United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Pending before the court are the defendants’ motions for summary judgment. (Dockets 39 & 43). The court referred the motions to Magistrate Judge Daneta Wollmann for resolution. (Docket 58). On September 4, 2015, Magistrate Judge Wollmann filed a report recommending the court grant the motions for summary judgment of defendants City of Rapid City and Rybak and grant in part and deny in part the remaining defendants’ motion for summary judgment. (Docket 59). Plaintiff and defendants Scott Dirkes and Jim Hansen timely filed objections. (Dockets 60 & 61).
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
A. MAGISTRATE JUDGE’S FINDINGS OF FACT
Defendants Dirkes and Hansen (“defendants”) object to a number of the magistrate judge’s findings of fact. (Docket 61). Because those objections are not separately delineated in defendants’ objections, the court summarizes their objections as follows:
1. Before the takedown, other officers and bystanders were calmly standing around. Id. at p. 20.
2. That it is unclear whether Officer Hansen or Officer Dirkes made the decision to arrest Mr. Ehlers. Id. at p. 28.
Each of these objections will be separately addressed. To the extent the remainder of the magistrate judge’s statement of facts is unchallenged, those facts are adopted by the court.
For summary judgment analysis, the facts and inferences from those facts must be viewed in the light most favorable to Mr. Ehlers, the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). To put defendants’ objections in context, the court must first set the background for the timeframe and substance of each objection.
On December 21, 2010, Mr. Ehlers, his wife, three adult children and friends were in Rapid City, South Dakota, to attend a Rush hockey game at the Rushmore Plaza Civic Center. (Docket 59 at p. 2). While Mrs. Ehlers and their son, Derrik, were at a table in the hospitality area the table was somehow jostled and beer spilled on Mrs. Ehlers. Id. Despite her efforts to explain the situation, Civic Center staff asked Mrs. Ehlers to leave and she was escorted out of the building by the staff. Id. at pp. 2-3.
Because they were displeased with the manner in which their mother was treated, her children began to yell profanities at the Civic Center staff. Id. at p. 3. These adults were instructed to leave the premises. Id. While it is unclear as to how these adults “engaged” the Civic Center staff, there is no question that they did “engage” the staff and security guards of the Civic Center. Id.
Rapid City Police Officer Sergeant Chris Hall was the first officer to arrive and intervene. Id. Two of the Ehlers children rushed toward him and he physically pushed them away. Id. Officer Hall testified they were yelling and screaming at him. Id. Tyler Kaitfors, one of the Ehlers’ children who was involved with Officer Hall, testified he was merely asking for the officer’s name and badge number because Tyler was upset with the manner in which the situation was being handled. Id. Desirae Ehlers twice pushed Officer Hall. Id. Derrik Ehlers, a third family member, got into a confrontation with a bystander which required Officer Hall to break up that situation. Id.
Officer Hall radioed for assistance. Id. Rapid City Police Officer Jim Hansen arrived on scene and Officer Hall directed him to arrest Derrik. Id. at p. 4. The dash camera video of one of the patrol cars shows Derrik appearing calm and compliant. Id. Officer Hansen placed Tyler under arrest. A third Rapid City Police Officer, Matt McCroden, arrived and placed Desirae in handcuffs.
While these events were unfolding, Mr. Ehlers was watching the hockey game inside the Civic Center. Id. Mr. Ehlers was advised of the confrontation involving his family and when he got to the exterior doors of the Civic Center he observed Derrik in handcuffs. Id.
A dash camera video shows Mr. Ehlers, carrying a ladies’ purse, approaching Officer Hansen in a slow and curious manner. Id. His purpose was to ask questions relating to the arrest of his son. Id. Mr. Ehlers appeared to be a confused parent seeking to find out why his son was under arrest. Id.
Officer Hansen told Mr. Ehlers to step back to the curb. Id. at p. 5. Officer Hansen is seen on video pointing toward the Civic Center and in the direction from which Mr. Ehlers came. Id. Mr. Ehlers appears to step closer to Officer Hansen. Id. Mr. Ehlers continues to ask questions regarding his son. Id. Officer Hansen again points toward the Civic Center. Id. Because Mr. Ehlers can no longer be seen on the video, it is assumed that he stepped to the curb near the officer. Id. Officer Hansen stated he was going to count to three and Mr. Ehlers had better be on the “far sidewalk.” Id.
Mr. Ehlers did not appear agitated or intoxicated and initiated contact with Officer Hansen in a non-threatening manner. Id. Mr. Ehlers complied with the officer’s request and can be seen putting his hands in the air briefly and walking toward the far sidewalk. Id.
The dash camera video from Officer McCroden’s patrol car shows Officer Hansen with Derrik standing on the passenger side of Officer Hansen’s patrol car. Because the camera is picking up audio from Officer McCroden’s encounter with Desirae some twenty feet away, there is no audio of Officer Hansen’s conversation with Mr. Ehlers. (Exhibit 19 at 21:00:39 to 21:00:43). At this point it appears as though Officer Hansen is gesturing in the direction of the Civic Center and Mr. Ehlers is off-screen to the right. Id. at 21:00:44 to 21:00:50. At this juncture, the woman who had accompanied Mr. Ehlers to the area where Officer Hansen and Derrik were standing, turned and calmly walked in the direction of the Civic Center. Id. at 21:00:50-54. Officer Hansen can be seen gesturing and speaking to someone on the driver’s side of Officer McCroden’s patrol car. Id. at 21:01:05-06. At this point, Mr. Ehlers walks toward the Civic Center and gestures “o.k.” or “whatever” raising his arms into the air. Id. at 21:01:06-09.
From the perspective of Officer Dirkes’ patrol car camera, Mr. Ehlers can be seen walking toward the Civic Center. (Exhibit 20 at 21:00:25-26). Officer Dirkes’ microphone was on at this time. (Docket 52-10 at p. 2 (62:18-19)). Officer Dirkes testified that as he pulled up in his patrol car, “Officer Hansen indicated a gentleman, pointed at him, and said he needed to be arrested. . . . Take him to jail. Arrest him. Something along those lines. I don’t remember the specific wording. . . . he needed to go to jail. Those were my instructions upon getting out of the car. . . . To arrest him.” (Docket 46-8 at p. 11 (53:8-19)). Officer Dirkes testified that as Mr. Ehlers walked past him from the area of Officer Hansen’s patrol car that Mr. Ehlers said “[f]uck you, I’m not going to jail.” (Docket 52-10 at p. 2 (62:11-17)). While Officer Dirkes’ open microphone picked up other dialogue throughout the encounter, neither Officer Hansen’s instructions nor Mr. Ehlers’ statements are on the recording. See Exhibit 20 at 21:00:25-30. Mr. Ehlers denies having made any statement or that Officer Hansen instructed Officer Dirkes to make an arrest. (Docket 59 at p. 5). For summary judgment purposes the court must conclude these statements were not made by either Officer Hansen or Mr. Ehlers. Matsushita Elec. Indus. Co., 475 U.S. at 587-88.
From Officer Dirkes’ car camera video, as he is walking toward Mr. Ehlers, the officer can be heard speaking twice in the direction of Mr. Ehlers “put your hands behind your back.” (Exhibit 20 at 21:00:26-27). As Mr. Ehlers continued walking toward the Civic Center, Officer Dirkes grabbed him by the neck and shoulder in the execution of a spin takedown. Id. at 21:00:27-30.
Once on the ground, Mr. Ehlers is on his back with his arms in the air. Id. at 21:00:32. Officer Dirkes physically turned Mr. Ehlers over and he ended up on his hands and knees holding a pair of glasses in his right hand. Id. at 21:00:32-34. Officer Dirkes is observed pushing down on Mr. Ehlers’ head, shouting “put your hands behind your back.” Id. at 21:00:34-35. Another officer appears to Mr. Ehlers’ left, puts his right knee on Mr. Ehlers’ left shoulder, grabs his left arm and puts Mr. Ehlers face down on the ground. Id. at 21:00:35-37. This officer then walked away. Id. at 21:00:47-49. Officer Ganser appears, grabs Mr. Ehlers’ right leg and pulls it out from underneath him. Id. at 21:00:44. Officer Ganser places Mr. Ehlers’ right leg across the back of his left leg, lifts and presses the left leg toward Mr. Ehlers’ back, and presses him into the ground. Id. at 21:00:45-50. At this point South Dakota Highway Patrol Trooper Rybak approaches Mr. Ehlers’ left side, grabs his left arm from underneath his body and pulls the left arm up high into a fixed arm bar position. Id. at 21:00:53-21:01:00.
Officer Dirkes readied his taser to “drive stun” and placed the prongs against the bare skin of Mr. Ehlers’ lower back. (Docket 59 at p. 6). Someone can be heard yelling “let him have it.” Id. Because the safety switch was on, when Officer Dirkes attempted to engage his taser it did not fire. Id. Officer Hansen felt Mr. Ehlers was not resisting and instructed Officer Dirkes not to use the taser on Mr. Ehlers. Id. Mr. Ehlers claims he was then shocked by the taser. Id. The taser can be heard being activated by Officer Dirkes. (Exhibit 20 at 21:00:58-21:00:00).
Mr. Ehlers was handcuffed and arrested for resisting arrest and obstructing a police officer. (Docket 59 at p. 6). Mr. Ehlers alleges he suffered an injury to his shoulders and left knee. Id. The left shoulder injuries include a torn rotator cuff, weakness and pain. Id. at p. 7. These injuries are not likely to improve. Id.
1. BEFORE THE TAKEDOWN, OTHER OFFICERS AND BYSTANDERS WERE CALMLY STANDING AROUND
In the analysis section of the report, Magistrate Judge Wollmann concluded “Mr. Ehlers did not present any signs of violence or threat of violence and did not create any danger of physical injury. Before the takedown, other officers and bystanders were calmly standing around. That is not an environment that suggests Mr. Ehlers was threatening or creating a risk of physical injury.” Id. at p. 21. Defendants object to the magistrate judge’s observation and conclusion that “[b]efore the takedown, other officers and bystanders were calmly standing around.” (Docket 61 at p. 20). Defendants argue this statement “is simply a misstatement of any of the record . . . including the dash camera videos.” Id. Based on two separate dash camera videos the defendants assert “[n]ot a single officer can be seen ‘calmly standing around.’ ” Id. at pp. 20-21.
The court reviewed the relevant portions of the dash camera videos from the patrol cars of Officer McCroden and Officer Dirkes. (Exhibits 19 at 21:00 to 21:02 and Exhibit 20 at 21:00:21 to 21:03). The court finds the report is an accurate statement of what was occurring. There was at least one woman who walked calmly in front of Mr. Ehlers toward the Civic Center and two uniformed patrol officers who seemed to be milling around with no real purpose. Each of these individuals can be described as “calmly standing around.” (Docket 61 at p. 20). It is true that Officer Hansen can be seen placing Derrik in an officer’s patrol car and Officer McCroden was dealing with Desirae on the ground approximately twenty feet in front of Officer Dirkes’ patrol car. This activity does not affect the court’s assessment of the other individuals’ calm behavior.
Defendant’s objection is overruled.
2. THAT IT IS UNCLEAR WHETHER OFFICER HANSEN OR OFFICER DIRKES MADE THE DECISION TO ARREST MR. EHLERS
Defendants object to the magistrate judge’s finding it was unclear which officer “made the probable cause analysis and decision to arrest Mr. Ehlers.” (Docket 61 at p. 28) (referencing Docket 59 at p. 18). Defendants argue “the testimony related to the probable cause decision is undisputed. . . . Both Officer Dirkes and Officer Hansen agree that Officer Hansen made the decision to arrest Ehlers.” Id.
Viewing the evidence “in the light most favorable to Mr. Ehlers, ” Magistrate Judge Wollmann concluded “Officer Dirkes was not ordered to arrest Mr. Ehlers.” (Docket 59 at p. 17). The magistrate judge also found that “Mr. Ehlers denied that Officer Hansen ordered Officer Dirkes” to arrest him. Id. at p. 18. Finally, the magistrate judge noted that “[w]hen Officer Dirkes arrived on scene, he immediately began walking toward Mr. Ehlers commanding him to put his hands behind his back.” Id. None of these findings by the magistrate judge were objected to by the defendants. In accord with 28 U.S.C. § 636(b)(1), these factual statements developed by the magistrate judge are adopted for summary judgment analysis purposes.
As described above, Officer Dirkes testified that as he pulled up in his patrol car, Officer Hansen directed him to arrest Mr. Ehlers using specific words to that effect. (Docket 46-8 at p. 11 (53:8-19)). Defendants have not directed the court to any video camera or officer microphone recording which supports Officer Dirkes’ testimony. Mr. Ehlers denies any such statements were made. (Docket 59 at p. 5). On the status of this record, it is not clear that Officer Hansen directed Officer Dirkes to arrest Mr. Ehlers. Matsushita Elec. Indus. Co., 475 U.S. at 587-88. ...