United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter, brought under 42 U.SC. § 1983, is before the
court on the motion of the last remaining Defendant, Gregory
Klipsch, in his individual capacity as a police officer, for
summary judgment on Plaintiff Fredrick Graham's claim
that Klipsch used excessive force in effecting
Plaintiff's arrest on September 3, 2014. For the reasons
set forth below, the motion will be denied.
summary judgment record establishes that following his
arrest, Plaintiff was indicted for being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). United States v. Graham, No.
4:14-CR-00333-RLW. The record, including the district
court's findings of fact following an evidentiary hearing
that was held on Plaintiff's pretrial motions to suppress
statements and physical evidence (a ski mask, gloves, and a
gun), establishes the following: At 11:00 p.m. on the night
in question, Klipsch and another officer were driving in an
unmarked car in a high crime area when they saw Plaintiff
walking alone in the middle of a deserted street. Plaintiff
repeatedly looked over his shoulder to monitor the
officers' location, and repeatedly pulled at his
waistband, which Klipsch believed, based on his experience,
was an attempt to conceal a weapon. When Plaintiff walked up
to the front door of a house, the officers called out to him,
identified themselves as police officers, and asked Plaintiff
if he lived there. Plaintiff gave inconsistent answers and
then ran from the house, throwing a pistol to the ground as
he ran. The officers ran after Plaintiff and ordered him to
stop several times. Plaintiff ran on, and Klipsch again
ordered Plaintiff to stop and told Plaintiff that he
(Kiplisch) would use a taser if Plaintiff did not stop.
Petitioner kept running and Kisch tased him (on dart
mode). Plaintiff fell to the ground and the
officers placed him under arrest and handcuffed him.
Plaintiff was transported to jail for booking. Upon arriving
at jail, Plaintiff complained of shoulder pain, and he was
taken to the hospital where he was examined and then
discharged that same night. Id., ECF No. 54, 65.
finding of fact, the district court held that the officers
“knew reasonable, articulable facts that supported
their reasonable suspicion that [Petitioner] was involved in
some criminal activity” when he was at the front of the
house before he fled, and that this allowed the officers to
stop Plaintiff for a brief investigatory stop. The district
court further held that after Petitioner fled, Klipsch had
probable cause to believe that Plaintiff was illegally in
possession of a firearm. The court concluded that seizure of
the mask and gloves from Plaintiff's person should not be
suppressed “because they were seized in a proper search
incident to a lawful arrest, which is an exception to the
Fourth Amendment warrant requirement.” Id.,
ECF No. 54 at 15. Plaintiff was convicted by a jury and his
conviction was affirmed on appeal. United States v.
Graham, No. 16-1423, 2017 WL 702287 (8th Cir. 2017).
testified by deposition in this case consistent with the
version of events found by the court as described above, up
to the time that he tased Plaintiff after warning Plaintiff
that he (Klipsch) would do so if Plaintiff did not stop
running from him. ECF No. 92-3 at 5-6. Klipsch went on
testify that when he tased Plaintiff, “two
prongs” hit Plaintiff in the back, and Plaintiff fell
to the ground and was “incapacitated.” Klipsch
then testified as follows: “[When the initial contact
[was] made, he fell down. After the cycle ended, I ordered
him to place his hands behind his back and stay on the
ground. He didn't comply. He attempted to get up again,
and [I] told him, I'll tase you again, and he continued
to proceed to get up, and I delivered a second burst.”
Id. at 6.
presents a different version of events that led up to the
tasing. He testified by deposition that he did not act
suspiciously, that he did not flee from the police, that he
did not discard a firearm from his waitband, and that he did
not refuse directives from the police at any time. He
testified that he was tased from behind, and did not recall
just what happened thereafter, because he lost consciousness;
when he awoke on the ground he was bleeding and four or five
officers were asking him questions. ECF No. 92-2.
Rule of Civil Procedure 56(c)(2) provides that summary
judgment shall be entered “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” In ruling on a motion for summary
judgment, a court is required to view the facts in the light
most favorable to the non-moving party and must give that
party the benefit of all reasonable inferences to be drawn
from the record. Sokol & Assocs., Inc. v. Techsonic
Indus., Inc., 495 F.3d 605, 610 (8th Cir. 2007).
To be a
material fact, the factual issue must potentially
“affect the outcome of the suit under the governing
law.” Id. (citation omitted). “Rule
56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Id. (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)). “[T]he burden of demonstrating
that there are no genuine issues of material fact rests on
the moving party, ” and the court must view “the
evidence and the inferences that may be reasonably drawn
therefrom in the light most favorable to the non-moving
party.” Allard v. Baldwin, 779 F.3d 768, 770
(8th Cir. 2015).
claim that law-enforcement officers used excessive force to
effect a seizure is governed by the Fourth Amendment's
reasonableness standard.” Plumhoff v. Rickard,
134 S.Ct. 2012, 2020 (2014) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). In determining
whether the force used to effectuate a particular seizure is
“reasonable” under the Fourth Amendment, courts
consider the severity of the crime at issue, whether the
suspect posed an immediate threat to the safety of the
officer or others, and whether the suspect was actively
resisting arrest or attempting to evade arrest by flight.
Brossart v. Janke, 859 F.3d 616, 624 (8th Cir.
2017); Schoettle v. Jefferson Cnty., 788 F.3d 855,
859 (8th Cir. 2015).
as Klipsch argues, Plaintiff is collaterally estopped from
now presenting facts that contradict those found in his
criminal case. Based on those facts, the Court concludes that
the record establishes that Klipsch did not use
unconstitutionally excessive force by tasing Plaintiff the
first time. See, e.g., Lawyer v. City of Council
Bluffs, 361 F.3d 1099 (8th Cir. 2004). However, this
cannot be said about the second time Klipsch tased Plaintiff.
Klipsch himself testified that Plaintiff was
“incapacited” after the first tasing. Klipsch did
not testify that he believed Plaintiff posed a threat at that
point to Klipsch or anyone else in the vicinity. Klipsch
argues that the Court must take the record “as ...