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Kellum v. Evans

United States District Court, Eighth Circuit

August 6, 2013

Steven Dion Kellum, Plaintiff,
Danielle Bree Evans, Daniel Steven Anderson, and Richard Ross Taylor, acting in their individual capacities as officers of the Minneapolis Police Department, and City of Minneapolis Defendants.


JOAN N. ERICKSEN, District Judge.

Plaintiff Steven Kellum ("Kellum") brought suit against Defendants Officer Danielle Bree Evans ("Evans"), Officer Daniel Steven Anderson ("Anderson") and Officer Richard Ross Taylor ("Taylor"), alleging excessive force claims under 42 U.S.C. § 1983 and state-law claims of battery. Kellum also brought claims against the City of Minneapolis ("City") pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) and City of Canton v. Harris, 489 U.S. 378 (1989). Defendants have moved for summary judgment on all claims.[1]


At approximately 5:11 p.m. on December 4, 2009, the Minneapolis Police Department ("MPD") received a report that a black 2007 BMW with license plate UYT671 had been stolen. The BMW was equipped with a GPS tracking device, which enabled the MPD officers to locate the vehicle. Officers Anderson and Evans, in squad car 412, and Officers Taylor and Gretchen Bloss ("Bloss"), in squad car 430, were dispatched to respond to the stolen vehicle incident. While the officers were en route, MPD dispatch reported that the suspect driving the stolen BMW had physically assaulted a restaurant employee earlier in the evening. MPD dispatch subsequently reported that the BMW was traveling southbound on Cedar Lake Road. Officers Evans and Anderson were traveling northbound on Cedar Lake Road, with Officers Taylor and Bloss following close behind them.

While traveling northbound, Officer Anderson observed a vehicle traveling southbound with BMW-style headlights. The BMW pulled over to the curb along the west side of the street and came to a stop behind a parked Nissan. Officer Evans stopped squad 412 in a north-facing position roughly parallel with the parked BMW and activated the squad's emergency lights. Officers Taylor and Bloss arrived a few seconds later and parked behind Evans and Anderson. Anderson confirmed that the license plate number of the stopped vehicle matched that of the stolen BMW. He exited squad 412 from the passenger's side, drew his handgun, and commanded the driver of the BMW to get out of the vehicle and show his hands. Officer Evans exited squad 412 from the driver's side so that she was between her squad car and the BMW. She drew her weapon and ordered the driver to put up his hands. Officer Taylor exited squad 430 from the passenger's side and drew his weapon, commanding the driver to show his hands. Officer Bloss also exited squad 430, from the driver's side, so that she was standing between the stopped squad car and the parked Nissan.

Below is a Court-generated diagram, not drawn to scale, that generally depicts the location of the parties at the time of the incident:

Kellum, who was driving the BMW, did not comply with any of the officers' commands or acknowledge their presence in any way. Instead, he gripped the steering wheel and stared straight ahead. He then began driving, pulling away from the curb and navigating the BMW toward the narrow space between the parked Nissan and squad 430. The officers yelled, "stop the car, " but Kellum did not obey their commands. Kellum, driving approximately five or ten miles per hour, collided with the squad car and the Nissan. The collision did not stop his vehicle, and Kellum continued to push past the parked cars. Officer Bloss, who was standing near the driver's side door of squad 430 and between the squad car and the Nissan, was in the direct path of the moving BMW.

Officers Anderson and Taylor both saw that the BMW was moving toward Bloss's position and believed that Bloss was in danger. Officer Taylor saw the BMW's headlights shining on Bloss. Officer Evans heard another officer yell, "he's going to hit her!" and then saw Bloss in the path of the BMW. By this time, Officers Anderson and Taylor had moved toward the front of squad 430. Officers Anderson, Taylor and Evans fired their weapons at Kellum, each firing two or three times in rapid succession. Officers Anderson and Taylor testified that they fired their weapons because they believed the BMW was going to hit Officer Bloss. Officer Evans testified that at the time she discharged her firearm, she believed that the BMW had, in fact, hit Bloss, and she believed Kellum was going to kill another officer with the BMW. Bloss reported that the BMW came within five feet of her position before she began moving out of its path. Because she was between the parked Nissan and squad 430, she could not simply turn and run, but instead retreated around the front of the Nissan to a position on the grass along the west side of the road. She, too, had been afraid that the BMW was going to run her over.

Kellum continued to drive the BMW through the space between the Nissan and squad 430. He then accelerated, jumped a curb and crashed into a large tree. Officers Anderson and Taylor approached the driver's side door of the BMW and observed that Kellum appeared to be unconscious. Kellum was handcuffed and brought to the hospital, where he received medical treatment and underwent surgeries for gunshot wounds to his forearm and head.[3]


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite "to particular parts of materials in the record, " show "that the materials cited do not establish the absence or presence of a genuine dispute, " or show "that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party must substantiate his allegations by "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (internal quotation marks omitted).

Kellum asserts § 1983 claims against Officers Evans, Anderson and Taylor in their individual capacities. Section 1983 of Title 42 of the United States Code provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. Because § 1983 is "not itself a source of substantive rights, " a court addressing a claim pursuant to § 1983 must "identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). Kellum alleges that the officers' use of deadly force in discharging their firearms violated his constitutional right to be free from excessive force. Defendants ...

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