw her husband’s tasing and death. At
most, this raises a question of disputed fact as to the extent of Anna’s distress.
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Taking the facts in favor of the Anna, a jury could find Defendants’ actions to have been
outrageous and caused severe emotional distress. Therefore, summary judgment is not
appropriate on Anna’s intentional infliction of emotional distress claim.
VI.
WRONGFUL DEATH - TASING
Under Utah’s Governmental Immunity Act, police officers and municipalities cannot be
held liable for torts arising out of the use of force unless “the employee acted or failed to act
through fraud or willful misconduct.” Utah Code Ann. § 63G-7-202. “Willful misconduct” is
defined as “the intentional doing of a wrongful act, or the wrongful failure to act, without just
cause or excuse, where the actor is aware that the actor’s conduct will probably result in injury.”
Utah Code Ann. § 63G-7-102.
If Brian was not a danger to anyone when he was tased, then a reasonable jury could
characterize the tasing as an intentional wrongful act without just cause. Indeed, Defendants
have not argued otherwise. Defendants do dispute, however, that a police officer would be aware
that the use of a taser, which only rarely causes death or even moderate bodily harm, would
“probably result in injury.” Plaintiffs respond that tasing causes pain, and that pain is a type of
injury. Furthermore, Plaintiffs argue that Thompson would have known that use of the taser
would result in Brian’s skin being broken by the metal barbs and would probably cause Brian,
who was unclothed, to suddenly drop onto the gravel with no ability to break his fall.
In Cavanaugh v. Woods Cross City, 1:08-cv-32, 2009 WL 4981591 (D. Utah Dec. 14,
2009), Judge Campbell held that “because [Plaintiff] was standing on concrete steps, a
reasonable jury could find that [the defendant officer] knew that [Plaintiff] could be severely
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injured if he tasered her.” It is true the potential injury posed by falling onto concrete steps, such
as the brain injury the plaintiff in Cavanaugh suffered, is more severe than the potential injury
foreseeably caused by falling onto gravel, even fully unclothed. Nevertheless, the fact that
Thompson knew the taser would cause Cardall pain and force him to drop onto the gravel meant
that he was aware that his conduct “would probably result in injury.” Tasers constitute an
“abrupt,” “violent,” and “severe” intrusion. Cavanaugh, 625 F.3d at 665. The court therefore
determines that if a taser is deployed without just cause or excuse, its use may constitute “willful
misconduct” under Utah’s Governmental Immunity statute.
VII.
WRONGFUL DEATH - LACK OF MEDICAL ASSISTANCE
In a separate claim, Plaintiffs allege Defendants committed a tort when they failed to
provide medical care to Brian after he was tased. Defendants state that there was no evidence of
willful misconduct and Governmental Immunity applies. Again, under Utah’s Governmental
Immunity Act, police officers and municipalities cannot be held liable for torts arising out of the
use of force unless “the employee acted or failed to act through fraud or willful misconduct.”
Utah Code Ann. § 63G-7-202. “Willful misconduct” is defined as “the intentional doing of a
wrongful act, or the wrongful failure to act, without just cause or excuse, where the actor is aware
that the actor’s conduct will probably result in injury.” Utah Code Ann. § 63G-7-102.
The facts are not disputed. There was an ambulance on scene, which provided aid within
two minutes of the first tasing. The audio recording establishes that immediately after
handcuffing Brian, the officers radioed “1082, medical is clear to enter.” Thompson Recorder at
18. The officers also physically signaled the paramedics to leave the ambulance. Deposition of
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Robert Merlin Spendlove at 19, Exhibit NN to Additional Exhibits. The paramedics reached
Brian shortly afterward and immediately began working to revive him.
These circumstances provide “just cause or excuse” to Thompson and Excell for not
initiating CPR, and bars the Plaintiffs’ claim. Although, in retrospect, it would have been better
if Thompson and Excell had checked Brian’s pulse or rolled him onto his back, no reasonable
jury could find that the officers were guilty of “willful misconduct” for failing to provide medical
assistance while they were being approached by paramedics better equipped and trained for the
job. Therefore, summary judgment is entered on behalf of Defendants for Plaintiffs’ Seventh
Cause of Action.
CONCLUSION
For the reasons discussed above, Defendants Motion for Summary Judgment11 is
GRANTED in part and DENIED in part.12 Judgment is entered in favor of the Defendants on
11
Dkt. No. 42 (June 13, 2011).
12
Plaintiffs have also made a motion to strike several references to allegedly inadmissible
evidence in Defendants’ briefs. While Plaintiffs are correct that the court is only permitted to
consider admissible evidence when considering a motion for summary judgment, new revisions
to the Federal Rules of Civil Procedure have made clear that a motion to strike such evidence is
unnecessary. Fed. R. Civ. P. 56(c)(2) advisory committee note of 2010 (“Subdivision (c)(2)
provides that a party may object that material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence. . . . There is no need to make a
separate motion to strike.”). Rather than granting Plaintiffs’ motion to strike, the court has
treated it as an objection and disregarded any evidence relied on by Defendants that it finds to be
inadmissible. See Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003) (internal quotations
and citation omitted) (“[B]ecause it is impractical to strike a submitted affidavit, the court may
simply ignore inadmissible evidence rather than strike the affidavits.”); Stevens v. Water Dist.
One, 561 F. Supp. 2d 1224 (D. Kan. 2008) (“[T]he court ordinarily does not strike affidavits, but
simply disregards those portions that are not shown to be based upon personal knowledge or
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Plaintiffs’ First, Second, and Third Causes of Action to the extent that such claims seek relief
against Defendants for alleged violations of Anna Cardall’s constitutional rights. Judgment is
also entered in favor of the Defendants on Plaintiffs’ Seventh Cause of Action because the claim
is barred by the Utah Governmental Immunity Act. Summary judgment is DENIED on all other
claims.
DATED this 11th day of January, 2012.
BY THE COURT:
____________________________________
Clark Waddoups
United States District Judge
otherwise do not comply with Rule 56(e).”).
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