Powell v. Staycoff

          Kenneth U. Udoibok, Kenneth Ubong Udoibok, P.A., Minneapolis, MN, for Plaintiff John Fitzgerald Powell.

          Andrew 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 Robbinsdale.

          Daniel P. Kurtz and Ryan M. Zipf, League of Minnesota Cities, St. Paul, MN, for Defendants Steve Holt and the City of Brooklyn Center.

          OPINION AND ORDER

          Eric C. Tostrud United States District Judge

         Plaintiff 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.

         I

         The 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 911. Id.

         It is 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].^[1] 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].^[2]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.

         Within 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.

         Meanwhile, 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.

         Around 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 for relief.

         II

         Summary 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. 2015).

         A

         Powell 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).

         Powell's 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.^[3] (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 (First Amendment).

         Defendants 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).

         1

         a

         Returning 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].^[4] 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.

         Powell 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).

         “[B]efore [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.

         When 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 following interaction:

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!?!

[unintelligible]

Officer: Put your hands up and keep them up now!

[unintelligible]

Officer: Keep your hands up! Powell: Come get me!

[unintelligible]

Video at 00:44-01:37.

         Heifort 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 47.

         After 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!

[unintelligible]

Officer: Hands up, keep ‘em up! Drop to ...