Grady v. Becker

907 F.Supp.2d 975

Berwin Lashon GRADY, Plaintiff,

v.Officer Michael BECKER, et al., Defendants.

Civ. No. 11–686 (RHK/JSM).

United States District Court, D. Minnesota.

Nov. 13, 2012.

Zorislav R. Leyderman, Law Office of Zorislav R. Leyderman, Minneapolis, MN, for Plaintiff.

Darla J. Boggs, Burt T. Osborne, C. Lynne Fundingsland, Minneapolis City Attorney's Office, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This case arises out of Plaintiff Bervin Lashon Grady's arrest on October 26, 2010. After Grady fled from the police, officers used a canine to chase him down and apprehend him, resulting in bite wounds to his right arm. Grady has sued four officers involved in the incident—Defendants Michael Becker, Scott Creighton, Todd Babekuhl, and Charles McCree—and the City of Minneapolis (the “City”), asserting that the officers (and hence the City) violated his constitutional rights and Minnesota law. Presently before the Court is Defendants' Motion for Summary Judgment. For the reasons that follow, the Court will grant the Motion in part and deny it in part.

BACKGROUND

Most of the events culminating in Grady's arrest are undisputed. On October 26, 2010, around 2:30 p.m., Grady was driving his car in north Minneapolis. Officers Babekuhl and Creighton were patrolling the area in a marked squad car; Babekuhl was driving and Creighton was in the passenger seat. After they observed Grady make a right turn without signaling, Babekuhl activated the squad car's overhead lights to pull Grady over. Grady drove his vehicle to a gas station and stopped, and the officers pulled in behind him, exited their vehicle, and walked up to his car.

Grady sped off as the officers approached.¹ Babekuhl and Creighton raced back to their car and took off after him; they also radioed that they were chasing a fleeing suspect and needed backup. The ensuing chase spanned several miles along city streets, with Grady speeding and running stop signs along the way. Eventually, he turned his car into an alley between Emerson Avenue North and Dupont Avenue North. There, the car inexplicably stopped functioning, rolling to a stop in the alleyway.

Babekuhl and Creighton arrived moments later, pulling their squad car alongside Grady's vehicle, hoping to prevent him from opening the door. Grady, however, managed to squeeze between the two vehicles and ran northbound down the alleyway. Babekuhl gave chase on foot, while Creighton remained in the squad car, prevented from opening the passenger door due to its proximity to Grady's car. Becker, who had driven to the area after hearing about the chase on his police radio, arrived at approximately the same time as Grady and Babekuhl, and he pulled up behind Grady's car. He, too, began chasing Grady down the alley on foot.

Meanwhile, McCree had heard about the chase over his police radio and drove to the area with his canine partner “Midnite.” Midnite is a German Shepherd trained in the “bite and hold” method of apprehension, meaning the dog will locate a suspect, bite him, and hold him until released by McCree. McCree and Midnite arrived on scene at about the time Grady exited from his car. McCree observed Grady run down the alley, with Babekuhl and Becker in pursuit 30 or 40 feet behind. At that point, McCree retrieved Midnite from the back seat of his car and released the dog to apprehend Grady.

The parties dispute whether McCree shouted any warnings before releasing the dog. Grady, Babekuhl, and Becker each testified in his deposition that he heard no warnings. On the other hand, McCree testified that he yelled two or three times, “Police canine, stop running or I'm gonna release the dog.” ²

Midnite raced up the alley as Grady took a hard right turn around a garage, where he encountered a tall fence. He contends that he quickly realized he would be unable to climb the fence and decided to voluntarily surrender, turning around and getting down on the ground on his hands and knees. Babekuhl and Becker rounded the garage seconds later and grabbed Grady's left arm to handcuff him. Midnite then rounded the garage and ran directly at Grady. He yelled out, “Get the dog, get the dog,” and instinctively moved his right hand to protect his face. Midnite then bit him on the right forearm and began tugging. Approximately 10 to 15 seconds later, McCree ran around the corner of the garage and removed the dog. The officers handcuffed Grady, but he alleges that either Babekuhl or Becker then kneeled on his face for 30 to 40 seconds before the officers finally lifted him up and placed him into one of the squad cars.³ Grady was transported to the hospital and treated for the dog-bite wounds, which later became infected and eventually scarred.

Grady commenced the instant action on March 21, 2011, asserting seven claims: excessive force against Babekuhl, Creighton, Becker, and McCree under the Fourth and Fourteenth Amendments to the United States Constitution (Count I); ⁴ a Monell claim ⁵ against the City of Minneapolis due to the alleged excessive force (Count II); assault (Count III) and battery (Count IV) against all Defendants; intentional (Count V) and negligent (Count VI) infliction of emotional distress against all Defendants; and negligence against all Defendants (Count VII). With discovery complete, Defendants now move for summary judgment on all of Grady's claims. At oral argument, Grady conceded dismissal of all claims against Creighton; the Monell claim; the claims for intentional and negligent infliction of emotional distress; and the negligence claim. What remain for resolution, therefore, are the following claims: excessive force (Count I) against Babekuhl, Becker, and McCree; and assault (Count III) and battery (Count IV) against these officers and the City. The Court held a hearing on October 25, 2012, and the Motion is now ripe for disposition.

STANDARD OF REVIEW

Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548;Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir.2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir.2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008).

ANALYSIS

I. Excessive force (Count I)

Grady's excessive-force claim comprises two distinct allegations: that (1) McCree used excessive force by releasing Midnite without first giving a warning and (2) Babekuhl or Becker (he is unsure who) used excessive force by kneeling on his face. The officers assert that they are entitled to qualified immunity on these claims. The Court agrees only in part.

A. Qualified immunity principles

Qualified immunity insulates government officials from suit when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citation omitted). Officers “are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir.2012) (citation omitted). Hence, “all but the plainly incompetent or those who knowingly violate the law” are protected. Id.

In analyzing whether a police officer is entitled to qualified immunity, the Court must answer two questions: Do the facts show that the challenged conduct violated a constitutional right? And if a violation could be established on those facts, was the right clearly established on the date in question? E.g., Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir.2004) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The Court is “permitted to exercise [its] sound discretion in deciding which of the[se] two [questions] should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808.

The constitutional right at issue here is the Fourth Amendment's prohibition on excessive force. Whether a police officer used constitutionally excessive force is analyzed under an “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 392, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir.2006). The Court must evaluate the facts and circumstances surrounding the use of force, “including the severity of the crime at issue, whether the [plaintiff] pose[d] an immediate threat to the safety of the officers or others, and whether [the plaintiff] ... resist[ed] arrest or attempt[ed] to evade arrest by flight.” Samuelson, 455 F.3d at 875 (internal quotation marks and citation omitted). Put another way, determining the reasonableness of the force requires the Court to “evaluate the totality of the circumstances,” “careful [ly] balancing of the nature and quality of the intrusion on [Grady's] Fourth Amendment interests against the countervailing governmental interests at stake.” Copeland v. Locke, 613 F.3d 875, 881 (8th Cir.2010) (citations omitted). This inquiry is an objective one, “without regard to [each...