Coleman v. Rieck

Page 1101

253 F.Supp.2d 1101

Robert Eugene COLEMAN, Plaintiff, v. David G. RIECK, et al., Defendants.

No. 8:0CV293.

United States District Court, D. Nebraska.

March 24, 2003.

COPYRIGHT MATERIAL OMITTED

Robert M. Schartz, Sodoro, Daly Law Firm, Omaha, NE, for plaintiff.

Frederick J. Coffman, Alan M. Thelan, Omaha, NE, for defendant.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

This matter is before the court on plaintiffs objection, Filing No. 131, to the report and recommendation of the magistrate, Filing No. 129. This is a 42 U.S.C. § 1983 action alleging violation of constitutional rights in connection with the traffic stop, pat-down search and subsequent arrest of plaintiff Robert Eugene Coleman on March 30, 1999.

Pursuant to 28 U.S.C. § 636, the court has conducted a de novo review of the magistrate's findings, including viewing the videotape that is the cornerstone of plaintiffs case. The court generally concurs in the magistrate judge's recitation of the events chronicled in the videotape, but disagrees with the magistrate's interpretation of the events shown on the videotape in several important respects. The court also disagrees with the conclusions that the magistrate judge draws from the events that are pictured on the videotape.

I. Background

A. Evidence

The videotape shows a traffic stop and ensuing struggle. Although the court generally agrees with the magistrate judge's recitation of events, the court makes several additional observations. The video opens with an officer approaching the driver's side window of the vehicle. The officer states that he doesn't "need one because you're a convicted felon." At that point, a man exits the car and the officer begins a pat-down search. A struggle, as described in the magistrate judge's findings and recommendations, follows. The Events that transpire on the videotape are by no means clear. The struggle between the officers and Coleman occurs either in the car and hidden from view or is partially obscured by the car and by officers moving about.

The court's primary concern is the 53second interval that shows several officers kicking Coleman. Coleman was shielded form view during this interval, and it is difficult to discern the moment when he was handcuffed. The court is unable to identify the officers administering the "kicks," except to note that a female officer identified in the videotape as "Shannon," and the male officer who initiated the traffic stop, were not among them. Accordingly, the court finds that a review of the videotape does not resolve all factual disputes.

Affidavits submitted in connection with the motions establish that Coleman was pulled over for failure to signal a turn. Affs. of Shannon Haney, attached to Filing No. 94, and David Rieck, attached to Filing No. 95. Evidence adduced by affidavit further shows that Haney used no force against Coleman other than helping to pull him out of the car. Aff. of Haney. Officer Rieck attempted to administer an LVNR¹ on Coleman, in response to Coleman's resistance to handcuffing, and later maced him. Aff. of Rieck. After Coleman was pulled from the car, he was face down on the ground. Aff. of Gregg Barrios, attached to Filing No. 94. Officer Barrios attempted to administer an LVNR on Coleman at that time. Aff. of Barrios. The struggle was already underway when Officer Martinez arrived at the scene. Aff. of Steve Martnez, attached to Filing No. 94. At that time Coleman had already been pulled from the car and was resisting arrest by putting his body in a "turtle position" curled up with his arms together to keep from being handcuffed. Affs. of Martinez and Gruidel, attached to Filing No. 94. Officers Martinez and Gruidel pulled on Coleman's shoulders and arms in an attempt to handcuff him, but used no other force against him. Affs. of Martinez and Gruidel.

Coleman, on the other hand, asserts in his affidavit that officer Rieck choked him. Aff. of Coleman, attached to Filing No. 46. He also states that a backup officer pulled him out of the car and kicked him over and over. Aff. of Coleman. He further asserts that he did not bite Officer Rieck. Id. In his complaint, Coleman identifies defendants Jerad Kruse and Louis J. Tomsu, IV, as the officers who administered kicks and knee strikes to him. This allegation is not controverted in any evidence submitted to the court and does not appear to be disputed.

B. Procedural History

As a result of the traffic stop at issue, Coleman was arrested for biting Officer David G. Rieck and for possessing narcotics. Nebraska v. Coleman, 10 Neb.App. 337, 630 N.W.2d 686, 690 (2001). Coleman was charged with third degree assault on an officer and possession of a controlled substance. Id. He moved to suppress the evidence obtained after the pat-down search, the motion was overruled, and the case proceeded to trial. Id. At trial, Coleman renewed the motion to suppress and objected to all evidence derived from the allegedly unconstitutional search and seizure. Id. Coleman was convicted of assaulting an officer and possessing a controlled substance. Id.

Coleman raised the issue of unconstitutional search on appeal to the Nebraska Court of Appeals. Id. at 691. The Nebraska Court of Appeals found, under the Fourth Amendment to the Constitution and under article I, § 7 of the Nebraska Constitution, that "the pat down was an unreasonable and unlawful search." Id. at 696.

Coleman, acting pro se, filed this action for damages. Ultimately, counsel was appointed for him. Defendants move to dismiss the amended complaint or for summary judgment on the ground of qualified immunity.² Coleman also moves for partial summary judgment in his favor on the issue of the illegality of the pat-down search. On referral from this court, the magistrate judge found no constitutional violation with respect to the excessive force claim, found that the officers were entitled to qualified immunity, and recommended that the motions to dismiss and for summary judgment on that claim be granted. See Filing No. 129, Findings and Recommendation at 6. The magistrate judge also recommended denial of Coleman's motion for summary judgment, finding the officers were entitled to qualified immunity on that claim for the reason that the illegality of the pat-down search was not clearly established at the time of the incident. Id. at 8.

Plaintiff objects to the magistrate judge's recommendation. Plaintiff objects to all of the magistrate judge's findings except those that pertain to Count V (for punitive damages). The court finds the magistrate judge's recommendation should be adopted as to that claim.

II. Discussion

A. Qualified Immunity

Qualified immunity shields governmental officials from personal liability if their actions, even if unlawful, were "nevertheless objectively reasonable in light of the clearly established law at the time of the events in question." Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The inquiry in determining whether the officers are entitled to qualified immunity focuses on whether the appellants have asserted a violation of a clearly established constitutional right and, if so, whether there are genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right. Turpin v. The County of Rock, 262 F.3d 779, 783 (8th Cir.2001). A court required to rule upon the qualified immunity issue must consider the threshold question of whether the alleged facts, taken in the light most favorable to the party asserting the injury, show that the officers' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional right would have been violated even if the allegations were established, there is no necessity for further inquiries concerning qualified immunity. Id. The second inquiry, whether the right was clearly established at the time, must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. (noting "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.")

B. Excessive Force

In his first claim (Count I), Coleman alleges defendants used excessive force against him in effecting his arrest. Claims that law enforcement officers have used excessive force during an arrest or other seizure are analyzed under the Fourth Amendment and its "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).³

To decide whether a particular use of force is objectively reasonable, courts examine the facts and circumstances of each case, including the crime's severity, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect actively resists arrest or flees. Id. at 396, 109 S.Ct. 1865; Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir.2002). The proper perspective in judging an excessive force claim is that of "a reasonable officer on the scene" and "at the moment" force was employed. Graham, 490 U.S. at 396, 109 S.Ct. 1865. The calculus of reasonableness must allow for the fact that "police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving." Id. at 396-97, 109 S.Ct. 1865. Moreover, it has long been recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Saucier, 533 U.S. at 208, 121 S.Ct. 2151. Whether an action is "reasonable" in the Fourth Amendment sense, can only be analyzed by weighing and balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental...