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Burgess v. City of Sioux Falls

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

May 21, 2018

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,



         Plaintiffs 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.


         This 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 22-11-6.

         Plaintiffs 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 this case.


         The 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)).

         In this 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.[1] For these reasons, the Court will set forth the factual allegations from Defendants' Statement of Undisputed Material Facts unless otherwise noted.

         1. At 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.)

         2. Both 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).

         3. 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 ¶ 6.)

         4. SFFR arrived at approximately the same time as Officer MacFarlane, who was the first police officer on scene. (MacFarlane Aff. ¶ 6; Lowe Aff. ¶ 5.)

         5. Ms. 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.)

         6. 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.)

         7. 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.)

         8. As 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.)

         9. Mr. Burgess continued to yell instructions at the SFFR personnel about how to treat his wife. (MacFarlane Aff. ¶I3.)

         10. 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.)

         11. Ms. Burgess did not understand why a request for medical treatment had been made. (Lowe Aff. ¶ 10.)

         12. Mr. 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.)

         13. In 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.)

         14. 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.)

         15. At 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.)

         16. Mr. 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.)

         17. 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.)

         18. 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. (Id.)

         19. At 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. (Id.)

         20. 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.)

         21. Officer MacFarlane had already considered detaining Mr. Burgess due to Mr. Burgess' aggressive behavior towards the police officers and the SFFR personnel. (MacFarlane Aff. ¶ 19.)

         22. 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. ¶ 20.)

         23. Officer MacFarlane pushed Mr. Burgess up against the wall an in attempt to pin him against the far wall. (MacFarlane Aff. ¶ 22.)

         24. As 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.)

         25. 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. ¶ 23.)

         26. 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.)

         27. At 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.)

         28. As the item was discovered to be a knife, Officer Westrum un-holstered his firearm and aimed it at Mr. Burgess. (Westrum Aff. ¶ 18.)

         29. 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.)

         30. 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. ¶ 25.)

         31. 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 ...

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