Holding: A bystander
lacks standing to challenge the legality of an arrest. Moreover, there is no
right to resist an unlawful search or arrest. While an individual has a right
to resist an officer’s excessive force, a third-party intervenor does not
partake of that right.
United States District Court
District of Minnesota
Victoria Johnson
v.
James Steven Carroll, et al.
No. 08-CV-6427
2010 WL 3023407
July 29, 2010.
James M. Rosenbaum, District Judge.
This case concerns an individual’s legal rights and obligations when witnessing an arrest. The parties agree the events at issue occurred December 20, 2006. Beyond that, their versions of the facts differ greatly. Plaintiff claims she suffered actionable battery, negligence, and was subjected to excessive force.
The defendants seek summary judgment. The
motion is considered pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“Fed. R. Civ.P.”). As such, the Court takes all factual allegations
in the light most favorable to plaintiff, the non-moving party. The facts are
from the parties’ pleadings, and are not determinations on the merits.
Defendants’ motion is granted.
In the early evening of December 20, 2006,
20-year-old Joseph McClennon stood outside his aunt’s house in Minneapolis,
Minnesota, where he lived. He was waiting for his girlfriend. (McClennon Dep.
5:1-11.)
Plaintiff was inside her home at the time,
preparing to attend bible study, when her son told her “the police [were]
outside harassing Joseph.” (Johnson Dep. 58:25-59:1.) She immediately ran
outside and observed a police officer (the “arresting officer”) telling her
nephew to empty his pockets. He did so, placing the items on the hood of the squad
car. He was then detained in the backseat of the squad.
Two more officers arrived at the scene. [1]
When she asked them what was going on, she claims the Caucasian officer said,
“You are ignorant,” and the Asian officer said she was acting “childish.”
(Johnson Dep. 69:10-70:5.)
During this exchange, plaintiff’s nephew
remained in the squad car. Plaintiff states she was standing about two or three
feet from the car when she heard a radio dispatcher say, “[Y]ou can’t charge him
for that.” (Johnson Dep. 75:5- 19.) She apparently assumed the dispatcher was
referring to her nephew, because at that point, the arresting officer released
him from the car and threw a ticket at him.
Plaintiff then claims, as her nephew was
walking to the front of the car to collect his belongings, the arresting
officer swung something at him, and then grabbed him, “pulled him out into the
street,” and pushed him backward. (Johnson Dep. 76:22-80:10.) At this point,
plaintiff “moved toward [McClennon]” holding him in a bear hug to protect him
from the officer’s blows. As she held her nephew, she realized the officer was
preparing to taser him.
An officer from the second squad car then
grabbed plaintiff’s arms, pulled her off her nephew, and “threw [her] to the
ground.” Undeterred, she “rushed back over to [McClennon] and grabbed him
again.” (Johnson Dep. 84: 22-23.) Once more, an officer grabbed her from behind
and threw her to the ground. (Johnson Dep. 85:20-23 .)
The arresting officer tasered McClennon, who
fell to the ground. For the third time, plaintiff “crawled over to [McClennon]”
and “covered his body” with hers. She then looked up at the arresting officer
who sprayed her with mace. (Johnson Dep. 86:13-18.) Unable to see, she backed
up, crawled to the curb, and leaned against a tree. Her left knee felt
dislocated. She was placed under arrest.
As Officers
James Carroll and Paul Schweiger were driving westbound on 30th Avenue North,
they observed a black male standing by a parked vehicle. (Carroll Dep.
11:13-18; Schweiger Dep. 13:7-25.) Officer Schweiger “thought he may be
breaking in the vehicle,” and rolled his window down to ask the man what he was
doing. Joseph McClennon answered that it didn’t matter what he was doing.
Suspicions aroused, the Officers parked their squad car. Officer Schweiger then
escorted McClennon to the car, and, while doing a pat-down search, found a pipe
coated with a “black burned residue” he thought smelled of marijuana.
The Officers detained McClennon in the
backseat of the squad car, identified him, and issued a citation for possession
of drug paraphernalia. After Schweiger wrote the ticket, two other officers,
Kipke and Hofius, pulled up. Schweiger then released McClennon. As McClennon
walked away, he realized his belongings were on the hood of Schweiger’s car,
and returned to collect them.
According to Schweiger, “that is when [
McClennon] took a swing at [him].” (Schweiger Dep. 28:13.) Schweiger claims the
punch never landed, because he “grabbed [McClennon]” and “ran him into the side
of the squad.” Hofius came to Schweiger’s assistance. They wrestled McClennon
“face down on the pavement” and tried to handcuff him. Kipke tasered McClennon
in an attempt to bring him under control. (Hofius Dep. 14:8-10.)
During the altercation, about eight people
gathered around the Officers yelling at them to leave. Schweiger reports
plaintiff ran past him and jumped on McClennon’s back, “like she was trying to
blanket McClennon.” Hofius “[told] her to get off him.” When she refused,
Hofius sprayed her with mace, and Schweiger “grabbed [plaintiff] and pulled her
up.” (Schweiger Dep. 43:10.)
With plaintiff out of the way, Hofius was
able to handcuff McClennon and put him into Schweiger’s squad car. Hofius
approached plaintiff and arrested her for obstructing legal process. (Hofius
Dep. 16:21-22.)
For purposes of this motion only, the Court
credits plaintiff’s version of the facts.
Officers Schweiger and Carroll took plaintiff
to the Minneapolis jail. Seeing her knee was hurt, she was treated by a nurse
and given a wheelchair. She was initially charged with obstructing legal
process and held for 72 hours. The City of Minneapolis (the “City”) declined to
prosecute.
After plaintiff’s release from jail, a doctor
treated her for knee pain, and prescribed painkillers, anti-inflammatory
medication, and physical therapy. Plaintiff eventually needed ACL surgery to
repair her knee. She continues to experience difficulties from the injury which
affect her ability to walk, run, and climb stairs. (Pl .’s Mem. Opp. Summ. J.
21.)
In March 2008, plaintiff asked the City for
copies of the police records concerning her arrest. On April 2, 2008, the City Attorney’s
Office gave her the public police report of her December 20, 2006, arrest. On
November 14, 2008, plaintiff submitted a second document request seeking all
“public and private data concerning her” arrest. (Compl. 29.) In February 2009,
the City “fulfilled her request,” and provided her with twelve additional pages
of materials. (Pl.’s Mem. Opp. Summ. J. 55.)
On December
19, 2008, plaintiff sued the City of Minneapolis, and Officers A, B, and C. [2]
Plaintiff served the City with the summons and complaint that same day. She
delivered the summons and complaint for each of the four individual defendants
to the Hennepin County Sheriff on February 23, 2009. The sheriff served
Schweiger, Carroll, and Kipke two days later, and served Hofius on March 25,
2009. Plaintiff amended her complaint on December 22, 2008, and June 30, 2009.
Plaintiff’s second amended complaint alleges
the Officers used excessive force, in violation of 42 U.S.C. § 1983. She
invokes the doctrine of respondeat superior to accuse the Officers and the City
of common law battery and negligence. Finally, she claims the City failed to
adequately respond to her public data request, in violation of the Minnesota
Government Data Practices Act, Minn. Stat. §§ 13.03 & 13.04.
Defendants seek summary judgment arguing they
are entitled to qualified and official immunity; that the statute of
limitations has run on plaintiff’s battery claim; and that plaintiff failed to
demonstrate any damages as required by the Data Practices Act. Plaintiff
opposes defendants’ motion.
Summary judgment is appropriate when there
are no material facts in dispute and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The
party opposing summary judgment may not rest upon the allegations set forth in
its pleadings, but must produce significant probative evidence demonstrating a
genuine issue for trial. See Anderson, 477 U.S. at 250.
Defendants claim they are entitled to
qualified immunity. Qualified immunity shields officers from suit for official
acts when 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). A court analyzes claims of qualified
immunity applying a two-pronged test: the court asks whether defendant violated
a constitutional right, and whether that right was clearly established when the
violation occurred. Id. District courts may “exercise their sound discretion in
deciding which of the two prongs” to address first. Pearson v. Callahan, 129
S.Ct. 808, 818 (2009).
Defendants acknowledge plaintiff’s “right to
be free from excessive force is a clearly established right under the Fourth
Amendment’s prohibition against unreasonable seizures of the person.” Guite v.
Wright, 147 F.3d 747, 750 (8th Cir.1998). Defendants deny the Officers used
unreasonable force and violated plaintiff’s constitutional rights. The Court
agrees.
When considering the reasonableness of the
Officers’ seizure, the Court asks whether their actions were “ ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.
386, 397 (1989). Here, the Court balances “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Id. at 396 (internal
quotations omitted). “Fourth Amendment jurisprudence has long recognized that
the right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion.” Id.
Plaintiff
admits that when the Officers tried to handcuff her nephew, she “grabbed” him
in a bear hug and “covered him with [her] body.” (Johnson Dep. 82:1-4; 83:2-3.)
She claims the Officers then grabbed her shoulder blades and arms, pulled her
backward, and “threw” her to the ground. (Johnson Dep. 84:1.) Plaintiff
acknowledges she “rushed back over to [McClennon] and grabbed him again.” An
officer “grabbed [her] again ... and threw [her] to the ground.” (Johnson Dep.
85:20-23.) Undeterred, plaintiff crawled to McClennon and again covered his
body with hers. It was at this time she remembers the arresting officer
spraying mace in her eyes. [3] (Johnson Dep. 86:13-18.) On these facts, the Court finds plaintiff’s
repeated interference with the arrest endangered the Officers and herself.
Reasonable officers would have believed her actions could have escalated their
encounter with the crowd and McClennon.
That plaintiff suffered a knee injury does not affect the Court’s calculus.
“Not every push or shove, even if it may later seem unnecessary in the peace of
a judge’s chambers violates the Fourth Amendment.” Graham, 490 U.S. at 396
(internal citations omitted). The Officers appropriately decided to remove
plaintiff from the altercation and ultimately sprayed her with mace so they
could perform their duties and control the situation. Her injuries stem from
her repeated attempts to interfere with the arrest. Where plaintiff voluntarily
interfered with the arrest, despite repeated efforts to prevent her from doing
so, the Court finds the Officers’ actions were objectively reasonable as a
matter of law.
Plaintiff, however, suggests she was authorized to act as she did because
she believed the Officers lacked probable cause to make the arrest. She
emphasizes hearing the squad car radio dispatcher say, “You can’t charge him
for that.” Based on this, she concluded the Officers “had no basis” to arrest
McClennon. (Pl.’s Mem. Opp. Summ. J. 44.) Seizing upon this slender reed,
plaintiff concludes the Officers are unjustified in claiming qualified
immunity. The Court disagrees.
As an initial matter, plaintiff--a citizen volunteer--lacks standing to
challenge the legality of an arrest. To establish standing, plaintiff
must show she “suffered an injury in fact, meaning that the injury is (a)
concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal citations omitted); see also Davis v. Fulton County, Ark., 884
F.Supp. 1245, 1250 (E.D.Ark.1995) (section 1983 does not afford a husband a
cause of action based on constitutional deprivations suffered by his wife).
Here, plaintiff’s case cannot be premised on an injury sustained by her adult
nephew.
Plaintiff extends her argument, however, proffering a case positing
that “danger invites rescue.” See Guite v. Wright, 147 F.3d 747, 750
(8th Cir.1998); Benike v. Dairlyland Ins. Co., 520 N.W.2d 465, 467-68
(Minn.Ct.App.1994). Minnesota law affords plaintiff no succor. The Eighth Circuit Court of
Appeals in Hill v. Scott, 349 F.3d 1068, 1074 (8th Cir.2003), found “[t]here is
no right to resist an unlawful search or arrest.” And, while an individual has
a right to resist an officer’s excessive force, a third-party intervenor does
not partake of that right. Cf. Hill, 349 F.3d at 1074; see also Darrah v. City
of Oak Park, 255 F.3d 301, 313 (6th Cir.2001)(third party has no right to
intervene physically on arrestee’s behalf “even if she thought the officer’s
use of force was excessive”).
Plaintiff
makes much of Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998). There, when a
father refused to let officers enter his home to arrest his son, the officers
grabbed his wrist, pushed him backwards, and held his arm against the wall. Id.
Because he “was recovering from surgery on his left shoulder and was wearing a
sling on his left arm when he answered the door,” the Court concluded a genuine
issue of fact remained as to “whether such force was excessive under the
circumstances.” Id.
Contrary to plaintiff’s assertions, Guite v.
Wright does not establish a third-party right to intervene in an arrest--it
merely reiterates established law preventing an officer’s use of unreasonable
force.
Plaintiff’s reliance on the “danger invites
rescue” doctrine is similarly unavailing. The doctrine holds an “original
wrongdoer, whose negligent conduct threatened harm to another,” is liable “to
the rescuer who was injured as a result of an attempt to avoid the threatened
harm.” Benike, 520 N.W.2d at 467 (Amundson, J., concurring). “More succinctly,
‘danger invites rescue’ and the wrong that imperils the victim is a wrong to
the rescuer.” Id. This seldom-invoked common law doctrine applies in negligence
cases, and “is legal shorthand for a particular factual situation in which
courts find the [negligence] foreseeability requirement is satisfied .” Krause
v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo.1990). The present case involves an
individual interfering with the state’s lawful exercise of its police power;
the asserted doctrine is simply inapplicable to plaintiff’s claims.
Finally, but importantly, the Court considers
plaintiff’s claim of hearing “You can’t charge him for that” uttered over the
squad car radio to be utterly insubstantial, and wholly insufficient to support
her claim. (Johnson Dep. 75:5-19.) At oral argument, plaintiff’s counsel
admitted there was absolutely nothing in the radio transmission tying it to McClennon’s
arrest. The plaintiff does not know whether those words were in response to a
radio call from the Officers on the scene, nor can she, even as late as summary
judgment, identify the declarant. Further, her attorney did not obtain or
provide the Court with a copy of the claimed police radio transmission.
But even if the words were uttered, and even
if they related to McClennon’s arrest, they still do not support plaintiff’s
claims or deprive the Officers of qualified immunity. Assuming the words were a
direction to the Officers on the scene telling them not to arrest McClennon--a
prospect the Court considers highly unlikely--they exemplify the problem of
confusing motive with intent. Plaintiff’s motive was to protect her nephew from
an unlawful arrest, but her intent was to interfere with the Officers in their
work. The law does not confer upon a bystander the authority or right to
interfere with officers in the performance of their duties. While her motive may have been
pure, plaintiff remains unauthorized to lawfully perform the act she intended
to commit.
Finding no violation of a constitutional right,
the Court need not ask whether that right was clearly established. See Coleman
v.. Parkman, 349 F.3d 534, 538 (8th Cir.2003).
Defendants ask the Court to dismiss
plaintiff’s battery claim for failure to comply with Minnesota’s two-year
statute of limitations. [4] Specifically, they argue plaintiff failed to serve
the individual Officers until February and March of 2009. The battery of which
plaintiff complains occurred on December 20, 2006, meaning the two-year
limitations period expired on December 19, 2008. Defendants maintain the Court
should dismiss that claim as untimely. The Court agrees.
Under Minn. Stat. § 541.07, a party must
“commence” a battery action “within two years.” Fed.R.Civ.P. 3 provides that “a
civil action is commenced by filing a complaint with the court.” This contrasts
with Minn. R. Civ. P. 3, under which a civil action does not commence until a “summons
is served upon that defendant,” or when a summons is delivered to a defendant’s
county sheriff. In light of this dichotomy, the issue of whether plaintiff
provided timely service of process turns upon whether state or federal law
applies.
The law is clear--”state rules for the
service of process apply to pendent state law claims.” McKenzie v. Lunds, Inc.,
63 F.Supp.2d 986, 1001 (D.Minn.1999) (citing Anderson v. Unisys Corp., 47 F.3d
302, 309 (8th Cir.1995)). Plaintiff acknowledges delivering her summons to the
Hennepin County Sheriff on February 23, 2009. The Sheriff served Schweiger,
Carroll, and Kipke two days later, and Hofius on March 25, 2009. Here, the
two-year period expired on December 19, 2008. When plaintiff delivered her
summons to the Sheriff, the delivery was tardy, and her action was barred by
the two-year statute of limitations. Accordingly, the Court dismisses
plaintiff’s battery claim against the individual defendants.
Even if service of the summons and complaint
was timely, the individual defendants are entitled to official immunity for
plaintiff’s state law negligence and battery claims, and the City is not
liable.
In the absence of malice, Minnesota law holds
public officials immune from state law claims where their duties require an
exercise of discretion. Johnson v. Morris, 453 N.W.2d 31, 41-42 (Minn.1990);
see also Susla v. State, 247 N.W.2d 907, 912 (Minn.1976) (“[ A] public official
charged by law with duties which call for the exercise of his judgment or
discretion is not personally liable to an individual for damages unless he is
guilty of a willful or malicious wrong.”). Malice is defined as “intentionally
committing an act that the official has reason to believe is legally
prohibited.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 663 (Minn.1999). A
court considering this question conducts “an objective inquiry into the legal
reasonableness of an official’s actions.” State by Beaulieu v. City of Mounds
View, 518 N.W.2d 567, 571 (Minn.1994).
Viewing the
facts in the light most favorable to plaintiff, the Court finds she has failed
to produce evidence showing defendants “intentionally committ[ed] an act that
[they had] reason to believe [was] legally prohibited.” Kelly, 598 N.W.2d at
663. Indeed, as already discussed, the Court has concluded these Officers acted
reasonably under the circumstances.
As the Court has found the individual
defendants entitled to immunity, the City is similarly entitled to vicarious official
immunity from plaintiff’s respondeat superior claims. See Wiederholt v. City of
Minneapolis, 581 N.W.2d 312, 316 (Minn.1998) (“[V]icarious official immunity
protects the government entity from suit based on the official immunity of its
employee.”).
Finally, defendants argue plaintiff has
failed to state a claim under the Minnesota Government Data Practices Act.
Plaintiff claims the City failed to timely respond to her November 2008 data
request, in violation of Minn. Stats. §§ 13.03 & 13.04. (Compl. 29.)
Plaintiff, however, has failed to allege the appropriate elements to prove her
claim.
As an initial matter, plaintiff has wholly
failed to assert any damages resulting from the alleged government delay. A
government entity which violates the Data Practices Act may be liable to any
person “who suffers any damage as a result of the violation.” Minn. Stat. §
13.08. A damaged individual may seek recompense for “any damages sustained,
plus costs and reasonable attorney fees.” Id. Here, none have been asserted.
For this reason alone, the Court could conclude plaintiff has failed to state a
claim under the Act.
Plaintiff, however, maintains she sought
information concerning her arrest in March and November 2008. It is undisputed
that the City responded to her March request by providing her attorney with two
pages of material on April 2, 2008, which included the December 20, 2006,
police report, and the Officers’ names. On November 14, 2008, plaintiff submitted
a second request to the City seeking all “public and private data concerning
her” arrest. (Compl. 29.) In February 2009, the City “fulfilled her request”
and provided plaintiff with twelve additional pages of material. (Pl.’s Mem.
Opp. Summ. J. 55.)
While plaintiff argues the City did not
provide this data within a reasonable time, neither plaintiff’s complaint nor
her brief describe how the City’s delay damaged or impeded her suit in any way.
Where damages constitute an element of the claim, and no damages are asserted,
plaintiff fails to state a Data Practices Act claim upon which relief can be
granted.
Plaintiff confirms she repeatedly attempted
to interrupt the Officers as they dealt with Joseph McClennon. Under these
circumstances, the Officers’ use of force appears eminently reasonable.
Accordingly, it is ordered that:
1.
Defendants’ motion for summary judgment is granted [Docket No.
47]; and
2.
The Court dismisses all claims against defendants. Let judgment be
entered accordingly.
Notes:
1. Plaintiff
identifies these officers as the “Caucasian officer” and the “Asian officer,”
later identified as Alan Kipke and Chad Hofius, respectively.
2. Plaintiff’s
opposition to defendants’ motion for summary judgment names Officers Carroll,
Hofius, Kipke, and Schweiger, and does not reference unnamed officers A, B, and
C. Accordingly, the Court dismisses officers A, B, and C, where the true
identity of the defendants has been determined. See Porter v. Doe, 938 F.2d
189, 189 (8th Cir.1991).
3. Schweiger acknowledges pulling plaintiff off
McClennon, and Hofius admits he maced plaintiff.
4. Defendants’
Reply Brief states they “have not argued in the instant summary judgment motion
that a two-year statute of limitations entitles defendants to summary judgment
on plaintiff’s § 1983 claim.” (Defs.’ Reply 9.) This statement seems
inconsistent with their brief which makes the very argument they deny
asserting. (Defs.’ Mem. Supp. Summ. J. 18). The Court addresses this issue only
to note that the law is clear--the Supreme Court has held that courts should
follow general or residual state statutes for personal injury actions when
considering § 1983 claims. Owens v. Okure, 488 U.S. 235, 250 (1989).