United States District Court, D. South Dakota, Southern Division
MARK ALLEN BURGESS; ELIZABETH DIAN BURGESS; M.S.B., Minor Child/01; A.N.B., Minor Child /04; E.J.B., Minor Child /15, Plaintiffs,
CITY OF SIOUX FALLS; SIOUX FALLS POLICE DEPARTMENT; OFFICER JEFF MACFARLANE, #943; OFFICER IAN BRANCH, #884; OFFICER CHAD WESTRUM, #898, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
filed this pro se action under 42 U.S.C. § 1983 against
Defendants alleging use of excessive force, unlawful arrest,
unlawful search and seizure and unlawful questioning of a
minor. Defendants filed a Motion for Summary Judgment
claiming that the individual defendants are entitled to
qualified immunity and that the City of Sioux Falls and the
Sioux Falls Police Department cannot be held liable. (Doc.
14.) Plaintiffs oppose the motion. Having carefully
considered the entire record, the Court will grant
Defendants' motion for summary judgment.
case arises out of Mark Burgess' ("Burgess")
arrest on February 27, 2016. Burgess called 911 after waking
up to his wife, Plaintiff Elizabeth Burgess, having a
seizure. The Sioux Falls Police Department ("SFPD")
and the Sioux Falls Fire & Rescue Department
("SFFR") responded to the 911 call. The responders
arrived in the bedroom where the Burgesses were located.
Burgess was acting erratically and Officer MacFarlane took
action to remove or arrest Burgess which ended up in a
struggle involving Burgess and Officers MacFarlane and
Westrum. Burgess grabbed a pocket knife. He was sprayed in
the face with OC Spray (pepper spray) and was tased before
becoming compliant with the officers' commands. Burgess
was arrested and charged with two counts of aggravated
assault on law enforcement, obstruction of police and fire
personnel, and resisting arrest. He pled guilty to
obstructing a law enforcement officer in violation of SDCL
allege that the encounter "may have caused long term
physical, medical issues, and mental health issues to Mark,
Elizabeth, and they're (sic) 3 children who were home at
the time of the incident." (Complaint, Doc. 1 at 6.)
They assert section 1983 civil rights claims for excessive
use of force, unlawful arrest, unlawful search and seizure
and unlawful questioning of a minor. Defendant Officers
contend that the section 1983 claims against them are barred
by the doctrine of qualified immunity. The City and Police
Department assert that they are not liable under the facts in
local rules for this district require that the moving party
on a motion for summary judgment submit a statement of the
material facts as to which it contends there is no genuine
issue to be tried. D.S.D. CIV. LR 56.1(A). The opposing party
is required to respond to each numbered paragraph in the
moving party's statement of material facts, and to
identify any material facts as to which it contends there
exists a genuine material issue to be tried. D.S.D. CIV. LR
56.1(B). All material facts set forth in the moving
party's statement of material facts are deemed admitted
if not controverted by the statement required to be served by
the party opposing summary judgment. D.S.D. CIV. LR 56.1(D);
see also On Target Sporting Goods, Inc. v. Attorney
General of the United States, 472 F.3d 572, 574 (8th
Cir. 2007). Such rules are intended "to prevent a
district court from engaging in the proverbial search for a
needle in the haystack." Libel v. Adventure Lands
of America, Inc., 482 F.3d 1028, 1032 (8th Cir.
2007) (discussing a similar Iowa Local Rule). "Although
pro se pleadings are to be construed liberally, pro se
litigants are not excused from failing to comply with
substantive and procedural law." Burgs v.
Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (citing
Faretta v. California, 422 U.S. 806, 834-35
n. 46 (1975)).
case, Defendants filed a Statement of Undisputed Facts with
sixty numbered paragraphs (doc. 15) along with supporting
affidavits and exhibits. Plaintiffs Mark and Elizabeth
Burgess filed a resistance to the motion for summary judgment
(doc. 23), but they did not admit, deny or qualify each of
the facts set forth by Defendants by responding to each
numbered paragraph in Defendants' Statement of Material
Facts. Burgess' opposition to the motion for summary
judgment explains his claims and why he acted the way he did
toward the Officers on February 27, 2016, but his description
of the confrontation with the Officers does not differ in any
significant or material way from the Defendants'
descriptions. For these reasons, the Court will set
forth the factual allegations from Defendants' Statement
of Undisputed Material Facts unless otherwise noted.
around 12:15 a.m. on the night of February 27, 2016,
Plaintiff Mark Burgess called 911 after waking up to his
wife, Plaintiff Elizabeth Burgess, having a severe medical
episode. (Cmplt; Doc. lat7.) It was later discovered that Ms.
Burgess suffered a seizure. (Id.) Mr. Burgess
explained that he tried to put his cell phone on speaker
while he gave his wife CPR, but he was panicking and did not
get the speaker option turned on. (Doc. 23 at 1.)
the Sioux Falls Police Department ("SFPD") and the
Sioux Falls Fire & Rescue Department responded to the 911
call. (Id.; Aff. of Todd Lowe, Doc. 18).
Dispatch advised that CPR was in process on an unknown 31
year-old female and that the female had stopped breathing and
was foaming at the mouth. (MacFarlane Aff., Doc. 21 ¶
arrived at approximately the same time as Officer MacFarlane,
who was the first police officer on scene. (MacFarlane Aff.
¶ 6; Lowe Aff. ¶ 5.)
Burgess was located in an upstairs bedroom. (Lowe Aff. ¶
6.) She was sitting up and responding to questions from SFFR
Captain Lowe. (Id.) Ms. Burgess was unsure of why
the 911 call had been made. (Id.)
Officer MacFarlane had followed Captain Lowe up the stairs to
the rear bedroom, but was initially blocked from entering the
bedroom along with SFFR personnel by Mr. Burgess. (MacFarlane
Aff. ¶ 10.)
Officer MacFarlane asked Mr. Burgess to exit the room so that
SFFR personnel could enter, but Mr. Burgess refused, stating
he wanted to remain in the room with his wife. (Id.
at ¶ 11.) Officer MacFarlane advised Mr. Burgess he
could remain in the room, but needed to stay out of the way
of the SFFR personnel. (Id. at¶ 12.)
SFFR attempted to assess Ms. Burgess to determine her medical
status, Mr. Burgess continually intervened and demanded that
SFFR provide Ms. Burgess with oxygen. (Lowe Aff. ¶ 7.)
Burgess continued to yell instructions at the SFFR personnel
about how to treat his wife. (MacFarlane Aff. ¶I3.)
Captain Lowe calmly asked Mr. Burgess to let Ms. Burgess
speak so that SFFR could determine her baseline mental status
and obtain a patient assessment. (Lowe Aff. ¶ 8.) Mr.
Burgess's demeanor became concerning and his responses to
additional questions from SFFR personnel became irrational
and erratic. (Id. at ¶ 9.)
Burgess did not understand why a request for medical
treatment had been made. (Lowe Aff. ¶ 10.)
Burgess tried to convey to his wife that she had undergone
some sort of medical episode, that she was clenching her
firsts and foaming at the mouth, and that she needed medical
attention. (MacFarlane Aff. ¶ 16.)
an attempt to obtain information directly from Ms. Burgess,
Captain Lowe asked Mr. Burgess to step out of the room so
that SFFR personnel could help his wife. (Lowe Aff. ¶
10.) Instead, Mr. Burgess refused to leave the room and
became increasingly aggressive. (Id. at ¶ 11.)
Captain Lowe asked that a police officer remove Mr. Burgess
from the room so that he could interview Ms. Burgess and Mr.
Burgess separately. (Lowe Aff. ¶ 11.)
this point, Officer MacFarlane placed his left hand onto Mr.
Burgess' right triceps area and asked him politely to
leave the room. (Westrum Aff., Doc. 19 ¶ 12.)
Burgess instantly said, "Don't [expletive] touch me,
" and then clenched his hand up into a fist and pulled
it up towards his chest. (Westrum Aff. ¶ 12.)
Officer MacFarlane once again asked Mr. Burgess to step just
right outside of the bedroom so that we could speak with him.
(Westrum Aff. ¶I3.) Mr. Burgess again showed signs of
being combative and asked whether they were going to "do
this right here." (Id.) Mr. Burgess claims he
was upset that no one was getting his wife the help she
needed. (Doc. 23 at 2.)
Officer Westrum had arrived after Officer MacFarlane.
(Westrum Aff. ¶ 7.) Officer Westrum was advised that it
was Mr. Burgess' residence, and Officer Westrum had
previous interactions with Mr. Burgess. (Id. at
¶ 6.) Officer Westrum knew that Mr. Burgess was an
individual that officers had previously taken caution with.
this point, Officer Westrum called out code "
10-50" to Officer MacFarlane, which is the code used to
advise to "proceed with caution." (Westrum Aff.
¶ 14.) Unsure whether Officer MacFarlane heard the code,
Officer Westrum yelled out "10-50" a second time.
Officer MacFarlane, however, heard the statement as
"10-15, " which Officer MacFarlane understood to
mean to place Mr. Burgess in handcuffs and detain him.
(MacFarlane Aff. ¶ 18.)
Officer MacFarlane had already considered detaining Mr.
Burgess due to Mr. Burgess' aggressive behavior towards
the police officers and the SFFR personnel. (MacFarlane Aff.
Officer MacFarlane moved forward to detain Mr. Burgess, or at
least escort him out of the room, and Mr. Burgess began
pushing away from Officer MacFarlane. (MacFarlane Aff. ¶
Officer MacFarlane pushed Mr. Burgess up against the wall an
in attempt to pin him against the far wall. (MacFarlane Aff.
Officer MacFarlane pushed Mr. Burgess, Mr. Burgess dropped
his left hand out towards to grab an object on the nearby
nightstand. (MacFarlane Aff. ¶ 22; Westrum Aff. ¶
15; Lowe Aff. ¶ 12.)
Officer Westrum made his way across the room while Officer
MacFarlane continued to maintain control of Mr. Burgess'
right arm. (Westrum Aff. ¶ 16; MacFarlane Aff. ¶
Officer Westrum and Officer MacFarlane then discovered that
the item Mr. Burgess grabbed from the nightstand was a pocket
knife. (Westrum Aff. ¶ 17; MacFarlane Aff. ¶¶
23-24.) Mr. Burgess says he grabbed the knife "in an
attempt to stop the officers from attacking him." (Doc.
23 at 3.)
this point, Captain Lowe assisted with removing Ms. Burgess
from the bedroom, as well as the infant child who was also
present in the bedroom. (Lowe Aff. ¶ 13.)
the item was discovered to be a knife, Officer Westrum
un-holstered his firearm and aimed it at Mr. Burgess.
(Westrum Aff. ¶ 18.)
Officer Westrum completed a quick evaluation of the situation
and determined there was the potential of Officer MacFarlane
being shot, should Officer Westrum need to fire, and
holstered his firearm and un-holstered his taser. (Westrum
Aff. ¶ 18.)
Officer Westrum then aimed his taser at Mr. Burgess. Seeing
this, Officer MacFarlane yelled several times for Officer
Westrum to "do it, " meaning for Officer Westrum to
engage Mr. Burgess with his taser. (MacFarlane Aff. ¶
When Officer Westrum decided not to tase Mr. Burgess, Officer
MacFarlane decided to disengage and shoot Mr. Burgess given
Mr. Burgess' possession and apparent intent ...