United States District Court, D. Minnesota
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.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...