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Cournoyer v. Fischer

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

July 29, 2019

RAYMOND COURNOYER, Plaintiff,
v.
WESTON FISCHER, ELI KUHLMAN, UNDETERMINED NUMBER OF JOHN DOES, Defendants.

          OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 Cournoyer.

         I. Facts

         The 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. 29-1[1]at 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 12:22:54-12:24:27.

         Meanwhile, 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.[2] Doc. 17 at ¶ 3; Doc. 22 at ¶ 3.

         The car 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.

         Trooper 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.

         The 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 judgment.").

         Cournoyer 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, [3] and that the tasing caused him extreme pairi.[4] 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.

         Trooper 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[5] 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 ¶ 22.

         On the 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 ¶ 24.

         The following exchange then occurred between Trooper Fischer and Cournoyer:

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, ...

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