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Swink v. Mayberry

United States District Court, E.D. Missouri, Eastern Division

June 18, 2018

JOSEPH TERRELL SWINK, Plaintiff,
v.
JOSEPH MAYBERRY, et al., Defendants.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court[1] on the motion for summary judgment (ECF No. 46) filed by Defendants Sergeant Joseph Mayberry, Detective Blake Carrigan, Chief Aaron Jimenez, and the City of St. Ann. Plaintiff opposes the motion. (ECF No. 57). For the following reasons, Defendants' motion for summary judgment is granted in part and denied in part.

         Plaintiff filed a petition in the Circuit Court of the City of St. Louis pursuant to 42 U.S.C. § 1983 asserting claims of unreasonable stop (Count I), unreasonable arrest (Count II), and excessive force (Count III) against Mayberry and Carrigan in their individual capacities. (ECF No. 5). Plaintiff alleged that he was driving on Interstate 70 when a police pursuit of a fleeing suspect caused his vehicle to crash. Mayberry and Carrigan, who were assisting in the pursuit, mistook Plaintiff for the fleeing suspect. According to the petition, Mayberry pointed his gun at Plaintiff, ordered him to the ground, pushed his face into the asphalt, punched him in the back, and placed him in handcuffs.

         Mayberry and Carrigan removed the case to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. (ECF No. 1). Plaintiff subsequently filed a first amended complaint adding as Defendants the City of St. Ann (“St. Ann”) and Jimenez, [2] chief of St. Ann's police department. (ECF No. 18). Plaintiff also added a claim against Jimenez in his individual capacity for “failure to follow his own policies” (Count IV) and a municipal liability claim against St. Ann and Jimenez in his official capacity (Count V).[3] (Id.).

         I. Legal Standard

         Summary judgment is proper “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); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record]...which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the non-movant must respond by submitting evidentiary materials that set out “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quotation marks omitted).

         “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

         II. Factual background

         A. Officers' pursuit of fleeing motorist and encounter with Plaintiff

         On the afternoon of January 15, 2015, Plaintiff, was driving his green Chevrolet eastbound on Interstate 70. He became aware of a silver BMW, followed by a black police car with flashing lights, traveling behind him at a high rate of speed. As the silver BMW and police car passed, Plaintiff lost control of his vehicle, which spun around, struck the median, and stopped facing westward.[4] Plaintiff exited his vehicle because he observed what appeared to be smoke emanating from the engine.

         The driver of the silver BMW, Anton Simmons, was fleeing a traffic stop. Officer Stephen Downs had stopped Simmons for speeding, and a routine records check revealed that Simmons had numerous warrants. Simmons fled the stop, and Downs initiated pursuit. Downs announced over the radio that the suspect was driving a silver BMW, and “ten or more” other police cars, including those driven by Mayberry, Carrigan, and officers from the Bridgeton Police Department, joined the pursuit. Eventually, Simmons drove off the road, and police officers arrested him.

         Mayberry did not hear the radio description of Simmons' vehicle. Knowing only that Downs was in pursuit of a fleeing suspect, Mayberry tried to “catch up” and assist Downs. Shortly after hearing a radio transmission about a vehicle accident in the area of I-70 and Cypress, which turned out to be Simmons' accident, Mayberry came upon Plaintiff's crashed vehicle.

         Mistakenly believing that Plaintiff was the fleeing suspect, Mayberry pulled over and stopped in front of Plaintiff's car. Mayberry exited his vehicle with his gun drawn and pointed at Plaintiff.[5] Carrigan arrived at the scene and exited his vehicle to assist Mayberry.

         At this point, the parties' versions of events diverge significantly. According to Plaintiff's deposition testimony, Plaintiff “immediately put [his] hands in the air” when he saw Mayberry approaching with his gun drawn. Plaintiff stated he did not hear any verbal commands, but, keeping his hands up, he slowly lowered himself, first to his knees, and then “completely flat on the ground.” Plaintiff testified: “Within the matter of seconds, I felt a knee up against my face . . . and he began to basically press his knee harder and harder against my face.” Plaintiff stated that he then felt four or five “punches” in his mid-back.

         Plaintiff testified that the first thing he remembered hearing was an officer ordering him to “stop resisting.” Plaintiff yelled back, “I'm not resisting; I'm not resisting, ” and the officer ordered him to “shut up.”

         Mayberry, on the other hand, stated in his deposition that, Plaintiff “got out of his vehicle and fled from the vehicle.” Mayberry stated that, as Plaintiff attempted to run away from him, he used an “arm bar technique” to take Plaintiff to the ground. According to Mayberry, he placed his knee on Plaintiff's mid-back, wrested Plaintiff's arms out from under him, and placed Plaintiff in handcuffs.

         Like Mayberry, Carrigan testified that Plaintiff resisted Mayberry's efforts to apply the handcuffs, and Mayberry “straddled” Plaintiff's back “to restrict his movement.” Carrigan explained that, in an effort to help Mayberry restrain Plaintiff, he “put [his] left shin across . . . [Plaintiff's] back, basically, in between his shoulder blades” so that he and Mayberry were “face-to-face trying to . . . get handcuffs on [Plaintiff].” Carrigan stated he also placed his left hand “around the back of [Plaintiff's] neck because he feared Plaintiff was “going to bite [him].” Both Mayberry and Carrigan denied using their body weight to push Plaintiff's face into the asphalt and punching Plaintiff.

         At his deposition, Jimenez testified that he arrived at the scene and observed Mayberry pointing his gun at Plaintiff who “was running towards the back of the car, ” and away from Mayberry. By the time Jimenez exited his vehicle, “two or three detectives were already detaining [Plaintiff].”

         The parties do not dispute that, once Plaintiff was in handcuffs, Mayberry returned to his vehicle and turned off the sirens. At this point, he heard a radio broadcast communicating that officers had arrested the fleeing suspect. Mayberry informed the other officers that they “had the wrong guy, ” and they released Plaintiff. Plaintiff traveled by ambulance to the emergency room at DePaul Hospital where doctors removed debris that was embedded in the right side of Plaintiff's face and stitched the area near his right ear.

         B. St. Ann's vehicular pursuit policy

         St. Ann's vehicular pursuit policy in effect at the time of the incident, provided: “The initiation or continuation of a pursuit is authorized only when the necessity of an immediate apprehension of a suspect outweighs the level of risk associated with the pursuit.” The pursuit policy therefore required officers to consider the specific circumstances and conditions “before initiating a pursuit and [] continually reevaluate changing circumstances during a pursuit to determine if the pursuit should continue.” Factors for officers to consider before and during a pursuit included, among others, the: “seriousness of the original offense that led to the pursuit”; “likelihood of identifying the suspect at a later date”; “speeds of the suspect and law enforcement vehicles”; “speed, direction(s), and density of vehicular and pedestrian traffic”; and “quality and reliability of communications between involved officers and other affected agencies.” The pursuit policy directed officers to “immediately terminate the pursuit” if “[c]hanging circumstances or conditions indicate the risk to public safety associated with continued pursuit are greater than the public safety benefit of making an immediate apprehension.”

         Pursuant to the pursuit policy, “[n]o more than a total of two law enforcement vehicles should be in direct pursuit of a fleeing vehicle” unless aggravating circumstances, such as pursuits involving violent felons or multiple suspects, justify additional patrol vehicles. “Involvement in a pursuit with more than two law enforcement vehicles should be approved by a supervising commander.”

         The pursuit policy set forth the responsibilities of the officers involved in a pursuit. The officer initiating a pursuit must “immediately notify dispatch” and report: the reason for the pursuit; description and license information of the fleeing vehicle; location, direction of travel, and approximate speed of vehicle; description and number of occupants; and other pertinent information, such as traffic, weather, or road conditions. That initiating officer is the “primary pursuit officer until another officer assumes responsibility.” The primary officer “should terminate the pursuit if the identity of the driver is known and the apprehension of the driver is not immediately necessary” and must communicate “complete, accurate and timely information to communications personnel throughout the pursuit.” The secondary pursuit officer must notify communications personnel when joining the pursuit.

         In regard to supervision of vehicular pursuits, the pursuit policy provided: “On-duty supervisory personnel should actively attempt to monitor and guide events associated with the pursuit.” The supervisor's responsibilities included:

1. Making necessary inquir[i]es to immediately determine relevant circumstances surrounding the pursuit.
2. Ordering the termination of the pursuit if it appears to constitute an unreasonable risk to public safety, officer safety or it is not being conducted [i]n accordance with this order.
3. Limiting type and number of patrol car[s] that are directly or indirectly involved.
4. Approving or disapproving pursuit tactics, to include forcible stopping techniques.
5. Continuously reevaluating the pursuit according to the criteria stated in this order and ordering the termination of the pursuit when the pursuit appears to constitute an unreasonable risk to public safety.

         Following a pursuit, the officer who was the primary officer for all or most of the pursuit, must “submit a Pursuit Report.” Each pursuit report must: “summarize the circumstances surrounding the pursuit” and “document all unusual situations or hazards and explain how the need to immediately apprehend the suspect outweighed the risks posed to the public.” The officer that supervised the pursuit should review the pursuit report “for completeness, accuracy and compliance with all applicable directives.”

         C. Officer communication and ...


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