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Schaffer v. Beringer

United States District Court, D. South Dakota, Southern Division

September 22, 2015

BRYAN BERINGER, in his individual capacity; JACY NELSEN, in her individual capacity; JESSICA WADE, in her individual capacity; MARK FOLEY, in his individual capacity; and MATT BETZEN, individually and in his official capacity; Defendants.




The undisputed facts are:

On May 30, 2014, Callissa was driving a vehicle with two passengers, one of whom was the vehicle’s owner. Officer Foley stopped the vehicle for improperly lit taillights. After approaching the vehicle, Foley recognized Lee Sappingfield as the owner of the vehicle (at the time seated in the back seat) from a stop that occurred the night before for the same taillight infraction. Foley asked Callissa for her driver’s license. Callissa responded that she did not have it with her, but stated that she did have a valid South Dakota driver’s license. Additionally, Callissa provided her date of birth indicating that she was eighteen-years-old at the time.

Foley detected a strong odor of alcohol emanating from within the vehicle. He returned to his patrol car where he checked Callissa’s driving status records. Foley informed dispatch about the odor of alcohol and requested assistance from other officers. Foley was asked via radio if the driver of the vehicle had been drinking, and he responded that he was unable to tell. Officers Delgado and Beringer arrived on the scene a few minutes later.[1]

Foley returned to the stopped vehicle and asked Callissa to step outside and accompany him to the vehicle’s rear. He told Callissa that he could smell alcohol and asked if she had been drinking. She replied that she had not. Foley asked if Callissa would submit to a breath test, which she refused. Foley asked again if Callissa had been drinking, which she again denied. Callissa asked if she could call her mother, Jill, and Foley responded that it would not be necessary. Callissa nonetheless called Jill, and Jill arrived on the scene shortly after.

Prior to Jill’s arrival, Officer Beringer spoke with the front-seat passenger, later identified as Marilyn Wingo. Wingo admitted to consuming alcohol that evening and that she was seventeen-years-old. The officers subsequently determined that Sappingfield had also consumed alcohol, although he was of legal age.

Upon Jill’s arrival, she exited her vehicle, shouted that the officers did not have probable cause, and stated that she was a lawyer. She informed the officers that she was Callissa’s attorney. The officers responded that the stop was permissible, and told Jill to step aside. Jill asked the officers to explain the situation. Jill also asked several times for the officers to explain specifically what about Callissa suggested that she used alcohol. The officers explained that both passengers admitted to consuming alcohol, that the car smelled of alcohol, and that they had not yet determined if Callissa had consumed alcohol. Jill responded that the vehicle did not smell like alcohol and again stated that the officers did not have probable cause.

After several minutes, Sergeant Nelsen and Officer Wade arrived on the scene. Nelsen spoke with Jill. A similar conversation about probable cause, the vehicle stop, and Callissa took place. Nelsen informed Jill that she needed to let the officers do their job or she would be arrested.

Callissa was asked again if she would submit to a breath test. She asked about her other options, and was told that she could be detained and taken to the police department while the officers sought a search warrant. Callissa was told that she would not be taken to jail, but would be held in an interview room. Additionally, the officers explained that she would be placed in handcuffs while she was transported. Callissa refused to submit to the breath test. She was placed in handcuffs and frisked by Wade before being placed in a patrol car. Callissa was then transported to the Vermillion police station. Wingo, who had also refused to submit to the breath test, was placed in another patrol car and transported to the police station as well.

At the police station, Callissa was placed in a room with Wingo and Wade while Foley sought a search warrant. Jill arrived at the police station and asked to see Callissa. While Wingo was in the interview room, Jill was not permitted to be present. While Foley attempted to obtain the search warrant, Callissa was asked if she would submit to a breath test and she refused. Wingo subsequently agreed to take the breath test, which revealed her blood alcohol content to be 0.21 percent. Wingo was eventually released, and Jill was permitted to enter at that time. After the search warrant was issued, Callissa agreed to take the breath test. The test indicated that her blood alcohol level was 0.00 percent.


Summary judgment is appropriate 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). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, “[t]he nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).

Summary judgment is precluded if there is a factual dispute that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).


I. Officers Foley, Beringer, Wade, and Nelsen

Counts 1 through 12 of plaintiffs’ complaint are brought against defendants Foley, Beringer, Wade, and Nelsen in their individual capacities. Foley, Beringer, Wade, and Nelsen contend that they are entitled to qualified immunity on each of plaintiffs’ claims against them. Section 1983 provides a cause of action against any “person who, under the color of any statute, ordinance, regulation, custom, or usage, of any state” causes the deprivation of a right protected by federal law or the United States Constitution. 42 U.S.C. § 1983.[2] The doctrine of qualified immunity, however, generally shields “ ‘government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Because qualified immunity provides immunity from suit and not merely a defense to liability, “it is important that the question of qualified immunity be resolved as early as possible in the proceedings.” Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012) (citations omitted). To overcome a qualified immunity defense at the summary judgment stage, a plaintiff must show: “(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation.” Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009). The court may analyze these two factors in either order. Hutson v. Walker, 688 F.3d 477, 483 (8th Cir. 2012) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). But “[t]o deny the officers qualified immunity, [the court] must resolve both questions in [the plaintiff’s] favor.” Hawkins v. Gage Cty., Neb., 759 F.3d 951, 956 (8th Cir. 2014).

A. Count 1

Plaintiffs assert that Beringer, Nelsen, and Foley deprived Callissa of her Fourth Amendment right to be free from unreasonable seizures when Callissa was placed in handcuffs without probable cause.[3] In pertinent part, the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. The Supreme Court has long recognized a distinction between Fourth Amendment seizures and formal arrests:

It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime-“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.

Terry v. Ohio, 392 U.S. 1, 16 (1968). Thus, a seizure is said to occur when “an officer restrains the liberty of an individual through physical force or show of authority.” McCoy v. City of Monticello, 342 F.3d 842, 847 (8th Cir. 2003). For purposes of § 1983, a seizure must comport with the Fourth Amendment’s general standard of reasonableness. Id.

An arrest, by contrast, is a more intrusive seizure that is permissible if an officer has probable cause. United States v. Pratt, 355 F.3d 1119, 1122 (8th Cir. 2004). “Probable cause exists ‘when the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ ” Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014) (quoting Ulrich v. Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013)). The Eighth Circuit has explained, however, that an officer is entitled to qualified immunity even if the officer had only “arguable probable cause” to make an arrest. Id. (citing Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012)). “ ‘Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.’ ” Id. (quoting Ulrich, 715 F.3d at 1059)).

The parties dispute whether Callissa was arrested or merely seized. As the Eighth Circuit has observed, “[t]he standard for determining when police-citizen contact constitutes an arrest . . . is unclear.” Pratt, 355 F.3d at 1122. Because a determination that the officers had probable cause or even arguable probable cause to arrest Callissa would end the present inquiry, the court will assume Callissa was arrested when she was placed in handcuffs. See Id . at 1122-23 (“However, if an officer has probable cause, any inquiry into other acceptable justifications for the seizure is largely superfluous . . . ...

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