Opinion
Civ. No. 03-2531 (RHK/AJB)
June 1, 2004
Roger L. Kramer, Gislason Hunter L.L.P., Minnetonka, Minnesota, for Plaintiff
Frank E. Villaume III, St. Paul, Minnesota, for Defendants
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff David Eugene Ingram, a/k/a Abrams, ("Ingram") alleges that Defendants Officer David Pavlak and Officer Michael Wortman used excessive force when Pavlak released his police canine to apprehend him and one of the officers struck Ingram. He also seeks to hold the officers liable for assault and battery and hold Defendant City of St. Paul vicariously liable for those torts. Defendants have moved for summary judgment on all claims. For the reasons set forth below, the Court will grant Defendants' motion.
Background
On the evening of March 27, 2001, Ramsey County Sheriff's Deputies Craig Palmer and Kurt Krinke, who are not defendants in this case, attempted to serve an arrest warrant upon Ingram at his residence. (Palmer Aff. ¶ 2.) Ingram had been convicted of fifth degree methamphetamine possession and had violated his probation by failing a urinalyses test. (Id. ¶ 2; Ingram Dep. Tr. at 23, 47-49.) As Palmer approached Ingram's residence, he observed Ingram inside. (Palmer Aff. ¶ 3.) Despite Palmer's knocking and announcing his presence, no one came to the door. (Id.) When a forcible entry was unsuccessful, Palmer called the St. Paul Police Department for assistance and Krinke secured the back of the residence. (Id. ¶ 4.)
Responding to Palmer's call were St. Paul Police Department Officers Pavlak, with his police canine "Buster," and Wortman. Pavlak, who joined the department in 1989, had been on the canine patrol since 1999 and had completed a fourteen-week basic patrol dog course with Buster. (Pavlak Dep. Tr. at 11, 13-14, 17-18.) Pavlak had been certified with Buster both regionally and nationally. (Id. at 35-36.) Wortman, who joined the department in 1998, was working alone when he responded to the call. (Wortman Dep. Tr. at 5, 18-19.) Both officers had previously assisted the Sheriff's Department with serving warrants. (Id. at 19; Pavlak Dep. Tr. at 59.)
Upon arriving at the scene, Pavlak was informed that Ingram was wanted on a warrant for methamphetamine possession, had turned off the lights to his residence, and had fled to the interior of the house. (Pavlak Dep. Tr. at 50.) Neither Pavlak nor Wortman inquired into Ingram's criminal history or whether he was armed, and they were not advised whether or not Ingram had threatened violence. (Id. at 50-51, 67; Wortman Dep. Tr. at 26, 31.)
After Ingram's family was ordered out of the residence and told that a canine would be used to search the residence, Ingram's wife told police that no one was inside. (Palmer Aff. ¶ 6; Pavlak Dep. Tr. at 53; Wortman Dep. Tr. at 23.) With the Ramsey County Sheriffs deputies covering the front and back of the residence, Pavlak, Wortman, and Buster entered through the front door and began their search. (Pavlak Dep. Tr. at 56, 78; Wortman Dep. Tr. at 32, 37.) Upon entering, Pavlak announced, "St. Paul Police canine. Come out or I will release my dog." (Pavlak Dep. Tr. at 64; Wortman Dep. Tr. at 37.)
Meanwhile, Ingram was in the basement. Although he did not hear Pavlak, Ingram did hear a police radio and hid in a closet located inside the basement's furnace room. (Ingram Dep. Tr. at 51, 57-58.) He locked both the door to the furnace room and the door to the closet and turned off the light. (Id. at 59-60.) His explanation for his conduct was that he "didn't want to go to jail." (Id. at 57.)
Hearing no response to his announcement, Pavlak released Buster and searched the main floor and the upper floor of the residence. (Pavlak Dep. Tr. at 65-67, 72.) Not finding anyone upstairs, Pavlak proceeded to the basement. (Id. at 74.) At the top of the basement stairs, Pavlak again announced that he had a canine and would release it if no one came out. (Id. at 75; Wortman Dep. Tr. at 42.) After waiting approximately twenty seconds, Pavlak released Buster into the basement. (Pavlak Dep. Tr. at 75.) Buster indicated by barking that someone was behind the furnace room door. (Id. at 80.) Pavlak then pulled Buster back, held it by the collar, and said, "Police canine, come out or we're going to send in the dog." (Id. at 81; Wortman Dep. Tr. at 45-46.) There was no response. (Pavlak Dep. Tr. at 84.)
Finding the furnace room door locked, Wortman removed the lock. (Id. at 86; Wortman Dep. Tr. at 45-47.) When that door was opened, the officers saw the second door to the closet. (Pavlak Dep. Tr. at 89; Wortman Dep. Tr. at 47.) Buster again alerted the officers to a human presence in the closet. (Pavlak Dep. Tr. at 90.)
From inside the closet door, Ingram, who was previously unaware of the canine's presence, heard Buster barking and scratching at the door. (Ingram Dep. Tr. at 58-59.) He then heard a police officer yell, "Come out of there." (Id. at 64.) Ingram replied, "Take the dog away. Take the dog away. I'll come out of here." (Id. at 65.) Wortman then began removing the lock from the door, while Ingram held on to the doorknob to keep him from opening the door. (Wortman Dep. Tr. at 48; Ingram Dep. Tr. at 65-66.)
Although at some point while removing the locks Pavlak had called for assistance (Pavlak Dep. Tr. at 101-02), the officers opened the closet door by themselves and Buster bit Ingram on his left arm (Ingram Dep. Tr. at 68). In response to the bite, Ingram stabbed Buster with a screwdriver that he had in the closet. (Ingram Dep. Tr. at 60-61, 68.) As he was stabbing Buster, one of the officers, although Ingram does not know which one, struck him in the face and knocked him unconscious. (Id. at 69-70.)
Ingram sustained dog bite lacerations to his left forearm and left lower leg, a fractured jaw, two fractured fingers on his right hand, and abrasions to his head and face. (Id. at 76-79, 83-85.) On July 18, 2001, Ingram pled guilty to obstructing legal process with force, in violation of Minn. Stat. § 609.50. (Villaume Aff. Ex. E.) He specifically disclaimed self-defense. (Id.) This suit followed.
This Court denied Defendants' previous motion for summary judgment and rejected their argument that Ingram's disclaimer of self-defense barred his claims in this case. See Ingram v. Pavlak, Civ. No. 03-2531 (RHK/AJB) (D. Minn. Sept. 12, 2003).
Standard of Review
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).Analysis
Ingram makes four claims. Count I asserts an excessive force claim pursuant to 42 U.S.C. § 1983 against the individual officers, Pavlak and Wortman (Compl. ¶¶ 24-30); Counts II and III assert state tort claims for battery and assault against the officers (id. ¶¶ 31-32, 33-34); and Count IV asserts a claim against the City of St. Paul, seeking to hold it vicariously liable for the officers' alleged battery and assault (id. ¶¶ 35-36). Defendants have moved for summary judgment on all Counts. The Court will begin with Ingram's § 1983 claims.
I. Ingrain's $1983 Claims
"In order to survive a motion for summary judgment under § 1983, the plaintiff must raise a genuine issue of material fact as to whether (1) the defendants acted under color of state law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right." Kuha v. City of Minnetonka, 365 F.3d 590, 596 (8th Cir. 2004) (amending opinion filed May 8, 2003) (quoting Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002)). Ingram alleges that the officers used excessive force in violation of the Fourth and Fourteenth Amendments in: (1) using the canine; and (2) striking him in the face after he stabbed the canine. (Pl.'s Mem. in Opp'n at 10.)
Although it is not clear from Ingram's brief that he is pursuing an excessive force claim with respect to being struck, Ingram's counsel confirmed at oral argument that he is asserting such a claim.
Ingram's excessive force claims are analyzed under the Fourth Amendment's "objective reasonableness" standard. Kuha, 365 F.3d at 597 (quoting Graham v. Connor, 409 U.S. 386, 395 (1989)). "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." Id. (citations and internal quotations omitted). "[H]owever, its proper application requires careful attention to the facts and circumstances of each particular case, including": (1) whether the suspect is actively resisting arrest or attempting to evade arrest by flight; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) the severity of the crime at issue. Id. (citations and internal quotations omitted).
"The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citations and internal quotations omitted). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation."Id. (citation and internal quotations omitted). "[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. (citation and internal quotations omitted).
A. Use of the Canine
Under the facts and circumstances of this case, no reasonable jury could find it objectively unreasonable for Pavlak and Wortman to have used the police canine. First, far from "passively hiding in a closet" (Pl.'s Mem. in Opp'n at 4; Kramer Aff. Ex. A (Waller Report at 3)), Ingram was actively resisting arrest by failing to comply with the officers' orders to come out and by holding on to the doorknob when the officers attempted to open the door. This conduct is contrary to Ingram's assertion that his "attempt to avoid arrest by flight had ended." (Pl.'s Mem. in Opp'n at 9.)
Second, the officers could reasonably have concluded that Ingram posed an immediate threat to their safety. Although Ingram asserts that he did not threaten violence and he was not an immediate threat from behind the closet door (Pl.'s Mem. in Opp'n at 7, 8), neither Pavlak nor Wortman could discern whether Ingram was armed, nor could they predict the lengths to which Ingram would go to avoid arrest, see Jarrett v. Town of Yarmouth, 331 F.3d 140, 150 (1st Cir. 2003) (reaching same conclusion where suspect fled a minor traffic accident). In fact, Ingram used a screwdriver that he had in the closet to stab the canine. That the officers did not wait for backup does not mean, as Ingram suggests (Pl.'s Mem. in Opp'n at 8), that no reasonable officer could have determined that there was an immediate threat. "[G]iven the totality of the circumstances, [the officers] were reasonably wary of what they might encounter when they found [Ingram], and reasonably concerned for their safety."Kuha, 365 F.3d at 600-01.
Finally, upon arriving at the scene, the officers were told that Ingram was wanted on a warrant for methamphetamine possession. Ingram contends that his crime "does not equate to the type of violent crime that would necessitate the use of force such as a police dog" (Pl.'s Mem. in Opp'n at 10) and his expert opines that Ingram's crime was not severe because it was for a "violation of probation for a non-violent offense." (Kramer Aff. Ex. A (Waller Report at 3).) In essence, Ingram argues that in order for it to be reasonable for police to use a canine under the "objective reasonableness" test, the suspect's crime must be violent. In Kuha, however, the Eighth Circuit declined to draw such a bright line:
Kuha argues that the governmental interest in apprehending a fleeing misdemeanant will never outweigh the potential harm inherent in canine assisted apprehensions. We disagree. Police dogs serve important law enforcement functions . . . and their use is not inherently dangerous. . . . In sum, the mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation. . . . And in this particular case, given the odd turn of events initiated by Kuha, the initial decision to use [the canine] to assist in Kuha's apprehension was objectively reasonable as a matter of law.365 F.3d at 600 (citations omitted). Like the court in Kuha, this Court declines to draw the bright line that Ingram suggests. To do so would fly in the face of the Supreme Court's observation, as recognized by the Eighth Circuit, that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application" and "its proper application requires careful attention to the facts and circumstances of each particular case." Id. at 597 (citations omitted).
Ingram's remaining counter-arguments are also unavailing. Ingram first argues that it was objectively unreasonable for the officers to have used the canine once Ingram said that he would come out if they took it away. (Pl.'s Mem. in Opp'n at 10 ("[O]nce [he] was found in the basement, use of the dog should have been stopped.").) While it would be a different situation had Ingram been bitten after coming out of the closet with his hands up, "this is not a case where the officers are accused of siccing a police dog on a manifestly unarmed and compliant suspect." Kuha, 365 F.3d at 601. "[O]fficer safety is paramount," id. at 599, and Ingram was in no position to negotiate from behind locked doors while resisting arrest.
Ingram next asserts that "[h]ad the officers waited for the additional backup and restrained the animal, the arrest could have been made in a safe manner according to [his] pleas of surrender." (Pl.'s Mem. in Opp'n at 8.) While the officers could have waited for backup, it was not unreasonable to proceed without it. Although Ingram alleges that Pavlak did not adhere to his "procedure" of calling backup "so that two officers could handcuff the suspect, while he restrained his dog" (Pl.'s Mem. in Opp'n at 12), under § 1983 the issue is whether the officers violated the constitution or federal law, not whether they violated police procedure,see Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993) (determining that the issue under § 1983 is whether defendant violated the constitution or federal law, not whether he violated policies of a state agency); Edwards v. Baer, 863 F.2d 606, 608 (8th Cir. 1988) (stating that "police department guidelines do not create a constitutional right").
Ingram's expert, Dennis Waller, examined St. Paul Police Department Directive 462.00, which contains the Department's guidelines for canine use. (Kramer Aff. Ex. A (Waller Report); Villaume Supp. Aff. Ex. I (Directive 462.00).) These guidelines mirror the factors considered in the Fourth Amendment's objective reasonableness standard. Analyzing these guidelines, Waller opines that Ingram: (1) was not an immediate threat because he was "passively hiding," (2) was not actively resisting or attempting to evade arrest by flight because he was "hiding in a closet," and (3) his crime was not severe because it was a "violation of probation for a non-violent offense." (Kramer Aff. Ex. A (Waller Report at 3).) For the reasons stated above, the Court disagrees with Waller's factual characterizations and is obviously not bound by his legal conclusions.See Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) ("[The expert's] testimony involved only his views concerning the reasonableness of the officer's conduct in light of `Fourth Amendment standards.' To that end, his testimony was not a fact-based opinion, but a statement of legal conclusion. . . . The legal conclusions were for the court to make. It was an abuse of discretion to allow the testimony." (citation omitted)). Additionally, there is no indication from Waller's curriculum vitae that he has any knowledge, skill, experience, training, or education in the use of police canines. Fed.R.Evid. 702.
B. Striking Ingram
As with the officers' use of the canine, under the facts and circumstances of this case, no reasonable jury could find it objectively unreasonable for one of the officers to have struck Ingram. According to Ingram, one of the officers struck him in the face as Ingram was stabbing the canine with a screwdriver. (Ingram Dep. Tr. at 68-70.) Clearly, by his conduct, Ingram was resisting arrest and was posing an immediate threat to the safety of the canine and of the officers standing nearby. "When an arrestee flees or resists, some use of force by the police is reasonable." Greiner v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994) (citation omitted). In light of the totality of the circumstances confronting the officers at the scene, no reasonable jury could find that excessive force was used. See, e.g., Winters v. Adams, 254 F.3d 758, 764-65 (8th Cir. 2001) (finding it objectively reasonable for a police officer to strike a suspect who was preventing the officer from removing the suspect from a car).
Accordingly, because Ingram has not met his burden to raise a genuine issue of material fact as to whether he was deprived of a constitutionally protected federal right, the Court will grant the officers summary judgment on Ingram's § 1983 claims.
II. Qualified Immunity
Even if Ingram had established a constitutional violation, Pavlak and Wortman would be protected by qualified immunity. (Defs.' Mem. in Supp. at 11-13; Defs.' Reply Mem. in Supp. at 7-9.) "Under the doctrine of qualified immunity, state actors are protected from civil liability when `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"Kuha, 365 F.3d at 601 (quoting Harlow v. Fitzgerald, 457 U.S. 800. 818 (1982)). The qualified immunity inquiry is a two-step process. First, the court must ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)) (internal quotations omitted). If a violation can be made out, the next step is to ask whether the constitutional right was "clearly established in light of the specific context of the case."Id. (citing Saucier, 533 U.S. at 201).
"For a right to be deemed clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (citations and internal quotations omitted). Officers will be shielded from suit "if their conduct was objectively legally reasonable in light of the information they possessed at the time of the alleged violation." Id. (citations and internal quotations omitted). Officers are not immune, however, "if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that the defendant should have taken the disputed action." Id. at 602 (citations and internal quotations omitted). Thus, "[q]ualified immunity operates . . . to protect officers from the sometimes `hazy border between excessive and acceptable force,' and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Id. (citation and internal quotations omitted).
Ingram has failed to show that the officers violated any clearly established constitutional rights. With respect to the canine, Ingram suggests that he had a constitutional right to demand the officers take it away and to have the officers wait until backup arrived. (See Pl.'s Mem. in Opp'n at 11-12.) Had there been such rights, they were not clearly established. Pavlak and Wortman were not on notice that it arguably was constitutionally impermissible to use the canine as they did. Ingram has cited nothing in the existing law that mandates such rights and the Court cannot say that "it is obvious that no reasonably competent officer" would have concluded otherwise. Kuha, 365 F.3d at 602; see id. at 603 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.")).
For the same reasons, Ingram also fails to show that the officer who struck him violated a clearly established constitutional right. Again, Ingram has cited nothing in the existing law that would put the officer on notice that his conduct was unreasonable under these circumstances and the Court cannot say that the "contours of the right [was] sufficiently clear." Id. at 604 (citation and internal quotations omitted). In contrast, the case law suggests that the officer could reasonably have believed that he used acceptable force. See Winters, 254 F.3d at 764-65:see also Greiner, 27 F.3d at 1355.
Accordingly, because the officers' "conduct was objectively legally reasonable in light of the information they possessed at the time,"Kuha, 365 F.3d at 601 (citations and internal quotations omitted), they are entitled to qualified immunity. III. Ingrain's State Tort Claims
Pavlak and Wortman assert official immunity to Ingram's battery and assault claims. (Defs.' Mem. in Supp. at 13-14.) "Minnesota's official immunity doctrine provides that a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong." Kuha, 365 F.3d at 607 (quoting Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988)) (internal quotations omitted). "The doctrine is intended to insure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties." Id. at 607-08 (quoting Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996)) (internal quotations omitted). "Official immunity involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of `ministerial' duties." Id. at 608 (Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992)).
Pavlak and Wortman are entitled to official immunity from Ingram's state tort claims. "[T]he officers' decision to use a police dog, and the moment by moment decisions in the course of that use, were, as a matter of law, discretionary acts." Id. (citations omitted). Similarly, striking Ingram was also discretionary. See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (stating that official immunity is appropriate where "an official must make instantaneous decisions often on the basis of incomplete information"); Watson, 553 N.W.2d at 415 (finding official immunity appropriate where the "situation unfolded in a manner which was far from `fixed and designated' . . .")). Ingram, however, has produced no evidence "of a willful or malicious wrong" that would defeat the officers' official immunity. See Elwood, 423 N.W.2d at 677; Kari, 582 N.W.2d at 923 ("In the absence of malice, the critical issue in a claim of official immunity is whether the public official's conduct is discretionary or ministerial."). Accordingly, the Court will grant Pavlak and Wortman summary judgment on Ingram's tort claims.
IV. City's Liability
Finally, Ingram's sole claim against the City of St. Paul is for vicarious liability for the officers' alleged battery and assault. (Compl. ¶¶ 35-36.) Like its officers, the City of St. Paul asserts official immunity. (Defs.' Mem. in Supp. at 14.) "Whether to extend this immunity to the City is a policy question." Kuha, 365 F.3d at 608 (citingPletan, 494 N.W.2d at 42). "Vicarious official immunity is appropriate where the threat of liability against the governmental employer could deter the police officer from exercising his independent judgment in deciding whether, and how, to pursue a suspect in the future." Id. (citing S.L.D. v. Kranz, 498 N.W.2d 47, 51 (Minn.Ct.App. 1993)). Given the circumstances under which Ingram fled, resisted arrest, and the area in which he hid, the Court concludes that policy considerations support extending the officers' official immunity to the City. See id. at 609.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that Defendants Motion for Summary Judgment (Doc. No. 19) is GRANTED. Plaintiff David Eugene Ingram, a/k/a Adams's Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.