Lewis v. City of Burnsville

573 F.Supp.3d 1334

Linda LEWIS, individually, and as Trustee For the Next-of-Kin of Jamie Joseph Lewis, Plaintiff,

v.CITY OF BURNSVILLE, a municipal corporation, Steven Stoler, all in their official and individual capacities, Brett Levin, all in their official and individual capacities, and John Smith, all in their official and individual capacities, Defendants.

File No. 19-cv-01117 (ECT/JFD)

United States District Court, D. Minnesota.

Signed November 22, 2021

Michael Kemp, Aaron Ferguson Law, Roseville, MN, for Plaintiff Linda Lewis.

Vicki A. Hruby and Joseph E. Flynn, Jardine Logan & O'Brien PLLP, Lake Elmo, MN, for Defendants City of Burnsville, Steven Stoler, and Brett Levin.

OPINION AND ORDER

Eric C. Tostrud, United States District Judge Plaintiff Linda Lewis is the mother of Jamie Lewis and is the appointed Trustee for Jamie's next of kin. She filed this case in April 2019, after police officers employed by the City of Burnsville shot and killed Jamie while he was in the midst of a mental-health crisis. She asserts § 1983 and state-law negligence claims against the City of Burnsville and responding officers Steven Stoler and Brett Levin. Defendants seek summary judgment, and their motion will be granted. The undisputed facts show that officers reasonably believed that Jamie had pointed a loaded firearm at them. Police officers did not violate Jamie's constitutional rights when they shot him. If that were incorrect, there is no reasonable dispute that officers did not violate a clearly established right of Jamie's. Linda's state-law claims are barred by official immunity under Minnesota law. The disposition of Defendants’ summary-judgment motion makes it unnecessary to address motions to exclude expert testimony filed by both Linda and Defendants.

I¹

On September 26, 2016, C.H. called 911 at 8:22 p.m. to report that her boyfriend, Jamie, had left her apartment on Cliff Road in Burnsville, Minnesota, about five minutes earlier on foot; was "planning on killing himself"; had "been planning this for days"; had some kind of "smaller" gun and "a bunch of bullets"; and had consumed a beer and "a bunch of NoDoz." Hruby Decl. Ex. 1 ("911 Audio") [ECF No. 85-1] at 0:03–4:30; Hruby Decl. Ex. 4 (Burnsville police computer-aided dispatch ("CAD")) [ECF No. 85-4 at 13–14]; see also Hruby Decl. Ex. 2 ("C.H. Dep.") [ECF No. 85-2 at 2, 4, 7]; Hruby Decl. Ex. 20 ("C.H. Interview") [ECF No. 85-10 at 19].² C.H. and Jamie had recently broken up, and Jamie, who had depression, had been upset for the last several days and quit his job. CAD at 10; C.H. Dep. at 6; 911 Audio at 4:35–4:41, 5:44–5:50, 8:06–8:25, 8:44–9:15; C.H. Interview at 15. C.H. also reported:

That if I called the cops, that he'll make sure he goes out good, ‘cause he is planning on not coming back, no matter what. He does not want to live. I was even afraid to call you guys ‘cause if anyone tries to find him, he'll do it, he'll do something stupid. But I totally believe him.

911 Audio at 5:17–5:43. The 911 operator asked, "Do you think he'll be violent towards police when they find him?" and C.H. responded:

He's a convicted felon that—from a hundred years ago, he's marked, yeah. He's not gonna go back to prison. He already made that clear. He's not a violent person, but he made it clear he's going to kill himself and, if the cops try to stop him, it's not going to work, ‘cause he's not going to prison for having a gun.

911 Audio at 7:19-7:49; see also C.H. Dep. at 4–5. C.H. got off the 911 call when officers arrived at her apartment. 911 Audio at 9:29–9:54.

This information was relayed to officers. See Hruby Decl. Ex. 3 ("Dispatch Audio") [ECF No. 85-3] at 0:05–0:36 (relaying that a male, shortly identified as Jamie Lewis, was on foot "with a gun and bullets, said he's gonna go kill himself"; drank a beer and took some NoDoz; left five minutes ago; and had said he'd been "planning this for days," among other details); id. at 2:05–2:17 (relaying report that suspect is "a convicted felon and he said that he wasn't going to go back to prison, he's not violent, but that he made it clear the cops couldn't stop him"); CAD at 10, 13–14; Hruby Decl. Ex. 5 ("Stoler Dep.") [ECF No. 85-4 at 29, 34]; Hruby Decl. Ex. 6 ("Levin Dep.") [ECF No. 85-4 at 65–66].

C.H. provided further information to the officers who came to her apartment, saying that Jamie had severe depression, that he had said he did not want to be caught by law enforcement, and that officers should be careful approaching Jamie because he would not be cooperative. C.H. Interview at 15–19; C.H. Dep. at 5, 8; Hruby Decl. Ex. 8 ("Police Report") [ECF No. 85-4 at 74–75, 79]. C.H. showed officers a box of bullets that was partly empty and said Jamie had loaded some bullets into a gun before he left. C.H. Dep. at 5, 8; C.H. Interview 17–18. She also provided a photo of Jamie. Police Report at 79.

These details, and the photo, also were relayed to officers. Dispatch Audio at 4:21–4:39, 7:04–7:17; CAD at 6; Stoler Dep. at 32 ("We had gotten further information from the officers on the scene from Mr. Lewis's girlfriend that he had left with the gun and the ammunition, that he was a convicted felon, wasn't going back to prison and was going down fighting."); id. at 34 (similar); id. 39–40 (reviewing information Stoler had received); Levin Dep. at 65–66; Police Report at 79; Hruby Decl. Ex. 10 ("Carlson BCA Interview") [ECF No. 85-5 at 9]; Hruby Decl. Ex. 17 ("Nacey BCA Interview") [ECF No. 85-10 at 2].

Numerous officers responded to the situation and began searching for Jamie. E.g. , Dispatch Audio at 3:13–3:42, 5:26–5:43 (communications among officers regarding how to search and places searched); Stoler Dep. at 30; Levin Dep. at 59; Carlson BCA Interview at 9; Nacey BCA Interview at 2. Relevant here, Stoler was the Patrol Sergeant on duty and served as incident commander. Stoler Dep. at 29, 33; Levin Dep. at 59. And Levin heard the call on his squad car radio and joined the search. Hruby Decl. Ex. 11 ("Levin BCA Interview") [ECF No. 85-5 at 12]. Officers were searching "a wide-ranging area," and Stoler eventually called in a helicopter equipped with a forward-looking infrared ("FLIR") camera to look for heat signatures. Dispatch Audio 9:02–9:06, 20:43–20:55; Stoler Dep. at 33, 35, 36. Officers, including Stoler and Levin, had concerns about foot traffic and other activity of the public and worked to clear people from the area. See Dispatch Audio 6:48–6:56; Stoler Dep. at 33, 37, 49; Levin Dep. at 60.

The FLIR operator in the helicopter located a "hot spot"—a heat signature—and directed Stoler and Levin to it because their squad cars were nearby. Dispatch Audio at 20:58–21:44; Stoler Dep. at 38; Levin Dep. at 62; Hruby Decl. Ex. 13 ("FLIR Video") [ECF No. 85-6] at 00:00–00:48. As they arrived, they were told that the hot spot was "proned out," then moments later that it was moving and was a person. Dispatch Audio at 21:45–21:59; FLIR Video at 00:48–01:18.

Based on the information they had been provided, Stoler and Levin each believed Jamie was a threat to officers and the public. According to Stoler,

Key information that a male had left the apartment with a .45 caliber handgun and bullets and that he was suicidal. The fact that he bought bullets plural is abnormal for somebody that wants to commit suicide. You only need one bullet. There was information that he had been drinking and took NoDoz, that he was a convicted felon, was not going to go back to prison and he would go down fighting if he was caught with a gun. Based on all that, I determined him to be a significant threat to the public and officers.

Stoler Dep. at 39–40; see also id. at 40 (Stoler's view of Jamie's potential for violence and whether Jamie was a threat to officers or the public); id. at 42. According to Levin,

It was my belief at that time he was reported to be suicidal, but the fact that he had made an actual statement to her that he wasn't going to go down without a fight and he wasn't going to go back to jail, the fact that he had a handgun with actual bullets led me to believe he also was homicidal or could be homicidal as well.

Levin Dep. at 65–66; see also id. at 69.

Stoler and Levin, who were in uniform, exited their squad cars near the hot spot. Stoler Dep. at 43, 44; Levin Dep. at 63–64; Levin BCA Interview at 14; Hruby Decl. Ex. 12 ("Stoler BCA Interview") [ECF No. 85-5 at 20]; Hruby Decl. Ex. 14 ("Levin Body Cam") [ECF No. 85-7] at 00:00–00:10; Hruby Decl. Ex. 15 ("Stoler Body Cam") [ECF No. 85-8] at 00:00–00:03. Levin turned on his spotlight and directed it to the hot spot, and Stoler positioned himself behind Levin's car, near the driver's door, such that he was standing to Levin's right. Stoler Dep. at 44, 48; Levin Dep. at 64; Levin BCA Interview at 14; Levin Body Cam at 00:11–00:18; Stoler Body Cam at 00:04–00:13. Stoler "immediately saw him with a handgun.... It was very clear, it was a silver colored handgun." Stoler Dep. at 46; see also id. at 45 (describing being "focused on the weapon" which "was clearly a handgun," "silver in color"); Levin Dep. at 67 ("I can confirm that I observed -- during the incident I observed a silver/gray handgun."). Stoler announced that the person had a gun. Dispatch Audio at 22:00–22:03; Stoler Dep. at 44 (Stoler communicated to others, "[o]ne at gunpoint, person has a gun"); id. at 46 (confirming same); Levin Dep. at 64; FLIR Video at 01:18–01:27 (radio stating, "one at gunpoint, he's got a gun in his hand"); Levin Body Cam at 00:40–00:42.

Stoler and Officer Levin both had their rifles out. Stoler Dep. at 48; Levin Dep. at 68; Levin Body Cam at 00:18; Stoler Body Cam at 00:10–00:13. Over the course of about twenty-five to thirty seconds, they told Jamie (Stoler and Levin did not yet know his identity) twice that they were police, three times to keep his hands in the air, and seven times to drop his gun, but he did not put his hands in the air or put down his gun. Stoler Dep. at 47, 48; Levin Dep. at 68; Carlson...