United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Raymond Cournoyer sued two law enforcement officers,
Defendants Weston Fischer and Eli Kuhlman, under 42 U.S.C.
§ 1983, claiming that they used excessive force by
pushing him into his car, shoving him to the ground, and
tasing him. Both Defendants moved for summary judgment based
on qualified immunity. This Court grants the motions because
the officers acted reasonably when they pushed Cournoyer into
his car and shoved him to the ground and did not violate a
clearly established constitutional right when they tased
alleged excessive force in this case occurred shortly after
midnight on September 17, 2017. At 12:22 a.m., Weston
Fischer, a trooper with the South Dakota Highway Patrol, saw
a car driving westbound on South Dakota Highway 46 at what
appeared to be a high rate of speed. Doc. 27 at ¶ 1;
Doc. 33 at ¶ 1; Doc. 29-1at 12:22:25-40; see also
Doc. 23 at ¶ 7. Trooper Fischer's front radar
indicated that the car was speeding, going 72 miles per hour
in a 65 miles per hour zone. Doc. 27 at ¶ 2; Doc. 33 at
¶ 2. He turned his patrol car around to follow the car,
which by then had entered the town of Wagner, South Dakota,
and had slowed to approximately 50 miles per hour in a 30
miles per hour zone. Doc. 27 at ¶ 3; Doc. 33 at ¶
3; Doc. 29-1 at 12:22:40-50. Trooper Fischer activated his
emergency lights, signaling the car to stop, but it continued
speeding through Wagner. Doc. 27 at ¶¶ 4-5; Doc. 33
at ¶¶ 4-5; Doc. 29-1 at 12:22:40-55. He then
activated his siren. Doc. 27 at ¶ 7; Doc. 33 at ¶
7; Doc. 29-1 at 12:22:54. The vehicle still did not stop.
Doc. 27 at ¶ 7; Doc. 33 at ¶ 7; Doc. 29-1 at
Eli Kuhlman, an officer with the Wagner Police Department,
overheard on his police radio that a car was driving through
Wagner going 20 to 30 miles per hour over the speed limit.
Doc. 17 at ¶ 1; Doc. 22 at ¶ 1. Shortly thereafter,
he saw the car traveling at a high rate of speed, and Trooper
Fischer following behind with his emergency lights and siren
activated. Doc. 17 at ¶ 2; Doc. 22 at ¶ 2; Doc.
29-1 at 12:22:40-12:24:27. Officer Kuhlman activated his
emergency lights and siren and followed behind Trooper
Fischer. Doc. 17 at ¶ 3; Doc. 22 at ¶ 3.
turned off Highway 46 using a turn signal and pulled in to
the parking lot of the Wagner Good Samaritan Society nursing
home. Doc. 27 at ¶ 8; Doc. 33 at ¶ 8; Doc. 29-1 at
12:24:00-27. All told, the car had continued driving for one
minute and forty-four seconds after Trooper Fischer activated
his emergency lights and had traveled almost the entire
length of Wagner. Doc. 27 at ¶ 11; Doc. 33 at ¶ 11;
Doc. 29-1 at 12:22:41-12:24:25. Although the speed limit in
Wagner is 30 miles per hour, Trooper Fischer's dash
camera recorded speeds ranging from 48 to 64 miles per hour
as he followed the car through town. Doc. 17 at ¶ 1;
Doc. 22 at ¶ 1; Doc. 27 at ¶ 6; Doc. 33 at ¶
6; Doc. 29-1 at 12:22:50-12:24:05.
Fischer and Officer Kuhlman parked behind the car in the
nursing home lot. Doc. 17 at ¶ 5; Doc. 22 at ¶ 5;
Doc. 27 at ¶ 8; Doc. 33 at ¶ 8; Doc. 29-1 at
12:24:15-30. The dash camera video from Trooper Fischer's
vehicle shows a man, whom Trooper Fischer later learned to be
Cournoyer, exit the car. Doc. 27 at ¶¶ 12, 32-33;
Doc. 33 at ¶¶ 12, 32-33; Doc. 29-1 at 12:24:23-30.
As Cournoyer did so, Trooper Fischer shouted "Get out of
the car! Come here! Come here!" Doc. 27 at ¶ 13;
Doc. 33 at ¶ 13; Doc. 29-1 at 12:24:27-31. The video
shows Cournoyer look directly at Trooper Fischer, shut his
car door, and walk away toward the nursing home, disappearing
from the dash camera's view. Doc. 29-1 at 12:24:27-34;
Doc. 27 at ¶ 14; Doc. 33 at ¶ 14. Officer Kuhlman
can then be seen running from his car towards Cournoyer and
Trooper Fischer. Doc. 29-1 at 12:24:33-36; Doc. 27 at ¶
16; Doc. 33 at ¶ 16.
parties offer differing accounts of what happened next.
Trooper Fischer can be heard on his body microphone saying,
"Come here! Get over here!" as Cournoyer walks
away. Doc. 29-1 at 12:24:33-36; Doc. 27 at ¶ 15; Doc. 33
at ¶ 15. Cournoyer asserts that he is hard of hearing in
his left ear and that he saw Trooper Fischer but did not hear
him say anything. Doc. 23 at ¶ 12; Doc. 33 at
¶¶ 13, 15. He claims that he shouted to Trooper
Fischer "that [he] was in a hurry to see [his] mother
before she passed away" as he "turned to rush into
the nursing home." Doc. 23 at ¶ 13. However,
neither the video nor the audio from the incident support
Cournoyer's assertion. The video shows Cournoyer exit his
car, look directly at Trooper Fischer and, without saying
anything, turn and begin walking toward the nursing home.
Doc. 29-1 at 12:24:27-35. Cournoyer cannot be heard saying
anything on the audio until approximately four seconds later
when he says, "My mother is dying, motherfucker!"
after which one of the officers says, "Put your hands
behind your back! Put your hands behind your back!" Doc.
29-1 at 12:24:30-43. The evidence not subject to genuine
dispute-the video and audio-dispels Cournoyer's assertion
that he told Trooper Fischer about his mother before Trooper
Fischer told him to "Come here!" and before he
began walking toward the nursing home. See Scott v.
Harris, 550 U.S. 372, 380 (2007) ("When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary
recalls "rushing" towards the nursing home when he
was grabbed by his arm from behind and pushed chest first
into his car. Doc. 33 at ¶ 11; Doc. 23 at ¶¶
13-14; see also Doc. 24 at 3 ("As [Cournoyer]
proceeded to the nursing home, he was grabbed from behind,
apparently by Trooper Fischer and Defendant Eli
Kuhlman."). Cournoyer felt the officers shove him to the
ground where he struck his face, leaving him stunned. Doc. 23
at ¶ 15. Cournoyer had tried to break his fall, so he
landed with his arms and hands underneath him. Doc. 23 at
¶ 16. Cournoyer recalls that Officer Kuhlman then tased
him while he was lying on the ground with his arms and hands
underneath him,  and that the tasing caused him extreme
pairi. Doc. 23 at ¶¶ 16-17; see
also Doc. 22 at ¶ 9; Doc. 24 at 3. From
Cournoyer's perspective, Trooper Fischer and Officer
Kuhlman then proceeded to kneel on top of him and handcuff
him. Doc. 23 at ¶ 20; see also Doc. 24 at 3.
Cournoyer found it difficult to breathe with the officers
kneeling on him and was unable to stand up on his own because
he was out of breath and stunned from hitting his head. Doc.
23 at ¶¶ 20-21.
Fischer and Officer Kuhlman describe the arrest differently
than Cournoyer. They recall grabbing Cournoyer's arms as
he walked towards the nursing home, but Cournoyer attempted
to pull away. Doc. 27 at ¶ 18; Doc. 17 at ¶¶
7-8. Officer Kuhlman says that he then backed up
approximately three feet and deployed his taser, striking
Cournoyer near the right side of his back. Doc. 17 at ¶
9. According to Officer Kuhlman, the taser had minimal impact
on Cournoyer because of his heavy coat and the
proximity, and Cournoyer continued to physically resist. Doc.
17 at ¶ 9. As the officers tell it, Officer Kuhlman
pulled Cournoyer to the ground and Trooper Fischer fell on
top of Cournoyer because he had been grabbing Cournoyer's
arm. Doc. 17 at ¶ 10; Doc. 27 at ¶¶ 20-21.
Officer Kuhlman recalls that Cournoyer continued to resist on
the ground, Doc. 17 at ¶ 11, and both officers agree
that they worked together to pull Cournoyer's arms behind
his back to handcuff him, Doc. 17 at ¶ 12; Doc. 27 at
audio recording, at the point that appears to be shortly
after Cournoyer was handcuffed, Trooper Fischer can be heard
asking Cournoyer "What's going on?" and
Cournoyer replies "My mother's dying." Doc.
29-1 at 12:25:39-46; Doc. 27 at ¶ 23; Doc. 33 at ¶
23. When Trooper Fischer asked Cournoyer why he didn't
stop, Cournoyer responded "Let me up, I can't
breathe. Let me up!" Doc. 29-1 at 12:25:47-53; Doc. 27
at ¶ 23; Doc. 33 at ¶ 23. At that point
Cournoyer's daughter, who is an EMT, approached and told
the officers that Cournoyer was a diabetic. Doc. 29-1 at
12:25:53-12:26:02; Doc. 27 at ¶ 24; Doc. 33 at ¶
24. Trooper Fischer stated "Eli, help him up." Doc.
29-1 at 12:26:00-04; Doc. 27 at ¶ 24; Doc. 33 at ¶
following exchange then occurred between Trooper Fischer and
Trooper Fischer: What's going on?
Cournoyer: I said my mother's dying.
Trooper Fischer: Your mother's dying, okay. I was trying
to stop you back there.
Cournoyer: I know you were!
Trooper Fischer: And you were doing 60 through town, okay?
Cournoyer: I know.
Trooper Fischer: So you understand why we are doing this,