United States District Court, D. Minnesota
Kenneth U. Udoibok, Kenneth Ubong Udoibok, P.A., Minneapolis,
MN, for Plaintiff John Fitzgerald Powell.
A. Wolf and Jason M. Hiveley, Iverson Reuvers Condon,
Bloomington, MN, for Defendants Robert Staycoff, Tony
Heifort, Steve Vargas, John Kaczmarek, and the City of
P. Kurtz and Ryan M. Zipf, League of Minnesota Cities, St.
Paul, MN, for Defendants Steve Holt and the City of Brooklyn
OPINION AND ORDER
C. Tostrud United States District Judge
John Fitzgerald Powell asserts several claims against five
police officers and the two cities that employed them,
including claims under 42 U.S.C. § 1983. The
police-officer defendants subjected Powell to an
investigatory Terry stop as part of their search for
a reported “man with a gun” near the North
Memorial Hospital campus in Robbinsdale. The stop occurred on
July 18, 2015, just after midnight and in the midst of a
strong thunderstorm. The officers believed Powell might be
the “man with a gun” because, among other
reasons, Powell initiated the confrontation with them and
remained combative and agitated throughout the stop. During
the stop, officers drew their firearms, forced Powell to lie
face down in the street, handcuffed him, and transported him
to a hospital entrance where, at the direction of a medical
doctor but while Powell remained in the back of a squad car,
a paramedic injected Powell with the anesthetic ketamine
without Powell's consent. Ultimately, Powell was cleared
as a suspect and was not criminally charged for his conduct.
Powell alleges that the officers violated his First, Fourth,
and Fourteenth Amendment rights. He also brings a conspiracy
claim under 42 U.S.C. § 1985 and claims for negligence,
negligent infliction of emotional distress, and intentional
infliction of emotional distress under Minnesota law.
Defendants seek summary judgment on qualified-immunity and
official-immunity grounds. Those motions will be granted.
background facts leading up to the interaction between Powell
and the officers are undisputed. On July 17, 2015, just
before midnight, nurse Katie Woods saw a man slumped over in
his car inside a parking ramp at North Memorial. Wolf Aff.
Ex. 1 (“Woods Statement”) [ECF No. 60-1]. Because
the man was unresponsive, Woods feared he was not alive; she
went back inside the hospital to call security and to get
help. Id. She returned to the man's vehicle with
another North Memorial nurse, Carolyn Griggs. Id.
The man awoke, and both women saw that he had a gun in his
hands between his legs. Id. Griggs feared the man
would kill himself, so she asked him for the gun. Wolf Aff.
Ex. 2 (“Griggs Statement”) [ECF No. 60-2].
Instead, the man began to load the gun and turn it toward
her. Id. Woods and Griggs then ran inside to call
now clear that the “man with a gun” was not
Powell. At the time, though, relatively little information
about the man was communicated to law enforcement. At
approximately 11:59 p.m., police received a 911 call from
Woods regarding a weapons threat at North Memorial Hospital.
Wolf Aff. Ex. 4 (“CAD”) at 1 [ECF No.
60-4]. The dispatch call went out to five
agencies that share a dispatch system, including the Cities
of Brooklyn Center and Robbinsdale. Wolf Aff. Ex. 8
(“Holt Dep.”) at 23 [ECF No. 60-8].At 12:01 a.m.,
dispatch stated that there was “no desc[ription] on
male or gun.” CAD at 2. Thirty seconds later, dispatch
updated officers that the male was “possibly
Hispanic.” Id. Initially, dispatch stated only
that the car was a “blue compact 4 door.”
Id. at 1. Ten minutes later, dispatch updated the
officers that there was a “lone male with purple or
blue sedan.” Id. at 3.
twenty minutes of the 911 call, the five officers named as
defendants in this case responded to dispatch that they were
en route. Id. at 2-4. Officer Steve Holt was with
the City of Brooklyn Center (“Brooklyn Center
Defendants”) and Officers Robert Staycoff, Tony
Heifort, Steve Vargas, and Sergeant John Kaczmarek were with
the City of Robbinsdale (“Robbinsdale
Defendants”). They, along with other officers from
several law enforcement agencies, searched North
Memorial's two parking ramps but could not locate the
suspect. See id.
a large crowd was gathering at the North Memorial
emergency-room entrance and lobby. See Id. at 5.
Around 12:32 a.m., North Memorial security requested police
assistance with crowd control. Id. Plaintiff Powell
was part of this crowd. Wolf Aff. Ex. 3 (“Powell
Dep.”) at 13 [ECF No. 60-3]. He had been at the
hospital visiting a family member who had been shot.
Id. After officers told the crowd to disperse,
Powell left to retrieve his car. Id. at 14.
that same time, just before 12:40 a.m., two officers, Heifort
and Holt, parked on the street behind the hospital near where
Powell's car was parked. See CAD at 5. Heifort
and Holt were “clearing cars” parked on Lowry
Avenue, which is adjacent to a parking ramp that had been
cleared already. Holt Dep. at 30-31; Wolf Aff. Ex. 9
(“Heifort Dep.”) at 18-19 [ECF No. 60-9];
Brooklyn Center Defs.' Mem. in Supp. (“B.C. Mem. in
Supp.”) at 4 [ECF No. 67] (describing the area as
“the last place to be cleared”); Robbinsdale
Defs.' Mem. in Supp. (“R. Mem. in Supp.”) at
6 [ECF No. 63] (same). Both officers had their firearms
unholstered “based on the high level of threat”
presented by a suspect with a gun. Holt. Dep. at 36; see
also Heifort Dep. at 24. And it is here where
Defendants' interaction with Powell would begin. To avoid
repetition, a detailed description of the facts will occur in
conjunction with the analysis of each of Powell's claims
judgment is warranted “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). A fact is “material” only if
its resolution might affect the outcome of the suit under the
governing substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is
“genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. “The evidence of
the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id.
at 255 (citation omitted). “There is, however, an added
wrinkle in this case: existence in the record of a videotape
capturing the events in question.” Scott v.
Harris, 550 U.S. 372, 378 (2007). The facts will be
viewed in the light depicted by the videotape, setting aside
versions of the facts that are “blatantly contradicted
by the record, so that no reasonable jury could believe
it.” Id. at 380; see, e.g.,
Ransom v. Grisafe, 790 F.3d 804, 807 (8th Cir.
brings several § 1983 claims against the five individual
defendant police officers. His operative complaint states
that he brings claims for “First, Fourth, [and]
Fourteenth Amendment Violations, ” as well as
“False Arrest, Detention, Assault, Battery and Use of
Excessive Force.” Am. Compl. ¶¶ 40-48 [ECF
No. 33]. But to be clear, his § 1983 claims are limited
to violations of the United States Constitution and do not
encompass any alleged violations of Minnesota state law
(assault, battery, and any Minnesota Constitution provisions
against false arrest, detention, and excessive force).
See Wax ‘n Works v. City of St. Paul,
213 F.3d 1016, 1019 (8th Cir. 2000); see also Guite v.
Wright, 976 F.Supp. 866, 871 (D. Minn. 1997)
(“[T]here is no private cause of action for violations
of the Minnesota Constitution.”), aff'd on
other grounds, 147 F.3d 747 (8th Cir. 1998).
amended complaint and summary-judgment brief do not clearly
identify his theories of which actions by which officers
violated which of his federal constitutional
rights. (While this is more understandable at the
time of pleading, it is less so at the summary-judgment
stage, when the record is so fully developed.) But the Court
has, to the best of its ability, parsed out alleged §
1983 violations based on the specific constitutional right at
issue, the specific police conduct at issue, and the specific
police officer involved. See Handt v. Lynch, 681
F.3d 939, 941, 944-45 (8th Cir. 2012) (remanding for
“the district court to engage in a full qualified
immunity analysis” because the district court had
previously “failed . . . to undertake the qualified
immunity analysis as to each of the constitutional
claims” and did not consider “the individual
defendants' actions with respect to each of the
constitutional claims”). Here, it makes sense to
analyze Powell's § 1983 claims temporally: (1) those
relating to the initial stop (Fourth Amendment); (2) those
arising out of his continued detention for a show-up (Fourth
Amendment); (3) those stemming from his involuntary injection
with ketamine (Fourth and Fourteenth Amendments); and (4)
those based on alleged retaliation for his verbal complaints
assert that they are entitled to qualified immunity on all of
Powell's claims. In determining whether the individual
officers have qualified immunity, the Court asks: “(1)
whether the facts shown by the plaintiff make out a violation
of a constitutional . . . right, and (2) whether that right
was clearly established at the time of the defendant's
alleged misconduct.” Brown v. City of Golden
Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citations
omitted). Courts, in their sound discretion, may consider the
questions in either order. Pearson v. Callahan, 555
U.S. 223, 236 (2009). As the party asserting immunity,
Defendants have the burden of establishing the relevant
predicate facts. White v. McKinley, 519 F.3d 806,
813 (8th Cir. 2008). A § 1983 plaintiff can overcome
qualified immunity only if there was a violation of a
constitutional right and that right was clearly established
at the time of the violation. Parker v. Chard, 777
F.3d 977, 980 (8th Cir. 2015).
to the scene on Lowry Avenue, officers Heifort and Holt were
clearing cars parked on Lowry Avenue with their firearms
unholstered “based on the high level of threat”
presented by a suspect with a gun. Holt. Dep. at 36; see
also Heifort Dep. at 24. Recall that this was the last
place to be searched and the “man with a gun” had
not yet been found. It is undisputed that it was raining so
hard that it was difficult to see. See, e.g., Powell
Dep. at 14, 29. Moments before the encounter with Powell,
officers Heifort and Holt can be heard on video discussing
the limited suspect information available to them:
Officer One: . . . Bluish-purple?
Officer Two: Yeah, [stuttering] and I don't think I ever
got any suspect info, which is [unintelligible].
Officer One: She thinks he's Hispanic.
Gabler Aff. Ex. C (“Video”) at 00:16-00:23 [ECF
No. 68-3]. According to Heifort, they had parked on
Lowry Avenue, the street behind the hospital, “[a]bout
[at the intersection with] Abbott [Avenue], ” and were
walking east towards York Avenue when they encountered
Powell. Heifort Dep. at 18, 34, 49.
was parked on the street “around the back” of
North Memorial on Lowry Avenue. See Powell Dep. at
13. To get to his car, he had to walk down a set of stairs.
See Holt Dep. at 32; Heifort Dep. at 32.
Powell's car was “across the street” from the
stairs he descended, though it is unclear precisely how the
scene was oriented. Holt. Dep. at 34; see Heifort
Dep. at 18-22, 31-35 (describing the cross streets and paths
the Parties took).
[he] even got down the stairs, ” Powell could see
officers' flashlights on his car. Powell Dep. at 14. He
testified that he knew the officers were police from the very
start. See Powell Dep. at 81 (“[W]hen I first
saw my car, I knew they were police officers.”);
see also Id. at 39 (“They made that very clear
when they yelled at me to put my hands up.”). The
officers were in full uniform. Holt Dep. at 35.
Powell was near the top of the stairs, “in the dark
part of the stairs, ” he began to interact with the
officers. See Heifort Dep. at 26. (Because the video
footage is exclusively from Holt's dash cam at this time,
there is not clear video of the stairs or the area where
Powell and the officers converged.) The audio records the
Powell: Get the fuck away from my car!
Officer: Stay back!
Powell: Get the fuck out of my car!
Officer: Hey, stay back. Police!
Powell: Stay back from what!?!
Officer: Put your hands up right now!
Powell: For what!?!
Officer: Stay back!
Powell: From what!?!
Officer: Put your hands up and keep them up now!
Officer: Keep your hands up! Powell: Come get me!
Video at 00:44-01:37.
testified that Powell “continued to come at [officers
Heifort and Holt] after giving [him] commands” to stay
back. Heifort Dep. at 24 (“Some may define it as
[charging at us]. I define it as aggressively coming after
me.”); Holt Dep. at 42, 46, 49. And according to Holt,
Powell “continued to be aggressive, ”
“hostile, ” and “confrontation[al]”
in his words, tone, and demeanor, even after they identified
themselves as police. Holt Dep. at 37-42. This prompted
Heifort and Holt to point their guns at Powell. Id.
at 49, 58 (describing how he completed a use-of-force report
because he pointed his gun at Powell); Heifort Dep. at 25.
When Powell became noncompliant with the officers'
commands, Holt “feared that he could possibly be the
suspect” because of his erratic behavior. Holt Dep. at
Powell “eventually . . . put his hands up, ”
after “multiple commands, ” Heifort Dep. at 26,
the officers ceased telling him to stay back and instead
directed him into the street toward them, see Id. at
28 (“We wanted him off of the sidewalk, out into the
lit area.”). That interaction can be heard on the
video, and parts of it can be seen as well:
Officer: Start walking towards us with your hands up!
Officer: Walk towards us, with your hands up!
Officer: Do it now!
Officer: Walk towards us, hands up!
Officer: Hands up, keep ‘em up! Drop to ...