United States District Court, D. Minnesota
J. Nickitas, PETER J. NIKITAS LAW OFFICE, L.L.C., for
Scott Carter and Lindsey E. Middlecamp, Assistant City
Attorneys, for defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT
R. TUNHEIM CHIEF JUDGE
Catrina Johnson (“Johnson”) called 911 to request
police response to a domestic dispute. Defendant Officer
Robert Heiple (“Officer Heiple”) and Officer
Scott Buck (“Officer Buck”) arrived at the scene.
While executing a take-down maneuver on Johnson's son,
Jareese Johnson (“Jareese”), Officer Heiple felt
a pain in his leg while Johnson stood behind him. Officer
Heiple assumed Johnson kicked him and arrested Johnson.
Officer Heiple later determined the leg injury was not caused
by Johnson and charges against Johnson were dismissed.
release, Johnson commenced this civil rights action against
Officer Heiple and Defendant City of Minneapolis
(collectively “Defendants”) alleging eight
federal and state law claims. Defendants filed a motion for
partial summary judgment as to five claims, arguing Officer
Heiple is entitled to qualified immunity based on arguable
probable cause at the time of Johnson's arrest. Because
the Court finds the totality of circumstances do not
conclusively show Officer Heiple had arguable probable cause
to arrest Johnson, the Court will deny Defendants' motion
for partial summary judgment.
1, 2013, Johnson called 911. (Decl. of Peter J. Nickitas
(“Nikitas Decl.”), Ex. A (“Johnson
Dep.”) at 30:24-31:5, Dec. 6, 2016, Docket No.
27.) Johnson requested assistance removing Jareese from her
home. (Id. at 31:6-10.) Specifically, Johnson
“did not feel safe” because Jareese was
“cursing . . . and slamming doors” and Jareese
had thrown Johnson's cane somewhere. (Id. at
31:22, 32:1-12.) When police arrived at Johnson's
apartment, Johnson held a hammer because “Jareese had
[her] in the corner.” (Id. at 66:10-12,
66:22-24.) Johnson testified she picked up the hammer before
her neighbor, Mark Moriarty (“Moriarty”), heard
the dispute and entered Johnson's apartment.
(Id. at 66:15-20; 160:23-161:1.)
Heiple and Officer Buck arrived at Johnson's apartment in
response to the 911 call. (Id., Ex. C (“Heiple
Dep.”) at 18:16-23.) Johnson allowed the Officers into
her apartment building. (Id. at 20:8-11; 21:13-14.)
Johnson led the Officers down the hallway to her apartment
where they encountered Jareese. (Id. at 20:16-20;
23:13-16.) The Officers questioned Johnson and Jareese
separately. (Johnson Dep. at 63:20-64:23.) After Johnson
informed Officer Buck that Jareese threatened Johnson and
Johnson wanted Jareese removed from the home, Officer Buck
went to the apartment building's hallway (directly in
front of Johnson's apartment) and arrested Jareese.
(Id. at 64:21-65:3, 65:15-17.) Jareese resisted and
the Officers had to take Jareese down to the floor.
(Id. at 65:1-66:6, 77:4-78:15.) At the time of the
“take-down, ” Officer Buck faced the doorway to
Johnson's apartment and Officer Heiple had his back to
Johnson's apartment. (Id. at 83:1-14.) Johnson
retreated further into her apartment to give the Officers
room. (Id. at 77:18-79:18.)
the “take down, ” Officer Heiple felt a sharp
pain like an “explosion” in his right calf.
(Heiple Dep. at 27:4-8.) Although not seeing Johnson, Officer
Heiple immediately assumed Johnson assaulted him.
(Id. at 29:14-17; Aff. of Robert Heiple
(“Heiple Aff.”) ¶ 4, Nov. 15, 2016, Docket
No. 23.) Officer Heiple allegedly based his assumption on
“Johnson's level of emotional and verbal distress
before and during the arrest, ” Officer Heiple's
“familiarity with . . . domestic disturbance calls,
” and his “genuine belie[f] [that] . . .
Johnson had stomped or kicked [Officer Heiple] in the
leg.” (Heiple Aff. ¶ 4.)
feeling pain in his right calf, Officer Heiple first
confirmed with Officer Buck that Jareese was handcuffed and
secured. (Nikitas Decl., Ex. E (“Buck Dep.”) at
31:21-33:21.) Officer Buck responded affirmatively.
(Id.) Once Officer Buck had Jareese under control
(id., Ex. B at 25; id., Ex. G (hereinafter
“Moriarty Dep.”) at 11:22-12:6; Buck Dep. at
30:21-33:21),  Officer Heiple turned around and asked
Johnson “[d]id you just kick me?” (Johnson Dep.
at 83:22-23.) Johnson responded “no.”
(Id. at 83:24.) Again, Officer Heiple accused
Johnson of kicking him. (Id. at 83:25-84:15; Heiple
Dep. at 32:2.) Johnson again denied kicking Officer Heiple
and Officer Heiple placed Johnson under arrest. (Johnson Dep.
at 84:2-3; see also Heiple Dep. at 32:8-9
(“After I had stood up and asked her [why did you kick
me], yes, then I said ‘[y]ou're under
were several witnesses at the time Officer Heiple placed
Johnson under arrest. Officer Buck, who “could see
[Johnson]” during the “take down” (Buck
Dep. at 32:22), did not see Johnson kick Officer Heiple.
(Id. at 33:22-23; see also Aff. of Scott
Buck (“Buck Aff.”) ¶ 4, Nov. 15, 2016,
Docket No. 24.) But Officer Buck indicated Officer Heiple
“acted consistent with a genuine belief that he had
been kicked.” (Buck Aff. ¶ 4.) Officer Buck
confirmed that Johnson denied kicking Officer Heiple, (Buck
Dep. at 34:4-7), described Johnson as wearing a
“nightgown, ” (id. at 47:13-16), and
indicated he did not recall Johnson wearing “hard
shoes, ” (id. at 48:11-20).
was also present during the arrest. Moriarty testified that,
based on Johnson and Officer Heiple's location, “it
couldn't add up” for Johnson to kick Officer
Heiple. (Moriarty Dep. at 18:3.) Moriarty described that
Johnson kicking Officer Heiple “would defy the laws of
physics.” (Id. at 17:21.) Moriarty indicated
Johnson “would have had to give some powerful kind of
soccer kick . . . around the officer to kick his other
side.” (Id. at 17:24-18:1.)
further testified that he confronted Officer Heiple about
arresting Johnson. Moriarty contends he asked Officer Heiple
“‘Are you sure she kicked you?'” and
Officer Heiple responded “‘Yeah, she kicked
me.'” (Id. at 18:13-14.) Still not
convinced, Moriarty again inquired to Officer Heiple, stating
“‘It doesn't seem to make sense that she
could have. Are you absolutely sure?'” to which
Officer Heiple said “‘It hurts . . . .
Yeah.'” (Id. at 18:14-16.) Moriarty also
described Johnson's appearance during the altercation as
disabled, wearing “a slip, ” and not wearing
“hard shoes.” (Id. at 10:21-11:2.)
Moriarty explained Johnson's shoes were either
“thongs” or “soft slipper[s].”
(Id. at 11:5-6.)
Jareese was on the ground during the interaction and did not
testify Johnson kicked Officer Heiple. (See Aff. of
Lindsey E. Middlecamp (“Middlecamp Aff.”), Ex. 4
at 63-64, Nov. 15, 2016, Docket No. 22.) But Jareese