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Henke v. Collins

United States District Court, W.D. Missouri, Western Division

June 2, 2017

ADAM HENKE, Plaintiff,
v.
OFFICER DANIEL COLLINS, et al., Defendants.

          ORDER AND OPINION (1) GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (2) DISMISSING JOHN DOE DEFENDANTS, AND (3) DIRECTING PARTIES TO SUBMIT SUPPLEMENTAL BRIEFING

          BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT.

         This suit arises from an arrest of Plaintiff Adam Henke. Henke generally alleges that (1) the arresting officer, Daniel Collins, administered excessive force during the arrest, (2) three John Doe Defendants arrived on the scene and also administered excessive force during the arrest, and (3) three more John Doe Defendants administered excessive force at the police station. Henke has asserted constitutional and state tort claims against Officer Collins, the John Doe Defendants, and the Board of Police Commissioners (through its members). Pending is Officer Collins' and the Board's Motion for Summary Judgment. Officer Collins argues that he is entitled to qualified immunity with respect to the constitutional claims and sovereign immunity with respect to the state claims. The Board argues it is entitled to sovereign immunity with respect to the state claims, and that it cannot be liable on the constitutional claims because Officers Collins is not liable on the constitutional claims. For the reasons set forth below, (1) the motion is GRANTED in part and (2) the parties are directed to submit supplemental briefing.

         I. BACKGROUND

         A. Sources of Facts

         Before setting forth the factual background, the Court must identify the sources of facts that it may utilize. The parties agree that many of the facts are uncontroverted. In some instances, part of a fact is agreed to and another part is disputed, in which case the Court deems the agreed-to portion as established. There are other facts that Plaintiff contends he cannot confirm or deny because he lacks the information to do so. In other instances, Plaintiff responds by merely confirming Defendants' assertion that a particular statement appears in a person's deposition or affidavit. The Court accepts these facts as true for purposes of the motion; a party is allowed to support a fact for summary judgment purposes by relying on an affidavit, Fed.R.Civ.P. 56(c)(1)(A), 56(c)(4), and the party opposing summary judgment must present evidence demonstrating the existence of a factual dispute. Mere denials are insufficient. E.g., Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th Cir. 2010). Relatedly, Plaintiff disputes some facts contained in affidavits or depositions by contending that the statements are “self-serving” or not supported by additional evidence in the Record. These responses are also insufficient to create a factual dispute because a party “may not stave off summary judgment armed with only the hope that the jury might disbelieve witnesses' testimony.” Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001) (quotation omitted). Therefore, the Court will not provide citations to the Record for facts that (1) have been agreed to or (2) that have been properly supported and for which Plaintiff has not identified evidence from the Record that would create a factual dispute.

         The events in question are depicted on a recording from Officer Collins dashcam. For summary judgment purposes, the Court can accept facts clearly depicted on the video as conclusively established, even if somebody has offered a sworn statement that contradicts those facts. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). The Eighth Circuit has applied Scott to hold that a district court need not treat a fact as disputed when the fact is conclusively established by video evidence. E.g., Boude v. City of Raymore, 855 F.3d 930, 933 (8th Cir. 2017); Coker v. Arkansas State Police, 734 F.3d 838, 841 (8th Cir. 2013). Therefore, the Court deems facts depicted in the video as conclusively established for purposes of summary judgment.

         Finally, the Court addresses each side's expert reports, both of which are the subject of motions to strike. The Court has not ruled on the motions to strike and finds it unnecessary to do so in light of this Order. The parties' reliance on the experts' reports in connection with the Motion for Summary Judgment is limited, and in that context they have been cited primarily to (1) establish factual matters for which expert testimony is unnecessary (e.g., to describe what happened on the videotape) or (2) address legal issues that are not amenable to expert testimony (such as opining whether certain assumed facts constitutionally justified certain actions). The Court has not relied on the experts' reports for these purposes.

         B. The Record, Construed in Plaintiff's Favor

         Shortly before 1:00 a.m. on March 6, 2015, Officer Collins was patrolling the area of Independence Avenue in Kansas City, Missouri. This area is known to the police (and Officer Collins specifically) as a having a high incidence of prostitution, drug crimes, robberies, and other crimes. (Doc. 44-1, ¶ 5-6.) As he approached the intersection of Independence Avenue and Garfield Street, Officer Collins saw a Ford Escort in the middle of the southbound lane of Garfield Street, facing north. Near that intersection is a set of stairs that was known to Officer Collins to be a place that people congregate to buy and sell drugs. (Doc. 69-3, p. 7.)[1] The Escort's positioning allowed the driver to be closest to the side of the street where the stairs were located. Officer Collins came to a stop in the intersection and attempted to run the Escort's plates. He was unable to get a response from dispatch, so after approximately twenty-five seconds he turned his vehicle around in the middle of Independence Avenue so he could get behind the Escort on Garfield. (Doc. 44-1, ¶¶ 8-9; Video, 12:54:10 to 12:54:39.) As he did so, the Escort accelerated and went north on Garfield, which caused Officer Collins to believe that the Escort sped off because the driver saw him turning around. (Doc. 44-1, ¶¶ 13-14.) By the time Officer Collins completed his turn onto Garfield the Escort was just disappearing from sight because it turned onto another street. (Video, 12:54:59 to 12:55:02.) Believing it possible that the occupants had been involved in a drug deal or that the car was stolen, (Doc. 44-1, ¶¶ 12, 14; Doc. 69-3, p. 7), [2] Officer Collins followed. The Escort made two more turns, (Video, 12:55:22 to 12:55:26 and 12:55:38 to 12:55:45), before apparently attempting a third, at which point it crashed into a curb. (Video, 12:55:48 to 12:55:52.)

         Officer Collins pulled behind the Escort and activated his lights. He then got out of his vehicle to conduct a “car check, ” which consists of removing a car's occupants because of a concern that the occupants might be armed or dangerous. (Doc. 44-1, ¶¶ 16-17.) He entered the dashcam's view at approximately 12:56:14, and his gun was drawn. Movement can be seen in the Escort, and at approximately 12:56:17 the driver began to open the door. Officer Collins instructed the driver (Plaintiff) to turn off the car at the same time the driver's door opened. He repeated the command three times as he advanced to the Escort's door, with his gun pointed toward Plaintiff. (Video, 12:56:17 to 12:56:23.) Plaintiff did not turn off the car and instead questioned why Officer Collins had his gun out. Officer Collins approached the driver's compartment and reached in with his right hand; his gun was in his left hand. The passenger turned off the car, and Officer Collins holstered his gun. Officer Collins' gun never entered the driver's compartment, and Plaintiff had not exited the car. (Video, 12:56:24 to 12:56:30; Doc. 44-1, ¶ 23.)

         A conversation ensued, and at 12:56:48 Plaintiff (or the passenger, or both) gave Officer Collins his ID or wallet, which Officer Collins put on top of the car at 12:56:51. At 12:56:53 Officer Collins told Plaintiff to stop moving his hands, but Plaintiff did not comply. At 12:57:00 Officer Collins grabbed and pulled Plaintiff's arm and told Plaintiff to get out of the car, but Plaintiff held onto the steering wheel with his other hand so Officer Collins could not remove him. For approximately a minute Officer Collins continued trying to remove Plaintiff from the car, and Plaintiff stated several times that he would get out of the car if Officer Collins let go of him and allowed him to exit on his own accord. (Video, 12:57:00 to 12:58:05.) At 12:58:09, Officer Collins let go of Plaintiff's arm; Plaintiff nonetheless remained in the car and insisted he would not get out because Officer Collins would not tell him why he had to get out. At 12:58:43, Officer Collins again tried to remove Plaintiff from the car, but he let go three seconds later. From 12:58:46 until 12:59:51, Officer Collins continued directing Plaintiff to exit the car and Plaintiff continued his refusal to do so; during this time, Officer Collins did not touch Plaintiff. At 12:59:51 Officer Collins tried again to remove Plaintiff from the car. This time, he was able to grab Plaintiff by the back of his belt, remove him from the car, raise him in the air, “and use the ground stun technique to lay him out on the ground in a prone position.” (Doc. 44-1, ¶ 29; Video, 12:59:55 to 1:000:01.) For approximately a minute Officer Collins stayed on top of Plaintiff, trying to control him. Two more officers arrived at 1:01:13 and went to secure the passenger. More officers arrived at 1:01:24 and eventually took control of Plaintiff; Officer Collins last touched Plaintiff at 1:01:32.

         Plaintiff's operative pleading is his Amended Complaint. (Doc. 22.) In Count I, he alleges that Officer Collins and John Does 1-6 utilized excessive force in violation of the Constitution. Count II alleges that Officer Collins and John Does 1-6 violated Plaintiff's constitutional right to bodily integrity. Count III asserts that the Board of Police Commissioners (“the Board”) is liable for the constitutional violations alleged in Counts I and II because those violations are attributable to an official policy, an unofficial custom, or a failure to train or supervise. Count IV advances a claim for negligence against all Defendants. Count V does not state an independent cause of action but only requests an award of punitive damages against all Defendants.

         Defendants present various arguments in favor of summary judgment, which Plaintiff opposes. The Court resolves the parties' arguments below.

         II. DISCUSSION

         A moving party is entitled to summary judgment on a claim only upon a showing that “there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” See generally Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). In applying this standard, the Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985). A party opposing a motion for summary judgment may not simply deny the allegations, but must point to evidence in the Record demonstrating the existence of a factual dispute. Fed.R.Civ.P. 56(c)(1); Conseco Life Ins. Co., 620 F.3d at 909-10.

         A. Count I - Excessive Force

         Officer Collins contends that he is entitled to qualified immunity on Plaintiff's claim of excessive force. “Qualified immunity involves the following two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct.” Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir. ...


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