Foote v. Doe

679 F.Supp.3d 775

Denver FOOTE, Plaintiff, v. John DOE 1; Clark Allen; Ernesto Escobar Hernandez; Jeffrey George;Brandon Holtan; Adam Herman; Kirk Bagby; Dana Wingert;and City of Des Moines, Iowa, Defendants.

CIVIL NO. 4:21-cv-00043-SBJ

United States District Court, S.D. Iowa, Central Division

Signed June 26, 2023

Gina Messamer, Parrish Kruidenier, Des Moines, IA, for Plaintiff.

Michelle Mackel-Wiederanders, Luke DeSmet, Des Moines City Attorney, Des Moines, IA, for Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STEPHEN B. JACKSON, JR., UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

This lawsuit arose from protest activities in downtown Des Moines, Iowa in late May 2020 in the aftermath of the death of George Floyd in Minneapolis, Minnesota. There were peaceful activities at certain times and locations but acts of violence and vandalism at certain times and locations. Several arrests were made by law enforcement officers. This case involves one of those arrests.

Denver Foote was present during some of the protest activities. There is no evidence she engaged in violence or vandalism. She was arrested by Des Moines police officers around 2:45 a.m. and eventually charged with rioting, unlawful assembly, and failure to disperse. During the arrest, officers deployed pepper spray into her face, used shields to push her into a metal gate, struck her with a baton, held her down with a knee to her back after she went to the ground, and placed zip-ties on her wrists while she was face down. Foote claims she did not resist while being arrested; the officers claim she was resisting and attempting to flee. After spending a night in jail, Foote was released from custody on pretrial supervision. All charges were later dismissed.

Foote subsequently brought this action against several law enforcement officers and the City of Des Moines. She contends the officers used excessive force and she was arrested and charged without probable cause in violation of protected rights under the United States Constitution and the Iowa Constitution. She also asserts various claims under Iowa common law.

Now before this Court is a Motion for Summary Judgment (Dkt. 35) filed by defendants pursuant to Federal Rule of Civil Procedure 56. Defendants assert, inter alia, there was probable cause to arrest and charge Foote and the force used was reasonable. Defendants also assert entitlement to qualified immunity on some claims. Foote resists the motion as to certain claims insisting, inter alia, there are questions of fact which preclude summary judgment. Dkt. 41. The Court considers the matter to be fully submitted. For the reasons which follow, the motion is granted in part and denied in part.

II. STANDARDS FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the initial responsibility of identifying evidence "which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out 'specific facts showing that there is a genuine issue for trial.' " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."

Fed. R. Civ. P. 56(c)(2). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At this stage, the court's function is not to determine credibility, weigh the evidence or determine the truth of the matter. Id. at 249, 255, 106 S.Ct. 2505. Instead, the court views the record in the light most favorable to the nonmoving party and determines whether there is a genuine issue for trial. Id.; see also Torgerson, 643 F.3d at 1042.

III. EVIDENTIARY RECORD OF FACTS

The parties submitted a substantial evidentiary record including deposition testimony, personal affidavits, photos, and documents prepared by law enforcement personnel. The parties also submitted video from security cameras in various locations in downtown Des Moines and body cameras on law enforcement officers. Notably, however, there is no video of the specific interaction between Foote and the officers during her arrest.

Following the death of George Floyd in Minneapolis, Minnesota, various protest activities occurred in multiple locations in downtown Des Moines, Iowa in late May and early June 2020. Foote attended a planned protest on May 29, 2020. Allan Tunks, Assistant Chief of Police for the Des Moines Police Department, was part of the command staff overseeing the events. Dkt. 35-2 p. 500. Tunks set forth certain details in a sworn affidavit, stating as follows:

The Des Moines Police Department worked with protest organizers to assist with creating space for the protests regarding George Floyd's killing to occur in the immediate vicinity of the Des Moines Police Department. The support the Department provided included blocking traffic at the intersections of E. 2^nd Street and Court Avenue and River Drive and Court Avenue to allow safe movements of protesters in the road without threat of car traffic. Several individuals made speeches and the sizable crowd was peaceful. The planned protest was scheduled to last for a set period of time. At the close of the planned protest, organizers advised the attending crowd that the event was completed.

Many people left at that time but a crowd of more than one hundred remained. Those that remained were becoming increasingly agitated and confrontational. Command staff was monitoring the activity as there was concern about a potential attack on the Police Department building, as had just occurred in Minneapolis the day before. As we were monitoring, we learned that the crowd had targeted Officer Sivid Becivoric, who was alone in his marked vehicle blocking traffic at East 2^nd and Court Avenue. Eventually, Officer Becivoric was forced to deploy OC spray, commonly referred to as mace, in order to escape the threat of the people attacking him and his vehicle. This was, of course, in the immediate vicinity of the crowd that remained after the planned protest ended.

It was the actions of the crowd toward Becivoric that caused command staff to direct that a protective line be put in place to ensure the security of the Police Department building. This protection was absolutely imperative for public safety because, there were employees working inside, and also because there are firearms, seized narcotics, and money inside the building. The protective line was made up of uniformed officers. Those officers began to be assaulted by the crowd, which was by this time growing rather than diminishing. As I later learned, social media and mainstream media were providing live information about the events, which prompted additional people to join in the disturbance. The assaults on law enforcement included being hit with water bottles-some frozen for greater impact, rocks, broken concrete, and landscaping blocks. Once the crowd became this violent, it was clear that we needed to call in our tactical squad, STAR Team.

Once STAR Team, a multi-agency tactical squad, was in place, the uniformed officers were able to drop back and protect other portions of the Police Department campus. The assault on officers continued and the crowd continued to grow. As such, I made the decision to make dispersal orders. I did so through the Public Address "PA" system in a patrol car parked immediately at the line between the STAR Team and the crowd. I made at least three dispersal orders, with ample time to allow for compliance, to no effect. There were also community leaders out talking to members of the crowd trying to get them to stop the violence and disperse, also to no effect.

Based on the escalating threat and violence, and after consulting with the commander for STAR Team, I made the decision to deploy a riot control agent, CS gas, commonly referred to as tear-gas. This was done in stages to allow for people to exit the area. Officers had to deploy CS gas several times in order to get any dispersal compliance. When this crowd eventually dispersed from the immediate area of the Police Department, they moved through the East Village causing substantial to [sic] damages, including Hilltop Tire (all windows smashed and items looted), the federal courthouse, and the Embassy Suites. We continued to have a police presence in the area and through time and persistence, we were able to

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