United States District Court, D. Minnesota
May 16, 2005.
Tamikah Lynn Weiner and Jean Carol Hennessey, Plaintiffs,
Officer Todd Lappegard, individually and in his capacity as a Minneapolis Police Officer; Officer Kyle Severson, individually and in his capacity as a Minneapolis Police Officer; Officer Mark Durand, individually and in his capacity as a Minneapolis Police Officer; Sgt. Wesley Ostlund, individually and in his capacity as a Minneapolis Police Officer; Sgt. Gerald Wallerich, individually and in his capacity as a Minneapolis Police Officer; Police Chief Robert Olson, in his capacity as the Minneapolis Police Department Chief Policymaker; and the City of Minneapolis, Defendants.
The opinion of the court was delivered by: RICHARD KYLE, District Judge
MEMORANDUM OPINION AND ORDER
This case arises out of the arrest of Plaintiffs Tamikah Lynn
Weiner and Jean Carol Hennessey (collectively, "Plaintiffs") by
Minneapolis police. While Plaintiffs were attending a family
gathering, Minneapolis police officers, responding to a noise
complaint, arrived at the scene. After a confrontation between
Plaintiffs and the police, Plaintiffs were arrested for assault
and obstructing legal process. Plaintiffs have sued
Defendants*fn1 for, among other things, unlawful arrest and
excessive force. Before the Court is Defendants' Motion for
Summary Judgment. For the reasons set forth below, the Court will
grant the Motion in part and deny it in part. As a result, all
claims will be dismissed with prejudice with the exception of Ms.
Weiner's unlawful arrest claim.
Viewed in a light most favorable to Plaintiffs, the facts are
as follows. On September 2, 2002, Ms. Weiner and Ms. Hennessey
attended a Labor Day barbeque at Melanie Hervey's Minneapolis
residence. (Moore Aff. C at 4, D at 4.) Ms. Hervey, who is not a
party to this action, is Ms. Weiner's mother and Ms. Hennessey's
daughter. (Id.) During the gathering, the guests were listening
to music playing from a car stereo. (Id.) At about 6:00 P.M.,
Officers Lappegard and Severson responded to a loud music complaint. (Id. Exs. C at 4, D at 4, E at 11.) The officers
drove by the Hervey residence and motioned to the guests to turn
the music down. (Id. Exs. C at 4, F at 17-18.)
A short time later, after receiving a second complaint, the
officers returned to the residence and walked into the backyard.
(Id. Exs. C at 4, D at 4, E at 13-15.) The officers told Ms.
Hervey that the music would have to be turned down and advised
her that arrests would be made if they had to return. (Id.) The
music was turned off and Ms. Hervey assured the officers that it
would not be turned on again. (Id.)
As the officers were walking back to their squad cars, a male
guest at the gathering (Ms. Weiner's boyfriend) said to another
guest, "maybe we should grab the camcorder." (Id. Ex. D at 4;
see id. Exs. E at 15, F at 22.) Upon hearing this, Officer
Severson turned around and said, "That's it. You're under
arrest."*fn2 (Id. Ex. E at 16; see id. Exs. G at 14, H
at 75.) The male guest walked into the residence and shut the
door. (Id. Ex. F at 23.)
Both officers ran to the door and began kicking it in. (Id.
Exs. C at 4, D at 4, E at 16-17, F at 23-25.) The door opened and
struck Ms. Weiner's young daughter in the face.*fn3 (Id.
Exs. C at 4, D at 4, E at 17-18, 20-21.) Once inside, the
officers searched unsuccessfully for the male guest.*fn4
(Id. Exs. E at 17-18, 20-21, G at 33.) As the officers left, they sprayed mace into the house. (Id. Exs. E at 21-22, F
at 30.) The officers testified that a growing crowd of guests
were yelling and swearing at them. (Id. Exs. G at 15, H at
76-78.) Ms. Weiner conceded that people were angry and yelling.
(Id. Ex. E at 21, 26-27.)
Upset at what was occurring, Ms. Weiner asked the officers what
they were doing and why they were using mace.*fn5 (Id.
Exs. C at 4, D at 4, E at 23, F at 28.) Officer Severson
responded by telling Ms. Weiner that she was under arrest and he
grabbed her arm. (Id. Exs. E at 23, H at 79.) At nearly the
same time, Ms. Weiner's father, who is not a party to this
action, grabbed Ms. Weiner's other arm and said, "You're not
arresting my daughter. For what?" (Id. Ex. E at 23; see id.
Ex. H at 79.) Officer Lappegard, who had come to assist Officer
Severson, maced Ms. Weiner and her father. (Id. Exs. E at 23, H
at 80.) The officers pulled Ms. Weiner's father away and
handcuffed him. (Id. Exs. E at 24, H at 80.)
Officer Severson and Officer Mark Durand, who had arrived at
the scene, proceeded to arrest Ms. Weiner. (Id. Exs. E at 25, H
at 80-81.) They twisted her arms behind her back, kicked her legs
out from under her, pushed her onto the ground, and put her face
in the gravel. (Id. Exs. E at 25-26, F at 35; see id. Ex. H
at 81; Zitnick Aff. Ex. B at 31-32.) During this time, Ms. Weiner
testified that "[e]veryone was . . . still outside in the backyard" about fifteen feet away from the officers, and that
"everyone was yelling" at the officers, saying things like, "What
the F [are you] doing." (Moore Aff. Ex. E at 27-28.) Eventually,
Ms. Weiner was handcuffed by Sergeant Wesley Ostlund, who had
also arrived at the scene. (Id. Ex. E at 25.) She denies
resisting arrest.*fn6 (Id. Ex. E at 26).
In the process of being arrested, Ms. Weiner reopened a cut on
her chin (the original wound was caused by a pimple). (Id. at
28, 33-35.) She was allowed to wash her face and she needed no
medical attention. (Id.) Ultimately, she was arrested and
charged with assault and obstructing legal process, but was later
acquitted on both charges in state court.*fn7
While the officers were on the ground arresting Ms. Weiner, Ms.
Hennessey approached and tried to tell them not to put Ms.
Weiner's face in the ground. (Id. Ex. F at 37-38; Zitnick Aff.
Ex. E at 297, 309.) But "before [she] could get the words out of
[her] mouth," Officer Lappegard maced Ms. Hennessey in the face.
(Moore Aff. Ex. C at 5; see id. Ex. F at 38-39.) Then,
Officer Durand grabbed her legs, brought her to the ground,
pulled her arms behind her back, and held her down with a knee in
her back. (Id. Exs. F at 38-40, I at 126.) Officers Durand,
Severson, and Lappegard testified that Officer Durand took Ms. Hennessey down because she was kicking
him while he was on the ground arresting Ms. Hervey. (Id. Exs.
G at 21, H at 81-83, 113-14, I at 125-26.) When asked at her
deposition whether she kicked any officer who was on the ground,
Ms. Hennessey testified, "Not that I know of." (Id. Ex. F at
While she was on the ground, Ms. Hennessey was told to give the
officers one of her arms, but when she failed to do so, the
officers maced her a second time. (Zitnick Aff. Ex. E at 298.)
After she was maced, she told the officers that her "back hurt,
[so] I couldn't get my arm out." (Id.) Eventually, the officers
rolled her over, got her arm out, and put her into handcuffs.
(Id.; see Moore Aff. Ex. F at 40.) As a result of the arrest,
she exacerbated a pre-existing back problem, suffered cuts and
abrasions to her face and knees, and experienced headaches.
(Moore Aff. Ex. F at 39-51.) She sought medical attention for her
injuries. (Id. Ex. F at 45-55.) Ultimately, Ms. Hennessey was
arrested and charged with assault and obstructing legal process;
she was convicted of "obstructing legal process without force" in
state court.*fn8 (Moore Aff. Ex. C at 9.)
Stemming from these events, Ms. Hervey and Ms. Hennessey filed
a seven-count Complaint in state court, which the Defendants
removed to this Court. They allege unlawful arrest in violation
of the Fourth and Fourteenth Amendments; excessive force in violation of the Fourteenth Amendment; abuse of process in
violation of the Fifth and Fourteenth Amendments; common law
assault and battery; and negligent retention and supervision. The
Defendants have moved for summary judgment on each count.
Standard of Review
Summary judgment is proper if, drawing all reasonable
inferences favorable to the non-moving party, there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving
party bears the burden of showing that the material facts in the
case are undisputed. See Celotex, 477 U.S. at 322; Mems v.
City of St. Paul, Dep't of Fire & Safety Servs., 224 F.3d 735,
738 (8th Cir. 2000). The court must view the evidence, and the
inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. See Graves v. Arkansas
Dep't of Fin. & Admin., 229 F.3d 721, 723 (8th Cir. 2000);
Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). The nonmoving party may not rest on mere allegations or
denials, but must show through the presentation of admissible
evidence that specific facts exist creating a genuine issue for
trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995). Analysis
I. Unlawful Arrest and Excessive Force Claims
Plaintiffs allege that they were unlawfully arrested and that
the officers used excessive force during the arrests. The
officers respond that they are entitled to qualified immunity for
their actions. Qualified immunity is an entitlement not to stand
trial or face other burdens of litigation. Saucier v. Katz,
533 U.S. 194, 200 (2001). "The privilege is an immunity from suit
rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial." Id. at 200-01 (citation and internal
quotations omitted) (emphasis in original). As a result, the
Supreme Court has "repeatedly . . . stressed the importance of
resolving immunity questions at the earliest possible stage in
litigation." Id. at 201 (citation and internal quotations
Under the qualified immunity doctrine, state actors are
protected from civil liability when their actions do not violate
clearly established constitutional rights of which a reasonable
person would have known. Kuha v. City of Minnetonka,
365 F.3d 590, 601 (8th Cir. 2003) (amended opinion). On summary judgment,
courts ask two questions to determine whether qualified immunity
is appropriate. The first is whether, when viewed in the light
most favorable to the party asserting the injury, the facts
alleged show that the officers' conduct violated a constitutional
right. Id.; see Saucier, 533 U.S. at 201. If no
constitutional right has been violated, there is no necessity for
further inquiries concerning qualified immunity. Saucier,
533 U.S. at 201. However, if the court finds that a constitutional right has
been violated, it then asks whether the right was clearly
established in light of the specific context of the case. Kuha,
365 F.3d at 601; see Saucier, 533 U.S. at 201. For a right to
be clearly established, the contours of the right must be
sufficiently clear that a reasonable officer would understand
that what he is doing violates that right. Kuha,
365 F.3d at 601. This second step of the qualified immunity inquiry shields
officers from suit "if their conduct was objectively legally
reasonable in light of the information they possessed at the time
of the alleged violation." Id. In other words, "if the
officers' mistake as to what conduct the law required is
reasonable, they are entitled to the immunity defense." Id. at
602 (citing Saucier, 583 U.S. at 205).
Whether a given set of facts entitles the official to summary
judgment on qualified immunity grounds is a question of law.
Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir.
1994). But if there is a genuine dispute concerning predicate
facts material to the qualified immunity issue, there can be no
summary judgment. Id.; see Lambert v. City of Dumas,
187 F.3d 931, 935 (8th Cir. 1999). A. Unlawful Arrest
The Fourth Amendment prohibits arrests without probable cause.
See, e.g. Hill v. Scott, 349 F.3d 1068, 1072 (8th Cir. 2003).
In reviewing an allegation that probable cause was lacking to
make an arrest, courts consider
whether the totality of facts based on reasonably
trustworthy information would justify a prudent
person in believing the individual arrested had
committed . . . an offense. Probable cause is to be
assessed in terms of the circumstances confronting a
reasonably cautious police officer at the time of the
arrest, and the arresting officer is entitled to
consider the circumstances, including arguably
innocent conduct, in light of his training and
experience. The probability, and not a prima facie
showing, of criminal activity is the standard of
Gorra v. Hanson, 880 F.2d 95
, 97 (8th Cir. 1989) (citation,
internal quotations, and alterations omitted); see Smithson v.
Aldrich, 235 F.3d 1058
, 1062 (8th Cir. 2000). Qualified immunity
protects law enforcement officers in circumstances in which they
reasonably but mistakenly conclude probable cause is present.
Gorra, 880 F.2d at 97. Thus, "the issue is not probable cause
in fact, but arguable probable cause." Id. (citation and
internal quotations omitted).
Both Plaintiffs were arrested for and charged with obstructing
legal process; Ms. Weiner was acquitted, while Ms. Hennessey was
convicted. The statute under which Plaintiffs were charged
provides, in part:
Whoever intentionally does any of the following may
be sentenced as provided in subdivision 2:
(1) obstructs, hinders, or prevents the lawful
execution of any legal process, civil or criminal, or
apprehension of another on a charge or conviction of
a criminal offense; [or] (2) obstructs, resists, or interferes with a peace
officer while the officer is engaged in the
performance of official duties[.]
Minn. Stat. § 609.50, subd. 1(1), (2).*fn9
While the statute
is broadly drafted, the Minnesota Supreme Court has narrowly
construed it. See State v. Krawsky, 426 N.W.2d 875
(Minn. 1988); see also State v. Tomlin, 622 N.W.2d 546
(Minn. 2001) (noting that the statute has been "narrowly
construed"). Krawsky held that the statute criminalizes only "a
particular kind of physical act, namely, physically obstructing
or interfering with an officer." 426 N.W.2d at 877. Thus, the law
does not criminalize "ordinary verbal criticism directed at a
police officer even while the officer is performing his official
duties" or "the mere act of interrupting an officer, even
intentionally." Id. at 878. However, "in limited
circumstances," "words, such as fighting words, that have the
effect of physically obstructing or interfering with an officer
conducting an investigation" may fall within the statute's ambit.
Tomlin, 622 N.W.2d at 548; see Krawsky, 426 N.W.2d at 877. 1. Ms. Weiner's Unlawful Arrest Claim
The Court finds that genuine issues of material fact exist as
to whether the officers possessed arguable probable cause to
arrest Ms. Weiner for obstructing legal process.*fn10 When
viewed in a light most favorable to Ms. Weiner, the record shows
that she merely approached the officers and asked them what they
were doing at the residence and asked why they were using mace.
Under this version of the facts, Ms. Weiner did not physically
obstruct or interfere with the officers, nor did she use
"fighting words" or words that would have had the effect of
physically obstructing or interfering with the officers. See
Krawsky, 426 N.W.2d at 877. Rather, she engaged in ordinary
verbal criticism which does not violate the law. See id.
Under these circumstances, no reasonable officer would be
justified in believing that Ms. Weiner had committed an offense.
While the officers' version of events differs, the factual
dispute presents an issue for trial. See Gainor v. Rogers,
973 F.2d 1379, 1387 (8th Cir. 1992). Accordingly, the Court will
deny Defendants' Motion with respect to Ms. Weiner's unlawful
arrest claim.*fn11 2. Ms. Hennessey's Unlawful Arrest Claim
The Court reaches a different conclusion with respect to Ms.
Hennessey's unlawful arrest claim. Unlike Ms. Weiner, Ms.
Hennessey was convicted of obstructing legal process without
force resulting from her arrest. (Moore Aff. Ex. C at 9.) The
Eighth Circuit has held that an arrestee's conviction for the
underlying offense is a complete defense to a civil rights claim
that the arrest was without probable cause. See Malady v.
Crunk, 902 F.2d 10, 11-12 (8th Cir. 1990). Accordingly, the
Court will grant Defendants' Motion with respect to Ms.
Hennessey's unlawful arrest claim.
B. Excessive Force
The Fourth Amendment also prohibits arrests carried out by
excessive force. See Crumley v. City of St. Paul,
324 F.3d 1003, 1007 (8th Cir. 2003). Excessive force claims are analyzed
under the Fourth Amendment's "objective reasonableness standard."
Saucier, 533 U.S. at 204 (quoting Graham v. Connor,
490 U.S. 386, 388 (1989)). However, the objective reasonableness standard
"is not capable of precise definition or mechanical application."
Graham, 490 U.S. at 396 (citation and internal quotation
omitted). Rather, the "proper application [of the objective
reasonableness standard] requires careful attention to the facts
and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight." Id. (citation omitted). In addition to these facts and circumstances, courts also consider the result of the force.
See Crumley, 324 F.3d at 1007 (citing cases).
"The calculus of reasonableness must embody 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." Graham, 490 U.S. at 396-97.
Accordingly, "the reasonableness of the officer's belief as to
the appropriate level of force should be judged from that onscene
perspective." Saucier, 533 U.S. at 205 (citation omitted). "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 (citation and internal quotations
omitted). As such, the reasonableness of a particular use of
force "must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight." Id. (citation omitted).
In addition to evaluating an officer's conduct under the
objective reasonableness standard, "[t]he qualified immunity
inquiry . . . has a further dimension." Saucier,
533 U.S. at 205. The Supreme Court has noted that
[t]he concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made as
to the legal constraints on particular police
conduct. It is sometimes difficult for an officer to
determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation
the officer confronts. An officer might correctly
perceive all of the relevant facts but have a
mistaken understanding as to whether a particular
amount of force is legal in those circumstances. If
the officer's mistake as to what the law requires is
reasonable, however, the officer is entitled to the
immunity defense. Id. Qualified immunity operates, therefore, "to
protect officers from the sometimes hazy border
between excessive and acceptable force . . . and to
ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful."
Id. at 206 (internal citation and quotations
omitted). Thus, "in addition to the deference
officers receive on the underlying constitutional
claim, qualified immunity can apply in the event the
mistaken belief was reasonable." Id.
1. Ms. Weiner's Excessive Force Claim
a. Constitutional Violation?
The record shows that during Ms. Weiner's arrest, Officer
Severson grabbed one of her arms and Ms. Weiner's father grabbed
her other arm, saying "[y]ou're not arresting my daughter." After
Ms. Weiner's father was pulled away, Officers Severson and Durand
placed Ms. Weiner under arrest by twisting her arms behind her
back, kicking her legs out from under her, pushing her to the
ground and her face in the gravel, and handcuffing her. During
the arrest, "everyone was yelling" at the officers from a
distance of about fifteen feet away. As a result of her arrest,
Ms. Weiner reopened a cut on her chin but she needed no medical
The Court finds that under the circumstances presented, no
reasonable jury could find that the officers used excessive force
in effecting Ms. Weiner's arrest.*fn12 By all accounts, the scene was chaotic and the officers had to make
quick judgments about how much force to use under circumstances
that were tense, uncertain, and rapidly evolving. Under such
circumstances, a reasonable officer could have determined that
Ms. Weiner was actively resisting arrest. When Officer Severson
grabbed Ms. Weiner's arm during the arrest, Ms. Weiner's father
grabbed her other arm and told the officers, "You're not
arresting my daughter." While Ms. Weiner denies resisting arrest,
the officers had no way of knowing whether she, her father, or
both were resisting all they knew was that Ms. Weiner was not
submitting to the arrest. Although Ms. Weiner may have had no
control over her father grabbing her arm, the situation
nonetheless constituted resistence which justifies the use of
greater force. See Crumley, 324 F.3d at 1008.
Furthermore, a reasonable officer could have concluded that Ms.
Weiner and her father posed an immediate threat to officer safety
and the safety of others. Here, the officers were engaged in a
human "tug-of-war" that could have led to someone being seriously
injured. Given this unpredictable situation, they were reasonably
wary of what could come next and reasonably concerned about
safety. In addition, by Ms. Weiner's own account, the officers
had to contend with a group of people yelling things like "What
the F [are you] doing" from about fifteen feet away. The
officers' need to use force in making a swift arrest is magnified
when they are surrounded by a hostile crowd. See Spoo v. Maciejewski, 2004 WL 2457859, at *7 (D. Minn. Oct. 14,
2004) (Rosenbaum, C.J.)
Finally, Ms. Weiner's only injury was a reopened cut on her
chin and she did not require any medical attention. Although the
Eighth Circuit has specifically rejected a "significant injury"
requirement in excessive force cases, see Lambert,
187 F.3d at 936, Ms. Weiner's relatively minor injury suggests that the
force used was reasonable, see Crumley, 324 F.3d at 1008;
Greiner, 27 F.3d at 1355; Foster v. Metro. Airports Comm'n,
914 F.2d 1076, 1082 (8th Cir. 1990).
In support of her excessive force claim, Ms. Hervey relies on
four cases: Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991);
Gainor v. Rogers, 973 F.2d 1379 (8th Cir. 1992); Kelly v.
Bender, 23 F.3d 1328 (8th Cir. 1994); and Smith v. City of
Hemet, 394 F.3d 689 (9th Cir. 2005). But in none of these cases
were officers contending with an arrestee who was being pulled
away from them by another person while a hostile crowd was
yelling at them from only a short distance away.
In sum, considering the fluid situation confronting the
officers, see Graham, 490 U.S. at 396-97, the force used in
arresting Ms. Weiner was not objectively unreasonable.
Accordingly, because Ms. Weiner has not established a
constitutional violation, the Court will grant Defendants' Motion
with respect to her excessive force claim.
b. Clearly Established?
Had Ms. Weiner shown a violation of a constitutional right, the
right was not clearly established in light of the specific
context of this case. See Kuha, 365 F.3d at 601. For a right to be clearly established, the contours of the right
must be sufficiently clear that a reasonable officer would
understand that what he is doing violates that right. Id. This
second step of the qualified immunity inquiry shields officers
from suit "if their conduct was objectively legally reasonable in
light of the information they possessed at the time of the
alleged violation." Id. (citation omitted). In other words, "if
the officers' mistake as to what conduct the law required is
reasonable, they are entitled to the immunity defense." Id. at
602 (citing Saucier, 533 U.S. at 205).
Under the circumstances presented to the officers, they had no
"fair warning" that their conduct, especially in light of Ms.
Hervey's father's attempt to prevent them from taking Ms. Weiner
into custody, was unconstitutional. See Hope v. Pelzer,
536 U.S. 730, 739 (2002) (stating that the salient question is
whether the state of the law at the time gave officers "fair
warning" that their alleged conduct was unconstitutional). The
qualified immunity inquiry acknowledges that reasonable mistakes
can be made as to the legal constraints on particular police
conduct. See Saucier, 533 U.S. at 205. If an officer makes a
reasonable mistake as to what the law requires, then that officer
is entitled to qualified immunity from suit. Id. Here, the
officers at least made a reasonable mistake as to how the law
regarding excessive force would apply to the factual situation
with which they were confronted. Thus, they are entitled to
qualified immunity. Id.
2. Ms. Hennessey's Excessive Force Claim
a. Constitutional Violation? The record shows that while the officers were on the ground
arresting Ms. Weiner, Ms. Hennessey approached and tried to talk
to the officers. But before she was able to say anything, she was
maced, grabbed by her legs, brought to the ground, had her arms
pulled behind her back, and held down with a knee in the back.
She was maced again after she did not give her arm to the
officers when directed. She was then handcuffed. As a result, Ms.
Hennessey exacerbated a pre-existing back injury, suffered cuts
and abrasions to her face and knees, and experienced headaches.
She had medical attention afterwards.
The Court finds that under the circumstances presented, no
reasonable jury could find that the officers used excessive force
in carrying out Ms. Hennessey's arrest. It bears repeating that
the officers were forced to make a split-second judgment in
unstable circumstances about the amount of force that was
necessary in dealing with Ms. Hennessey. See Graham,
490 U.S. at 396-97. By all accounts, the scene was chaotic and the
uncertain circumstances "must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Id. at 396.
From such a perspective, a reasonable officer on the scene
could have legitimately feared for his immediate safety when Ms.
Hennessey approached. "[O]fficer safety is paramount," Kuha,
365 F.3d at 599, and the officers were in a particularly
vulnerable position when Ms. Hennessey walked up to them they
were on the ground in the process of arresting Ms. Weiner. From
the "on-scene" perspective of the officers, they had no way of
knowing whether she was going to attempt to pull Ms. Weiner away
as Ms. Weiner's father had done, whether she possessed a weapon, or
whether, as it turned out, she was just going to talk to them.
Simply put, the officers had no way of knowing what Ms.
Hennessey's true intentions were at the time.
Moreover, a reasonable officer could have concluded that Ms.
Hennessey was actively resisting arrest when she failed to give
the officers her arm when directed.*fn13 In the rapidly
evolving events, the officers had no way of knowing at that point
why she could not give them her arm. The application of a second
round of mace, under these circumstances, cannot be viewed as
Furthermore, as noted above, the officers were contending with
a group of bystanders who were yelling at them from about fifteen
feet away. As with the arrest of Ms. Weiner, the officers' need
to use force in making a swift arrest of Ms. Hennessey is
magnified when the officers are surrounded by a hostile crowd.
See Spoo, 2004 WL 2457859, at *7.
Finally, while her injuries were more severe than Ms. Weiner's
injuries, Ms. Hennessey's injures were relatively minor an
exacerbated pre-existing back injury, cuts and abrasions to her
face and knees, and headaches. Although these injuries are not
insignificant, see Lambert, 187 F.3d at 936, and would not
alone warrant a finding that the officers' use of force was
reasonable, considering the overall circumstances of her arrest, Ms. Hennessey's relatively minor injuries suggest that
the force used was reasonable, see Crumley, 324 F.3d at 1008;
Greiner, 27 F.3d at 1355; Foster, 914 F.2d at 1082.
Like Ms. Weiner, Ms. Hennessey also relies on Dixon,
Gainor, Kelly, and Smith in support of her excessive force
claim. But in none of these cases were officers contending with
someone who was approaching them with unknown intentions during
an arrest, while an angry group of people was shouting at them in
In sum, given the volatile scene the officers encountered,
see Graham, 490 U.S. at 396-97, the force used in arresting
Ms. Hennessey was not objectively unreasonable. Accordingly,
because Ms. Hennessey has not established a constitutional
violation, the Court will grant Defendants' Motion with respect
to her excessive force claim. b. Clearly Established?
Had Ms. Hennessey shown a violation of a constitutional right,
the right was not clearly established in light of the specific
context of this case. See Kuha, 365 F.3d at 601. Here, the
officers at least made a reasonable mistake as to how the law
regarding excessive force would apply to the factual situation
with which they were confronted especially in light of the
officers' not knowing Ms. Hennessey's intentions and the
vulnerable position they were in when she approached. As such,
they are entitled to qualified immunity from suit. See
Saucier, 533 U.S. at 205. Accordingly, qualified immunity
operates in this case "to protect officers from the sometimes
hazy border between excessive and acceptable force . . . and to
ensure that before they are subjected to suit, officers are on
notice that their conduct is unlawful." Id. at 206 (internal
citation and quotations omitted); see Davis v. Hall,
375 F.3d 703, 712 (8th Cir. 2004) ("Officials are not liable for bad
guesses in gray areas; they are liable for transgressing bright
II. Abuse of Process Claim
Plaintiffs next allege that the officers' conduct was an abuse
of due process in violation of the Fifth and Fourteenth
Amendments. But because Plaintiffs have not addressed this claim
in their responsive memorandum, the Court will dismiss it as
waived. Graham v. Rosemount, Inc., 40 F. Supp. 2d 1093, 1101
(D. Minn. 1999). In any event, to the extent Plaintiffs raise
excessive force claims under the Fifth and Fourteenth Amendments,
those claims are meritless because "all claims that law
enforcement officers have used excessive force . . . in the
course of an arrest . . . should be analyzed under the Fourth Amendment and its `reasonableness' standard," Graham,
490 U.S. at 395 (emphasis in original), and, as discussed above,
their claims fail under the Fourth Amendment.
III. Assault and Battery
Plaintiffs also allege claims of common law assault and
battery. An assault is an unlawful threat to do bodily harm to
another with the present ability to carry out the threat. Dahlin
v. Fraser, 288 N.W. 851, 852 (Minn. 1939). A battery is an
intentional unpermitted offensive contact with another. Paradise
v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).
Although Plaintiffs' Complaint refers to the tort of assault as
well as that of battery, it is apparent that the essence of their
claims is based on battery. Indeed, the damages allegedly
sustained resulted from the actual contact the officers had with
Plaintiffs, and not from Plaintiffs' fear that they might be
harmed. Thus, only the battery claim will be discussed. See
Paradise, 297 N.W.2d at 155 n. 3.
With respect to the battery claim, Minnesota law provides that
"only the use of excessive force by a police officer will
constitute a battery." Johnson v. Peterson, 358 N.W.2d 484, 485
(Minn.Ct.App. 1984) (citing Paradise, 297 N.W.2d at 155)
(emphasis in original). Because the Court has determined that
Plaintiffs have failed to establish that the officers used
excessive force, Plaintiffs' battery claims fail. Accordingly,
the Court will grant Defendants' Motion with respect to
Plaintiffs' assault and battery claims.*fn14 IV. Negligent Hiring and Negligent Retention
Finally, Plaintiffs allege that the City of Minneapolis and its
chief of police negligently hired and negligently retained the
officers who arrested them. But because Plaintiffs have not
addressed this claim in their responsive memorandum, the Court
will dismiss it as waived. Graham, 40 F. Supp. 2d at 1101. In
any event, the City and its chief of police are entitled to
discretionary immunity from these claims pursuant to Minn. Stat.
§ 466.03, subd. 6, which establishes that a municipality is
immune from tort liability for "[a]ny claim based upon the
performance or the failure to exercise or perform a discretionary
function or duty, whether or not the discretion is abused." See
Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 412-13 (Minn.
1996); Maras v. City of Brainerd, 502 N.W.2d 69, 78 (Minn. Ct.
Based on the foregoing, and all of the files, records, and
proceedings herein, IT IS ORDERED that Defendants' Motion for
Summary Judgment (Doc. No. 16) is GRANTED IN PART AND DENIED IN
PART and all claims contained in Plaintiffs' Complaint are
DISMISSED WITH PREJUDICE, with the exception of Plaintiff
Weiner's unlawful arrest claim, which will proceed to trial.