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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



  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 39.)

  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 omitted).

  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 probable cause.
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 ...

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