The opinion of the court was delivered by: James M. Rosenbaum United States District Judge
Plaintiffs claim they suffered unconstitutional and compensable police brutality. Defendants seek summary judgment. The motion of defendants Kroll and Krueger is denied. The motion of the remaining defendants is granted.
The facts are sharply contested. For these motions, they are viewed most favorably to plaintiffs, the nonmoving parties.
On the evening of Friday, May 14, 2004, defendants Robert Kroll and Wallace Krueger, both off-duty Minneapolis police sergeants,*fn1 along with Krueger's wife, Cheryl, attended a birthday celebration. Dinner and drinks were served at the party. After the event, the Kruegers gave Kroll a ride to his car parked in northeast Minneapolis. They stopped briefly for a drink along the way.
An art festival called Art-A-Whirl was under way in northeast Minneapolis at the time. Local art galleries and studios were open, serving refreshments and encouraging visitors to go from site-to-site on foot or by bike. The streets were crowded with Art-A-Whirl goers, including plaintiffs Jackson Mahaffy, Flora Mahaffy (his sister), Daniel Nelson, and Paul Von Arx, all of whom had been drinking as they biked from gallery to gallery.
At about 10:00 p.m., plaintiffs were gathered on the sidewalk in front of the Old Science Renovation art studio at the corner of Marshall Avenue and 13th Avenue. Jackson Mahaffy ("Mahaffy") was in the middle of Marshall Avenue when he spun around, swinging his shoulder bag. The bag hit the Kruegers' car as it drove slowly by. After Krueger pulled over to inspect the car, both he and Kroll approached Mahaffy on foot. They later testified they intended to detain Mahaffy and possibly issue him a citation for misdemeanor damage to property.
The parties dispute the ensuing events. Plaintiffs claim Kroll and Krueger pushed Mahaffy to the ground, punching and kicking him without provocation; Kroll and Krueger claim they were attacked by the crowd before they could reach or speak to Mahaffy. Bystanders disagree about whether any words were exchanged, when -if ever - Kroll and Krueger identified themselves as police officers, and many other details. All agree that within moments, a melee erupted, in which plaintiffs and Krueger were injured.
Several onlookers called 911, and Kroll himself broke away to call Minneapolis police dispatch*fn2 on his cell phone. Kroll identified himself as an off-duty police officer, but stated this was "[n]ot a help call" - meaning he did not need assistance. He said, "We've got a damage of property and an assault. We got one guy we're holding here." The dispatcher asked for Kroll's name and badge number, and the street address, which was in the Second Precinct. Kroll said, "Have a Second Precinct squad come," and told the dispatcher it was "[n]ot a help call but get one here quick." (Transmittal Affidavit of Daniel J. Brazil [Docket No. 64],*fn3 Ex. B60, Transcript of 911 calls.) In spite of Kroll's saying it was not a "help call," the dispatcher's call went over the police radio accompanied by an audible tone signaling an officer needed assistance.
Squad cars were dispatched to the scene. While waiting for them, Kroll saw Mahaffy's friends trying to help him walk away. Kroll testified he then grabbed Mahaffy in an attempt to detain him until the squads arrived. During this process, he kicked some of Mahaffy's would-be rescuers.
Minneapolis Police Officers Christopher Bennett and Aaron Hanson were the first to arrive at 10:26 p.m. Both knew Kroll and Krueger to be sergeants in the police department; Hanson recognized Kroll, and Bennett recognized both men, on sight. (Ex. B39, Bennett Dep. at 6-7, 12; Ex. B42, Hanson Dep. at 6-8.)*fn4
Upon arriving, Bennett and Hanson saw Kroll exchanging words with the crowd, but deny seeing him physically engaged with anyone. Bennett and Hanson approached Kroll. When a woman from the crowd rushed towards Kroll, Hanson tackled her. Mahaffy also approached Kroll, and when he did, Hanson and Bennett tackled him and placed him in handcuffs. Kroll then told the uniformed officers Mahaffy had damaged the car and assaulted Krueger. Based on Kroll's account, the uniformed officers arrested Mahaffy.
As other squads arrived, plaintiff Daniel Nelson sat on the curb. He was kicked in the head three times as he sat there. He could not identify who kicked him, but Flora Mahaffy and Britta Shernoch later told him it was Kroll. Britta Shernoch tried to get between Kroll and Nelson, and was thrown to the ground by a uniformed officer. (Ex. B28, Shernoch Aff. ¶¶ 7, 9.) Nelson does not know whether any uniformed officers saw him get kicked. Nelson's friend, Zoe LeSaout, stated, "one of the men from the SUV" ran "past an officer, and kicked Dan in the back of the head. I jumped up to defend Dan and as I moved toward the man from the SUV, the officer held his arms out to stop me." (Ex. B24, LeSaout Aff. ¶ 11.) Another witness, Dylan Ryan, claims he saw someone "held down by police" and "kicked repeatedly" by Kroll. This apparently occurred after Mahaffy had been placed in a squad car. (Ex. B27, Ryan Aff. ¶¶ 12, 13.)
Meanwhile, Paul Von Arx observed the initial altercation between Kroll, Krueger, and Mahaffy from the roof of the building. He states he saw Krueger punch Flora Mahaffy as she tried to intervene. At this point, he ran downstairs; when he emerged from the building, he saw Krueger had received a head injury.
Von Arx confronted Krueger and shouted at him. Krueger backed away into a parking lot followed by Von Arx. When Von Arx heard sirens in the distance, he decided to leave and get his bike from the front of the building. At this point, a squad arrived,*fn5 parking on the street nearby. As Von Arx looked down to unlock his bike, he was punched in the head and fell over. He looked up to see Krueger taunting him. Von Arx believes that, as their squad was parked nearby, uniformed officers may have seen Krueger punch him. He cannot, however, state what, if anything, the officers actually saw.
More squads arrived. Onlookers told the arriving officers Kroll and Krueger started the fight, and Mahaffy was blameless. The officers did not, however, release Mahaffy or arrest Kroll and Krueger. Kroll and Krueger were allowed to leave the scene. This apparently enraged the crowd of onlookers, who continued to shout at the officers and refused to obey orders to get out of the street.
Mahaffy's friends saw Officers Bennett and Hanson place him in a squad car and drive away. No plaintiff testified to seeing Kroll or Krueger have any contact with Mahaffy after uniformed officers arrived. (Ex. B1, Mahaffy Dep. at 28-30, 34-36; Ex. B3, Flora Mahaffy Dep. at 33, 58; Ex. B5, Nelson Dep. at 38; Ex. B8, Von Arx Dep. at 65.) Several bystanders, however, claim they saw uniformed officers either hold Mahaffy down or form a circle around him to permit Kroll to assault him. Remarkably, this testimony is not supported by any of the plaintiffs.
Doreen Johnson, for example, drove by and saw the fight. She stopped to call 911, and when squads arrived, she claims she saw three uniformed officers stand watching as Kroll hit Mahaffy. She cannot identify any of the officers. (Ex. B18, Johnson Dep. at 17, 60-61, 67.) Similarly, Matthew Rolfe was working at the Old Science Renovation building. In his first deposition, he was "certain" he saw a uniformed police officer kick someone who was on the ground in handcuffs. (Ex. B21, Matthew Rolfe Dep. I, at 14-15, 17.) He stated he could not identify either the officer or the victim. (Id. at 20-23.) Shortly afterward, he asked to give further testimony, at which time he corrected his prior testimony, saying the assailant was "one of the gentlemen from the truck" -meaning either Kroll or Krueger. (Ex. B21, Rolfe Dep. II at 6, 13.) He claimed a uniformed officer held the victim down, but he could not identify the officer. (Id. at 13.) He states the victim was kicked once in the face (Id. at 19.), but he is "not positive" the victim was Mahaffy. (Id. at 16.) Peter Thomas claims as Mahaffy was being held down, Kroll "ran around the uniformed officers" and kicked him in the head. (Ex. B30, Peter Thomas Aff. ¶ 8.)
Mahaffy was taken to a nearby parking lot, to which an ambulance had been directed. Kroll was driven there by another officer. Krueger and his wife drove there in their own vehicle. Kroll, Krueger, and the other responding officers assembled in the parking lot. Paramedics examined Krueger and Mahaffy.
Mahaffy was transported to the Hennepin County Adult Detention Center, where he spent the next three days. Notwithstanding a police recommendation that he be charged with assault on an officer, damage to property, and inciting a riot, the City Attorney's Office declined to pursue charges.
On May 26, 2004, Nelson filed a complaint with the Minneapolis Civilian Review Authority ("CRA"), charging Kroll and Krueger with excessive force, inappropriate conduct, and failure to provide adequate or timely police protection. The CRA Panel sustained the allegation that both Kroll and Krueger used excessive force against Mahaffy, that Kroll used excessive force against Nelson, and that Krueger used excessive force against both Flora Mahaffy and Paul Von Arx. The Panel further sustained the allegation of inappropriate conduct against both Kroll and Krueger based on a finding they failed to identify themselves as police officers and give appropriate instructions before approaching Mahaffy. Nelson also alleged other officers stood by and failed to protect him when Kroll kicked him; the Panel found insufficient evidence to substantiate this claim.
The CRA Panel recommended discipline for both Kroll and Krueger; as a result, the Minneapolis Police Department suspended Krueger for 24 hours, and Kroll for 160 hours.
Plaintiffs filed this lawsuit in August 2008. They bring federal civil rights claims against the City of Minneapolis and the named police officers. All defendants move for summary judgment.
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact. 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, 246 (1986). The party opposing summary judgment may not rest upon the allegations in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49; see also Hartnagel v. Norman, 953 F.2d 394, 395-96 (8th Cir. 1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis omitted).
Plaintiffs' Amended Complaint [Docket No. 36]*fn6 alleges claims of excessive force (by Kroll and Krueger only), unreasonable seizure of Mahaffy (by the uniformed officers), and conspiracy to do the same (by the uniformed officers), as well as a claim that plaintiffs' injuries were caused by an unconstitutional policy or custom of the City of Minneapolis.*fn7
A. Excessive Force and Unreasonable Seizure
As an initial matter, defendants Kroll and Krueger deny they have been properly named in their individual capacity, and were not acting under color of state law as required by 42 U.S.C. § 1983. They are incorrect.
1. Kroll and Krueger Properly Named Individually
Kroll and Krueger claim they have not been properly named in their individual capacity. Official capacity and individual capacity suits are "different causes of action." Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). "Because section 1983 liability exposes public servants to civil liability and damages . . . only an express statement that they are being sued in their individual capacity will suffice to give proper notice to the defendants." Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). A plaintiff who would sue a public official in his or her individual capacity "must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity." Id. The Eighth Circuit Court of Appeals offered an example of express and unambiguous notice, reading: "Plaintiff sues each and all defendants in both their individual and official capacities." Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Plaintiffs have not been so explicit. The Amended Complaint names the defendants as follows:
Robert J. Kroll; Wallace M. Krueger; Christopher J. Bennett; Aaron C. Hanson; Christopher Bishop; David Campbell; Toddrick Kurth; Brandon Kitzerow; James Rugel; Clark Goset; and Mark Durand, all acting in their individual capacity; as Minneapolis Police Officers; and the City of Minneapolis, Defendants.
This sentence reflects - at least - a failure to incorporate Eighth Circuit precedent. The Court, however, is willing to set aside its adventuristic grammatic structure and finds it sufficient to put defendants on notice of plaintiffs' claim of personal liability. After the semi-coloned list of officers' names, the words "all acting in their individual capacity" appear. This can certainly be distinguished from those cases where the complaint is silent as to individual capacity. See Baker, 501 F.3d at 924; Johnson, 172 F.3d at 535; Artis v. Francis Howell North Band Booster Ass'n, 161 F.3d 1178, 1182 (8th Cir. 1998); Nix, 879 F.2d at 431; Rau v. Roberts, 2010 WL 396223, *7 (D. Minn., Jan. 27, 2010) (Kyle, J.)
Ultimately, the Court finds the Amended Complaint sufficient to give Kroll and Krueger notice they are being sued both officially and individually.
2. Kroll and Krueger Acted Under Color of State Law
One liable under § 1983 must be "acting under color of state law" to deprive a plaintiff of a "right secured by the Constitution and laws of the United States." See West v. Atkins, 487 U.S. 42, 48 (1988). The Eighth Circuit has interpreted "under color of state law" to mean the defendant "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997), quoting West, 487 U.S. at 49. Defendants argue Kroll and Krueger, off-duty and out of uniform, were not acting under color of state law. But ...