United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
Lawrence L. Piersol United States District Judge.
Troy Rokusek ("Rokusek"), filed this action under
42 U.S.C. § 1983 against Defendant, Cody Jansen
("Jansen"), alleging a violation of Rokusek's
Fourth Amendment right to be free from excessive force.
Jansen filed a Motion for Summary Judgment, claiming that he
is entitled to qualified immunity from this claim. (Doc. 43.)
Rokusek opposes the motion. Having carefully considered the
entire record, the Court will deny Jansen's motion for
excessive force case arises out of Rokusek's arrest for
suspicion of driving under the influence on April 14, 2015.
Rokusek was traveling eastbound on South Dakota Highway 50, a
few miles west of Vermillion, South Dakota, when State
Trooper Jansen stopped him. There were no problems at the
scene of the traffic stop and arrest, or during the drive to
the Clay County Jail. Rokusek agreed to provide a blood
sample without a search warrant and Jansen took him to a
garage attached to the Clay County Courthouse, called the
"sally port." Jansen removed Rokusek's
handcuffs. Things went smoothly until Rokusek requested to
have his blood drawn in amore sanitary environment by a
different medical technician than the one in the sally port.
When Rokusek refused to stand up so Jansen could handcuff him
and get a search warrant for the blood draw, Jansen pulled
Rokusek up and pinned his arms behind his back in a
"double chicken wing" restraint hold, and then
Jansen threw Rokusek face-first to the concrete floor with
his arms still behind his back, causing -injuries.
Amended Complaint, Rokusek states four causes of action. The
first is the § 1983 civil rights claim that Jansen used
excessive force. The other three are state law claims for
assault, battery and intentional infliction of emotional
distress. Jansen contends that Rokusek's section 1983
action against him is barred by the doctrine of qualified
immunity. Pursuant to an agreement between the parties, this
Court ordered a stay of discovery pending a decision on
qualified immunity. (Doc. 49.)
in the light most favorable to Rokusek, the record
establishes the following facts.On or about 11:45 p.m. on
April 14, 2015, Trooper Jansen initiated a traffic stop with
Rokusek on South Dakota Highway 50, a few miles west of
Vermillion, South Dakota. Jansen performed a field sobriety
test on Rokusek. Finding Rokusek to be impaired, Jansen
placed Rokusek under arrest. Rokusek was cooperative
throughout this process.
drove Rokusek to the Clay County Courthouse, and requested
Rokusek's consent for ablood sample, to which Rokusek
agreed. At the courthouse, Rokusek was placed inside of a
garage used by law enforcement Troopers called the
"sally port." The sally port was under video
surveillance, and the interactions between Rokusek and Jansen
were caught on the video (hereinafter "Sally Port
Video"). There is no audio.
Rokusek consented to the blood draw, Jansen removed his
handcuffs. Rokusek was seated in a chair in the sally port.
It was close to 1:00 sun. on April 15 at this point. The
medical technician who would perform the blood draw, Staci
Wuestewald, was present when Jansen and Rokusek arrived at
the sally port. She was pregnant at that time.
notification that Ms. Wuestewald would be performing the
blood draw, Rokusek changed his mind about consenting to the
blood draw at the sally port because he thought it was
unsanitary and that the blood draw should be done at the
hospital. Jansen informed Rokusek that he would obtain a
search warrant and the draw would be performed in the sally
asked Rokusek to stand up to be placed in handcuffs again.
Rokusek did not comply, despite Jansen's three repeated
requests. After Rokusek disregarded Jansen's third
request to stand, Jansen took hold of Rokusek by the arm and
pulled him up into a standing position. Jansen placed his
arms between Rokusek's arms and back so as to not lose
control of Rokusek. Jansen called this position the
"double chicken wing." A double chicken wing is not
taught by the South Dakota Highway Patrol. The Highway Patrol
reprimanded Jansen for using this technique on Rokusek:
.. .You responded by "trapping both of his arms behind
his back and forcing him to the ground while you'
maintained control of his arms behind his back. Rokusek's
face struck the floor causing an injury that required two
stitches and the loss of teeth.
The method used to take Rokusek to the ground is not taught
by the Highway Patrol or any law enforcement training
provided to you by the Highway Patrol. The technique used to
take Rokusek to the ground did not allow him any opportunity
to protect himself from injury. Further, the Highway Patrol
does teach tactics on how to take a resistant subject to the
ground while maintaining control of the subject. These proper
techniques of pain compliance and balance displacement are an
effective means of controlling a resistant subject while
minimizing potential for injury. Cody, you are much larger
than Mr. Rokusek who was extremely intoxicated. Considering
your training, size, and the level of resistance from
Rokusek, your actions to control him were not reasonable and
significantly increased the potential for injury.
See Doc. 57-4. Jansen testified that he knew at the
time of the incident that the double chicken wing was not a
permissible technique. According to Jansen, he warned Rokusek
multiple times to stop resisting while holding him in the
double chicken wing. Rokusek denies that a warning was made.
Jansen also testified that he had complete control over
Rokusek while Rokusek's head was against the wall. Jansen
testified that he is 6'4 and'220 pounds. Rokusek ...