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Joseph v. Donahue

United States District Court, D. Minnesota

May 28, 2019

Osha Joseph, Plaintiff,
Sgt. Bobby Donahue, Sgt. Tom Arnold, Officer Mon Notthakun, and Officer Marshall Titus, in their individual and official capacities, as police officers for the City of Saint Paul, and the City of Saint Paul, Defendants.

          Adam T. Johnson, Esq., Lundgren & Johnson, PSC, Minneapolis, MN, on behalf of Plaintiff.

          Lawrence J. Hayes, Jr., Esq., Office of the City Attorney, St. Paul, MN, on behalf of Defendants.




         On March 6, 2019, the undersigned United States District Court Judge heard oral argument on the Motion for Summary Judgment [Docket No. 12] brought by Defendants Sergeant Bobby Donahue (“Sergeant Donahue”), Sergeant Tom Arnold (“Sergeant Arnold”), Officer Mon Notthakun (“Officer Notthakun”), Officer Marshall Titus (“Officer Titus”), and the City of Saint Paul (collectively, “Defendants”). Defendants assert qualified and official immunity bar all of Plaintiff Osha Joseph's (“Joseph”) federal and state law claims. For the reasons set forth below, Defendants' motion for summary judgment is granted.

         II. BACKGROUND [1]

         On the night of July 9, 2016, approximately 300 protesters marched on U.S. Interstate 94 in St. Paul, Minnesota to protest a police officer's fatal shooting of a citizen three days earlier. Compl. [Docket No. 1, Attach. 1] ¶¶ 11-12; First Hayes Aff. [Docket No. 15] Ex. 2 (“Defs.' Ex. 2”) at STP 0058. The shooting victim was Joseph's second cousin. First Hayes Aff. Ex. 9 (“Joseph Dep.”) at 48-49. During the protest, people in the crowd began throwing bricks, construction debris, glass bottles, and explosive fireworks at police officers. Defs.' Ex. 2 at STP 0071. One officer was injured when the blast from an explosive hit her leg. Id. Another officer was struck in the face with a glass bottle. Id.

         Two officers observed an adult black male wearing a red t-shirt and white pants throw large rocks and construction debris at the police. Id. at STP 0071, STP 0091. The officers pointed the male out to a third officer possessing a marking gun loaded with green dye. Id. at STP 0071. The third officer aimed and shot the marking gun at the male, hitting his right leg and leaving a green dye mark on his white pants. Id.

         Later that evening, a man called the St. Paul Police Department to report he had been at the protest and saw the occupants of a black GMC Yukon throwing Molotov cocktails at police officers. Id. at STP 0058. The caller provided the license plate number of the GMC Yukon and described the vehicle's occupants as two black males and a black female. Id.

         At approximately 10:15 a.m. the next morning, St. Paul police located the Yukon parked across from 372 East Cook Avenue and began conducting surveillance on the vehicle. Id. at STP 0097. Approximately three hours later, while Sergeant Donahue, Sergeant Arnold, and Sergeant Michael Wills (“Sergeant Wills”) were conducting surveillance, Sergeant Donahue saw a black male wearing a red shirt and white pants walk from the East Cook Avenue residence to the Yukon and get into the driver's seat. Id. at STP 0061, STP 0063; First Hayes Aff. Ex. 4 (“Defs.' Ex. 4”) at STP 0007. A second black male wearing jeans and a dark shirt then approached the vehicle from the same residence. Defs.' Ex. 2 at STP 0063. The second male stood at the driver's door for a short time and then returned to the residence. Id. A black female approached the Yukon from a vehicle parked on the other side of the street and got into the front passenger seat. Id. The Yukon pulled into the middle of the street, and the male driver got out and walked back to the 372 East Cook Avenue residence. Id. The female moved to the driver's seat, and the male who had earlier exited the Yukon returned from the Cook Avenue home and got into the vehicle's passenger seat. Id.

         The Yukon then pulled away and began heading west. Id. Sergeants Donahue and Arnold followed the Yukon until assisting squad cars in the area arrived and initiated a traffic stop. Id.; Defs.' Ex. 4 at STP 0007. The man in the vehicle was identified as Louis Hunter (“Hunter”). Defs.' Ex. 4 at STP 0008. He was wearing a red shirt and white pants and had green marking dye on his pants. Defs.' Ex. 2 at STP 0072. Hunter and the woman were transported to the police station for questioning. Defs.' Ex. 4 at STP 0008. After being interviewed, Hunter was booked into Ramsey County jail for second degree assault. Id.

         Sergeants Donahue and Arnold returned to the 372 East Cook Avenue residence to investigate whether evidence from the previous night's assault on police officers may have been left in the home by Hunter or others who had been in the Yukon. Defs.' Ex. 2 at STP0063; First Hayes Aff. Ex. 5 (“Donahue Dep.”) at 7-9. Also assisting were Officer Notthakun and his partner Officer Heather Grulkowski, Officer Titus and his partner Officer Christopher Rhoades, and Sergeant Wills. Defs.' Ex. 2 at 0061; Defs.' Ex. 4 at 0001, 0011, 0013.

         Upon arriving at the Cook Avenue residence, Sergeants Donahue and Arnold walked from their squad car to the house to speak with a woman near the front door. Donahue Dep. at 7-8. The woman identified herself as Yvette Joseph and informed the officers she was the renter of the home. Defs.' Ex. 2 at STP 0061, STP 0063; Donahue Dep. at 7-9, 20. Yvette Joseph is Plaintiff Osha Joseph's mother. She told the officers she had attended the protest the night before and that Hunter had given her a ride home in the Yukon. Defs.' Ex. 2 at STP 0063. She did not witness anyone throwing Molotov cocktails. Id. at 0067. She also stated that Hunter did not stay the night at her house, but she saw the Yukon still parked outside her home at 2:30 a.m. when she went to bed. Id. To her knowledge, the vehicle remained there until Hunter returned with his girlfriend that morning to retrieve it. Id.

         The officers asked Yvette Joseph if they could perform a protective sweep of the home. Id. at 0063. She told them no one was inside the house and gave consent for the sweep. Id. After completing the protective sweep, the officers exited the home and asked Yvette Joseph for consent to search the home. Id. at STP 0064. Yvette Joseph granted consent and signed a written Waiver and Consent to Search form. Id. at STP 0061, 0063; First Hayes Aff. Ex. 3.

         At the time the officers first approached Yvette Joseph's home to speak with her, Osha Joseph had been sitting with his girlfriend in a car parked outside the house. Joseph Dep. at 26-27, 77; Donahue Dep. at 7. Osha Joseph and his girlfriend had been temporarily living with his mother for about a month or so. Joseph Dep. at 23-24, 65, 67, 77; First Hayes Aff. Ex. 6 (“Arnold Dep.”) at 9.

         When Joseph saw the police, he got out of the car with his hands up and started screaming his mother's name. Joseph Dep. at 26. Keeping his hands in the air, Joseph walked to the front lawn and screamed to his mother that the officers could not search the residence without a warrant. Id. at 27-28, 78; First Hayes Aff. Ex. 7 (“Titus Dep.”) at 6. The deposition testimony of Sergeant Donahue, Sergeant Arnold, and Officer Titus is that Joseph became belligerent and confrontational at this time, and was waving his arms threateningly and swearing at the officers. Donahue Dep. at 7-8, 16; Arnold Dep. at 6-8; Titus Dep. at 10, 14. Officer Notthakun testified in his deposition that Joseph was being verbally aggressive but did not engage in any threatening physical contact. First Hayes Aff. Ex. 8 (“Notthakun Dep.”) at 7-8. Joseph testified in his deposition that he was screaming for his mother, but does not recall yelling or swearing at the officers. Joseph Dep. at 27-28. He further testified his hands were up the entire time, but he was not waving his arms or making threatening gestures to the police. Id. at 28-29, 78-79.

         Joseph's behavior caused Sergeant Donahue to become concerned for the officers' safety if they were given permission to search the house. Donahue Dep. at 10, 14-15. Sergeant Donahue did not yet know whether Joseph had been involved in the assaults on the police officers that had taken place at the protest the previous night. Id. at 14. Sergeant Donahue felt the officers' safety would be compromised if they had to look over their shoulders while searching the house to make sure they would not be attacked. Id. at 15. Sergeant Donahue also believed that Joseph might flee. Id. Based on these concerns, Sergeants Donahue and Arnold ordered that Joseph be detained in a squad car while the officers searched the house. Id. at 14-15; Arnold Dep. at 9-10; Defs.' Ex. 4 at STP 0013.

         Officers Titus and Notthakun escorted Joseph to the squad car. Defs.' Ex. 4 at STP 0013; Titus Dep. at 7-8. Joseph, wearing a medical boot on his right foot, walked slowly to the car. Defs.' Ex. 4 at STP 0013. The squad car video footage of the squad car interior shows the entire duration of Joseph's detention. See generally First Hayes Aff. Ex. 1 (“Video”). As the car door is opened, Joseph can be heard yelling at Officer Titus. Id. at 14:12:28. Joseph was agitated and reluctant to get in the car, telling Officer Titus that he did not have a record and was claustrophobic. Id. at 14:12:36-48. He sat on the rear seat with his feet dangling outside the vehicle and asked if the door could remain open. Id. at 14:12:50.

         Officer Titus asked Joseph for his identification information and he refused to provide it, saying “I don't even want to talk to y'all. Y'all killed my cousin.” Video at 14:12:58-14:13:03. Officer Titus again asked Joseph for his name and told him “We can always bring you down to the jail and have you fingerprinted.” Video at 14:13:16-20. Joseph again refused to answer, telling Officer Titus that he didn't do anything. Id. at 14:13:21-25. Officer Titus asked Joseph a third time, and this time Joseph complied by stating his name and date of birth, and telling Officer Titus that he resided “right here.” Id. at 14:13:26-52; Joseph Dep. at 39. Officer Titus then instructed Joseph to place his feet in the vehicle and make himself comfortable. Video at 14:13:55-14:14:05; Defs.' Ex. 4 at STP 0013; Titus Dep. at 13.

         Officer Notthakun then closed the door of the squad car and Joseph immediately screamed from inside the car. Defs.' Ex. 4 at STP 0013; Video at 14:14:06. Officer Notthakun reopened the door, and Joseph yelled that the door had been shut on his left foot. Defs.' Ex. 4 at STP 0014; Video at 14:14:10. Officer Notthakun asked Joseph whether he wanted a medic, and Joseph shouted that he did. Video at 14:14:40-48; Defs.' Ex. 4 at STP 0014. Officer Notthakun closed the door until the paramedics arrived seven minutes later. Defs.' Ex. 4 at STP 0002, STP 0014; Video at 14:22:02.

         The squad car door was opened for four minutes while paramedics examined Joseph's foot. Video at 14:21:54-2:26:13. The paramedics told Joseph his foot was not broken and he did not need to go to the hospital. Id. at 14:24:18-55. He was given an ice pack to apply to his foot. Titus Dep. at 15; Video at 14:25:53. Joseph then began to shout about having to be in the hot car when he was “not even arrested.” Id. at 14:25:00-16. He asked Officer Titus to inquire with his supervisor about whether Joseph could get out of the car. Id. at 14:25:20. Officer Titus responded that he would do so, but that meanwhile Joseph needed to “sit tight” and that they would “crank up the a/c” and let the windows down for a “nice breeze.” Id. at 14:25:21-31. The door was then closed at 2:26 p.m. and remained locked until 2:41 p.m.

         During this 15-minute period, Joseph erupted into angry outbursts every minute or so, shouting that he wanted to get out of the car, that he was in pain and needed to go to the hospital, and was hot. See, e.g., id. at 14:27:11-29, 14:28:35-49, 14:29:20-35. Also during this time frame, Officer Titus returned from speaking to his supervisor, Sergeant Donahue, and told Joseph that he needed to remain in the squad car until Sergeant Donahue instructed otherwise. Titus Dep. at 17-18; Video at 14:30:30. Sergeant Donahue determined Joseph must remain in the car because he was “yelling and screaming” so loudly that Sergeant Donahue could hear him from inside the house across the street. Donahue Dep. at 16; Titus Dep. at 21. Based on this behavior, Sergeant Donahue did not want to allow Joseph out of the car while the police were there. Donahue Dep. at 16-17. Joseph responded to Officer Titus by yelling that he was in pain and needed to go to the hospital, and proceeded to shout angrily at Officer Titus for over a minute. Id. 14:30:33-14:31:55.

         At 2:32 p.m., shortly after his angry exchange with Officer Titus, Joseph can be seen leaning out the rear window and shouting to his girlfriend, “Record the fact that he just shut my fucking window so I could be in this hot!” Id. at 14:32:06-17. Approximately two minutes later, Joseph yelled that he needed his inhaler and that it was “hot as fuck.” Id. at 14:34:00-19; Defs.' Ex. 4 at STP 0014. At 2:38, Joseph became enraged and began screaming to be let out of the car. He punched and kicked the squad car door and yelled that he had done nothing wrong, did not have a record, was hot, and did not deserve to be in the car. Video at 14:38:50-14:41:19.

         At 2:41, Officer Titus opened the door to inform Joseph he was not under arrest. Joseph responded by shouting that he was innocent and that he was hot and had asthma. Id. at 14:41:35-59. Officer Titus told Joseph to settle down and offered to help him relax by turning up the air conditioning and rolling the windows further down. Id. at 14:42:00-30. After the door had been open for one minute, Officer Titus closed it at 2:42. Id. at 14:42:40.

         Several seconds after the door had been shut, Joseph began rocking back and forth and breathing heavily. An officer can be heard telling him to “Take a deep breath, man.” Id. at 14:42:57. After rocking back and forth for approximately a minute, Joseph began coughing and gagging. 14:43:34. He leaned over and heaved a saliva-like substance onto the floor of the squad car. Id. at 14:43:41-14:44:48; Joseph Dep. at 73-75. Joseph yelled out an open window that he was throwing up and could not breathe. Video at 14:44:50. Within seconds, two officers responded by walking to the squad car and opening the door. Id. at 14:45:15. Joseph leaned out the door and spit thick mucous outside the vehicle. Id. at 14:45:15-44; Defs.' Ex. 4 at STP 0014; Joseph Dep. at 37. The officers then provided Joseph with an inhaler they had obtained from his mother, and Joseph used the inhaler. Video at 14:46:45-14:47:40; Defs.' Ex. 4 at STP 0014; Donahue Dep. at 17.

         The officers then closed the door, which had been open for two minutes. The door remained shut for 22 minutes. Video at 14:47:55-15:10:10. During this 22-minute period, Joseph can be seen leaning out the window to cough and to shout to his girlfriend. See, e.g., id. at 14:52:19-28, 14:54:15-28. His girlfriend or mother can be heard telling him to “calm down.” Id. at 14:54:27-29. At 3:00 p.m., Joseph leaned out the window to ask for a cigarette and said he “could blow it out the window.” Id. at 15:00:10 -15:01:21. He also said he did not understand why he was in the car and that he was going to “freak the fuck out again” because he was claustrophobic. Id. at 15:01:52-15:02:09. At 3:07 p.m., Joseph yelled to his mother to tell the police to “get the fuck out of your house or something, please. They ain't got no warrant, no nothing.” Id. at 15:07:02-07.

         At 3:09, Joseph's girlfriend spoke to him through the rear window of the squad car and told him to calm down and “act right.” Id. at 15:09:25-55. At 3:10, the officers completed the search of the home and released Joseph from the car. Defs.' Ex. 2 at STP 0061, 0064; Arnold Dep. at 11; Video at15:10:10.

         The officers found nothing of evidentiary value from their search of the home. Defs.' Ex. 2 at STP0061. They interviewed Yvette Joseph, Osha Joseph, and Osha Joseph's girlfriend, and thanked them for their cooperation. Defs.' Ex. 2 at STP 0068. No charges were filed against them.

         Joseph's detention in the squad car totaled 55 minutes. Although Joseph testified in his deposition that the squad car windows were rolled up while he was in the car, the squad car video footage undisputably shows Joseph leaning his head out the window several times during his detention, and he is seen talking to others outside the window and suggesting he can blow cigarette smoke out the window. Joseph Dep. at 36-37; see generally Video. The video also shows that the rear door of the squad car was ...

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